Citation Nr: 22016535 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 17-03 161 DATE: March 22, 2022 ORDER Service connection for brain tumor with residual memory loss, scar, slurred speech, and headaches is granted. Service connection for arthritis (claimed as muscle and joint pain) is denied. FINDINGS OF FACT 1. The Veteran's brain tumor is as likely as not related to in-service environmental exposures during service. 2. Arthritis/muscle and joint pain is not shown to be causally or etiologically related to any disease, injury, or incident in service, to include exposure to ionizing radiation and/or chemicals, and arthritis did not manifest to a compensable degree within one year of service discharge. CONCLUSIONS OF LAW 1. The criteria for service connection for a brain tumor have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for arthritis/muscle and joint pain, to include degenerative changes of the right hand have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1986 to May 1990. This appeal comes to the Board of Veterans' Appeals (Board) from a rating decision dated March 2014 issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded the issues in August 2019 and July 2021 for additional development. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Brain tumor The Veteran contends that he has a brain tumor that is related to service. Specifically, he contends that his brain tumor is related to in-service chemical exposures while he served aboard the U.S.S. Germantown. The Veteran reported exposure to diesel, oil, JP5, freon, smoke, asbestos, and contaminated water. Service Treatment Records (STRs) are silent for any complaint, treatment, or diagnosis of a brain tumor. Post-service treatment records reflect that the Veteran was diagnosed with a brain tumor in 2005 and underwent surgery. The medical records show complaints and treatment for headaches and memory loss. The Board previously conceded that the Veteran was exposed to environmental hazards such as air conditioning chemicals on the U.S.S. Germantown during active military service. In March 2014, the Veteran submitted a medical article from the Mayo Clinic about the risk factors of a brain tumor. The article stated in relevant part, "Chemical exposure on the job. People working in certain industries may have an increased risk of brain tumors, possibly because of the chemicals they're exposed to on the job." Symptoms included headaches and personality changes. In August 2020, a VA examiner reviewed the Veteran's file and determined that he had a post-service brain tumor with current residual headaches, hydrocephalos, cognitive deficits, and craniotomy scar. The examiner opined that the brain tumor was not related to service, to include in-service chemical exposure. He stated that the Veteran's tumor was a pineal cytoma and there was insufficient evidence to support a link between pineal cytoma and chemicals. Following the Board's July 2021 remand, a VA opinion was obtained in December 2021. The examiner indicated review of the 2014 Mayo Clinic article and cited two other medical articles. He opined that the brain tumor and residuals were not related to service because the evidence does not support a finding that the tumor is related to the Veteran's in-service chemical exposure. The examiner noted that Veteran's brain tumor was a pineal tumor, which cause is unknown. He further noted that exposure to radiation may increase the risk; however, there is insufficient evidence that links exposure to diesel, oil, J5, freon, asbestos, smoke, and/or contaminated water to the Veteran's pineal tumor. The examiner indicated that the Veteran's record is silent for 15 years post-service; however, he also noted that pineal tumors are "slow-growing". After reviewing the evidence, both lay and medical, the Board finds that the evidence is at least in equipoise that the Veteran's brain tumor with residual headaches and cognitive defects is related to in-service chemical exposure. The VA examiners, while regurgitating evidence and restating the information in the medical article which discussed the definition of a pineal tumor, did not provide an adequate rationale or analysis to support the conclusions given. The medical articles indicate that the cause of brain tumor is unknown; however, they note that environment may play role. Notably, the 2014 Mayo Clinic article indicates that chemical exposure may increase the risk of brain tumors. As such, the Board finds that, after all reasonable doubt is construed in favor of the Veteran, service connection is warranted for brain tumor with residual memory loss, scar, slurred speech and headaches and the claim is granted. Muscle and joint pain The Veteran contends that he has arthritis caused by service, to specifically include "lifting 200-300 pounds in bales while in service." Alternatively, the Veteran contends that his muscle and joint pain is caused by in-service chemical exposure, to include diesel, oil, JP5, freon, smoke, asbestos, contaminated water, and ionizing radiation. Service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established in any of three different ways. See e.g., Hilkert v. West, 12 Vet. App. 145 (1999); aff'd, 232 F.3d 908 (Fed. Cir. 2000). First, there are diseases that are presumptively service connected in "radiation-exposed veterans" under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d)(2). Second, service connection can be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is a radiogenic disease. Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Arthritis is not a disease subject to presumptive service connection for radiation exposed veterans under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d)(2), and service connection on this basis is unavailable. This determination turns on the fact that the Veteran's condition is not listed as a presumptive disease under 3.309(d)(2) and the Board intimates no opinion as to whether the Veteran qualifies as a "radiation exposed veteran" under this regulation. Similarly, arthritis is not one of the diseases that may be considered as a "radiogenic disease" under 38 C.F.R. § 3.311(b)(2), nor has the Veteran submitted competent scientific or medical evidence suggesting that arthritis is a radiogenic disease. See 38 C.F.R. § 3.311(b)(4). Therefore, the evidentiary development procedures specified in 38 C.F.R. § 3.311 are not applicable to this claim, and service connection cannot be achieved utilizing these provisions. See 38 C.F.R. § 3.311(b)(4). Nevertheless, service connection based on exposure to ionizing radiation could be established on a direct basis under 38 C.F.R. § 3.303(d) by showing the disease was incurred during or aggravated by his military service. See Combee, 34 F.3d at 1043-1044. Here, the most probative evidence fails to establish that the Veteran is entitled to service connection for muscle and joint pain/arthritis on a direct basis. There is no dispute that the Veteran has carried a current diagnosis of muscle and joint pain/arthritis within the appellate period. Service treatment records show reports of treatment for the right elbow. In October 1987, the Veteran was diagnosed with right elbow contusion; however, the February 1990 separation examination shows physical examination of the right elbow and all other extremities was normal. Furthermore, on the February 1990 report of medical history, the Veteran indicated that his present health was fine. On various 2020 VA examinations; the Veteran was diagnosed with disabilities of multiple joints arthritis of the left knee; right shoulder tendonitis; left shoulder arthritis; right ankle ligament sprain; right elbow arthritis; and arthritis of the cervical spine. The Board notes that the Veteran has also been diagnosed with right knee arthritis and service connection has been granted for the right knee. A negative nexus opinion was provided. A March 2020 VA examiner provided opinions regarding the etiologies of left knee, right elbow, bilateral shoulders, right ankle, and cervical spine. The examiner opined that these disabilities were less likely related to service because the record does not show chronicity. In this regard, the examiner noted that although the Veteran reported pain in his right shoulder since injuring it during an in-service military exercise, the record shows the first complaints in 2003, more than 10 years since separation from service. He further noted that the Veteran worked at a warehouse store from 1990 through 2016; however, no complaints or treatments until more than 10 years later. In December 2021, a VA examiner reviewed the record, to include the March 2020 VA examination report which showed that the Veteran did not have a diagnosis of fibromyalgia and opined that the Veteran's arthritis was not caused by service, to include hazardous environmental exposure. He explained that the Veteran's arthritis is associated with the aging process on a weight-bearing joint and the cause of his muscle and joint pain. The Board finds that no such link between the Veteran's active service and joint pain/arthritis is supported by the record. Aside from the right elbow, which was noted to be transient and resolved, there is no indication that the Veteran had any in-service injury or complaint of pain or symptomology regarding the noted joints or arthritis. The February 1990 separation examination does not show any complaints or findings of joint pain or arthritis (back pain is noted; however, the back is already service-connected). Furthermore, the Veteran did not make any complaints of joint/arthritic pain within one year of separation from service. The first reports of joint/arthritic pain occurred more than 10 years later after service. The passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). It is clear from the evidence of record, then, that no demonstrated joint or arthritic disability was diagnosed during service and there was no evidence of post-service continuity of any such symptomatology. The evidence does not establish that his current muscle and joint pain/arthritis was incurred during active duty and he has not submitted any competent medical nexus evidence linking his current muscle and joint pain/arthritis to his active duty service, to include in-service exposure to ionizing radiation. The VA medical examiners opined that muscle and joint pain/arthritis are not related to service, to include environmental exposure. Since he has not submitted any medical or scientific treatise evidence addressing the potential relationship between diabetes mellitus and environmental or radiation exposure, there is no competent evidence in the record suggesting such a relationship is possible. The Board has also considered whether service connection is warranted on a presumptive basis because arthritis is a "chronic diseases" subject to presumptive service connection consideration under 38 C.F.R. §§ 3.303 (b), 3.307, and 3.309. However, the evidence fails to establish that the Veteran experienced arthritis in service or on a continuous basis since service, and he did not manifest symptoms of arthritis to a compensable degree within one year of service discharge. As noted, the most probative evidence of record places the onset of the Veteran's muscle and joint pain more than 10 years after service discharge. Having failed to satisfy the requisite criteria, presumptive service connection under the chronic disease provisions is unwarranted. Having fully considered and examined all raised theories of entitlement, the Veteran's appeal seeking entitlement to service connection for muscle and joint pain/arthritis is denied. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hemphill, Athena 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.