Citation Nr: 21042407 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 13-34 041A DATE: July 13, 2021 REMANDED Entitlement to service connection for meningioma of the right eye, claimed as a right eye tumor, as due to herbicide exposure, is remanded. Entitlement to service connection for a seizure disorder, as due to meningioma of the right eye, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1966 to November 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal form a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma. In September 2017, the Veteran testified at a videoconference hearing before an undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the record. In a March 2019 decision, the Board denied these claims. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 Memorandum Decision, the Court set aside the Board's decision and remanded the matter for readjudication. In November 2020, the Veteran provided testimony on these matters at a videoconference hearing before a second undersigned VLJ. A transcript of that hearing has been associated with the record. Thus, the Veteran has participated in two hearings concerning the same issues. VA law requires that a VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107(c) (2012); 38 C.F.R. § 20.604 (2020). Additionally, when two hearings have been held by different VLJs concerning the same issue or issues, the law also requires that the Board assign a third VLJ to decide that issue or issues because a proceeding before the Board must be assigned either to an individual VLJ "or to a panel of not less than three members of the Board." 38 U.S.C. § 7102(a); 38 C.F.R. § 20.106; Arneson v. Shinseki, 24 Vet. App. 379 (2011). The Board sent a letter to the Veteran in April 2021, informing him of the option to have an additional hearing before a third VLJ. The letter informed him that failure to respond within thirty days would result in the Board assuming that he did not want a third hearing. To date, there has been no response to the letter, and the Veteran's option to have a hearing in front of a third VLJ is deemed waived. In its July 2020 Memorandum Decision, the Court agreed with the Veteran's argument on appeal that the Board erred when it failed to discuss certain aspects of the Veteran's service treatment records in its March 2019 decision. Specifically, the Veteran's service treatment records show that he was treated for irritation of the right eye in January 1968, which was determined to be an infection. One month later, in February 1968, the Veteran was treated for a right eye infection with swelling of both eyelids. Conjunctivitis was diagnosed, and drops were prescribed. In a September 1969 separation examination, the Veteran's eyes were found to be normal, and he denied any eye trouble. The Board notes that throughout the appeal, including the Veteran's June 2013 notice of disagreement, his December 2013 substantive appeal, in multiple statements to VA, and in his testimony during both hearings before the Board, the Veteran has asserted that his meningioma of the right eye developed solely due to his in-service exposure to herbicide agents. The Board notes that exposure to herbicide agents has been conceded. The Court has found that "while the Board's obligation to analyze claims goes beyond the arguments explicitly made," it does not require the Board "to assume the impossible task of inventing and rejecting every conceivable argument in order to produce a valid decision." Robinson v. Peake, 21 Vet. App. 545, 553 (2008). The "question of the precise location of the line between the issues fairly raised by the appellant's pleadings and the record and those that are not must be based on the record in the case at hand; therefore, it is an essentially factual question." Id. Until his appeal to the Court, the Veteran did not raise the issue of entitlement to service connection for meningioma of the right eye on a direct basis. It was in the appellate brief filed in December 2019 that the possible association between in-service treatment and the subsequent development of meningioma of the right eye was first made. Thus, the Board finds that the Veteran's entitlement to service connection on a direct basis was raised by the Veteran in December 2019 and by the Court's July 2020 Memorandum Decision, which directed the Board to consider the Veteran's service treatment records. VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, the record establishes a diagnosis; an in-service event; and the suggestion of an association between the two. To date, there has been no medical opinion which discusses this theory of entitlement. Thus, the Board finds that the low threshold under McLendon is met and a VA examination should be obtained to adequately decide the merits of the claim. Id. Turning to the Veteran's claim of entitlement to service connection for a seizure disorder, as due to meningioma of the right eye, the Board notes that the Veteran does not allege, nor does the record reflect, that he first manifested the disorder during service, or within one year of his discharge from service, or that such is otherwise related to service on a direct basis. In a September 2012 statement to VA, the Veteran asserted that his seizure disorder first began in 2010, after the surgery to treat the meningioma. He has subsequently testified that his doctor told him that the scar tissue from the right eye surgery caused his seizure disorder. Thus, the Board finds that development of the claim on a direct basis, is not warranted. See Robinson, supra. However, service connection may be granted on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disorder. 38 C.F.R. § 3.310(a). Here, service connection has not yet been established for meningioma of the right eye, which is the basis for the Veteran's claim of entitlement for the seizure disorder. Thus, the Board finds that the claim is inextricably intertwined with the service connection claim remanded herein, as the outcome of such claim may materially affect the seizure disorder claim. Thus, adjudication of the Veteran's claim of entitlement to service connection for a seizure disorder, as due to meningioma of the right eye, is deferred. The matters are REMANDED for the following action: Obtain a medical opinion which addresses the etiology of the Veteran's meningioma of the right eye. The claims file should be made available to and reviewed by the examiner. The need for an in-person examination of the Veteran is left to the discretion of the examiner. After reviewing the claims file, the examiner is asked to address whether it is at least as likely as not (that is, a 50 percent or greater probability) that the Veteran's meningioma of the right eye was incurred in or is otherwise related to service. In addressing this question, the examiner must specifically address the Veteran's in-service treatment for irritation of the right eye in January 1968, as well as February 1968 treatment for a right eye infection with swelling of both eyelids. A complete rationale must be provided for all opinions expressed. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals M. SORISIO Veterans Law Judge Board of Veterans' Appeals KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.