Citation Nr: 21032586 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 17-62 369A DATE: May 27, 2021 ORDER Entitlement to service connection for a brain disability to include residuals of a brain aneurysm or brain cancer is denied. Entitlement to secondary service connection for a seizure disability is denied. Entitlement to service connection for throat cancer is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that brain disability began during active service or is otherwise related to an in-service injury or disease. 2. The Veteran's seizure disorder is not secondary to any service-connected disability and is not otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that throat cancer began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for brain disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for seizure disorder due to service or a service-connected disease or injury are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for throat cancer are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from October 1957 to May 1962. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902(c). These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision of the Regional Office of the Department of Veterans Affairs (VA). In April 2019, the Veteran testified before the undersigned at a hearing via videoconference. A transcript of his testimony has been associated with the claims file. The Board notes these matters were previously denied in a September 2019 Board decision. The Veteran subsequently appealed the September 2019 Board decision to the U.S. Court of Appeals for Veterans Claims (CAVC). In a May 2020 Joint Motion for Partial Remand (JMPR), the parties agreed that the Board erred in not providing adequate reasons and bases for finding that the Veteran did not have a current brain aneurysm, residuals of a brain aneurysm, or a brain meningioma. The parties also agreed the Board erred in not providing adequate reasons or bases as to whether his seizure disability is secondary to his brain disability. Lastly, the parties agreed the Board erred in not considering whether a VA medical examination is warranted for his throat cancer. As such, CAVC ordered the issues be remanded consistent with the terms of the JMPR. These matters were then remanded in December 2020 for further development, to include VA examinations. The appeal is now again before the Board. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that 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). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) competent evidence establishing that the service-connected disability caused or aggravated the nonservice-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). Furthermore, in deciding 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 Veteran 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 (2014); 38 C.F.R. § 3.102 (2018); 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 of the matter, the benefit of the doubt will be given to the Veteran. Id. 1. Entitlement to service connection for a brain disability to include residuals of a brain aneurysm or brain cancer. 2. Entitlement to secondary service connection for a seizure disability. Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below. The Veteran asserts that he is entitled to service connection for a brain disability. Specifically, he asserts his brain disability is related to daily exposure to jet fuel during service. See April 2019 Hearing Transcript. The December 2020 VA examination diagnosed the Veteran with a brain aneurysm and seizure disorder originating in 1991. In 1996 the Veteran had brain surgery to clip his 1991 aneurysm. He continues to have residuals of his brain aneurysm such as memory loss. See May 2019 VA Treatment Records. He was also diagnosed with a seizure disorder as a result of his cardiac and brain surgeries. See December 2020 VA Examination and VA Treatment Records. A March 2021 addendum opinion addressed the diagnosis issues from the JMPR and stated as follows, "The claims file does note a suspected meningioma, but there is no evidence found where this diagnosis was confirmed, therefore no diagnosis of meningioma rendered on this exam. As discussed on the CNS DBQ, Veteran's residuals associated with the residuals from the rupture of the aneurysm includes seizures, memory difficulties and cognitive difficulties." Furthermore, a January 2020 CT scan of the head with and without contrast did not reveal a tumor, cancer, abnormal bleeding, or hemangioma. See December 2020 VA Examination. As a result, the Veteran has met the first element of service connection for both his brain disability and seizure disorder. The Veteran is not pursuing an appeal of the Board's denial of service connection for his seizure disability on a direct basis. Rather, the Veteran's seizure disorder claim can only be granted service connection on a secondary basis due to his brain disability. But first the Board must determine if the brain disability is connected to service. The Board finds that it is certainly reasonable to presume that the Veteran was exposed to jet fuel fumes during service based on his MOS of jet engine mechanic and his April 2019 hearing testimony. While not constituting an injury in the physical sense, the Board accepts the proposition that multiple exposures to jet fuel fumes and vapors without adequate ventilation or personal protective gear and masking is sufficient to constitute an injury. As such, he has met the second element of service connection for his brain disability. Unfortunately, there is no nexus or link between his brain disability and service. The Veteran was honorably discharged from service in May 1962 and his aneurysm occurred approximately 30 years later in 1991. The December 2020 examiner explained that the "underlying cause for [a] brain aneurysm is [weakened] blood vessels ... the main reason is smoking tobacco, followed by high blood pressure and severe head injuries." The Veteran reported smoking for the five years preceding his aneurysm and continued smoking an additional five years afterwards, stopping in 1996 when he had open heart surgery and valve repair. The examiner concluded that "the most likely contributing factors to the Veteran's seizures and brain aneurysm are his smoking history and cardiovascular disease." The Veteran submitted a news article at his hearing regarding a landfill settlement and explained in his hearing that people living near the landfill got cancer. The Veteran does not assert that he lived near the landfill during service, but that just like those individuals exposed to toxins from the landfill developed cancer, he did as well from jet fuel fume exposure in service. However, the Veteran is not competent to provide an etiology for his brain aneurysm and has not been diagnosed with brain cancer. Furthermore, the article discusses the landfill contamination and is not a medical article on cancer. Furthermore, the March 2021 VA examination elaborated, "[t]hough the specific etiology of the Veteran's aneurysm is unknown it occurred 30 years post service, therefore it is less likely directly related to his service time. There is also no literature to support exposure to jet fuel in service being related to brain aneurysms." The objective medical evidence of record establishes that the Veteran does not have a brain tumor, that his only brain aneurysm was in 1991, and that the Veteran's only current brain diagnoses are residuals from his aneurysm. Those residuals, and by association his aneurysm, are not connected to service because the weight of the competent evidence, and in particular, the persuasive medical evidence which related his weakened blood vessels that caused the aneurysm are from smoking tobacco and cardiac disease and not jet fuel fumes. For these reasons, the Veteran's claim for service connection for a brain disability is denied. As the Veteran's brain disability claim has been denied, his seizure disorder cannot be awarded service connection on a secondary basis and so that claim is also denied. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for throat cancer. The Veteran asserts that he developed throat cancer due to exposure to jet engine fumes. The Veteran had throat cancer over 10 years ago in 2004. The December 2020 VA examination noted that he had malignant tumors or neoplasms of the nose, throat, larynx, or pharynx in 2004 that caused current residuals consisting of occasional difficulty swallowing and dry mouth. His throat cancer is in remission and he is still being watched for possible recurrence. Although there are no references to dry mouth or swallowing issues in the VA treatment records after 2005 or since he filed his claim in October 2015, the Board will rely on the VA examinations conclusion that the Veteran has current symptoms that are residuals of his cancer treatment. As a result, the Veteran has met the first element of service connection. As stated above, the Board finds that the Veteran was exposed to jet fuel fumes during service based on his MOS of jet engine mechanic and his April 2019 hearing testimony. As such, he has met the second element of service connection for his brain disability. This claim was remanded by the Board in December 2020 after a JMPR instructed the Board to obtain a VA examination for the Veteran's throat cancer. That examination took place in December 2020. Unfortunately, again, there is no nexus between the Veteran's residuals of throat cancer and service. During service the Veteran had a sore throat and cough that was diagnosed as an upper respiratory infection. This resolved after treatment and the Veteran was noted to be asymptomatic. He also had pneumonia which was also treated and resolved. See 1961 Service Treatment Records. At discharge the Veteran did not report any tumors, growths, cysts, chest pain or pressure, or throat trouble. See Service Treatment Records. Furthermore, the December 2020 VA examination states that the Veteran "had a fairly benign ENT history from the time of service." There are intercurrent causes after service that are more likely the cause of the Veteran's throat cancer. The December 2020 examiner stated that the Veteran "smoked tobacco from approximately 1986 [to] 1996. Since tobacco is one of the most common causes of throat cancer, and his throat cancer was diagnosed in 2004, it is most likely that the main contributing factor to his throat cancer was smoking." The Veteran had cancer in 2004, VA treatment records show he had dry mouth in January 2005 after being treated for thrush in his gingival tissues and throat cancer. See VA Treatment Records. Although there are no references to dry mouth and difficulty swallowing after 2005 in the VA treatment records, the VA examinations listed these issues as current symptoms. Despite this, his cancer is not connected to service and is more likely a result of his 10 years of tobacco usage. As a result, his claim is denied. (Continued on the next page) In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Johnston, 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.