Citation Nr: 21070367 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 16-25 893 DATE: November 23, 2021 ORDER Entitlement to service connection for meningioma, claimed as secondary to exposure to radiation exposure is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT The Veteran's meningioma was not clinically evident during the Veteran's active service or for many years thereafter, and the most probative evidence indicates that his post-service diagnosis of meningioma is not causally related to his active service or any incident therein, including exposure to ionizing radiation. CONCLUSION OF LAW The criteria for service connection for meningioma have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1971 to December 1996. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he had foreign service and that his primary specialties were in aircraft maintenance (for 23 years and 4 months) and aviation operations (for 2 years). This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in June 2019. A transcript of that hearing is of record in the claims file. This case was previously before the Board in November 2020, at which time the issues currently before the Board were remanded for additional development. The case has now been returned to the Board for appellate review. Service Connection Meningioma The Veteran asserts that his meningioma was caused by active service. Specifically, he has asserted that he was exposed to radiation caused while flying over nuclear power plants in Germany and Korea, during the execution of his duties on the down aircraft recovery team in Vietnam, and as a technical inspector on the maintenance team during aircraft recovery operations at Fort Campbell, and in West Germany and South Korea. The Veteran does not contend, and the evidence does not otherwise suggest, that meningioma had its onset during the Veteran's active service. Rather, as noted above, it is the Veteran's contention that his meningioma is the result of exposure to ionizing radiation during his active service. As such, the Board will focus its discussion on that theory of entitlement. Post-service evidence of record shows that the Veteran was diagnosed with meningioma in January 2011. In February 2012 letter, Dr. J.S. stated that the Veteran had been under his care for meningioma and noted that it is well known that meningiomas can be related to radiation exposure. In an August 2012 letter, Dr. J.M. opined that the Veteran's meningioma could have been caused by exposure to noxious stimuli or a genetic predisposition or a combination of the two. The Board finds that the February 2012 and August 2012 medical opinions are inadequate for adjudication purposes. In this regard, in the February 2012 opinion, Dr. J.S. failed to provide a rationale for the conclusion reached; and, in the August 2012 opinion, Dr. J.M.'s conclusion as speculative. In February 2021, in accordance with the procedures outlined in 38 C.F.R. § 3.311, the Veteran's claims file, to specifically include information regarding radiation exposure, was forwarded to the Under Secretary for Health for preparation of a radiation exposure dosage estimate for the Veteran's time in active service In March 2021, the Director of the Post-9/11 Era Environmental Health Program (hereinafter "Director") found that based on all available evidence, the Veteran's in-service radiation dose was calculated at 0.130 rem for the 26-year calendar period of service (1971 through 1996). In so finding, the Director noted that when presumptive exposure to radiation does not exist (ie. in a radiation risk activity as defined in 38 C.F.R. § 3.309(d)), the dose must be determined through direct measurement or reconstruction methodology. The Director noted that extensive research was performed on the operation and construction of turbine engine ignition systems and the component exciter boxes, and that the boxes could contain a component known as the spark gap, which did contain radioactive gas. However, accordingly to a fact sheet on electron tubes, spark gaps could produce a radiation dose as high as 0.005 rem per year from daily exposure. The Director noted that the Veteran's dose estimate of 0.130 rem was calculated using that dose rate. The Director further opined that it was actually unlikely that the Veteran's meningioma was caused by exposure to ionizing radiation during active service. In so finding, the Director noted that the Health Physics Society, in their position statement PS010-4, Radiation Risk in Perspective, revised in February 019, stated that the average annual effective dose from natural background radiation in the United States was approximately 0.3 rem. It was noted that a person might accumulate an effective dose from natural background radiation of about 5 rem in the first 17 years of like, and 25 rem total during an average 80-year lifespan. The Director noted that The Health Physics Society further noted that substantial and convincing scientific data showed evidence of health effects following high-dose exposures (many multiples if natural background). However, below levels of about 10 rem above background from all sources combined, the observed radiation effects in people are not statistically different from zero. Further, the Director noted that using the above calculations, the Veteran's estimated total in-service radiation dose of 0.130 rem did not exceed 10 rem above natural background. The Board finds that the March 2021 opinion from the Director is adequate because the examiner thoroughly reviewed the claims file and discussed the relevant evidence, considered the contentions of the Veteran, and provided a thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, the March 2021 opinion is the most probative evidence of record. The Board notes that lay persons are competent to report observable symptoms. However, in this case, a lay person is not competent to provide an etiology opinion regarding the Veteran's meningioma and its relationship to ionizing radiation in active service. The specific issue of causation in this case falls outside the realm of common knowledge of a lay person. Determining the etiology of the Veteran's meningioma requires medical inquiry into biological processes and pathology. Such internal physical processes are not readily observable and are not within the competence of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide an etiology opinion in this case. Further, there is no indication from the record that meningioma was manifest to a compensable degree within a year of the Veteran's separation from active service. As such, presumptive service connection for a chronic disability is not warranted in this case. 38 C.F.R. § 3.309(a). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for meningioma is not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Service Connection Sleep Apnea In the November 2020 remand, the Board directed that the Veteran should be afforded a VA examination to determine the nature and etiology of his sleep apnea. Review of the record shows that the directed examination was obtained in April 2021. At an April 2021 VA examination, the examiner opined that the Veteran's sleep apnea was less likely than not incurred in or caused by active service. However, in providing a rationale for his opinion, the examiner failed to adequately consider the lay statements of record regarding the onset and continuity of symptoms. Therefore, the Board finds that the development conducted does not adequately comply with the November 2020 Board remand directives. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the Veteran should be afforded a new VA examination to determine the nature and etiology of his sleep apnea. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding, pertinent VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise, who has not previously examined the Veteran or provided an opinion in this appeal, to determine the nature and etiology of his sleep apnea. The claims file must be made available to and reviewed by the examiner. Any indicated tests and studies must be performed. Based on an examination of the Veteran and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's sleep apnea had its onset during his active service, or is otherwise etiologically related to such service. In forming the opinion, the examiner must consider the lay statements of record regarding the onset and continuity of the Veteran's symptoms. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's sleep apnea was caused or aggravated by a service-connected disability. The rationale for all opinions expressed must be provided. 3. Confirm that the VA examination report and all medical opinions provided comport with this remand, and undertake any other development determined to be warranted. (Continued on the next page) 4. Then, readjudicate the remaining claim on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Umez-Eronini, 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.