Citation Nr: 21004528 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 18-39 410 DATE: January 27, 2021 ORDER Entitlement to service connection for brain tumor and residuals of partial left front resection, to include as due to burn pit exposure, is denied. FINDINGS OF FACT 1. A brain tumor disability manifested more than one year after separation, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 2. A pre-existing nonsymptomatic brain tumor was clearly and unmistakably not permanently aggravated by service. CONCLUSION OF LAW The criteria for service connection for a brain tumor disability have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 1153, 1154, 5107 (2012); 38 C.F.R. § § 3.303, 3.304, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 2003 to April 2008. This case comes before the Board of Veterans’ Appeals (the Board) from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a May 2020 hearing. The transcript of the hearing is of record. The Board remanded the issue on appeal for additional development in August 2020. The directives having been substantially complied with, the matter again is before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Veteran submitted additional evidence in support of his claim after the most recent supplementary statement of the case (SSOC) of October 2020, along with a waiver of review of such evidence by the agency of original jurisdiction. As such, the Board may properly consider such evidence at this time. See 38 C.F.R. §§ 19.37, 20.800, 20.1304(c); Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The Board notes a change of representation submitted by the Veteran on December 7, 2020, designating The American Legion as his new representative via a properly executed VA Form 21-22. An appellant with a legacy appeal, as here, has 90 days from the date of notification that his/her appeal is being transferred to the Board to request a change in representation and, after that 90 day period, good cause is required for a change in representation. 38 C.F.R. §§ 20.1304 (2018), 20.1305 (2020). The Board had notified the Veteran in a letter dated November 25, 2020 that his appeal was being returned to the Board for adjudication. However, the Board accepts this change in representation within the prescribed 90-day window. The Board finds that the Veteran has endured no legal impediment or lack of due process in this change of representation that he initiated. In addition, pursuant to 38 C.F.R. §§ 20.1304 & 20.1305, the Board must ensure the new representative has had the opportunity to present a written argument. Here, the new representative has submitted written argument for this appeal on January 15, 2021, which is now part of the claims file, and as such, the Board will proceed with the adjudication of this appeal. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2020). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (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 [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection for Brain Tumor and Residuals Legal Criteria for Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(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-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include malignant tumors, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For malignant tumors, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). Service connection for a malignant tumor can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been “shown in service,” there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Cotant v. Principi, 17 Vet. App. 116 (2003); VAOPGCPREC 3-2003 (2003). When no preexisting condition is noted upon entry into service, the burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase was due to the natural progress of the preexisting condition. Id. at 1096. A claimant is not required to show that the disease or injury increased in severity during service before VA meets both of these burdens. See VAOPGCPREC 3-2003. Clear and unmistakable evidence means that the evidence “cannot be misinterpreted and misunderstood, i.e., it is undebatable.” Vanerson v. West, 12 Vet. App. 254, 258 (1999) (citing definition of “clear and unmistakable error” in Russell v. Principi, 3 Vet. App. 310, 313–14 (1992)). The clear and unmistakable evidence standard is an “onerous” one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)). Proof of a current disability is a threshold to establishing service-connection for any claimed disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To be a present as a current disability, there must be evidence of the condition at some time during the appeals period. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2018). In making that decision, the Board must determine the probative weight to be ascribed as among multiple medical opinions, and state the reasons and bases for favoring one opinion over another. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); see also Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). This responsibility is particularly important where medical opinions diverge. The Board is also mindful that it cannot make its own independent medical determinations, and that there must be plausible reasons for favoring one medical opinion over another. See Evans at 31; see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis – Brain Tumor and Residuals The Veteran is asserting that his brain tumor, which manifested its presence in February 2015, is due to his service in Iraq while deployed to Balad Air Base, where he contends he was exposed to the smoke and airborne residue of the burn pits used there to destroy trash. The Veteran’s service medical records for his entire period of active service from June 2003 to April 2008 are silent for any indications or symptoms of a possible brain tumor or any neurological symptoms. The Veteran received a comprehensive VA Gulf War examination in June 2013, and the results were silent for any possible indications or symptoms for a brain tumor or possibly related neurological symptoms. In February 2015, the Veteran received emergency medical treatment after experiencing a grand mal seizure in the presence of his then-fiancé, now his spouse. As part of the initial evaluation, an MRI revealed a brain tumor, and the Veteran was recommended for immediate surgery to resect the tumor. That surgery occurred in March 2015 approximately one month after the initial onset of symptoms. In the aftermath of this treatment, the Veteran filed a claim for service connection of his brain tumor in June 2015, asserting that his exposure to the burn pits at his deployed base of Balad, Iraq, was the cause of his brain cancer. The Veteran was provided a VA examination to assess his brain tumor and central nervous system in July 2015. This examiner noted the symptomatic onset of the brain tumor in February 2015 and the attempts to immediately address it via surgery. The examiner noted the immediate residuals for the Veteran, to include an inability to walk or talk coherently. Subsequent therapy and rehabilitation have enabled the ability to walk, but there are continuing headaches, stuttering, and other facial tics. At the time of the July 2015 VA examination, the Veteran was attempting to return to his job, but with functional limitations based on the residual symptoms experience by the Veteran related to his brain tumor and subsequent surgery. This July 2015 VA examiner provided a negative opinion for direct service connection, saying it was less likely than not, less than fifty percent probability, that the claimed condition was incurred in or caused by the claimed inservice injury, event, or illness. The examiner’s rationale was that there has been no link from any medical research about the burn pits used in Iraq and any kind of link to cancers, to include a brain tumor. The examiner also pointed out that there were no symptoms of any brain or central nervous system problems during service or after service ended in 2008 until the precipitating grand mal seizure event in February 2015. In May 2019, one of the Veteran’s treating physicians, the local VAMC chief of neurology, Dr. E.J.D., provided a written statement where he noted the Veteran’s tumor as a low-grade glioma. This neurologist noted the type of tumor of the Veteran generally grows slowly, sometimes very slowly, and can be present and asymptomatic for years. Dr. E.J.D. finished his short note by saying that “[he] believed, more likely than not, that the Veteran’s tumor was already present during the time of his military service.” No further rationale was provided. In May 2020, the Veteran testified before the undersigned VLJ regarding his brain tumor claim and his theory that the burn pits in Iraq had triggered his brain cancer. The Veteran testified as to his Iraq service, to include as near burn pits which he believed to the source of his brain tumor. Also in May 2020, another VA physician, Dr. J.M., associated with the Veteran’s care regarding his low grade glioma, provided a letter where he noted the Veteran’s tumor to be slow growing and can be present and asymptomatic for years. Dr. J.M. concluded by saying that in his opinion, “that more than likely, that the Veteran’s tumor was present during the time of his military service.” No further rationale was provided. After an August 2020 Board remand to investigate the possibility of a pre-existing condition, deriving from the opinions of Drs. E.J.D. and J.M., that the brain tumor could have preexisted service, the Veteran received a VA addendum opinion that same month to address that theory of service connection. This VA physician examiner first noted the diagnosis of the original brain tumor had been redefined to be a low-grade glioma (LGG), or a glial tumor, based on genetic analysis and studies that indicate the mutation of a particular gene. The examiner noted that glial tumors in general account for nearly half of all central nervous system cancers, and in adults, most commonly arise in the frontal lobe. The MRI done in February 2015 following the grand mal seizure and subsequent diagnosis revealed a mass in the left superior and middle frontal gyri. The examiner noted that LGG tumors are indolent in nature and survival is measured in years to decades as opposed to more aggressive central nervous system tumors. The LGG tumors, like that of the Veteran, are by nature slow growing and annual growth rates range from an average of 16 percent in those that did not undergo malignant transformation to 26 percent for those that did. The examiner explained that this means a doubling time of 3 to 5 years assuming a constant growth rate. The examiner then explained that in the Veteran’s case where the LGG tumor had been present for years and that it is not infrequent that they do undergo malignant transformation to a more aggressive tumor, as is likely in the Veteran’s case. The examiner noted there had not been serial MRIs to note the growth rate of the tumor, indicating that there was not great concern about tumor growth. This VA examiner then noted and commented on the two physician examiners, previously discussed above, who postulated that the Veteran’s tumor was already present during his time of military service. This examiner first noted that no tests were done would have revealed the presence of a mass prior to 2015. The examiner noted that if Dr. E.J.D.’s and Dr. J.M.’s medical opinions were correct, then the Veteran’s tumor clearly and unmistakably preexisted service. If one were to accept that as a given, went the examiner, then the Veteran’s LGG tumor was already present prior to the onset of active service in June 2003, and then the examiner opined that it was his medical opinion that it was not symptomatically manifest prior to 2015, but was likely present but quiet, and therefore that it was not caused by, secondary to, or aggravated by, any in-service event condition or exposure to include exposure to burn pits, other toxins or chemicals used in Iraq, or any predeployment vaccines. The examiner further noted that assuming the LGG tumor existed before or during service, as the two other physicians noted, then the fact that the Veteran’s LGG tumor remained quiet after the end of active service in April 2008 until it manifested in February 2015 indicates that the LGG tumor was not permanently aggravated by any service event or incident. The examiner added further rationale that there are no known chemical exposures that cause gliomas in current medical literature. The Board finds the July 2015, May 2019, May 2020, and August 2020 VA opinions to be of great probative value. While the Board has previously noted the incomplete opinion of the July 2015 examiner, the medical findings and opinion for service connection are highly probative, as is the August 2020 addendum opinion for service connection to include an opinion for aggravation of a pre-existing condition. Indeed, the examiners considered the Veteran’s contention, the claims file, and clinical medical evidence before providing a negative opinion each time. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The examiners’ negative opinions were supported by a sufficiently clear and well-reasoned medical rationale and was consistent with the verifiable facts regarding the Veteran’s contentions. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). The Board acknowledges that the Veteran is competent to testify as to his beliefs that his disabilities are related to service, to include during his Board hearing in May 2020 with the undersigned VLJ. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). In order for lay evidence to be competent, the individual must have personal knowledge, derived from his/her own senses, of what is being attested; “[c]ompetent testimony is thus limited to that which the witness has actually observed, and is within the realm of his personal knowledge.” Layno v. Brown, 6 Vet. App. 465, 471 (1994). Here, the Veteran is competent to testify about his symptoms relating to his LGG tumor and residual disabilities. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding etiology of his LGG tumor. See 38 C.F.R. § 3.159 (a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of any current condition, as the causative factors for such are not readily subject to lay observation. See Layno v. Brown, 6 Vet. App. 465 (1994); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Pre-existing Condition Analysis Pursuant to 38 C.F.R. § 3.304 The Veteran served on active duty June 2003 to April 2008, and no service treatment record or examination notes any pre-existing brain tumor or central nervous system disorder. Pursuant to 38 U.S.C. § 1111 and 38 C.F.R. § 3.304, if a pre-existing condition is not noted at service entrance, then the initial evidentiary burden is upon VA, using a clear and unmistakable evidence standard, to show 1) the asserted condition pre-existed service, and 2) the pre-existing condition was not aggravated during service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) (emphasis added). The Secretary (of VA) may rebut the second prong of the presumption of soundness through demonstrating, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition. Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (citing Wagner, 370 F.3d at 1096) (emphasis added); see also Horn v. Shinseki, 25 Vet. App. 231 (2012). Clear and unmistakable evidence means that the evidence “cannot be misinterpreted and misunderstood, i.e., it is undebatable.” Vanerson v. West, 12 Vet. App. 254, 258 (1999) (citing definition of “clear and unmistakable error” in Russell v. Principi, 3 Vet. App. 310, 313–14 (1992)). The clear and unmistakable evidence standard is an “onerous” one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)). As previously discussed, the Veteran had no conditions noted in his medical or personnel records at service entrance. In consequence, the initial evidentiary burden is upon VA, using a clear and unmistakable evidence standard, to show 1) the asserted condition pre-existed service, and 2) the pre-existing condition was not aggravated during service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) (emphasis added). Here, based on the medical evidence, the Board finds that the Veteran had a pre-existing condition that was not noted at service entrance. The statements of VA physicians Dr. E.J.D. in May 2019 and Dr. J.M. in May 2020, along with VA physician examiners of July 2015 and August 2020, note the likelihood that the Veteran’s LLG tumor preceded service based on nature of the Veteran’s particular diagnosis and a review of medical literature regarding the nature of LLG tumors. There is no statement or inference by any medical professional from any source that disagrees with the assessment that the LLG tumor likely preceded service, thus satisfying the first Wagner condition. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). The presumption of aggravation applies only when pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The Veteran’s service treatment records are silent for any pre-existing condition or disorder. Four different VA physicians have opined the Veteran’s LGG tumor likely pre-existed active service, and there is no record of any LGG tumor or related central nervous system symptomatology until the February 2015 grand mal seizure that led to the formal diagnosis and subsequent treatment. The Veteran himself has never suggested that he had any LGG tumor or central nervous system symptomatology prior to February 2015. There is no probative record of permanent aggravation of such a pre-existing condition beyond its normal course. The second Wagner condition is thus satisfied, and the Veteran is thus presumed sound at service entrance, and the analysis for aggravation for a pre-existing condition not documented at service entrance fails. 38 U.S.C. § 1111; 38 C.F.R. § 3.304; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); see also Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009); Horn v. Shinseki, 25 Vet. App. 231 (2012). Direct Service Connection – Evidence and Analysis Even though analysis pursuant 38 U.S.C. § 1111 and 38 C.F.R. § 3.304 for the Veteran’s claim for service connection for a brain tumor disability fails, the Veteran can still possibly establish such entitlement via direct service connection analysis. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Board finds the July 2015 VA examination report and opinion, the July 2019 and May 2020 VA opinions from VA physicians, and the August 2020 VA addendum opinion to be the most probative evidence of record. The Board notes the examinations were performed by a VA physician based on extensive and detailed discussion with conclusions based on a review of the Veteran’s complete history and evaluation of current symptoms. The opinions were provided by a variety of VA physicians who were specialists in their field, and two of which had treated the Veteran over time for his LGG tumor. A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiners reviewed the claims file and provided opinions that were extremely comprehensive, sufficiently clear, and had well-reasoned rationales. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). In addition, the Board finds that the gap in time between the Veteran’s last date of active service, in April 2008, to his initial evaluation of his LGG tumor to be probative of a lack of nexus between the diagnosed current disability and active service. A negative inference may be drawn from the absence of complaints or treatment for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). As noted previously, the Veteran has a diagnosis of a low-grade glioma, a form of brain tumor, thus satisfying the first requirement of service connection. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). The second requirement is to establish in-service incurrence or aggravation of a disease or injury. The Board notes the Veteran has claimed that his brain tumor disability is due to his exposure to burn pits while in Iraq. Here, the Board notes that there is no diagnosis or treatment of symptoms for any brain or central nervous system condition. Furthermore, multiple VA examiners have opined, with the use of current medical literature, that the Veteran’s brain tumor diagnosed in February 2015 was not due to aspects of active service while the Veteran was in Iraq, to include exposure to burn pit smoke and residue as the Veteran had claimed. The Board thus finds that the second prong of service connection, an in-service incurrence or aggravation of a disease or injury, to not be satisfied. The third requirement of direct service connection is a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called “nexus” requirement.” Without a disease or injury incurred in or aggravated during service, the Board finds the nexus requirement is not satisfied. Here, upon review of the record, the Board concludes that entitlement to direct service connection for a brain tumor disability, diagnosed as a low-grade glioma, is not warranted. The Board notes a current diagnosis of the glioma, and thus the requirement for a current disability is shown. The Board acknowledges the Veteran’s contentions, and the Veteran’s post-service statements are noted. However, there is no competent evidence to tie the current assertion to any in-service disease or injury. The Board notes the highly probative July 2015, May 2019, May 2020, and August 2020 VA examinations and opinions which indicate the Veteran’s brain tumor disability is likely not related to active military service, to include as due to burn pit exposure. The Board finds that these conclusions are not contradicted by any comparably probative or persuasive competent evidence of record. Therefore, the claim of entitlement to service connection for a brain tumor disability must be denied. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. §§ 3.303, 3.310. With regard to possible presumptive service connection for a malignant tumor disability, the weight of evidence shows no chronic symptoms of these conditions during active service, no continuous symptoms of the conditions since service, and that the conditions did not manifest to a compensable degree within one year of service. As such, presumptive service connection is not warranted. 38 C.F.R. §§ 3.303, 3.309. (CONTINUED ON NEXT PAGE)   Based on the above, the Board finds that the weight of the competent and credible evidence demonstrates that the Veteran’s claimed brain tumor disability was not incurred due to service, or was permanently aggravated during active service. For these reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for a brain tumor disability, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Setter, 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.