Citation Nr: 21029544 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 17-16 730A DATE: May 13, 2021 ORDER Entitlement to service connection for schwannoma (claimed as tumor on right thigh) is denied. FINDING OF FACT The Veteran's pre-existing right thigh schwannoma was documented on service entrance, and was not aggravated by his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for schwannoma (claimed as tumor on right thigh) have not been met. 38 U.S.C. §§ 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from January 1961 to January 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In a December 2018 decision, the Board reopened the previously denied claim and remanded the reopened claim for further development. In the March 2017 substantive appeal (via VA Form 9), the Veteran requested a hearing before a Veterans Law Judge (VLJ). In July 2017, he withdrew the hearing request. 38 C.F.R. § 20.704 (e). The record reflects that the Veteran received a letter indicating that he could request a virtual tele-hearing instead of waiting for a travel board hearing. Upon further review, and in consideration of his prior withdrawal, he does not have a pending hearing request. 1. Entitlement to service connection for schwannoma (claimed as tumor on right thigh) The Veteran seeks service connection for schwannoma (claimed as tumor on right thigh). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Generally, a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304 (b). A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (b). The Veteran's January 1961 entrance examination report noted a small right anterior thigh muscle swelling, tender, not considered significant. As this disease or disability was noted on entrance into service, the Veteran was not considered sound at that time. 38 C.F.R. § 3.304 (b). The Veteran contends that he aggravated his condition throughout service, generally by bumping it against other things. The Veteran's right thigh lump eventually progressed into a malignant schwannoma. This was treated by surgery and radiation in 1982. The Veteran continues to have residual symptoms. In April 2007, VA obtained a medical opinion concerning the etiology of the condition. The examiner concluded that the schwannoma removed in 1982 was not due to or related to military service nor was it exacerbated by military service, but a cogent rationale was not provided. A VA examination was conducted in October 2020. The examiner diagnosed right hip strain; status-post right schwannoma excision with subsequent distal neuropathy; and right leg edema. The examiner stated that: The right leg neuropathy and swelling are distal to site of tumor excision and site of radiation therapy. He was not having trouble with his leg until after the tumor excision & radiation therapy. It is at least as likely as not (50 percent or greater probability) that the diagnosed conditions were incurred in or caused by the right thigh tumor during service. A VA physician reviewed the record and provided the following opinion in January 2021. Review of the medical record suggests less likely than not the Veteran experienced an aggravation beyond the natural progression of his right leg schwannoma. The Veteran served in the Army Jan 24, 1961 to Jan 10, 1963. There is no evidence in the medical record that an aggravation beyond the natural progression occurred during service. There may have been growth of the schwannoma during service (though there is contradictory reports in the medical record of how much growth did or did not occur; as stated in the remand, the Board made a factual finding that the Veteran's right thigh growth did not change in size or shape during active service), but this would have been within the natural progression of a schwannoma. After service the Veteran underwent radiation treatment and resection of the schwannoma in 1982, based on the medical record - this treatment suggests the tumor did undergo significant growth, though this was at least as likely as not after service, given the treatment occurred almost 20 years after exit from service. Due to this treatment, the Veteran developed chronic lymphedema of the right lower extremity, documented repeatedly in the medical record. Based on the medical record, this has resulted in functional impact, though recent hip and thigh examination 10/2020 did not diagnose any condition due to the history of malignant schwannoma or status post its excision, though the examination does not mention the surgery under the surgical procedures section, calling into question the accuracy of the examination. It is possible the diagnosed right hip strain is due to the history of schwannoma, that is unclear. Nevertheless, the examiner does state the Veteran uses a walker due to the hip condition, which at least as likely as not is originally due to the schwannoma excision. However, this functional impact did not have its onset in service; rather, it is due to the treatment for the schwannoma that occurred after service. Upon review, the Board finds that service connection is not warranted. As noted above, the presumption of sound condition at entrance does not apply to the Veteran's right thigh condition. 38 C.F.R. § 3.304 (b). As a pre-existing disability was noted on entrance, the remaining question is whether the Veteran's right thigh condition was aggravated by his service. On this question, the Board finds the January 2021 VA physician's opinion competent and probative evidence. The VA physician has the appropriate training, expertise and knowledge to evaluate the claimed disability. The VA physician provided a thorough and cogent rationale for her opinion, which included consideration of the Veteran's reported symptoms both during and after service, and the post-service clinical history. Furthermore, the physician also reviewed the entire claims file. The physician found no evidence in the medical record that an aggravation beyond the natural progression occurred during service. There are no competent and equally probative opinions to the contrary. In particular, the Board notes that the October 2020 VA examination report does not acknowledge that the right thigh condition was noted at entrance into service, and thus does not address the pertinent question of whether there was inservice aggravation. As such, the Veteran finds that opinion not probative. In a March 2017 VA Form 9, the Veteran reported the lump on his right thigh grew three times as large during active service. The Veteran is competent to report such a fact as it is readily observable. The Board is cognizant that the Veteran has related his condition to service. The Veteran is competent to discuss symptoms he experienced in service and post-service, as this is observable through the five senses. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). However, a review of the other evidence of record shows that on multiple occasions the Veteran described the history of the lump and its growth rate during prior treatment in the 1980s. See, e.g., Riverview Hospital Record (May 12, 1982) and MeritCare Record (June 11, 1982). At that time, he reported to his treating physicians that the lump appeared spontaneously at approximately 18 years of age, just before entering military service, and generally did not change in size or shape until 1982. Id. These prior statements weigh against the Veteran's more recent assertion of in-service growth. The Board considers them more probative than the recent statements for two reasons. First, they were made closer-in-time to his period of active service. Second, they were made to physicians during the course of treatment as opposed to VA in pursuit of substantiating a claim. Accordingly, the Board finds that the Veteran's recent assertion is outweighed by his prior statements. The lump on his right thigh did not grow or change in size or shape during service. Ultimately, the weight of the competent and probative evidence is against the Veteran's claim. The January 2021 VA medical opinion is competent and probative evidence that is unfavorable on the matter of aggravation of this pre-existing condition. The Board has considered the applicability of the benefit of the doubt doctrine; however, that doctrine is not applicable. Service connection is not warranted. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Mazzucchelli, 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.