Citation Nr: 20060666 Decision Date: 09/15/20 Archive Date: 09/15/20 DOCKET NO. 15-19 132 DATE: September 15, 2020 ORDER Service connection for a brain tumor is denied. Service connection for a headache disorder is denied. FINDINGS OF FACT 1. The Veteran had active service from March 1969 to December 1971, to include service in the Republic of Vietnam between November 1969 and November 1970. 2. A brain tumor was not shown in service, was not continuous since service, was not shown to a compensable degree within one year of separation from service, was not shown for many years after service, and is not causally or etiologically related to service, to include as due to in-service herbicide exposure. 3. A headache disorder, to include tension headaches, was not shown in service, is not causally or etiologically related to service, to include as due to in-service herbicide exposure, and was not caused or permanently worsened by a service-connected disability. CONCLUSIONS OF LAW 1. A brain tumor was not incurred in service, may not be presumed to have been incurred in service, nor is it due to exposure to herbicide agents. 38 U.S.C. §§ 1101, 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.309, 3.310 (2019). 2. A headache disorder was not incurred in service or aggravated by service, is not due to exposure to herbicide agents, nor is it proximately due to or aggravated by a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.309, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a procedural matter, in February 2019, the Board remanded the issues for further development. The case has been returned to the Board for additional appellate action. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may also be granted on a presumptive basis for diseases associated with herbicide exposure under 38 C.F.R. § 3.309 if a veteran: (1) served in the Republic of Vietnam between January 1962 and May 1975, (2) served between April 1968 and August 1971 in or near the Korean Demilitarized Zone; (3) served near the base perimeter of certain Thailand Air Force Bases during the Vietnam War era, or (4) regularly and repeatedly operated, maintained, or served aboard aircraft known to have been used to spray a herbicide agent during the Vietnam War Era. 38 C.F.R. § 3.307(a)(6). Notwithstanding the foregoing provisions regarding presumptive service connection for exposure to herbicide agents, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Brain Tumor As an initial matter, the Veteran has not argued that his brain tumor was caused or aggravated by a service-connected disability; as such, secondary service connection is not for application. However, a brain tumor is considered to be a chronic disorder under 38 C.F.R. § 3.309(a); therefore, presumptive service connection will be considered. Furthermore, he has asserted that his brain tumor is a result of exposure to herbicide agents, to include Agent Orange, while serving in the Republic of Vietnam; accordingly, presumptive service connection on the basis of exposure to herbicide agents will be addressed. Finally, direct service connection will be considered. Turning first to direct service connection, the Veteran has been diagnosed with a brain tumor. Specifically, a December 2019 VA examination diagnosed a brain tumor. Accordingly, a current disorder has been shown and the first element of service connection has been met. As to an in-service incurrence, a review of the service treatment records (STRs) reveals that his laboratory findings were negative and a urinalysis was normal in his December 1971 separation examination. Furthermore, the Veteran reported in an associated December 1971 Report of Medical History that he did not then-presently or previously have a tumor, growth, cyst, or cancer. The STRs are otherwise silent for complaints, diagnoses, or treatment for a brain tumor or any symptoms reasonably attributed to the disorder. As such, a brain tumor was not noted in his STRs. Therefore, the second element of direct service connection – an in-service incurrence – has not been met, and the medical evidence does not support service connection on a direct basis. Turning to presumptive service connection, a brain tumor did not manifest to a compensable degree within a year of separation from service. In a May 1997 medical treatment note, a clinician found that the Veteran was diagnosed with a brain tumor behind his left eye and underwent a resection in March 1997. Even assuming that he developed symptoms of a brain tumor as early as 1997, this is well outside the one-year legal presumption for certain chronic diseases such as brain tumor. Next, the record does not establish continuity of symptomatology under 38 C.F.R. § 3.309(a). As noted above, the evidence shows that the Veteran’s symptoms began as early as 1997, more than 25 years after his separation from service. Therefore, a brain tumor was not shown until 1997, with documentation of the disorder beginning at the same time. In light of the above, the medical evidence does not support service connection on a presumptive basis. As to presumptive service connection based on herbicide exposure, the Veteran served in Vietnam and exposure to herbicide agents, to include Agent Orange, is presumed; however, a brain tumor is not a disability for which service connection is warranted on a presumptive basis due to herbicide exposure under 38 C.F.R. § 3.309(e). Therefore, the evidence does not support service connection on a presumptive herbicide exposure basis. Notwithstanding the inapplicability of the Agent Orange presumptive service connection regulations, the Board has considered the claim on a direct exposure basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As noted, there were no in-service complaints of, treatment for, or diagnoses related to a brain tumor. Post-service treatment records establish the current state of the Veteran’s brain tumor and fail to establish a relationship between the disorder and any in-service herbicide exposure. In this regard, a May 1997 clinician reported that a brain tumor was diagnosed in March 1997 but did not report any connection between the disorder and his military service. In a December 2019 VA examination, the examiner observed that pituitary adenomas were regarded as benign tumors and offered that it was unlikely that the Veteran’s claimed tumor was present for 26 years before becoming symptomatic. The examiner further noted that medical literature found inadequate or insufficient evidence to establish an association between herbicide exposure and brain cancer or other nervous system cancers. In a subsequent July 2020 VA medical opinion, the examiner affirmed the December 2019 opinion, reinforcing that the medical literature did not show evidence of a direct etiological link between in-service herbicide exposure and the development of brain tumors. Accordingly, the medical evidence does not support direct causation based on in-service herbicide exposure. Headache Disorder As an initial matter, headaches are not a chronic disorder under 38 C.F.R. § 3.309(a); accordingly, presumptive service connection is not for application. However, the Veteran has argued that his headache disorder is a result of exposure to herbicide agents, to include Agent Orange, while serving in the Republic of Vietnam; accordingly, presumptive service connection on the basis of exposure to herbicide agents will be addressed. Furthermore, he has asserted that his headaches were caused or aggravated by his brain tumor; therefore, secondary service connection will be considered. Finally, direct service connection will be discussed. Turning first to direct service connection, the Veteran has a current diagnosis of a headache disorder. Specifically, a December 2019 VA examination diagnosed tension headaches. Accordingly, a current diagnosis has been shown and the first element of service connection has been met. As to in-service incurrence, the STRs reveal that he was found to be neurologically normal in his December 1971 separation examination and that he did not report then-presently or previously having frequent or severe headaches in an associated December 1971 Report of Medical History. The STRs are otherwise silent for complaints, treatment, or diagnoses of a headache disorder. Therefore, the medical evidence does not support an in-service incurrence of a headache disorder. However, in a subsequent November 2014 post-service lay statement, the Veteran reported that he experienced explosions, people dying or being killed, and continuous firing of artillery rounds while in service. He said that his experiences resulted in multiple conditions, including headaches. The Veteran is competent to report in-service symptoms; accordingly, the second element of direct service connection has been met. As to medical nexus, in a February 2012 lay statement, a friend described meeting the Veteran three years after his return from Vietnam and immediately noticing that he suffered from extremely bad headaches. In a second February 2012 lay statement, the Veteran’s brother noted that he began to experience headaches, anxiety and other conditions requiring medical treatment in March 1996. Lay witnesses are competent to offer observations as to his symptoms, as this requires personal knowledge as it comes to them through their senses but are not competent to opine as to the relationship between headaches and active service. Accordingly, the February 2012 lay statements are assigned lesser probative value. In a December 2019 VA examination, the examiner diagnosed tension headaches. The Veteran reported that his headaches began 16 to 17 years prior to examination, dating the onset to 2002-2003. The examiner opined that his headaches were less likely than not incurred in or caused by service, finding that they began around the time that his glaucoma increased in pressure. A subsequent July 2020 VA medical opinion affirmed the December 2019 opinion, noting that the Veteran denied experiencing headaches at separation from service and was not diagnosed with a headache disorder until several years after service. In light of the above, the medical evidence does not support service connection on a direct basis for a headache disorder. Turning to presumptive service connection based on herbicide exposure, the Veteran served in Vietnam and exposure to herbicide agents, to include Agent Orange, is presumed; however, a headache disorder is not a disability for which service connection is warranted on a presumptive basis due to herbicide exposure under 38 C.F.R. § 3.309(e). Therefore, the evidence does not support service connection on a presumptive herbicide exposure basis. Notwithstanding the inapplicability of the Agent Orange presumptive service connection regulations, the Board has considered the claim on a direct exposure basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As noted, there were no in-service complaints of, treatment for, or diagnoses related to a headache disorder. Post-service treatment records establish the current state of the Veteran’s headache disorder and fail to establish a relationship between the disorder and any in-service herbicide exposure. In this regard, December 2019 and July 2020 examiners opined that the Veteran’s headaches were less likely than not caused by herbicide exposure, noting that medical literature did not show evidence of a link between in-service exposure to herbicides or Agent Orange and development of a chronic headache disorder. The examiners further observed that headaches were extremely common in the general population. Accordingly, the medical evidence does not support service connection on a direct causation basis. As to secondary service connection, the Veteran has asserted that headaches are related to his brain tumors. In this regard, as noted above, the December 2019 VA examination diagnosed a headache disorder; however, in order to establish service connection on a secondary basis, the Veteran must demonstrate evidence of a service-connected disability. As discussed above, the Veteran is not service connected for a brain tumor. Moreover, he is not service connection for any disorders. Therefore, the medical evidence does not support secondary service connection. In sum, the medical evidence does not support a causal nexus between the Veteran’s headache disorder and either his active service or a service-connected disability. The Board has considered the lay statements submitted by the Veteran, his family, and his friends regarding the etiology of the disorders discussed above. Lay witnesses are competent to report symptoms and describe their observations as it comes to them through their senses. However, they are not competent to offer opinions as to the etiology of any current disorder due to the medical complexity of the matters involved. Such competent evidence has been provided by the medical personnel who have examined the Veteran during his current appeal and by STRs obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to the lay statements that have been submitted. Based on the above, the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Spigelman, Associate Counsel 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.