Citation Nr: 1803967 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-11 609 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for benign schwannoma tumor, sciatic notch as due to herbicide exposure, and if so whether service connection is warranted. 2. Entitlement to service connection for benign schwannoma tumor, sciatic notch as due to herbicide exposure REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD B. J. Komins, Associate Counsel INTRODUCTION The Veteran had active duty in the United Air Force from August 1962 to August 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2012 rating decision, which reopened a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia that denied service connection for schwannoma tumor, sciatic notch but denied service connection on the merits. The Board has re-characterized the Veteran's claim as entitlement to service connection for benign schwannoma tumor, sciatic notch as due to herbicide exposure, to reflect the Veteran's lay evidence and diagnostic impressions in the evidence of record. FINDINGS OF FACT 1. In November 2008, the RO denied service connection for schwannoma tumor, sciatic arch as due to herbicide exposure; the Veteran did not express timely disagreement or submit new evidence within one year. 2. The evidence received since the November 2008 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the underlying claim of to service connection for schwannoma tumor, sciatic arch due to herbicide exposure. 3. The Veteran's benign schwannoma tumor, sciatic arch did not manifest during active service, nor does the evidence establish that benign schwannoma tumor, sciatic arch is otherwise related to service, to include as due to herbicide exposure. CONCLUSIONS OF LAW 1. The November 2008 rating decision denying service connection for benign schwannoma tumor, sciatic arch as due to herbicide exposure is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evident sufficient to reopen the claim of service connection for benign schwannoma tumor, sciatic arch as due to herbicide exposure has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for service connection for skin for benign schwannoma tumor, sciatic notch as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Assist and Notify VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Neither the Veteran nor her 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 duty to assist argument). II. Reopening Claim In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). VA must reopen a previously and finally disallowed claim when "new and material evidence is presented or secured. 38 U.S.C. §§ 5108, 7104(b) (2012); 38 C.F.R. § 3.156(a) (2017). In order to satisfy these requirements, the evidence "must be both new and material." Smith v. West, 12 Vet. App. 312, 314 (1999). "New and material evidence" is defined as follows: New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence may be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and, moreover, must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a) (2017). In making the determination of materiality, "the credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board notes that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. In March 2012, the RO did not specifically address whether new and material evidence had been received but denied service connection for schwannoma tumor, sciatic arch, due to herbicide exposure on the merits. The Veteran expressed timely disagreement in November 2012 and acknowledged that his tumor was benign. The Veteran has submitted several lay statements, to include an interpretation of a regulation in the Code of Federal Regulations, which raised a theory claim for service connection for benign schwannoma tumor, sciatic notch as due to herbicide exposure. Moreover, the Veteran's son, a registered nurse, submitted research analysis, prior Board decisions, medical literature, and findings based upon the medical literature and the Veteran's medical history. In February 2014 statement of the case, the RO found that new and material evidence had been received, but denied service connection on the merits. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim, and it must raise a reasonable possibility of substantiating the claim. The Board concurs that the added evidence by the registered nurse to be new and material. Therefore, the Board finds that new and material evidence has been received, and to that extent only, reopens the claim for entitlement to service connection for benign schwannoma tumor, sciatic notch as due to herbicide exposure. Service Connection Benign Schwannoma Tumor, Sciatic Notch Legal Criteria Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). In general, service connection requires (1) 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 current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (2017). In this case, the Board concedes that the evidence of record shows service in the Republic of Vietnam during the requisite time frame. As such, the Veteran is presumed to have been exposed to herbicides, such as Agent Orange, as a result of his active service. The Board notes here that the Veteran has been granted service connection on this presumptive basis for ischemic heart disease and prostate cancer. II. Analysis The Veteran served in the United States Air Force as a Relay Center Repair Specialist. His active duty service included service in the Republic of Vietnam. The Veteran contends that he incurred benign schwannoma tumor, sciatic notch due to Agent Orange exposure during active service. A review of the Veteran's STRs contains an April 1965 Report of Medical Examination that showed the Veteran's neurologic system and lower extremities were normal. The Veteran denied all other significant medical or surgical history. Also in an April 1965 Report of Medical History, the Veteran indicated that he did not have tumors, growths, cysts, or cancer. Moreover, the Veteran's June 1966 Discharge Examination provided the same findings as the April 1965 Reports. In a March 2007 computed tomography (CT) scan, a private radiologist provided findings to the effect that the Veteran's right kidney demonstrated a 2.3 cm. by 1.8 cm. soft tissue density mass along its medial cortex. The radiologist further noted the size of this tissue mass appeared unchanged when compared to findings in a 2005 scan. In a November 2007 private magnetic resonance imaging study (MRI), a radiologist provided findings to the effect that there was an elongated lobulated mass which followed the expected course of neurovascular structures in the Veteran's right lower pelvis at the level of the sciatic notch. The radiologist provided a diagnostic impression of a 78x46x53 mm. lobulated enhancing mass at the level of the sciatic notch extending throughout with enhancement compatible with a schwannoma given its characteristics. In May 2008, the Veteran submitted a letter. In pertinent part, he stated that he had a large schwannoma tumor on his sciatic nerve in his pelvic region which was removed. The Veteran stated that the tumor caused intense pain which forced him to sleep in a reclining chair rather than a bed. He also provided a history of his course of treatment for the tumor as well as his general medical history. Furthermore, the Veteran indicated that he wanted to be put on the Agent Orange Registry because of the benign schwannoma, sciatic notch (and other smaller tumors). The same month, the Veteran submitted a statement, via VA FORM 21-4138. He wrote that he had four masses on his kidneys; pain in his right rib cage area; and a history of other medical conditions associated with Agent Orange. He indicated a need to know if possible exposure to Agent Orange caused these medical conditions. A review of the Veteran's 2008 medical treatment records from K. P., a private medical facility, shows that the Veteran frequently sought treatment for a schwannoma of the nervous system. The Veteran also frequently complained of peripheral nerve pain. Moreover, a battery of diagnostic tests confirmed that the benign schwannoma tumor was located in the sciatic region. Clinicians presented various treatment options to the Veteran to alleviate peripheral nerve pain. An August 2008 Surgical Pathology Report from I. F. Hospital, a private facility, provided a pre-operative diagnosis of a pre-sacral tumor. After clinical staining and microscopic evaluation, a final diagnostic impression of schwannoma with mild cytological atypia was provided. The report indicated that the results were shared with the Veteran's private physician. In November 2008, the RO denied service connection for schwannoma tumor, sciatic notch and solid masses on the upper and lower poles of the right and left kidneys. The Veteran did not express disagreement or submit new and material evidence within one year, and the decision became final. The Veteran sought to reopen the claim in May 2011. The RO initially denied service connection in March 2012 but in a February 2014 statement of the case, the RO considered the following additional evidence and specifically reopened the Veteran's claim. As noted above, the Board concurs with the RO that new and material evidence has been received sufficient to reopen the Veteran's claim. In September 2012, the Veteran's son, who identified himself as a critical care registered nurse, submitted a report addressing his father's medical history, including benign schwannoma tumor, sciatic notch. This report consists of an historical outline of the Veteran's diagnosis and course of treatment, medical findings from excerpted printed and on-line medical publications, and two previous Board decisions in appeals for other veterans. The Veteran's son contends that this evidence proves that both benign and malignant schwannomas are caused by exposure to AO. The Veteran also submitted several statement with a narrative of his experiences in Vietnam and immediately after service, contending that a rash which onset during service and post-service difficulty with balance and mobility were indicators of the onset of schwannoma. He further reported in detail on his symptoms over many years and on the private practitioners who identified and performed surgical procedures and follow up care for the tumors. He emphasized his contention that the benign tumors were caused by exposure to the designated herbicide agents in Vietnam. The son reported that the Veteran had symptoms of light pain or numbness on his right side and right lower back within a year of discharge from service and had no family history of tumors of this type, although both parents did have unspecified tumors removed late in life. The son cited research to contend that schwannomas are predominantly benign but can be malignant; however, he concurred that the Veteran's tumor was benign and associated with nerve fibers. The son contended that lipomas and schwannoma should be considered to be the same and that benign and malignant tumors should be considered the same with respect to the disease etiology. He provided excerpts from Understanding Toxicology and several Reports on Carcinogens for the proposition that the designated herbicide agents including TCDD can cause both benign and malignant tumors in animal studies by the same biochemical processes. However, the authors state this in a conclusory fashion without supporting rationale. The subtitle of the Understanding Toxicology article is "Carcinogens and Mutations." This article is wholly concerned with the incidence of carcinogenesis and exposure to toxic chemicals. While the authors mention procarcinogens, there are simply no findings as to benign tumors-not to mention benign schwannomas. The second on-line publication focalizes on carcinogenicity. While the third on-line publication asserts that "TCDD causes benign and malignant tumors at multiple sites in multiple species," it frames this point with language to the effect that "evidence that TCDD is a human carcinogen is supported by experimental animal studies." In other words, the findings here may well pertain to a malignant schwannomas; however, they have no connexity to benign schwannomas. Moreover, VA regulations clearly draw a difference between benign and malignant tumors because malignant schwannomas fall within the ambit of "diseases associated with exposure to certain herbicide agents" and not benign schwannomas. See 38 C.F.R. § 3.309(e) (2017). As to excerpt findings in Modern Pathology, Vol. 2, No. 4 (1989), "A Morphologic Study of Vietnam Veterans" concerns the incidence of lipomas among Vietnam Veterans. The unidentified authors' findings, as interpolated by the Veteran's son, may be construed in a way to consider whether benign tumors have prognostic importance. While the Board notes that this is question might beg scientific inquiry, it lacks probative weight in this case. The Veteran's tumor is a benign schwannoma, not a lipoma which is defined as "a benign, soft, rubbery, encapsulated tumor of adipose tissue, usually composed of fat cells." Dorland's Illustrated Medical Dictionary, 1063 (32nd ed. 2012). Whereas, as schwannoma is defined as "a neoplasm originating from Schwann cells (of the myelin sheath) of neurons." Id. at 1677. The definitions are not consistent with the Veteran's son's assertion that "lipomas can be the same type of soft tissue tumors in which schwannomas are identified." Specifically, adipose is defined as "fatty or the fat present in adipose cells;" whereas Schwann cells are defined as "any of the large nucleated cells whose cell membrane spirally enwraps the axons of myelinated neurons." Id. at 32, 323. These terms indicate a difference between fat and neuron. As to the submitted prior Board decisions, both are distinguishable from the facts in the Veteran's case. In the first decision, entitlement to service connection was granted on a direct basis; the benign schwannoma had its onset during the Veteran's active service. The second decision is simply not a decision, rather a remand for an additional medical opinion. In August 2015, the Veteran submitted a statement, via VA Form 9. This statement was responsive to the RO's Statement of the Case, which explained the bases for denying the Veteran's claim for entitlement to service connection for schwannoma tumor, sciatic notch as due to herbicide exposure. In pertinent part, the Veteran advanced an argument that in denying his claim, VA "missed diseases listed in 38 C.F.R. § 3.309(a) (2017), [namely] "tumors, malignant, or of the brain or spinal cord or peripheral nerves." The Veteran stated that his schwannoma was a tumor of the peripheral nerves which falls under "tumors of the brain or spinal cord or peripheral nerves." He based his interpretation of the use of the word "or," which according to the Veteran, indicated that the provision applies to tumors that need "not be malignant to be service connected." Moreover, he stated that the "AO Act of 1991 has the mistake of not listing this [a benign peripheral nerve tumor] as it clearly [allows for] service connection under chronic diseases." The Board notes that the Veteran's theory is misplaced. 38 C.F.R. § 3.309(a) (2017) pertains to chronic diseases subject to presumptive service connection. While, as the Veteran advances, "tumors, malignant, or of the brain or spinal cord or peripheral nerves" are specifically enumerated, they are not identified as diseases associated with exposure to certain herbicides agents. See 38 C.F.R. § 3.309(e) (2017). The Board notes here that while malignant schwannoma falls within the ambit of the herbicide presumption, benign schwannoma does not. Id. Moreover, 38 C.F.R. § 3.309(a) (2017) is silent altogether as to diseases associated with exposure to certain herbicide exposure. Upon review of the evidence, the Board finds no basis upon which to award service connection for the Veteran's benign schwannoma tumor, sciatic arch. There is no competent evidence that the Veteran's benign schwannoma tumor, sciatic notch is related to service, to include as due to exposure to herbicides in service. The Veteran first developed the benign schwannoma tumor, sciatic notch decades after service. While this fact is not dispositive, it is a factor that weighs against his claim. See Maxson v. Gober, 230 F.3d 1330, 1333 Fed. Cir. 2000) (holding that a lengthy period without medical complaints about a condition can be considered as a factor in resolving a claim). The Board acknowledges the Veteran's and his son's report of balance problems and back pain shortly after discharge from service. Although competent to make these observations, they are not competent to determine that these symptoms necessarily are first manifestations of a benign tumor. As a lay person, the Veteran is competent to report what comes to him through his senses, but he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of benign schwannoma tumor, sciatic notch. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F. 3d 1372 Fed. Cir. 2007). The Board places greater weight on subsequent treatment records that do not confirm an onset of the tumor within one year of active service. While the Veteran might sincerely believe that his benign schwannoma tumor, sciatic notch is the result of AO exposure, he lacks the medical expertise to provide such a link, and, moreover, the Veteran's son has not cited to any medical evidence that would support such a link. The Board acknowledges the son's medical training as a registered nurse with experience in critical care. However, the association between the designated herbicide agents used in Vietnam and many forms of disease is a very complex medical matter that has been addressed by specialists. Although competent to perform research, the Board finds that he does not have the level of training and experience as a medical professional to independently determine that the herbicide agents caused the Veteran's benign tumor. For example the National Academy of Sciences in a series of extensive reports by teams of specialists in Veterans and Agent Orange, Update 2014 have not established a link between herbicide exposure and the development of benign schwannoma tumor, sciatic notch. No competent evidence has otherwise linked the Veteran's benign schwannoma tumor, sciatic notch to any exposure to herbicides or other chemicals in service. In sum, while the Veteran has a current diagnosis of benign schwannoma tumor, sciatic notch, the great weight of competent evidence does not establish that this disability began during active service or was otherwise caused by such service, to include as due to herbicide exposure. Therefore, the criteria for service connection for benign schwannoma tumor, sciatic notch have not been met and the claim is denied. There is no reasonable doubt to be resolved in this case. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER As new and material evidence has been received, and to this extent only, the claim for entitlement to service connection for benign schwannoma tumor, sciatic notch including as due to herbicide exposure is reopened. Entitlement to service connection for benign schwannoma tumor, sciatic notch as due to herbicide exposure is denied ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs