Citation Nr: 20021856 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 12-21 202 DATE: March 27, 2020 ORDER New and material evidence has been received to reopen the claim for service connection for residuals of brain tumor, to include a hemangioblastoma, claimed as secondary to a traumatic brain injury (TBI). Service connection for residuals of brain tumor, to include a hemangioblastoma, claimed as secondary to a TBI is denied. FINDINGS OF FACT 1. The claim for service connection for residuals of brain tumor, to include headaches and hemangioblastoma was denied in an August 2007 rating decision that was not appealed. 2. Evidence received since the August 2007 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claims for service connection for residuals of brain tumor, to include headaches and hemangioblastoma. 3. A TBI was not present in service or manifested thereafter, and no residuals of such disability have been currently shown. 4. A brain tumor did not manifest in service or within one year of service, and is unrelated to service; a brain tumor is not caused or aggravated by a service-connected disease or injury. CONCLUSIONS OF LAW 1. As new and material evidence has been received since the issuance of the aforementioned final decision, the criteria for reopening the claim for service connection for residuals of brain tumor, to include headaches and hemangioblastoma are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for establishing service connection for residuals of brain tumor, to include a hemangioblastoma, claimed as secondary to a traumatic brain injury have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107, 5107 (b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1979 to July 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a March 2017 Board videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. In June 2017 and March 2018, the Board remanded the appeal for further development. The March 2018 Board decision directed the RO to request and obtain any hospital records pertaining to treatment received at the Eisenhower Army Medical Center and Brooke Army Medical Center, and obtain a medical opinion from a specialist. The Board finds that the RO has substantially complied with the directive as the VA treatment records were requested, and a formal determination was issued that such records are unavailable, and a medical opinion from a specialist was obtained. See Stegall v. West, 11 Vet. App. 268 (1998). The issue on appeal was previously characterized to include the issue of service connection for headaches, as a residual of a brain tumor. In October 2017, during the pendency of this appeal the Appeals Management Center awarded service connection for headaches on a direct basis. The issue on appeal has been recharacterized to reflect this award. This claim has been advanced on the docket (AOD) pursuant to 38 C.F.R. § 20.900. 1. New and material evidence has been received to reopen the claim for service connection for residuals of brain tumor, to include a hemangioblastoma, claimed as secondary to a traumatic brain injury (TBI). Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly received evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). The Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade, 24 Vet. App. 110. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the AOJ’s actions, given the previous unappealed denial of the claims on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board’s jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). Historically, service connection for residuals of brain tumor, to include headaches and hemangioblastoma was denied in an August 2007 rating decision based on a determination that the evidence of record did not establish a link to service. This decision was not appealed nor was new and material evidence received within one year, accordingly, the determination was final. 38 C.F.R. §§ 3.156 (b), 20.1103. The evidence received in pertinent part since this decision includes a statement from the Veteran’s primary physician which reports a link between the Veteran’s current headaches and the injury suffered in service. The Board finds that this evidence is sufficient to reopen the previously denied claim. The foregoing evidence is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim. Therefore, this evidence is new and material, and reopening of the claim for service connection for residuals of brain tumor, to include headaches and hemangioblastoma is in order. Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). 2. Service connection for residuals of brain tumor, to include a hemangioblastoma, claimed as secondary to a traumatic brain injury is denied. The Veteran asserts that her hemangioblastoma is attributable to a brain injury she experienced during service. Specifically, she asserts that while being transported in a cattle car from basic training, she became unbalanced, fell and hit the back of her head. As a result of this injury, she later developed tumors on her brain called hemangioblastoma. She reports the same place she fell and hit her head in service is the same place she developed brain tumors. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Also, certain chronic diseases, including tumors of the brain, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As previously mentioned, the Veteran asserts service connection for a hemangioblastoma, as secondary to a TBI. By way of history, a review of the Veteran’s service treatment records (STRs) show no complaints, diagnoses, or treatment relating to brain cancer or a brain injury. Though the Veteran elected not to undergo medical examination prior to her separation, the Veteran’s April 1984 periodic examination evaluated her as being grossly normal with no abnormalities of any body system. On the accompanying April 1984 Report of Medical History, the Veteran noted a history of tumor, growth, cyst, cancer due to a lump on her left breast. Further, on this same report, the Veteran responded in the negative concerning loss of memory or amnesia, and periods of unconsciousness. The examiner noted in the physician’s summary that Veteran “had motor vehicle accident in 1979 (Fort Gordon) – had internal injuries, by x-ray- kept overnight in hospital – feels that this is the cause of adhesions and resultant hysterectomy.” The earliest, and most pertinent, post-service medical records date from April 1989 and consist of the Veteran’s complaint of slight increase in frequency and severity of headaches over the past year. A CT scan was obtained by her VA neurologist which demonstrated an enhancing lesion in the left cerebellar hemisphere- a pattern which was deemed to be consistent with hemangioblastoma. In April 1989, the Veteran underwent a resection of a cerebellar hemangioblastoma. Later, in 2009, the Veteran complained of incidents of nausea and vomiting. An MRI and CT of her head found a cystic mass in the cerebellum. The Veteran was then transferred to a private neurosurgeon who endorsed a diagnosis of hemangioblastoma recurrence. In October 2009, the Veteran again underwent a suboccipital craniotomy and excision of tumor. Under these circumstances, it is clear that neither the provisions of 38 C.F.R. §§ 3.303 (a), pertaining to direct service connection, nor those of 3.303(b), pertaining to service connection for chronic conditions shown to have begun in service and continued thereafter, are applicable, as the brain cancer did not manifest until 1989. Furthermore, 38 C.F.R. § 3.307, which allows for presumptive service connection for chronic conditions that manifest to a compensable degree within one year of service, is also not applicable, as the Veteran’s hemangioblastoma developed over 5 years after service. Accordingly, the Board will restrict its focus to consideration of regulation allowing for service connection for disabilities that manifest after service, namely, 38 C.F.R. §§ 3.303 (d). In August 2011, the Veteran submitted a statement in support of her service connection claim, reporting her issues with tumors and headaches began after her motor vehicle accident in service. In her subsequent August 2012 Form 9, she again contended that her tumor and headaches were the result of her head injury in service. Her specific contention was that the injury she experienced to her brain in service developed into the brain tumor for which she had surgery to remove, and the tumors have been a continuous problem since. Pursuant to the June 2017 Board remand, the RO obtained a September 2017 examination concerning the Veteran’s hemangioblastoma. The examiner was a nurse practitioner. A diagnosis of hemangioblastoma was noted, along with the Veteran’s report that her tumor causes her to be unsteady on her feet and more susceptible to falls. The Veteran further reported experiencing migraines 2-3 times a week as a result of the tumor. The examiner found the claimed condition was less likely than not incurred in or caused by an in-service event. The rationale stated that the etiology of hemangioblastoma is unknown, but may have a genetic component. Accordingly, the examiner concluded, there is no substantial medical evidence at this time to say with greater than 50 percent probability that the Veteran’s brain tumor is a result of her fall during service. An October 2017 VA examination for TBI was also provided. The examiner documented the Veteran’s report that after the accident in service, she was escorted to the hospital where no imaging or sutures were done. The Veteran reported being kept overnight for concussion observation, and released with over-the-counter Tylenol and reduced physical training orders. The Veteran reported experiencing nausea for 2-3 weeks after, and dizziness and headaches up until 1989 when the tumor was found. The Veteran further expressed her concern that the same region she hit her head in service is in the same region where the tumor was removed, but “no one will commit themselves to saying the accident caused tumors, other than her primary care doctor at the VA, who said that the accident as likely as not caused tumors.” Mild memory loss, frequently inappropriate social interaction, and three or more subjective symptoms that mildly interfere with work were noted. The examiner opined that although the Veteran does report an incident that suggests TBI with residuals, he is unable to confirm TBI or residuals at this time. The reasoning is that the Veteran’s claims file shows lack of objective medical evidence and testing to support diagnosis with chronic residuals. The examiner highlighted the facts that the Veteran denied any head injury on her report of medical history in 1994. Therefore, current complaints in assessment of cognitive impairment and other residuals of TBI may be due to another etiology. In the Veteran’s February 2018 IHP, she argued, via her representative, that due to the sensitive nature of her condition and the close approximate location of her head injury and her brain tumor, an independent medical opinion from a specialist was required. The March 2018 Board decision agreed, and remanded for a specialist opinion. Thereafter, the Veteran was afforded the September 2019 VA examination with a physiatrist. Physiatrist physicians treat a wide variety of medical conditions affecting the brain, spinal cord, nerves, bones, joints, ligaments, muscles and tendons. https://www.aapmr.org/about-physiatry/about-physical-medicine-rehabilitation/what-is-physiatry. Concerning the hemangioblastoma, the examiner opined that hemangioblastomas are uncommon, slow-growing tumors of the central nervous system, which most commonly occur in the cerebellum or spinal cord. Studies have shown that some of the pathogenesis have to do with genetic defects. Ultimately, the examiner concluded that TBI has never been shown to be the cause or even associated with the tumor. Regarding TBI, the examiner noted the Veteran does not currently, and has not had a TBI or residuals of such. After a detailed recitation of the Veteran’s claims file and contentions, the examiner concluded that the claims file fails to demonstrate evidence of ever having a brain injury. There is no objective evidence that the Veteran has ever had an alteration of consciousness or loss of consciousness; retrograde/post traumatic amnesia; neurological deficits, or intracranial lesion in active duty service. There was also no evidence of immediate post-concussive symptoms. He reported that not all individuals exposed to an external force will have brain injury. The examiner checked none of the 10-facet assessments for TBI, and explained that since active duty-related TBI cannot be diagnosed, the assessment is baseless and irrelevant. The Board finds that the preponderance of the evidence is against a determination that the Veteran’s brain cancer is attributable to service, to include as due to TBI. First, there is no evidence of a diagnosis of TBI, or any current residuals. Notably, the existence of a service-connected disability to attribute the secondary disability to is the cornerstone of a secondary claim for compensation. 38 C.F.R. § 3.310. The Veteran, in this case, has not submitted any competent medical evidence contrary to the examination findings cited above. “In the absence of proof of a present disability, there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Moreover, the Veteran has not presented competent medical evidence to show her hemangioblastoma is attributable to her active duty service. Indeed, both the September 2017 and September 2019 examiners came to the same conclusion, that hemangioblastoma has not been associated with brain injury, but has shown to be connected with genetic defects. The Board has also considered the Veteran’s contentions, but finds that the lay testimony regarding the close location of her head injury and her brain tumor are not sufficient to overcome the VA medical opinions which found it less likely than not that the Veteran’s brain cancer was attributable to her fall in service, or a brain injury. Thus, the Board finds that service connection for hemangioblastoma, claimed as secondary to a TBI under 38 C.F.R. § 3.303 (d) is denied, and, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107 (b). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.Russell The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.