Citation Nr: 21024885 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 16-28 331 DATE: April 26, 2021 REMANDED Entitlement to service connection for meningioma is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1966 to March 1987. In March 2019, the Board remanded this issue for additional development, and the case has been returned for appellate consideration. The Veteran seeks service connection for meningioma. He contends that exposure to asbestos and chemicals, particularly herbicide agents, during service caused his current disability. See Correspondence, received 4/6/2016, 8/7/2018,5/30/2020; VA Form 9, received 6/2/2016. He reports that he was told in 2002 that his meningioma “had been growing for the past 30 years.” See Correspondence, received 8/28/2006. He stated that ships upon which he served were around the Vietnam shores, specifically mentioning service on the U.S.S. Ashtabula (AO-51). His military personnel records show that he also served on the U.S.S. Leahy (DLG 16) from May 1969 to July 1971. See Military Personnel Record, received 6/10/2016. Both the Veteran and his wife have stated that he started having headaches during service, which continued thereafter. They stated that, during service, the only treatment provided was Tylenol without any diagnostic imaging. See VA Form 9, received 8/16/2019; Statement, received 11/6/2019. In 2002 and 2016, the Veteran underwent cranial surgery for resection of a meningioma, with further treatment with radiation and chemotherapy. See Jan./Feb 2020 C&P Exam. The Veteran’s primary symptom at the time of diagnosis was headaches along with left leg weakness and memory loss. The Veteran has reported that his headaches started decades ago and got worse after his craniotomies. See Nov. 2018 C&P Exam, received 1/18/2019. His service treatment records show that the Veteran was exposed to asbestos during 1968 and 1969 during refitting of his ship. See STR, received 8/5/1987. During his December 1986 examination for separation from active duty, he reported having had frequent or severe headaches for the previous three months. See STR (99 pp), received 6/10/2016. The Veteran’s claim for service connection turns upon whether his meningioma is related to his active duty service etiologically. In February 2017, Dr. S.B., a treating neurologist, stated that the Veteran had been “suffering from his Headaches for 30+ years.” Noting the Veteran’s in-service exposure to “different chemical/asbestos,” it was opined that “[t]here is a possibility his conditions are related to that exposure.” See MTR, received 8/7/2018. In May 2018, Dr. K.X., another treating neurologist, stated that the Veteran “used to be exposed to asbestos and other chemicals,” and opined that “this exposure can be a cause of his disabling conditions.” Id. A reviewing clinician opined that, because the diagnostics leading up to the identification of the Veteran’s meningioma related to symptoms in November 2001, it was less likely than not that the Veteran’s meningioma was incurred in service or was caused by an in-service event. It was also opined that it was less likely than not that symptoms related to the meningioma occurred within one year of separation from service. See VA Examination, received 7/24/2020. The reviewing clinician also opined that it was less likely than not that the Veteran’s meningioma was caused by exposure to asbestos. See C&P Exam, received 7/16/2020. It was explained that the causes of meningiomas “are not fully understood” and that several research studies suggest that “many meningiomas develop spontaneously or without a known cause.” It was stated that it had been discovered that genetic mutations, exposure to high doses of ionizing radiation, and hormones could trigger the development of a meningioma, but there “is no medical evidence to corroborate asbestosis causing Meningioma to develop.” The Board finds these opinions problematic because they are merely conclusory, lacking sufficient rationale and failing to account for all the relevant evidence of record. Consequently, they fail to address the Veteran’s contentions. Of particular concern for the Board is the opinion writers’ failure to address the medical understanding as to rates of development for meningiomas as raised by the Veteran’s report that he had been told that his meningioma had taken 30 years to develop. Also, at the time of separation, the Veteran clearly indicated that he had been experiencing frequent or severe headaches, which was one of the leading symptoms that eventually led to the diagnosis of his meningioma. Furthermore, the reviewing clinician failed to explain how it could be less likely than not rather than at least as likely as not that the meningioma was present during the Veteran’s active duty service. Consequently, the Board is compelled to remand this issue so that new medical opinions can be obtained. Additionally, VA has not made a formal finding as to whether presumed exposure to herbicide agents can be stablished. For those who had active service in the Republic of Vietnam between January 9, 1962, and May 7, 1975, service connection for certain enumerated diseases may be based upon presumed exposure to an herbicide agent, such as Agent Orange. 38 U.S.C. §§ 1116, 1116A; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). A veteran who served offshore of the Republic of Vietnam during this period “shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.” 38 U.S.C. § 1116A(b). A location will be treated as being offshore of Vietnam “if the location is not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting” the points provided in the enumerated table. 38 U.S.C. § 1116A(d); see also Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc). Therefore, due to the Veteran’s contention of having served in the waters offshore of Vietnam, a remand is required for such development. If presumed exposure to herbicide agents can be established, medical opinions are required as to whether the nature of the Veteran’s meningioma is consistent with a disease listed in 38 C.F.R. § 3.309(e), and, if it is not, whether a nexus can be established on a direct basis in relationship to exposure to herbicide agents. This matter is REMANDED for the following actions: 1. Verify whether any of the vessels on which the Veteran served during the period set forth in 38 U.S.C. § 1116A(b) sailed within 12 nautical miles of the Republic of Vietnam or within the waters outlined in 38 U.S.C. § 1116A(d), while the Veteran was aboard. This search should include obtaining deck logs and/or command histories of those ships, if necessary, to verify the ships position during the relevant period. Undertake any additional development deemed necessary and make a determination as to whether the Veteran is presumed to have been exposed to herbicide agents during active duty service. 2. After completion of the above directed development, obtain medical opinions from an appropriately qualified clinician to determine the nature and etiology of the Veteran’s meningioma, addressing the following: (a) If presumed exposure to herbicide agents is established, whether the nature of the Veteran’s meningioma is consistent with any of the diseases associated with exposure to herbicide agents listed in 38 C.F.R. § 3.309(e); (b) if presumed exposure to herbicide agents is established, notwithstanding the Veteran’s meningioma not being consistent with a disease listed in section 3.309(e), whether it is at least as likely as not that the Veteran’s meningioma is directly related to presumed exposure to herbicide agents; (c) whether it is at least as likely as not that the Veteran’s meningioma had its onset during active duty service or etiologically is otherwise directly related to service; and (d) whether it is at least as likely as not that the Veteran’s meningioma is related to known in-service exposure to asbestos. The claims file should be made available to the reviewing clinician, and the reviewing clinician should review the claims file in forming the requested opinions. The Board leaves it to the reviewing clinician’s discretion whether the Veteran should be re-examined to provide an adequate opinion. The reviewing clinician should provide a detailed rationale that fully explains all the reasons for the given opinions. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. In rendering these opinions, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran’s reports, an explanation for the rejection must be provided. The reviewing clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support the rendered conclusions. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must 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. 3. Readjudicate the claim. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Leanne M. Innet, 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.