Citation Nr: 21013116 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 15-36 284 DATE: March 8, 2021 ORDER Service connection for brain tumors is denied. FINDING OF FACT Brain tumors are not related to service, to exposure to herbicides, or to exposure to radiation. CONCLUSION OF LAW The criteria for service connection for brain tumors are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1971 to February 1973, followed by periods of National Guard service. This appeal is before the Board of Veterans’ Appeals (Board) from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In an October 2015 substantive appeal, the Veteran requested a hearing before the Board via live videoconference. Before such a hearing could be scheduled, he withdrew his hearing request in a May 2016 statement. In August 2018, the Board reopened the Veteran’s claim of service connection for brain tumors and remanded with instruction to make the necessary attempts to verify his claimed exposure to herbicide agents and to provide him with a VA examination. The appropriate development was conducted, and he underwent a VA examination in January 2020. The Board also remanded a claim of service connection for an acquired psychiatric disability, but this claim was subsequently granted in full by an October 2020 rating decision and is therefore no longer before the Board. The Board is therefore satisfied that the instructions in its August 2018 remand have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for brain tumors The Veteran claims service connection for brain tumors. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, such as tumors of the brain, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) 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. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For certain diseases with a relationship to herbicide agent/dioxin exposure, a presumption of service connection arises if the disease manifests to a degree of 10 percent or more following service in the Republic of Vietnam any time during the period from January 9, 1962 to May 7, 1975. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Service connection for a disorder which is claimed to be attributable to radiation exposure during service can be accomplished in three different ways. Ramey v. Brown, 9 Vet. App. 40 (1996). First, there are specific diseases, including cancer of the brain but not benign tumors, which may be presumptively service connected if manifest in a radiation-exposed Veteran. 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309(d). A radiation-exposed Veteran is one who participated in a radiation-risk activity. A radiation-risk activity includes the onsite participation in a test involving the atmospheric detonation of a nuclear device, occupation of Hiroshima or Nagasaki during World War II, or presence at certain specified sites. 38 C.F.R. § 3.309(d)(3). In applying this statutory presumption, there is no requirement for documenting the level of radiation exposure. Second, another set of radiogenic diseases, including tumors of the brain, found five years or more after service in an ionizing radiation-exposed veteran may be service-connected if the VA Under Secretary for Benefits determines that they are related to ionizing radiation exposure while in service, or if they are otherwise linked medically to ionizing radiation exposure while in service. 38 C.F.R. § 3.311(b)(2). Other claimed diseases may be considered radiogenic if the claimant has cited or submitted competent scientific or medical evidence that supports that finding. 38 C.F.R. § 3.311(b)(4). When it has been determined that: (1) a veteran has been exposed to ionizing radiation; (2) the veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest 5 years or more after exposure, the claim will be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). When such a claim is forwarded for review, the Under Secretary for Benefits shall consider the claim with reference to 38 C.F.R. § 3.311(e) and may request an advisory medical opinion from the Under Secretary of Health. 38 C.F.R. § 3.311(b), (c)(1). The medical adviser must determine whether sound scientific and medical evidence supports a conclusion that it is at least as likely as not that the disease resulted from in-service radiation exposure or whether there is no reasonable possibility that the disease resulted from in-service radiation exposure. 38 C.F.R. § 3.311(c)(1). Third, direct service connection can be established by showing that the disease or malady was incurred during or aggravated by service, a task which includes the burden of tracing causation to a condition or event during service. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service treatment records do not reflect any symptoms of or treatment for any tumors of the brain. No such abnormality was noted at the Veteran’s January 1973 separation examination, and in the accompanying report of medical history he explicitly denied having ever experienced a head injury or frequent or severe headaches. Service personnel records reflect that the Veteran was stationed in Germany from July 1971 to February 1973. At no point was he stationed in Vietnam or elsewhere in Asia. VA treatment records reflect that in August 2009 the Veteran reported that for several weeks he has had a feeling of fullness in his face, now with pain in the left ear for two days. He reported that his hearing felt magnified. He reported that his wife had alerted him to trouble with his memory for several months and that he too noticed a change. His physician noted that in answering questions he demonstrated deficits in understanding. A CT scan of the brain showed a large lesion over the left convexity and a smaller lesion near the cavernous sinus. An October 2009 MRI showed likely meningioma and questionable pituitary adenoma. His neurosurgeon stated that the lesions were most consistent with meningiomas. The larger lesion was likely present for a long time given its lack of symptoms. In December 2009 he underwent a left-sided bifrontal parietal craniotomy for meningioma resection. The tumor was removed without complication. He was discharged, but a few days later he was readmitted for atrial flutter and bilateral pulmonary embolisms. He was started on anticoagulants and subsequently discharged in January 2010. A February 2010 MRI showed no tumor residual or recurrence, and the second tumor, a prolactinoma, had shrunk considerably while he was medicated. A June 2010 MRI showed no recurrence of the meningioma and the invasive prolactinoma still greatly reduced. His neurosurgeon stated that the prolactinoma could not be addressed surgically and hopefully could be controlled medically. VA and private treatment records reflect ongoing treatment and monitoring thereafter. In a February 2013 statement, the Veteran reported that he suffered a head injury in service that contributed to his brain tumors. Specifically, he reported being involved in a motor vehicle accident while stationed in Germany. In an accompanying statement, his wife stated that the night after his car accident he wanted pain pills for a headache. In another statement, a man who served with him in Germany described the car accident, stating that he totaled his car. VA treatment records reflect that in December 2013 the Veteran underwent an examination for the Agent Orange Registry. He reported that while stationed in Germany he worked on vehicles that he believed were used in Vietnam. He did not go to Vietnam, Thailand, or Korea, nor was he otherwise directly exposed to Agent Orange. As such, he was deemed ineligible for the Agent Orange Registry. In a February 2014 statement, the Veteran stated that his brain tumors were the result of being exposed to dioxin and radiation from Hawk missiles. In a June 2014 statement, the Veteran reported to being exposed to radiation from February 1971 to February 1973 while working as a launcher crewman for Hawk missiles in Texas and Germany. In adjudicating the Veteran’s claim, VA sought a February 2015 opinion from a medical examiner as to whether a meningioma can be considered a tumor of the brain. The examiner explained that while a meningioma arises from the meninges, a layer of tissue covering the brain and the spine, it grows against the surface of the brain and is considered a tumor of the brain. In April 2015, VA contacted the U.S. Army Medical Command to determine the level of radiation the Veteran was exposed to in his work as a Hawk missile crewman. No records of exposure to ionizing radiation were found. Private treatment records reflect that in May 2015 the Veteran reported that in service he was assigned to arm Hawk missiles before they were fired. He stated that he later found out that there was uranium in the head of the vessel area, which he believes caused his brain tumors. In a July 2019 statement, the Veteran reported that he was exposed to dioxin while stationed at Fort Bliss at the Hawk Missile School in 1971 and subsequently in Germany as a Hawk missile crewman and equipment maintenance clerk in an artillery unit. The Veteran underwent a VA examination in January 2020. He was diagnosed with a resected frontal meningioma and an unresectable prolactinoma. The examiner opined that the disability was less likely than not related to service. This opinion was based on the rationale that major risk factors for brain tumors are ionizing radiation and family history, not injury, diesel fumes, herbicide agent exposure, or traumatic injury. In May 2020, VA attempted to verify whether herbicide agents were used, tested, stored, or transported at Fort Bliss or in Germany while the Veteran was stationed there. No such evidence was found. Neither location was on the Agent Orange shipping supply line, which went directly from storage at Mobile, Alabama or Gulfport, Mississippi to South Vietnam via merchant ships. The Board finds that the evidence weighs against a finding that brain tumors are related to service, to herbicide agent exposure, or to radiation exposure. The January 2020 VA examiner explained that such tumors can be caused by ionizing radiation or family history. While the Veteran claims exposure to ionizing radiation, there is no support for such exposure in the record, and he has not explained why he believes the Hawk missiles he worked with exposed him to ionizing radiation within the meaning of the applicable laws and regulations described herein. See 38 U.S.C. § 1112(c); 38 C.F.R.§§ 3.309(d); 3.311. The examiner explained that nonionizing radiation is not a risk factor for such tumors, nor is his claimed head trauma or exposure to diesel fumes. Furthermore, there is no established link between brain tumors and exposure to herbicide agents, and even if there were, there is no evidence beyond the Veteran’s baseless supposition that he was exposed to herbicide agents while stationed in Texas and Germany. For these reasons, the Board finds that the evidence weighs against a finding that brain tumors are related to service, to herbicide agent exposure, or to radiation exposure. Service connection is therefore denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Gallagher, 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.