Citation Nr: 1806250 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 11-09 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a compensable disability rating for conjunctivitis/blepharitis. 2. Entitlement to service connection for residuals of a right parietal occipital craniotomy, status post resection of meningioma (claimed as a brain tumor), to include as due to exposure to herbicides in service. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his Spouse ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel INTRODUCTION The Veteran had active duty service from August 1966 to July 1969, including service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In December 2014, the Veteran testified at a hearing before a Veterans Law Judge. A transcript of the proceeding is associated with the electronic claims file. In a November 2017 letter, the Board informed the Veteran that the Veterans Law Judge who conducted the December 2014 hearing has since left employment with the Board and offered him another hearing. In December 2017 written correspondence, the Veteran declined another hearing. Accordingly, no further hearing will be scheduled in this matter. In March 2015, the Board remanded these matters for further development. The issue of a compensable disability rating for conjunctivitis/blepharitis addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Residuals of a right parietal occipital craniotomy, status post resection of meningioma, are not shown to have manifested in service or for years thereafter and are not shown to be due service, to inclue exposure to herbicides. The only medical opinions of evidence to address the etiology of the meningioma weigh against the claim. CONCLUSION OF LAW The criteria for service connection of residuals of a right parietal occipital craniotomy, status post resection of meningioma, to include as due to exposure to herbicides in service, have not been met. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board notes that a VA examination was performed in July 2015 and an addendum report was provided in August 2015, wherein the examiner opined that it would require mere speculation to comment on the etiology of the Veteran's brain tumor. Where an examiner reports that an opinion cannot be provided without resort to speculation, it is necessary to determine whether there is additional information that could enable the examiner to provide the necessary opinion or whether the inability to provide the opinion was based on the limits of medical knowledge. Jones v. Shinseki, 23 Vet. App. 382 (2010). With respect to the 2015 examination and addendum opinion, the Board finds that they are adequate, despite the examiner's conclusion that it would require mere speculation to comment on the etiology of the Veteran's brain tumor, to include his exposure to herbicides and the tumor's relation thereto. In Jones v. Shinseki, 23 Vet. App. 382 (2010), the Court stated that VA need not "proceed through multiple iterations of repetitive medical examinations until it obtains a conclusive opinion or formally declares that further examinations would be futile," but it must be clear "that the examiner has not invoked the phrase 'without resort to mere speculation' as a substitute for the full consideration of all pertinent and available medical facts to which a claimant is entitled." In this case, it is clear that the VA examiner fully and completely reviewed the record, conducted an extensive examination and interview of the Veteran, and reviewed the pertinent medical research. The examiner's inability to fully render the opinions requested by VA was due to several factors, including absence of any documented symptoms in active service, the lack of documented symptoms for decades after service, and, as noted by the examiner, the lack of medical research to support a medical relationship. In this case, the examiner provided a basis for his determination and his opinion reflected the limitations of the medical community at large. See Jones, 23 Vet App at 390. The Board therefore concludes that the VA examiner's medical opinions are adequate and remanding for an additional examination and medical opinion would serve no useful purpose and would only result in additional delay in the Veteran's case. As such, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board also notes it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all Veterans who served in Vietnam during the Vietnam Era. See 38 U.S.C.A.§ 1116 (f) (2012) and 38 C.F.R. § 3.307 (a)(6)(iii) (2017). The Veteran has verified service in Vietnam and, therefore, his exposure to herbicides has been conceded (see September 2010 rating decision). If a Veteran was exposed to a herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II or adult-onset diabetes mellitus), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 57586-57589 (1996). VA amended the list of covered diseases presumed service-connected due to herbicide exposure as to include the conditions of all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), Parkinson's disease, and ischemic heart disease. A new Note 3 to section 3.309(e) provides that "the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease." See 75 Fed. Reg. 52,202-53,216 (Aug. 31, 2010), to be codified later at 38 C.F.R. § 3.309(e). The diseases listed at § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year, after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994). Factual Background The Veteran contends his right parietal occipital craniotomy, status post resection of meningioma, was due to his active duty service, to include his exposure to herbicides while in-service. The Veteran's service treatment records are void of any complaints, symptoms, or examination for his brain tumor or any residuals thereof. An October 2008 VAMC internal medicine admission evaluation indicated the Veteran presented with symptoms of headaches, confusion, and dizziness for the prior 6 months. The Veteran reported that he last felt "normal" over a year prior. He had been involved in a minor automobile accident, which he attributed to being distracted, and presented to the emergency department for further evaluation. He reported that his dizziness occurred 1-2 times a month and resolved spontaneously. He stated that his first episode was 6-12 months prior. He reported that his headaches were right sided, frontal, and occurred several times a week. In October 2008, a VAMC radiology note showed the Veteran to have a right posterior parasagittal mass. An October 2008 VAMC discharge note indicated the Veteran had presented with symptoms of headaches, cognitive attention defects, and very mild left-sided neglect. He was found on imagining to have a large right parasagittal meningioma. He underwent surgery to remove the mass and was noted to have done well post-operatively. In November 2008, a VAMC primary care follow-up note showed the Veteran to be status post-operative craniotomy for a meningioma. The Veteran was having some residual neurological side effects, including sensitivity to light and noise, intermittent numbness on the fingers of his left hand, and a loss of visual field in the left eye. In January 2009, a VAMC radiology note indicated the Veteran was having symptoms of confusion and personality changes. He underwent a CT to determine if there was tumor regrowth. The CT showed a right parietal craniotomy, encephalomalacia in the parietal lobe, no mass effect, and no acute findings. In April 2009, the Veteran submitted a statement wherein he reported that his wife had taken him to the emergency room after experiencing dizziness, driving erratically, and cognitive difficulties. The Veteran stated that the doctors had indicated to him that due to the size of his tumor, it had been there for many years. In June 2010, a VA examination found the Veteran had a history of tremors since his removal of a right parietal meningioma. Upon examination, the Veteran was not found to have any sensory findings, motor defect, or cranial nerve impairment. Imbalance or tremors were found in the right upper extremity with occasional involvement of the left upper extremity. Both were found to have inconsistent frequency and amplitude. In June 2010, the Veteran had an MRI which showed an expected appearance of resection cavity of right parietal meningioma with no disease recurrence or progression. In January 2013, a VAMC record indicated the Veteran had an MRI which showed the expected appearance of right parietal name tumor resection with no findings of residual or recurrent disease. In December 2014, the Veteran and his wife testified before a Veterans Law Judge. He testified that he was diagnosed with a brain tumor in October 2008 and had surgery shortly thereafter his diagnosis. He reported that he was experiencing residuals of the removal of the tumor. His wife stated that the Veteran's tumor was four inches by six inches and that the doctors told her that they had not seen a tumor as large as her husband's. She also testified that she was told by the physicians that her husband's tumor had been growing for, "years and years and years." The Veteran stated he was having cognitive difficulties since his surgery and increased anxiety. The Veteran stated that his physicians were unable to tell him the probable cause of his tumor. The Veteran's wife stated that they asked the physicians about the cause of his tumors and were told that the doctors just did not know and could not answer the causation question. The Veteran stated that one physician mentioned the possibility of a relation between the tumor and the Veteran's exposure to herbicides. The Veteran's wife testified that they believed that his tumor was related to his herbicide exposure. The Veteran stated that herbicides were sprayed inside the screening where he slept. In July 2015, a VA examination found the Veteran to have been diagnosed with a brain tumor in 2008 and psychogenic tremors. The Veteran reported that he had been diagnosed with a brain tumor in 2008 after symptoms of dizziness, headache, and some confusion. He reported a tumor removal in 2008 and that afterwards he suffered from headaches, photophobia, and dry eye. He then developed tremors. His speech and gait were found to be abnormal. His muscle strength and reflexes were normal. The Veteran reported regular use of a cane. The examiner stated that the Veteran's meningioma was less likely than not related to his service, to include his exposure to herbicides. The examiner sated that meningioma was a benign brain tumor of unknown etiology whose development was not presumptively linked to herbicide exposure. The examiner reported that the National Academy of Sciences (NAS) noted that a study provided evidence of a possible relationship between herbicide exposure and meningiomas in women, but that the lack of identification of specific chemicals of interest made interpretation of that result uncertain. The examiner noted that NAS then concluded that the overall evidence remained inadequate or insufficient to determine whether an association between herbicides and meningioma existed. Ultimately, the examiner therefore concluded that it would be resorting to mere speculation to state that the development of the benign tumor was related to herbicide exposure, until proven otherwise. The examiner also addressed the statements made by the Veteran and his wife in the December 2014 hearing regarding the size of the Veteran's tumor and how long the tumor existed. The examiner stated that the statements reported by the Veteran and his wife were all speculative and did not establish that the Veteran's tumor originated in service. In an August 2015 addendum, the VA examiner indicated that it would be resorting to mere speculation to state that the Veteran's brain tumor had onset or development in service. The examiner stated that meningioma onset and/or rate of growth had not been determined despite scientific studies attempting to provide a clue or some guidance. The examiner again sated that the statements related by the Veteran and his wife regarding the size and length of time of the tumor may be present were speculative statements. The Board first notes that although the Veteran served in the Republic of Vietnam while on active duty and is presumed to have been exposed to an herbicide agent, presumptive service connection is not available under 38 C.F.R. § 3.309(e) for his meningioma residuals, as meningioma is not included on the list of conditions afforded presumptive service connection. Accordingly, the Board finds that service connection for the Veteran's disorder cannot be granted under the presumptive provisions of 38 C.F.R. §§ 3.307, 3.309. Despite this, service connection for the Veteran's meningioma residuals may still be established on the basis of direct causation. See McCartt v. West, 12 Vet. App. 164, 167 (1999); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Direct service connection necessitates that the Veteran's brain tumor was related to an injury or disease incurred in service. The evidence of record, however, does not support such a finding. In this regard, the Veteran's brain tumor was not discovered until October 2008, over thirty years after his separation from service. Additionally, the Veteran stated that he began first experiencing symptoms he attributed to the tumor a year prior to his diagnosis. Thus, the evidence of record does not establish that the Veteran's tumor had any direct manifestation in-service or for many years after service. From the medical evidence of record, and the Veteran's testimony and statements, the first presentation of tumor related symptoms was in 2007 - over thirty years after his qualifying period of active duty service. The passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). The record also does not establish that the Veteran's tumor was causally related to his exposure to herbicides in service. The July 2015 VA examiner did not find that the Veteran's meningioma was related to either his exposure to herbicides or to his active duty service. The examiner stated that the Veteran's tumor was less likely than not related to his service, to include his exposure to herbicides. The Board finds the July and August 2015 VA examiner's medical opinions highly probative to the issue of whether the Veteran's brain tumor was related to service or a service connected disability, to include his exposure to herbicides. The examiner possesses the necessary education, training, and expertise to provide the requested opinion. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The opinion was based on a review of the claims file and an interview of the Veteran. The examiner's review of the Veteran's claims file consisted of his service treatment records and post-service medical evidence, and his contentions, upon which the examiner relied upon in giving his opinion. It is clear that the examiner took into consideration all relevant factors in giving his opinion. As noted above, the fact that the examiner could not attribute a specific cause to the etiology of the Veteran's brain tumor does not render the medical opinions inadequate or devalue their probative weight. Significantly, the Veteran has not presented or identified any contrary medical opinion that supports the claim for service connection. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The Board notes that both the Veteran and his wife have stated that the Veteran's treating physicians reported his tumor existed for many years. However, these statements do not establish the originating time of the Veteran's tumor or link it to any aspect of the Veteran's service, to include his in-service exposure to herbicides. As noted by the VA examiner, the statements of the Veteran's physicians as reported by the Veteran and his wife are speculative as to the causation and origination of the Veteran's brain tumor. The Board finds, then, that the only medical opinion evidence of record shows that the Veteran's brain tumor was not related to his active service, to include his exposure to herbicides. The Board has considered the Veteran's lay statements, to include his hearing testimony, and the hearing testimony of his wife. The Board does not dispute the Veteran's nor his wife's reports of his symptomology. Although the Veteran and his wife are competent to describe observable symptoms of the Veteran's brain tumor, they are not competent to opine as to the etiology of that tumor, as they have not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, their lay opinions that the Veteran's brain tumor originated in active service or was caused by the Veteran's exposure to herbicides while in-service do not constitute competent medical evidence and lack probative value. In sum, the claims file does not contain competent and credible evidence that the Veteran's residuals of a right parietal occipital craniotomy, status post resection of meningioma, was related to service. Accordingly, as the preponderance of the evidence is against the claim for service connection, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for residuals of a right parietal occipital craniotomy, status post resection of meningioma is denied. REMAND Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. As stated above, the Board remanded the issue of a compensable evaluation for the Veteran's service connected conjunctivitis/blepharitis in March 2015. In its remand instructions, the Board directed the RO to obtain a VA examination regarding the Veteran's eye disorder that specifically addressed certain medical information and documentation contained in the Veteran's file. The Board also requested an opinion regarding the Veteran's dry eye condition. A VA examination regarding the Veteran's service connected eye disability was conducted in July 2015 and an addendum opinion was issued in October 2017. The examiner, however, did not address the evidence highlighted by the Board in its March 2015 remand instructions or provide the requested opinion regarding the Veteran's dry eye. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, an additional remand of this issue consistent with the prior remand instructions is warranted. Accordingly, the case is REMANDED for the following actions: 1. Associate with the record any VA clinical documentation not already of record pertaining to treatment of the Veteran, including that provided after 2015. 2. Thereafter, schedule the Veteran for a VA examination with an Ophthalmologist to determine the nature and severity of his service connected conjunctivitis/blepharitis. The claims file must be made available to the examiner, including a copy of this and the Board's prior Remand, for review in connection with the examination, and it should be confirmed that such records were available for review. All necessary tests and studies should be accomplished, and complaints and clinical manifestations should be reported in detail. The examination report must include a complete rationale for all opinions expressed. The examiner should identify and describe in detail all manifestations of the Veteran's service-connected conjunctivitis/blepharitis. In doing so, the examiner should specifically state whether the Veteran's claimed symptoms of dry eye syndrome, photophobia, and/or decreased visual acuity and peripheral vision are manifestations of his service-connected eye disability. In providing this information, the examiner should acknowledge and discuss the significance, if any, of the following evidence: (a) the January 2009 VA psychiatrist's letter, which notes how "his brain tumor was affecting his vision"; (b) the March 2009 Social Security Administration (SSA) private psychological evaluation, which notes the Veteran's reports that his vision was affected as a result of the tumor and that he currently continues to experience vision problems; (c) the December 2009 VA treatment report, which includes an impression of "Brain Tumor with questionable [visual field] defects"; and (d) the January 2010 VA treatment report, which states that "MRI findings would not cause any right [visual field] issues." Finally, the examiner should discuss the degree of any occupational impairment attributable to the Veteran's service-connected eye disability. In particular, the examiner should describe what types of employment activities would be limited because of the Veteran's service-connected disability, what types of employment would not be limited (if any), and whether any limitation on employment is likely to be permanent. If the examiner cannot provide the requested opinion without resorting to speculation, he/she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. After ensuring compliance with the development requested above, readjudicate the claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs