Citation Nr: 21021365 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-11 095 DATE: April 12, 2021 ORDER Service connection for a brain disorder, diagnosed as residuals of a colloid cystectomy, to include as due to herbicide agent exposure, is denied. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam and was exposed to Agent Orange (herbicide agents) during active service. 2. The Veteran has been diagnosed with a colloid cyst in the brain, status post cystectomy. 3. The Veteran’s colloid cyst was not chronic in service, did not manifest to a compensable degree within one year of service separation, and symptoms have not been continuous since service separation. 4. The Veteran’s colloid cyst is not related to active service, to include exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for a brain disorder, diagnosed as residuals of a colloid cystectomy, to include as due to herbicide agent exposure, are not met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from April 1963 to April 1967 and from December 1967 to December 1983. The Veteran served in the Republic of Vietnam. This case comes before the Board of Veterans’ Appeals (Board) from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The issue on appeal was previously remanded by the Board for further development in September 2018. Pursuant to the Board’s remand directive, the RO attempted to obtain the Veteran’s outstanding private treatment records. See 38 U.S.C. § 5103A(b); May 2019 Development Letter. The Veteran did not complete and return the provided VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs (VA) and VA Form 21-4142a, General Release for Medical Provider Information to the Department of Veterans Affairs (VA). Accordingly, the Board is satisfied that there has been substantial compliance with the September 2018 Board remand. The Board notes VA’s duty to assist in the development of claims is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Only chronic diseases listed under 38 C.F.R. § 3.309(a) (2020) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303(b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. 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) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Residuals of a Colloid Cystectomy The Veteran contends that his colloid cyst is related to exposure to herbicide agents while serving in the Republic of Vietnam. He has also maintained that the cyst may have developed as a result of a high fever during service while diagnosed with Malaria. See Veteran’s June 2020 statements. At the outset, the Board finds that the Veteran served in the Republic of Vietnam. Based upon information obtained from the Veteran’s service personnel and treatment records, exposure to herbicide agents during active service is presumed. See 38 C.F.R. § 3.307(a)(6)(iii) (a veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent). The Board also finds that the Veteran has been diagnosed with a colloid cyst of the third ventricle, status post cystectomy. See e.g., November 2019 VA examination report. Certain diseases listed under 38 C.F.R. § 3.309(e) are presumed related to herbicide agent exposure. Because the Veteran’s colloid cyst is not listed among the Agent Orange-related diseases enumerated there, a medical nexus may not be presumed as a matter of law. However, because a colloid cyst is essentially a brain tumor, the presumptive service connection provisions of 38 C.F.R. § 3.309(a), for chronic diseases, applies, in addition to direct service connection. See Walker, 708 F.3d 1331; Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). The Board however finds that the weight of the evidence demonstrates that the Veteran was not diagnosed with a colloid cyst in service, was not treated for the disorder in service, and that symptoms of the colloid cyst were not chronic in service. Service treatment records are negative for complaints, treatment, or diagnosis for a brain disorder. In April 1967 and October 1983 service separation examination reports, the examiners’ summary of history and clinical examination did not reflect any reported complaints, findings, or diagnosis of a brain or head condition. An October 1983 Report of Medical History, completed by the Veteran at service separation, notes that he specifically checked “No” as to having “frequent or severe headaches” or “tumor, growth, cyst, cancer.” Private treatment records show the Veteran first complained of symptoms related to his colloidal cyst and was first diagnosed with a colloidal cyst in 2011. For these reasons, the Board finds that the Veteran’s colloid cyst was not chronic in service. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Board next finds that the weight of the evidence demonstrates that the Veteran’s colloid cyst symptoms have not been continuous since service separation in 1983. As noted above, the October 1983 Report of Medical History and Report of Medical Examination conducted at service separation did not reflect any brain or head disorder. Following service separation, private treatment records dated in October 2011 reflect that the Veteran complained of headaches, confusion, and memory loss in September 2011, more than 25 years after service separation. The Veteran subsequently underwent surgical excision of the cyst in October 2011. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). Private treatment records note that the onset of his symptoms in 2011 was acute. See October 2011 LSU HSC Treatment Records. In addition, the record does not contain any evidence, nor does the Veteran appear to assert, that they had onset prior to 2011. Accordingly, the preponderance of the evidence weighs in favor of finding that symptoms of the Veteran’s colloid cyst were not chronic in service or continuous since service, did not manifest to a compensable degree during the first post-service year, and did not manifest to a degree of ten percent within one year of service separation. Accordingly, there is no basis for presumptive service connection. 38 C.F.R. §§ 3.307, 3.309. Additionally, there is no competent evidence of a nexus between the Veteran’s colloid cyst and service, to include his exposure to herbicide agents. The evidence includes a VA medical opinion dated in November 2019. At that time, the examiner noted that the precise etiology of colloid cysts was unclear and was still a topic of debate. In the early 20th century, the suggested etiology was the cyst was a remnant of the paraphysis element. The examiner explained that the paraphysis element was an embryonic structure located at the anterior portion of the diencephalon between the two hemispheres of the telencephalon. Moreover, the examiner stated that, because colloid cysts had also been found in the cerebellum, frontal lobe and pontomesencephalon, there had been other theorized origins of the colloid cysts. Other etiologies included remnants of respiratory epithelium, an ependymal cyst from the diencephalon, and invagination of the neuroepithelium of the lateral ventricle causing a cyst to form. There were no studies that showed any link between colloid cyst and herbicide agent exposure, Malaria, or high fever as contended by the Veteran. As such, the examiner opined that the Veteran’s colloid cyst was less likely than not related to service, to include exposure to herbicide agents. The Board finds that the VA examiner provided an adequate rationale for the conclusion reached, which was supported by a review of the Veteran’s claims file and an in-person examination. Accordingly, this opinion is entitled to probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The Board has also considered the Veteran’s statements asserting a nexus between his colloid cyst and service, to include in-service herbicide agent exposure. As a lay person, however, the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the etiology of his colloid cyst, which is a medically complex brain disorder. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (recognizing ACL injury is a medically complex disorder that required a medical opinion to diagnose and to relate to service). Brain tumors and other brain disorders are complex disease processes because of their multiple possible etiologies and require specialized testing to diagnose. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a condition capable of lay diagnosis). (Continued on the next page)   For the reasons discussed above, the Board finds that, based on the competent, credible, and probative evidence of record, the Veteran’s colloid cyst was not incurred in service and was not etiologically related to service, to include exposure to herbicide agents. A preponderance of the evidence is against the claim for service connection for residuals of a colloid cyst, 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. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Marissa Caylor Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.