Citation Nr: 21072885 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 16-39 203 DATE: December 6, 2021 ORDER Service connection for a brain tumor is denied. Service connection for a stroke is denied. Service connection for the cause of the Veteran's death is denied. A total disability based upon individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's brain tumor began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran's stroke and cause of death is etiologically related to his active service, or is otherwise related to an in-service injury or disease. 3. The Veteran does not have any service-connected disabilities, thus does not meet the threshold criteria for consideration of a TDIU. CONCLUSIONS OF LAW 1. The criteria for service connection for a brain tumor, stroke, and cause of the Veteran's death are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.311, 3.312. 2. The criteria for a TDIU are not met. 38 U.S.C. § 1155, 5103(a), 5103A, 5107; 38 C.F.R. § 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from January 1969 to December 1972 and January 1984 to January 1997. The appellant is the deceased Veteran's spouse who has been properly substituted. The issues are on appeal from May 2015 and April 2016 rating decisions. The issues were previously before the Board in November 2019, at which time they were remanded for further development. As the development has been completed, the issues are ready for Board review. In August 2021, the Board sent the appellant a letter informing her that the VLJ who conducted the August 2019 Board hearing had become unavailable to issue a final decision in the appeal, and, as a result, she had the right to an additional hearing before another VLJ, who would issue the final decision in his appeal. In September 2021, the appellant responded by filing the form on which she marked the option stating that he did not wish to appear at another Board hearing. See 38 C.F.R. § 20.707. 1. Service connection for a brain tumor is denied. 2. Service connection for a stroke is denied. 3. Service connection for the cause of the Veteran's death is denied. As issues 1-3 are interrelated, the Board will address them together. The appellant contends that the Veteran's cause of death, residuals of a stroke caused by a tumor, had its early onset during his service. Specifically, the appellant contends that the tumor began during the Veteran's service, or was caused by radiation to which he was exposed during service, and that the Veteran showed manifestations of the tumor in service by way of depression and visual changes. Thus, she maintains, his 2011 stroke and eventual death in 2015 was caused by a tumor that began in service. A. Applicable Law Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). In addition, certain chronic diseases may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 C.F.R. §§ 3.307, 3.309. The death of a Veteran will be service connected if the evidence shows that a disability incurred in or aggravated by active service was either the principal or a contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312 (a). For a service-connected disability to be considered the primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related to the cause of death. 38 C.F.R. § 3.312 (b). In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially, that it combined to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c)(1). B. Discussion The Board has carefully considered the contentions and the positive and negative medical opinions of record, but ultimately finds that the preponderance of the evidence is against the claims for service connection for a tumor, a stroke, and the cause of the Veteran's death. There is no material dispute as to the diagnosis of the tumor and stroke, which led to the Veteran death. The condition first presented in December 2011 with symptoms diagnosed as stroke. After further work-up, the tumor was discovered. The Veteran underwent treatment, but it ultimately led to his death in December 2015. The appellant maintains that the first presenting symptoms actually occurred much earlier in service with visual changes and depression. With regard to visual changes, the service treatment records (STRs) show treatment for skin cancer near the left eye. The Veteran underwent routine optometry evaluations. He was assessed in November 1993 with "very chronic blepharitis" contributing to blurriness. In June 1996, he was treated for conjunctivitis, and in 1994, he was assessed as having giant papillary conjunctivitis. He also wore glasses or contact lenses throughout service for compound myopic astigmatism. With regard to depression, the STRs confirm treatment for depression, including at the time of service separation. The appellant has also contended radiation exposure. The appellant provided no details as to what radiation exposure the Veteran might have been exposed. She testified at the Board hearing that the Veteran had told her he was exposed to radiation during his initial period of service, but he was not able to give her any details. Board Hr'g Tr. 5-6. The Board finds no indication of radiation exposure in his service records. His service personnel records (SPRs) show he was a conventional aviation ordnance handler for the A7 aircraft during his initial period of service. The term "conventional" implies that he was not handling nuclear or radioactive materials. There is no indication of radiation exposure; his service records do not include a DD Form 1141, Record of Occupational Exposure to Ionizing Radiation. The STRs do not reflect any potential radiation exposure. The appellant's statements do not reasonably indicate radiation exposure during service absent some other confirmatory indication in the official service department records. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010). The next question concerns whether the Veteran's cancer initially began in service even though not diagnosed until many year later, or whether it is otherwise related to service. On this question, there is positive evidence supporting a nexus and negative evidence weighing against a nexus. In terms of the positive evidence, in July 2014, a private neurologist submitted a statement that the Veteran had been followed by the department of neurology for his tumor, a pilocytic astrocytoma of the thalamus and optic chiasm area, and stated that it was not possible without prior imaging to be certain as to the onset of the tumor. The physician stated however that these tumors were slow-growing and were many times discovered 10-15 years after onset. The physician then stated that it was a more than reasonable probability that the tumor was present during active duty when the Veteran began to experience visual complaints that later evolved into symptoms compatible with the involvement of the optic nerves and chiasm. In November 2015, the same July 2014 physician submitted a second opinion stating that pilocystic astrocytomas could be present but relatively asymptomatic for several years prior to diagnosis. It was not possible to determine how long they were present in a given individual without older neuroimaging such as MRIs or CT scans. The physician stated that it was also true that these types of tumors could manifest as depression as a clinical symptom. The Veteran's spouse had stated that the Veteran has been treated for depression while in service. The physician had not reviewed any of these records or service treatment records. The physician stated that from a medical standpoint, it was not possible to state with any certainty whether the tumor was present in service or not without the previous imaging. The physician explained that most astrocytomas were thought to manifest symptoms within months to a few years of diagnosis, though there were some cases where tumors were thought to have been present for a considerable amount of time. The examiner opined that it was "at least theoretically possible, but on a percentage basis would be relatively unlikely if the period exceeded several years" that the tumor was present for a considerable period of time if "based on review of old images from years earlier and development of a biopsy proven tumor within the same area of abnormality at a much later date." The examiner again qualified that it would be helpful to review any "old images taken at the time of his military service." In April 2016, the same physician who submitted to the two earlier opinions, in July 2014 and November 2015, submitted another opinion stating that while it was not possible to determine the exact date of onset of the tumor, because these tumors could present for years even decades before discovery, it was at least as likely a possibility that his tumor was present while in service and manifested in depression. Overall, this private neurologist's opinions can be assigned almost no probative weight. First, the opinions are internally inconsistent. The provider qualified each opinion by stating that it was not possible to determine the exact date of onset. The physician repeatedly stated that an opinion could not be made without a review of prior imaging. Yet, the examiner proceeded to give just such an opinion. It unclear how the physician determined that it was likely that the tumor began in service after having first made clear the conditions and qualifications circumscribing the ability to do so. In fact, in another inconsistency, the examiner specifically undermined the positive aspect of the opinions by stating in November 2015 that it "relatively unlikely" the tumor presented as early as service. Moreover, the neurologist's opinions are shown to be speculative and conjectural in nature. For example, while the Veteran was treated for depression, the neurologist in April 2016 acknowledged that it was only a "possibility" that the depression was a manifestation of the tumor. More pointedly, the examiner stated only that the tumors "can" be present for years or decades before discovery, thereby making it a "theoretical' "possibility" that the Veteran's tumor was present in service. This type of equivocal and speculative medical opinion has little probative value. Hood v. Shinseki, 23 Vet. App. 295, 298-99 (2009) ("the fact that [the physician] found it 'impossible ... to know if a cluster of similar infections were simply a statistically unlikely happening or due to a particular source of infection,' should have signaled to the Board that the medical opinion was speculative and of little probative value.). In fact, VA regulations specifically preclude resolution of reasonable doubt based on remote possibility of a nexus, as postulated by this private examiner. See 38 C.F.R. § 3.103. Overall, when considering the speculative nature of the private neurologist's positive opinions in the context of the numerous qualifying and conditional statements, plus the outright negative statements clearly undermining the positive opinions, this neurologist's opinions are essentially nonprobative. In November 2015, a private physician stated that the Veteran's tumor could be related to prior exposure to radiation. This private opinion is likewise of minimal probative value. First, as indicated, there is no indication that the Veteran was exposed to radiation during service. Second, this opinion does not actually relate the Veteran's tumor or cause of death to his service because the provider did not identify what radiation exposure to which he was referring. It is unclear from this opinion what radiation exposure is being contended. Finally, the opinion is also speculative in nature as it only postulates that the Veteran's cancer "could be" due to radiation exposure. Therefore, the opinion has almost no probative weight. Tending to weigh against the claim, May 2015, a VA examiner opined that it is less likely than not that the Veteran's brain tumor was caused by or related to service. The examiner explained that the in-service visual evaluation and complaints noted by the Veteran's private physician were related to eye infections and were not the type of complaints related to a brain tumor. Further, the examiner stated that if the brain tumor were present during service, it would have presented differently, not as was reflected by a review of the Veteran's STRs. Then, in July 2016, a VA examiner reviewed the record and concluded that it was less likely than not that the Veteran's tumor and later stroke were related to his service. The examiner stated that depression was a very unlikely way for a brain tumor to present. According to the medical literature, the type of tumor involved presented with generalized symptoms, such as headaches, seizures, cognitive dysfunction or focal symptoms, such as limb weakness, sensory abnormalities, and aphasia. Depression would be very unusual and unlikely to be the initial and/or early symptom of the tumor. The examiner also stated that the Veteran's eye symptoms in service, namely a diagnosis of conjunctivitis/eye infection, were not symptoms of a brain tumor. Finally, in January 2020, in response to a Board remand, the same VA examiner addressed the assertion that the tumor at the time of diagnosis was large and slow growing. The examiner stated that the medical literature did not reveal how long it might take for this type of tumor to grow, therefore it was not an issue that could be determined without resort to mere speculation. The Board finds that the VA examiner's opinions are the most probative evidence. The January 2020 VA opinion is in fact consistent with the evidence of record, to include the private opinions, in that it has been found repeatedly that the date of onset of the tumor could not be determined in this instance. Moreover, this opinion is consistent with the service treatment records, which do not show evidence of visual changes in or around 1996. Taken together, the VA examiner's opinions establish that the Veteran's tumor was not at least as likely incurred in or related to an in-service injury, event, or disease. The examiners' combined opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has considered the appellant's contentions as to the date of onset of the Veteran's tumor. However, this is shown to be a complex medical question requiring advanced knowledge of the time frame for which the tumor may develop, plus the risk factors for the cancer, with special consideration of these factors in the context of the Veteran's case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). It is outside the competence of appellant in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examiners' opinions. Thus, after weighing the evidence, the most probative evidence establishes that the Veteran's tumor did not likely start during service or otherwise be related to service. As the preponderance of the evidence is against the claims, the appeal must be denied. (Continued on the next page) 4. A TDIU is denied. Given that the Veteran is not in receipt of any service-connected disabilities, the threshold criteria for a consideration of a TDIU are not met. Therefore, consideration of a TDIU cannot be made, and the claim must be denied. Corey Bosely Acting Veterans Law Judge Board of Veterans' Appeals R. Erdheim, Attorney for the Board Department of Veterans Affairs 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.