Citation Nr: 21026384 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 14-26 205 DATE: April 30, 2021 ORDER Entitlement to service connection for brain tumors, including as secondary to right ear otosclerosis with hearing loss is denied. FINDING OF FACT The preponderance of the evidence does not support that the Veteran’s brain tumors were etiologically linked to his active duty service, to include as secondary to his service-connected otosclerosis. CONCLUSION OF LAW The criteria for service connection for brain tumors, including as secondary to right ear otosclerosis with hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from October 1975 to October 1979. The Appellant is the Veteran’s surviving spouse. At the time of the Veteran’s passing, the instant claim was on appeal. In July 2013, the Appellant filed a claim for substitution. In July 2019, the Agency of Original Jurisdiction (AOJ) found that the Appellant is a valid substitute claimant to continue the appeal. See 38 C.F.R. § 3.1010 (2018). Initially, the Board expresses its sympathy to the Veteran’s family for their loss and recognizes the valuable service he gave the United States during his service in the United States Air Force. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision issued by AOJ. In July 2017, the Appellant was notified that her requested hearing was scheduled for August 2017. The Appellant failed to report for the hearing, and the hearing notice was not returned to VA as undeliverable. As such, the Board deems the request for a hearing withdrawn. 38 C.F.R. § 20.704(d). The matter was previously remanded by the Board, most recently in October 2020. It has been returned to the Board for appellate review. The appeal was remanded in October 2020 to obtain an adequate medical opinion as to the nature and etiology of the Veteran’s multifocal glioblastoma multi forme (i.e., brain tumors). Addendum medical opinions were associated with the file in December 2020. The Board finds that the medical opinions are supported by sufficient rationale. Thus, the Board determines that there has been substantial compliance with the October 2020 remand directives. Therefore, further remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that remand not required where there was substantial compliance with remand directives). Entitlement to service connection for brain tumors Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, 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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 48 (1995) (en banc). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). \ The Appellant contends that the Veteran’s brain tumors were caused by a metal prosthesis that was surgically implanted in the Veteran’s right ear during service. In the alternative, the Appellant contends that the Veteran’s brain tumors were aggravated by his service-connected otosclerosis in that the Veteran was not able to seek timely treatment due to the metal implant. There is no dispute that the Veteran was diagnosed with multifocal glioblastoma multi forme (i.e., brain tumors). Likewise, it is undisputed that the Veteran underwent a stapedectomy during service where a metal prosthesis was implanted in his right ear. Therefore, the first and second elements of direct service connection are established. The sole remaining issue is nexus. In April 2020, a VA examiner opined that the Veteran’s brain tumors were less likely than not related to his active duty service. The examiner found the Veteran was diagnosed in 2012, and there were no signs or symptoms consistent with brain tumors when the Veteran was in service. The Veteran provided no lay statements suggesting that his brain tumors had their onset in service. As to the August 1979 stapedectomy, the examiner reasoned that the procedure was not a known risk factor for developing multifocal glioblastoma. In fact, the medical literature reveals that the only established risk factor for the condition, other than genetics, is exposure to ionizing radiation. The Board notes that the record does not establish, nor does the appellate contend that the Veteran was exposed to ionizing radiation during service. The Board finds the opinion probative as it is supported by thorough rationale signifying consideration of the relevant evidence and medical literature. Turning to secondary service connection, a current disability has been noted. Additionally, the Veteran was service connected for otosclerosis of the right ear. As to a nexus, the examiner noted that review of the records did not show or confirm aggravation of the brain tumors. As to whether the Veteran’s metal prosthesis impeded early detection of the brain tumors the examiner reasoned that MRIs are a diagnostic procedure and alternative diagnostic exams may be used in the monitoring of brain tumors. The Board finds the December 2020 opinion probative. The December 2020 opinion is supported by the evidence of record including the Veteran’s own statements. The Veteran consistently reported that he underwent alternative imaging and diagnostic studies due to his inability to receive MRIs. In December 2010, the Veteran’s treating physician wrote that the alternative tests were more painful and time consuming but did not indicate that the tests were less effective. In light of the negative nexus opinion and lack of evidence sufficient to contradict the negative evidence, there is no basis for a grant of service connection for the Veteran’s brain tumors. To the extent that the Appellant advances her own interpretation of the Veteran’s medical conditions, the Board acknowledges that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the probative value of the Appellant’s general assertions regarding the etiology of the Veteran’s glioblastoma multi forme is outweighed by the probative value of the specific, reasoned opinion of the physician who provided the December 2020 VA opinions. Moreover, the Board finds neither the Appellant nor the Veteran competent to provide an etiology as to his brain tumors. The question of the etiology of a brain tumor is beyond the knowledge of a lay person, and requires medical training. Because the preponderance of the evidence weighs against the claim, the claim of entitlement to service connection for brain tumors, including as secondary to right ear otosclerosis with hearing loss is denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Sherman Associate 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.