Citation Nr: 0004977 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 98-08 160A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a brain tumor with secondary headaches and left facial nerve paralysis. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. N. Booher, Associate Counsel INTRODUCTION The veteran had active service in the United States Army from November 1959 through February 1962 and a period of active duty for training (ADT) with the Michigan Army National Guard from June 11, 1988 through June 25, 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1997 rating decision by the Department of Veteran's Affairs (VA) Regional Office (RO) in Detroit, Michigan which denied the benefit sought on appeal. FINDING OF FACT There is no competent medical evidence of a nexus or relationship between the veteran's currently diagnosed brain tumor with secondary headaches and left facial paralysis and any period of active service or period of active duty for training. CONCLUSION OF LAW The veteran's claim of entitlement to service connection for a brain tumor with secondary headaches and left facial paralysis is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran contends that he is entitled to service connection for a brain tumor with secondary headaches and left facial nerve paralysis. Specifically, the veteran alleges that injuries sustained in an automobile accident while he was on authorized leave from the National Guard in 1988, gave rise to a brain tumor with secondary headaches and left facial nerve paralysis. The VA may pay compensation for "disability resulting from personal injury or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in the active military, naval or air service." 38 U.S.C.A. § 1110 (West 1991). Active service includes any period of active duty for training during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training during which the veteran was disabled from an injury incurred in the line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a) (1999). Further, active duty for training includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c) (1990). Being a member of the Reserves means that the individual is a member of a reserve component of one of the Armed Forces, including the Army National Guard of the United States. See 38 U.S.C.A. § 101(26), (27) (1999). In the present case, as the veteran had service in the United States Army and the Army National Guard, he may be service- connected for his claimed disorder if there is competent medical evidence of a current disorder that is causally related to either an incident of his active military service, an injury or disease that occurred during active duty for training, or an injury that occurred during inactive duty training. Otherwise, his mere presence in the Reserves or National Guard does not constitute qualifying service for compensation for injury or disease incurred in service. However, the Board must first determine whether the veteran has presented a well-grounded claim for service connection. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. In this regard, the veteran has "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a) (West 1991); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). If the evidence presented by the veteran fails to meet this threshold level of sufficiency, no further legal analysis need be made as to the merits of the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). For a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service disease or injury and the current disability. Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997). For disorders subject to presumptive service connection, the nexus requirement may be satisfied by evidence of manifestation of the disease to the required extent within the prescribed time period, if any. Traut v. Brown, 6 Vet. App. 495, 497 (1994); Goodsell v. Brown, 5 Vet. App. 36, 43 (1993). A claimant may also establish a well-grounded claim for service connection under the chronicity provision of 38 C.F.R. § 3.303(b)(1999), which is applicable where the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period, and that same condition currently exists. Such evidence must be medical unless the condition at issue is one which under case law, lay observation is considered competent to prove its existence. If the chronicity provision is not applicable, a claim still may be well- grounded pursuant to the same regulation if the evidence shows that the condition was observed during service or any applicable presumption period and continuity of symptomatology was demonstrated thereafter, and includes competent evidence relating the current condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). The record shows that the veteran was involved in an automobile accident in June 1988 in the line of duty during ADT. The veteran sustained a fracture of the lower sternum, and abrasions to the left shoulder, neck and back. VA and private treatment records show that the veteran sustained additional injuries to his neck and back when he was involved in a second automobile accident in September 1988. From March 1989 through April 1997, the veteran continued to seek treatment for strains of the cervical and lumbosacral spine and the sternum, however there is no evidence that the veteran sought treatment for a head trauma, brain tumor or related symptomatology as a result of the June 1988 automobile accident. VA treatment records dated January 1990 and November 1991 show that the veteran complained of recurrent headaches, but there is no notation linking these headaches to the June 1988 accident. VA treatment records dated October 1993 through October 1994 show that the veteran complained of facial drooping on the left side, slurring of speech, numbness on the left side of his face and neck and difficulty closing his left eye. Again, the medical records do not contain an opinion relating these symptoms to the June 1988 accident. From April 1995 through June 1996, the veteran sought treatment for left facial palsy from Hugo K. Roesler, M.D., P.C. In May 1995, an enlarged styloid process was discovered. Dr. Roesler subsequently referred the veteran to H. Alexander Arts, M.D. and Mark May, M.D., F.A.C.S. for additional treatment. An April 1995 x-ray report from Bronson Methodist Hospital indicates that the veteran had Bell's palsy and there was some question as to whether the veteran had a facial nerve tumor. X-rays showed that there was no suggestion of any tumor involving the skull base or course of the facial nerve on either side within the bone. Further, an unusually large styloid process with an oblique pseudojoint related to an unusually large calcified stylo-hyoid ligament extending down to the hyoid was noted. It was indicated that it was not certain if there might be significant impingement on the adjacent left facial nerve and whether this finding was on a strictly developmental basis or whether it was in part related to a previous trauma. The "previous trauma" was not specified and it was not indicated that this was a reference to the veteran's June 1988 automobile accident, to his September 1988 automobile accident, or to some other trauma. Treatment records from Dr. Arts with the Division of Otology/Neurotology at the University of Michigan Medical Center dated October 1995 through December 1996 show that the veteran was diagnosed with left facial paralysis. In October 1995, the veteran underwent an infratemporal preauricular approach to infratemporal fossa; mastoidectomy; facial nerve decompression; biopsy of the styloid process and biopsy of the skull base at stylomastoid foramen. In a November 1995 letter, Dr. Arts indicated that he continued to be "puzzled as to the etiology of this process." In an August 1996 letter to the veteran, Dr. Roesler indicated that it was still unclear whether the bony growth was a low-grade malignancy. The veteran was examined by Dr. May in August 1996. Dr. May indicated that the calcified mass in the veteran's skull base corresponded to the styloid process and could be related in some way to the veteran's progressive left sided facial weakness. He further stated that the massive enlargement was unquestionably pathologic. Dr. May recommended that the lesion be completely resected with the facial nerve for diagnostic and therapeutic purposes. A Travel Board hearing was held before the undersigned in November 1999 in Detroit, Michigan. At the hearing, the veteran testified that he continues to see Dr. Arts and undergoes an MRI every six months in order to monitor the growth of the brain tumor. The veteran explained that it had not been possible for the entire tumor to be removed during the 1995 surgery. He also testified that he continues to experience headaches and left sided facial paralysis. The veteran also submitted additional evidence including a personal tape recording and transcript thereof with a proper waiver of RO consideration at the hearing. In his statement, the veteran discussed his experience in the Michigan National Guard and summarized the details of his June 1988 automobile accident. He also reiterated that he believes his brain tumor, headaches and left facial paralysis are causally related to his June 1988 automobile accident. A January 1997 VA examination report shows that the veteran reported that he was unable to elevate or close his left eyelid completely. The veteran also stated that he experiences a feeling of heaviness over his face. The veteran further stated that since his surgery, he had experienced headaches with incoordination, lightheadedness, and tinnitus in the left ear. The examiner noted that the veteran had a dense 7th nerve paralysis, which corresponds with Bell's palsy. The examiner also indicated that the veteran typically had one headache per day associated with blurry vision, lightheadedness, and nausea. The veteran was diagnosed with a brain tumor and headaches, with features of a migraine. In terms of the etiology of the veteran's headaches, the examiner noted that the headaches started after the veteran's November 1995 brain surgery, but it was hard to determine "where one started with the headache." The etiology of the veteran's brain tumor was not addressed. The veteran has submitted evidence which establishes that he currently has a brain tumor with secondary headaches and left facial paralysis. However, the record does not contain any medical evidence linking his brain tumor and associated symptomatology to his period of active service, or to any injury or disease incurred during any period of active duty for training or an injury incurred during inactive duty training. While an April 1995 x-ray report from Bronson Methodist Hospital indicates that it is not clear whether the veteran's current symptomatology is developmental, or related to a previous trauma, the reference to a previous trauma was not clarified. In this regard, it was not indicated whether the previous trauma being discussed was the veteran's June 1988 automobile accident, his September 1988 automobile accident, or some other trauma. Likewise, in a November 1995 letter, Dr. Arts indicated that he continued to be "puzzled as to the etiology" of the veteran's tumor and associated symptoms. The foregoing evidence does not establish a link between the veteran's current disorder and his period of active service or period of ADT. While the veteran clearly believes that his brain tumor and associated symptomatology are related to his period of ADT, the veteran, as a lay person is not competent to offer an opinion that requires medical expertise, such as the cause or etiology of his brain tumor. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The Board does acknowledge that the veteran has submitted medical treatise evidence in support of his claim. In some cases, medical treatise evidence can provide important support when combined with an opinion of a medical professional." Mattern v. West, 12 Vet. App. 222, 228 (1999). However, "[g]enerally an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise 'is too general and inconclusive' to well ground the claim. Sacks v. West, 11 Vet. App. 314, 317 (1998) (citing Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996)); see Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (holding that medical treatise evidence proffered by the appellant in connection with his lay testimony was insufficient to satisfy requirements of medical evidence of nexus to well ground claim). Therefore, the Board finds the treatise evidence insufficient to establish a medical nexus in this case. In the absence of medical evidence of a nexus or relationship between the current disability and service, the veteran has not submitted a well-grounded claim for service connection and his claim must be denied on that basis. The Board is unaware of the existence of any relevant evidence, if obtained, that would serve to well ground the veteran's claim. Should the veteran obtain such evidence, he may request that the RO again consider his claim for service connection. See McKnight v. Gober, 131 F.3d 1483, 1485 (Fed. Cir. 1997) (per curiam). ORDER Entitlement to service connection for a brain tumor with secondary headaches and left facial nerve paralysis is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals