Citation Nr: 21042236 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 12-06 749 DATE: July 12, 2021 ORDER Service connection for residuals, status post right parapharyngeal space tumor, is granted. FINDINGS OF FACT 1. The Veteran had a right parapharyngeal space tumor excised in 2007 and 2009. 2. The Veteran has residuals as a result of the excisions. 3. The Veteran served in the Southwest Theater of Operations during the Persian Gulf War where he was exposed to toxins from oil fields, burn pits, and other environmental hazards. 4. The Veteran's right parapharyngeal space tumor had an inconclusive etiology, and which was characterized by overlapping symptoms of muscle pain, neurologic issues, and sleep disturbances. 5. The Veteran's right parapharyngeal space tumor existed for more than six months and manifested to a degree of 10 percent or more prior to December 31, 2021. CONCLUSION OF LAW The criteria for service connection for residuals, status post right parapharyngeal space tumor, are met. 38 U.S.C. §§ 1110, 1117, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from November 1979 until his honorable retirement in August 1994. This appeal is being treated expeditiously on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. §§ 5109B, 7112 and 38 C.F.R. § 20.902(d). This case comes before the Board on appeal from an August 2009 decision by the St. Petersburg, Florida, Regional Office of the United States Department of Veterans Affairs (VA), which denied service connection for right parapharyngeal space tumor due to exposure to radiation and smoke. In December 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). In an April 2017 decision, the Board denied the Veteran's claim for service connection. The Veteran subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Based on a Joint Motion to Remand (JMR) submitted by the parties, the Court entered an order in May 2018 vacating the Board's decision in full and remanding the matter to the Board for readjudication. Within the parties' JMR, they stipulated the Board erred by failing to adequately consider or discuss whether the November 2015 VA medical nexus opinion provided sufficient rationale to support its conclusion that the Veteran's right parapharyngeal space tumor, diagnosed and excised in 2007, was not causally related to any chronic or recurrent respiratory illness noted in his service treatment records. In October 2018 and September 2020, consistent with the parties' JMR and the Court's order, the Board remanded the case to the VA Regional Office for further development. Specifically, the Board directed the VA Regional Office to obtain addendum opinions addressing the etiology of the Veteran's parapharyngeal space tumor, which the Regional Office accomplished. The case now returns to the Board for adjudication. Evidentiary Standards In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. Service Connection The Veteran and the record raise multiple legal theories on which service connection is sought, including: (1) direct service connection, (2) presumptive service connection due to service in the Southwest Asia Theater of Operations; (3) presumptive service connection based on engagement in radiation-risk activity; and (4) service connection due to exposure to ionizing radiation. The Board concludes that it is able to grant service connection on a presumptive basis due to the Veteran's service in Southwest Asia, which awards the Veteran complete benefits. Therefore, an analysis of the other legal theories is unnecessary. 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 disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an 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). When these elements are satisfied, service connection may be granted on a direct basis. In addition to direct service connection, presumptive service connection is available for Persian Gulf War veterans who exhibit objective indications of "qualifying chronic disabilities," provided that any such disability manifests "during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War" or to a degree of 10 percent or more no later than December 31, 2021, and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117(a); 38 C.F.R. § 3.317(a)(1)(i). This presumption alleviates the need for the Veteran to establish a direct causal link between service and his or her disability. A "chronic disability" is defined "as disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period." 38 C.F.R. § 3.317(a)(4). A "qualifying" chronic disability is one that results from either an undiagnosed illness or a medically unexplained chronic multi-symptom illness, such as chronic fatigue syndrome, fibromyalgia, or a functional gastrointestinal disorder. 38 U.S.C. § 1117(a)(2)(A); 38 C.F.R. § 3.317(a)(2)(i). The term "medically unexplained chronic multi-symptom illness (MUCMI)" is "a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities." 38 C.F.R. § 3.317(a)(2)(ii); see Stewart v. Wilkie, 30 Vet. App. 383, 390 (2018) ("Under the proper interpretation of the law, an illness is a MUCMI where either the etiology or pathophysiology of the illness is inconclusive. Conversely, a multi-symptom illness is not a MUCMI where both the etiology and the pathophysiology of the illness are partially understood."); 38 C.F.R. § 3.317(a)(2)(ii). The determination of whether an illness is "medically unexplained" or without a conclusive etiology is particular to the claimant in each case and requires a medical opinion. Stewart, 30 Vet. App. at 391 (noting that a MUCMI determination is "to be based on a claimant's unique symptoms and the evidence of record"). Therefore, an illness cannot, as a general matter, be excluded from being a MUCMI on the basis of definitional materials or treatises alone. Id. ("[G]eneric information in a medical journal or treatise that certain factors could cause a medical condition does not, as a general matter, establish nexus absent additional evidence that those factors did cause a veteran's condition." Rather, there must be an examination of "all the facts of record and the claimant's unique symptoms." Id. Significantly, there must be objective indications of qualifying chronic disabilities. 38 C.F.R. § 3.317(a)(1). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3); see also 38 U.S.C. § 1117(g) (listing examples of signs and symptoms that may be manifestations of undiagnosed illnesses or a MUCMI); 38 C.F.R. § 3.317(b) (same). Analysis First element: A current disability For each theory of service connection, the Veteran must have a current disability. The requirement for a veteran to have a "current disability" is satisfied when he or she has a disability (1) at the time a claim for VA disability compensation is filed or (2) has a disability during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board concludes the Veteran's residuals associated with the removal of his right parapharyngeal space tumor satisfy this element. Nevertheless, in order to receive service connection for these residuals, the Veteran's tumor must have been subject to service connection, and the focus of this decision is on whether the Veteran's tumor can be service connected. Second element: Service in Southwest Asia Theater of Operations The Veteran asserts that he was exposed to smoke and fumes from oil fire, burn pits, and other environmental hazards while stationed on a naval ship in Southwest Asia during the Persian Gulf War. He states that he served aboard the U.S.S. Tarawa, which was anchored a few hundred feet of the shores of Kuwait for approximately six months. January 2009 VA Form 21-4138, Statement in Support of Claim; December 2009 Correspondence with VA (treated as a notice of disagreement). The Board finds the evidence of record supports his assertion. The Persian Gulf War began on August 2, 1990, and will continue until a date "thereafter prescribed by Presidential proclamation or by law." 38 U.S.C. § 101(33); 38 C.F.R. § 3.2(i). The Veteran's military records indicate he served overseas and received the Southwest Asia Service Medal and Kuwait Liberation Medal. See DD Form 214; DD Form 215. There is also evidence in the form of a letter from the Office of the Secretary of Defense that the Veteran's unit was in Southwest Asia between January 1991 and March 1991. The Veteran testified to these facts during his July 2015 Board Hearing. The Board finds this evidence credible and probative. Therefore, the Board finds the Veteran is a Persian Gulf War veteran. Third element: Presumptive service connection The Veteran received a VA examination in December 2011 specific to his service in Southwest Asia. Based on review of the Veteran's medical records, the examiner opined that the Veteran's tumor had a clear diagnosis, pleomorphic adenoma, "the most common tumor of the salivary and parotid gland." The Veteran's medical records indicate his tumor was benign. Subsequent medical opinions, from private physicians and VA physicians, and his medical records likewise clearly diagnosed the Veteran with pleomorphic adenoma. There is no evidence to the contrary. Thus, the Veteran does not have an "undiagnosed illness" subject to presumptive service connection. Nevertheless, the December 2011 VA examiner also stated that the Veteran's pleomorphic adenoma met the "TL 10-01 criteria for a disease with a clear and specific etiology." The examiner did not explain what the TL 10-01 criteria was or how he made that determination. Moreover, the examiner's statement was contradicted by his later reliance on medical literature that "[l]ittle is known about the origins of these neoplasms"; he cited "MD Consult 2011, UpToDate 9/2011, BrighamRAD 7/1995, Wikipedia." The examiner did not explain, or attempt to reconcile, the apparent contradiction between his opinion and the medical literature. A November 2015 VA examiner likewise stated that "the etiology of SGTs [salivary gland tumors] is unknown," which the examiner stated "supports the 2011 C&P examiner's opinion that little is known about the origins of the type of benign tumor[.]"; he cited Benign Tumors of Minor Salivary Glands, last updated on 06/19/2015, available at http://emedicine,medscape.com/article/194522-overview. Notably, the November 2015 VA examiner did not offer support for the December 2011 VA examiner's opinion that the Veteran's tumor had a clear etiology. The Veteran submitted a November 2009 medical opinion from his treating surgeon who stated that "[t]he etiology of pleomorphic adenoma is multifactorial[.]" "Etiology" means "a science or doctrine of causation or of the determination of causes." Stewart, 30 Vet. App. at 388, n. 5 (quoting Webster's Third New International Dictionary of the English Language Unabridged 782 (1966)). In the context of illnesses, "etiology" is defined as "all of the factors that contribute to the occurrence of a disease or abnormal condition." Id. Analyzing the foregoing evidence, the Board can only conclude that the Veteran's tumor did not have a clear etiology. In fact, the November 2015 VA examiner's opinion, that the etiology of such tumors is generally unknown, is the most persuasive to the Board as it is based on medical literature and thoroughly discussed by that examiner. This opinion is also supported by the cited medical literature from the December 2011 examiner. Turning to the symptomatology associated with the Veteran's tumor, he reported that experienced sleep apnea and restless leg syndrome. He reported that these symptoms ceased after his tumor was removed in 2007. No VA examiner offered any medical reason to doubt that the Veteran experienced these symptoms or that the such symptoms were associated with his tumor. The Board finds the Veteran's statements credible and probative. Both statute and regulation identify signs or symptoms involving muscle pain, neurological issues, and sleep disturbances as possible manifestations of a MUCMI. 38 U.S.C. § 1117(g)(4), (6), (9); 38 C.F.R. § 3.317(b)(4), (6), (9). The Court's opinion in Stewart is clear, "[u]nder the proper interpretation of the law, an illness is a MUCMI where either the etiology or pathophysiology of the illness is inconclusive." 30 Vet. App. at 390 (emphasis added). As the etiology of the Veteran's tumor is inconclusive in this case, and based on the manifestation of his symptoms, the Board finds his tumor constituted a MUCMI. His tumor also existed for more than six months, and it manifested to a degree of 10 percent or more prior to December 31, 2021, see 38 C.F.R. § 4.124a, Diagnostic Code 8022. Therefore, the Veteran's tumor constitutes a qualifying chronic disability. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Accordingly, service connection on a presumptive basis for residuals of the parapharyngeal space tumor due to the Veteran's service in Southwest Asia is warranted. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.