Citation Nr: 18141127 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 08-18 600 DATE: October 9, 2018 ORDER Entitlement to service connection for a brain tumor, to include as a result of exposure to herbicide agents, is denied. Entitlement to service connection for a back disorder, to include as secondary to service-connected disability, is denied. Entitlement to service connection for a hip disorder, to include as secondary to medications used to treat service-connected disability, is denied. REMANDED Entitlement to service connection for headaches, to include as secondary to a brain tumor, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a brain tumor due to a disease or injury in service, to include as a result of exposure to herbicide agents. 2. The Veteran’s back disorder is neither proximately due to nor aggravated beyond its natural progression by service-connected disability, and is not otherwise related to an in-service injury, event, or disease. 3. The Veteran’s back disorder is neither proximately due to nor aggravated beyond its natural progression by service-connected disability or medications used to treat service-connected disability, and is not otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a brain tumor, to include as a result of exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for a back disorder, on a direct basis or secondary to service-connected disability, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 3. The criteria for service connection for a hip disorder, on a direct basis or secondary to service-connected disability, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from September 1977 to February 1982. He was honorably discharged. In December 2012, the Veteran testified before the undersigned at a video conference hearing. A transcript of the Board hearing is of record. The Veteran’s appeal was previously remanded in October 2012, April 2013, and September 2015. In April 2017, the Board remanded the Veteran’s claims for addendum opinions. In April 2018, the Board submitted requests for VHA opinions. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). An increase in severity of a nonservice-connected disease or injury shall not be service-connected if it is due to the natural progression of the nonservice-connected condition. Id. at 447–48. Service connection on a secondary basis may not be granted without medical evidence of a current disability and evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512–14 (1998). Service connection will also be presumed for certain chronic diseases, including brain tumors, if manifest to a compensable degree within one year after discharge from service. 38 C.F.R. §§ 3.307, 3.309. A veteran who, during active military service, served in Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to herbicide agents. 38 C.F.R. §§ 3.307, 3.309. For the purposes of this section, “herbicide agent” means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the above-stated period. 38 C.F.R. § 3.307(a)(6). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307. The presumption requires that a veteran actually stepped foot on land in Vietnam or served in the inland waterways in the interior of the Republic of Vietnam (“brown water service” versus “blue water service”). Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). If a Veteran is exposed to an herbicide agent during active service and one of the listed diseases manifests any time after service, the disability is presumed related to the exposure. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). If herbicide agent exposure is not presumed, the Veteran may attempt to show herbicide agent exposure on a facts-found basis. 38 U.S.C. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Exposure then becomes a matter of fact to be determined by the Board. 1. Entitlement to service connection for a brain tumor, to include as a result of exposure to herbicide agents At his December 2012 hearing, the Veteran argued that his brain tumor was caused by exposure to Agent Orange-contaminated supplies, including cargo nets and slings, that were shipped to Hawaii from Vietnam during the Veteran’s period of active-duty service from September 1977 to February 1982. The Veteran’s brain tumor was first diagnosed in 1993, which is over 10 years after he was released from active-duty service. Service connection is therefore not available presumptively on the basis of development of a chronic disease within one year of service. Exposure to herbicide agents is also not presumed because there is no evidence or argument that the Veteran served on any land or ship in Southeast Asia, including Vietnam, between January 9, 1962, and May 7, 1975. For these reasons, service connection is available on a direct basis only. The first element is established, in that the Veteran was diagnosed with a brain tumor in 1993. The second element is also established, in that as already noted the Veteran argues that his brain tumor is the result of exposure to Agent Orange-contaminated equipment. Unfortunately, service connection must be denied because the preponderance of the evidence is against the existence of a nexus between a brain tumor and service. A February 2018 VHA opinion, obtain by special request of the Board, notes that a 2015 specimen of the Veteran’s brain tumor, an “astrocytic neoplasm,” was positively identified as an IDH1 mutant. According to the examiner, “the clinical presentation and the clinical progression of [the Veteran’s] astrocytoma are typical of what is observed in other patient’s [sic] with IDH-mutant astrocytomas whom have not been exposed to agent orange . . . .” Also, the Veteran was in his 30s at the time of his original diagnosis, which according to the examiner is the typical age at which these tumors develop. According to the examiner, “there is no link between agent orange exposure and the development of astrocytic neoplasms.” In considering the medical opinion as a whole, the Veteran’s brain tumor is the result of a genetic mutation, not exposure to herbicide agents or other chemicals. The Veteran has not identified any chemicals that he may have been exposed to other than herbicide agents. For these reasons, the examiner concludes that the Veteran’s brain tumor is less likely than not related to service. This medical opinion is probative because it is based on a review of the record and contains clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301–02 (2008). The Board further notes that the author of the February 2018 VHA opinion is an associate professor at the University of Pittsburgh with an M.D./Ph.D. who is a chief of both “Molecular Anatomical Pathology” and “Neuropathology,” and laboratory director of “Pathology & Laboratory Medicine.” This education and experience further support the credibility of the February 2018 VHA opinion. As the preponderance of the evidence is against the existence of a nexus, the Veteran’s claim must be denied. The Board notes that VA medical opinions dated September 2013 and October 2016 also opine that the Veteran’s brain tumor is less likely than not related to service. However, as prior Board Remands dated September 2015 and April 2017 both specifically state that these opinions are inadequate, the Board will not further address them in this decision. 2. Entitlement to service connection for a back disorder, to include as secondary to service-connected disability The Veteran provides two bases for service connection for his back disorder. First, that it is the result of in-service injury. Second, that it is the result of medications used to treat his brain tumor. As the Board has held that the Veteran’s brain tumor is not service-connected, the Board must deny entitlement to service connection as secondary to his brain tumor or the medications used to treat it. Regarding direct service connection, the first element is satisfied, in that the September 2013 VA examination contains a diagnosis of “very mild age-related degeneration.” The second element is also satisfied, in that service treatment records from September 1979 (received 3/16/05, pages 1–3 of 7) describe three days of low back pain after lifting heavy objects. Unfortunately, service connection must be denied because the preponderance of the evidence is against the existence of a nexus. An April 2017 VA addendum opinion states that the Veteran’s “disc degeneration is caused primarily by ageing and genetics” and that “there is no indication on the MRI of any traumatic changes” in the Veteran’s back. Consistent with this, the March 2018 VHA opinion obtained by the Board states that the Veteran has “mild degeneration” that “is related to usage and maybe on a genetic basis.” The March 2018 VHA examiner further states: “I can establish no relationship to the present changes of wear and tear on [the Veteran’s] spine and the back pain that he experienced in the service. I feel that his back pain was, at the time, of an acute and self-limited nature.” Both medical opinions conclude that the Veteran’s back disorder is less likely than not related to service. These medical opinions are probative because they are based on a review of the record and contain clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez, 22 Vet. App. at 301–02. As the preponderance of the evidence is against the existence of a nexus, the Veteran’s claim must be denied. A September 2013 VA medical opinion also opines that the Veteran’s back disorder is less likely than not related to service. However, as the September 2015 Board Remand held the opinion to be inadequate and the April 2017 Remand stated that the opinion had an insufficient rationale, the Board will not further consider the September 2013 VA medical opinion. 3. Entitlement to service connection for a hip disorder, to include as secondary to medications used to treat a service-connected disability The Veteran argues that his left hip injury is secondary to his brain tumor, specifically, that the steroids he took to treat his brain tumor deteriorated his hip and led to receiving a hip replacement. As the Board has held that the Veteran’s brain tumor is not service-connected, the Board must deny entitlement to service connection as secondary to his brain tumor or the medications used to treat it. For the left hip, there is a current disorder so as to satisfy the first element. Specifically, the October 2013 VA hip examination indicates a left hip replacement, and the March 2018 VHA opinion indicates what appears to be a pre-surgery diagnosis of avascular necrosis. The second element is not satisfied. An October 1977 service treatment record (received 3/16/05, page 4 of 7) indicates right hip pain only. There is no other evidence or argument regarding any other in-service injury to the left hip. Rather, the Veteran and his representative have only specifically argued that the Veteran’s left hip disorder is the result of medications used to treat his brain tumor. Because the Veteran is not entitled to service connection for a brain tumor and the preponderance of the evidence is against the existence of an in-service injury, the Veteran’s claim must be denied. For the right hip, there is no current diagnosis. The September 2013 VA hip examination indicates “normal right hip.” There is some pain, but the examiner specifically states that the Veteran’s hip disorders do not impact his ability to work. There is no evidence or argument to contradict these particular medical findings, including the Veteran’s hearing testimony and recent VA medical records. While there is evidence of in-service right hip pain, service connection must be denied because there is no evidence of a current right hip disorder. The Board notes that a September 2013 VA medical opinion concludes that the Veteran’s hip disorder is less likely than not related to service. However, as the April 2017 remand held that this opinion was inadequate, the Board will not further consider it. REASONS FOR REMAND 1. Entitlement to service connection for headaches, to include as secondary to a brain tumor is remanded. The Board is required to ensure compliance with its remand orders. Stegall v. West, 11 Vet. App. 268 (1998). In April 2017, the Board remanded the Veteran’s claims to obtain addendum opinions regarding whether the Veteran was entitled to service connection for a migraine disorder, on a direct basis or as secondary to a brain tumor. As the Board has held that the Veteran is not entitled to service connection for a brain tumor, an opinion as to secondary service connection is not required. However, the April 2018 VA examiner did not offer an opinion regarding entitlement to service connection for a migraine disorder on a direct basis. An addendum opinion is required. Additionally, on Remand the RO should obtain all relevant VA treatment records dated from April 2017 to the present before the issues on appeal are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matter is REMANDED for the following action: 1. Obtain all VA treatment records from April 2017 to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. After obtaining any additional records to the extent possible, obtain medical opinions regarding the following: (a.) Whether the Veteran has any current or previously-diagnosed headache disorder; and (b.) Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed headache disorder was incurred in the Veteran’s service. In rendering these opinions, the examiner should consider the Veteran’s December 2012 hearing testimony that he experienced monthly headaches during service, which he self-medicated. For purposes of these opinions, the examiner is to assume that this testimony is credible. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. Whether to schedule the Veteran for a VA examination shall be left to the discretion of the examiner selected to write the addendum opinion. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel