Citation Nr: 21072812 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 16-62 287 DATE: December 6, 2021 ORDER Service connection for tumor of the ear/brain is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's tumor of the ear/brain manifested in service, within one year of separation from service, or is otherwise related to service. CONCLUSION OF LAW The criteria for service connection for a tumor of the ear/brain have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1972 to May 1973 and September 1990 to April 1991. The Veteran died in June 2019, and the Appellant is his surviving spouse. This claim was previously before the Board in September 2019 when it was dismissed as moot by virtue of the Veteran's death. The Board indicated, however, that such dismissal did not affect the right of an eligible person to file a request to be substituted as the Veteran. Subsequently, in November 2019, the Agency of Original Jurisdiction (AOJ) determined the Appellant met the basic eligibility for substitution as the spouse of the Veteran. As such, the AOJ reactivated the appeal and returned the case to the Board. Accordingly, these matters are properly before the Board. In March 2020, the Appellant testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. In June 2020, the Board remanded the current claims for additional development. 1. Entitlement to service connection for tumor of the ear/brain. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish service connection, 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases, including tumors of the brain, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). 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 may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Appellant seeks service connection for tumor of ear/brain and generally contends that the Veteran's tumor of the ear/brain was related to his service in Southwest Asia. In spite of this contention, however, the preponderance of the evidence is against a finding that the Veteran's tumor of the ear/brain was incurred in or is otherwise related to service, to include environmental exposures in Southwest Asia. In that regard, there is no evidence the Veteran's tumor of the ear/brain began during or within one year after separation from service or that he has suffered from a tumor of the ear/brain continuously since service. See 38 C.F.R. § 3.303(b). In fact, it was the Appellant's contention that this disorder developed several years after service, as early as 2010. See March 2020 Board Hearing Transcript. Consequently, service connection for a tumor of the ear/brain on the basis that such became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), is not warranted. As for whether the Veteran's tumor of the ear/brain was otherwise related to his military service, in June 2020, the Regional Office (RO) procured a VA medical opinion to evaluate the etiology of this disorder. The examiner rendered a negative nexus opinion and explained that the Veteran's medical records were silent for any tumor of the ear/brain during service. The examiner noted that the Veteran was diagnosed with this condition in 2012, which was more than 20 years after his separation from service. The examiner also noted that the available medical literature did not show that there was an association between granulomatous tumors of the nasopharynx and exposures to environmental hazards in Southwest Asia. The Board finds the VA examiner's nexus opinion to be highly probative as it is supported by the record and is based on a thorough review of the Veteran's claims file. Significantly, there are no probative medical opinions, or other competent evidence, to the contrary in this case. The Board acknowledges the Appellant's general contention that she believes the Veteran's tumors are related to his exposure to environmental hazards during service in Southwest Asia. The Appellant, however, is not competent to opine as to the etiology of the Veteran's tumors, as this issue is medically complex, and the Veteran is not shown to have the specialized medical training and/or expertise to address the etiology of this issue. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As such, the Board affords these contentions little to no probative value and they are outweighed by the more probative February 2021 VA medical opinion above. The Board is grateful for the Veteran's honorable service. However, given the record before it, the Board finds that the evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009). Accordingly, the claim of service connection for tumor of ear/brain is denied. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea and GERD are remanded. In the June 2020 remand, the Board instructed that the AOJ should obtain VA addendum opinions that address the etiology these disorders. Specifically, the Board directed the VA examiner to both consider and discuss the May 2014 Buddy Statement that indicated the Veteran snored during service, had sleep problems while stationed in Saudi Arabia, and suffered a bad reaction to anti-nerve pills and had vomiting and diarrhea. The Board also directed the examiner to consider and discuss the Appellant's March 2020 hearing testimony that the Veteran had indigestion during service. In June 2020, the AOJ procured VA medical opinions in an attempt to comply with the June 2020 remand directives. The same VA examiner provided opinions for both disorders. The examiner rendered negative nexus opinions. However, the examiner's rationale did not include consideration or discussion of the May 2014 Buddy Statement or the March 2020 Appellant's hearing testimony regarding the Veteran's indigestion during service. As such, the VA examiner did not substantially comply with the previous remand instructions and remand is warranted for new VA medical opinions consistent with the directives herein. See Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: Obtain VA addendum opinion(s) from appropriate VA examiner(s)to determine the nature and etiology of the Veteran's sleep apnea and GERD. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. The examiner(s) should opine as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's sleep apnea and/or GERD was incurred in service and/or was otherwise related to service, to include his exposure to environmental hazards while serving in Southwest Asia. In rendering the above opinions, the examiner(s) should specifically consider and discuss: i) the May 2014 buddy statements that indicate the Veteran was exposed to oil fires/burn pits, he snored badly and never had restful sleep while stationed in Saudi Arabia, and he suffered a bad reaction to anti-nerve pills and had vomiting and diarrhea, and ii) the Appellant's March 2020 hearing testimony that the Veteran was diagnosed with sleep apnea in the 1990sand had indigestion during service. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul 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.