Citation Nr: 24000669 Decision Date: 01/04/24 Archive Date: 01/04/24 DOCKET NO. 12-11 418A DATE: January 4, 2024 REMANDED Service connection for residuals of a brain tumor. ? REASONS FOR REMAND The Veteran served on active duty from September 1960 to 1962. The case is on appeal from a December 2010 rating decision, which denied reopening the claim for service connection for a brain tumor on the grounds that no new and material evidence was submitted. In a November 2015 decision, the Board found that new and material evidence had not been submitted to reopen the claim for service connection for a brain tumor. In March 2016, the Veteran appealed the Board's November 2015 decision to the Court of Appeals for Veterans' Claims (Court), and in a November 2016 Joint Motion for Remand (JMR) the parties agreed that the November 2015 Board decision should be vacated, and the case remanded for provision to the Veteran of a Board hearing. In March 2018, the Veteran testified at a Board Hearing. In October 2018, the Board remanded the claim for additional development. In October 2020, the Board issued a letter inviting the Veteran to request a virtual tele-hearing instead of waiting for a Travel Board hearing. However, it was later determined that a hearing was already conducted for this appeal in March 2018; thus, the letter was in error. As such, the appeal was adjudicated based on the March 2018 hearing transcript and other evidence of record. In October 2020, the Board denied reopening the claim on the grounds that no new and material evidence was submitted. The Veteran appealed the Board's October 2020 denial to the Court, which issued an order in August 2021 granting an August 2021 JMR filed by the Veteran's representative before the parties. The Court's order remanded the matter for action consistent with the terms of the JMR. In February 2022, the Board found new and material evidence was received to reopen the claim and remanded the claim for additional development. Service connection for residuals of a brain tumor. The Veteran is seeking service connection for residuals of a brain tumor. The Veteran asserts that he is entitled to service connection under a theory of in-service aggravation of a preexisting condition. The Veteran underwent surgery to remove a large brain tumor in 1980. He asserts that he had a slow growing brain tumor prior to his entry to service in 1960, and that his brain tumor was aggravated beyond the natural progression of the disease during service. See Board Hr'g. Tr. at 3-4. Alternatively, the Veteran's representative asserts service connection is warranted because the Veteran's brain tumor had its onset in service as the presumption of soundness is not rebutted. See December 2021 Appellate Brief. Most recently, the Board remanded the claim in February 2022 as the opinions of record were not entirely sufficient to decide the claim. In this regard, the Board noted that opinions are of record were not entirely sufficient to decide the claim under either theory of entitlement, as the opinions of record conflict regarding the onset and the development of the Veteran's brain tumor. Additional opinions were obtained in October 2022, November 2022, and September 2023. The examiner who provided the October 2022 opinion was unable to determine whether the Veteran's tumor had its onset during service without resort to speculation. He also stated that he was unable to determine whether the Veteran's tumor clearly and unmistakably existed prior to service. As such, these opinions are not adequate to decide the claim. Concerning the opinion obtained in November 2022, the examiner determined the claimed condition which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner explained that the Veteran had symptoms of headaches and dizziness in 1958, and therefore the tumor was a preexisting condition. He stated further that that there is no evidence that the Veteran suffered any flare ups or injuries that worsened, aggravated, or altered the natural progression of his preexisting tumor. He stated that the symptoms the Veteran complained of during service are consistent with the natural progression of his preexisting condition. Concerning whether the Veteran's condition had its onset during service, the examiner provided the same rationale as provided concerning whether the tumor preexisted service and whether it was aggravated by service. Another opinion was obtained in September 2023. The examiner determined the claimed condition which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. However, the examiner also stated that the medical records seem to indicate that the tumor was present and growing before the Veteran's military service, but the evidence is not strong enough to definitively state that it "clearly and unmistakably" preexisted. She stated further that it would require highly conclusive evidence, such as comprehensive and unambiguous medical records predating military service, showing the presence, characteristics, and history of the tumor before service. She explained that the evidence indicates that there were symptoms and medical evaluations prior to service, but it does not provide absolute certainty regarding the exact timeline and nature of the tumor's development. Concerning whether the the tumor was clearly and unmistakably not aggravated during service, the examiner explained that the Veteran's documented symptoms, including dizziness, fainting spells, and other related concerns, align closely with the known history of the preexisting brain tumor and that there is no evidence that indicates that these symptoms were precipitated by any injuries or illnesses during the Veteran's military service. She also stated that the gradual and consistent growth pattern of the tumor, as evidenced by post-operative imaging, supports the notion that its progression was more likely driven by its natural course rather than being significantly influenced by service-related factors. In addition, she noted that the medical opinions underscore the absence of any documented instances or conditions during the Veteran's service that could be linked to an exacerbation of the tumor. Regarding direct service connection, the examiner determined it is less likely than not that the Veteran's condition is related to or had its onset during service. The examiner explained that the Veteran's tumor did not have its onset in service because had its onset prior to service. In this regard, the examiner noted that the Veteran's medical history includes documented symptoms, including headaches, dizziness, and related issues and medical evaluations dating back to 1958 and 1960, which precede their military service and that these early symptoms align with the presence of the brain tumor, suggesting that it was already present before the veteran's military enlistment. She stated further that the available medical records and opinions do not indicate any specific events or conditions during the Veteran's military service that could reasonably be linked to the initiation of a brain tumor, and as such it did not have its onset during service. The Board finds these opinions are not entirely sufficient to decide the claim. In this regard, concerning the question of whether the Veteran's tumor clearly and unmistakably preexisted service, the opinions are not entirely sufficient to decide the claim. The November 2022 examiner explained that the Veteran had symptoms of headaches and dizziness prior to service but did not explain how the presence of these symptoms indicates that the Veteran's tumor clearly and unmistakably preexisted service. Additionally, although the September 2023 examiner found that the tumor clearly and unmistakably preexisted service, her rationale was inconsistent with this finding as she explained that the medical records seem to indicate that the tumor was present and growing before the Veteran's military service, but the evidence is not strong enough to definitively state that it "clearly and unmistakably" preexisted. Concerning the question of whether the Veteran's tumor had its onset during service, the November 2022 examiner did not provide a rationale pertaining to direct service connection. In addition, the September 2023 examiner's rationale as to why the tumor did not have its onset in service is that the tumor had its onset prior to service. This opinion is not adequate as the examiner's rationale was based on the Veteran having a preexisting condition at service entrance when instead she should have provided an opinion with consideration as the Veteran as "sound" at service entrance. As such, as additional opinion is warranted on remand. In light of the remand, updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain VA treatment records dated since October 2022. 2. Thereafter, obtain a medical opinion from an appropriate medical professional, neurologist or neurosurgeon, if possible, to determine the nature an etiology of the Veteran's brain tumor residuals. If the questions cannot be answered without a physical examination, then one should be conducted. The examiner is asked to address each of the following: Whether the Veteran's brain tumor clearly and unmistakably preexisted the Veteran's service. If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated by service. The phrase "clear and unmistakable" should be taken to mean that the conclusion is undebatable, i.e., no equally qualified medical professional reviewing the same information could reasonably reach a different conclusion. Consideration should be given to, and the examiner is requested to comment on: (1) the Veteran's lay statements and lay statements from his associates regarding the onset of symptoms including headaches dizziness, gastrointestinal complaints prior to service;(2) the March 1984 statement from Dr. Lawrence Marshall, a neurosurgeon who treated the Veteran's tumor in 1980; (3) the March 1985 VA opinion in March 2005 provided by VA neurologist, Dr. Ronald Ignelzi; (4) the January 2006 private opinion by neuroradiologist, Dr. Craig Bash; (5) the November 2006 opinion was provided by Dr. Roger Weir, an associate professor of neurology at Howard University Hospital; (6) the August 2015 letter (received in October 2019) prepared by Dr. Travis Calvin, a neurosurgeon who treated the Veteran in 1980; and 7) the September 2023 VA opinion provided by Dr. Maya Babu, a neurosurgeon. If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not that the Veteran's brain tumor had its onset during service. In providing this opinion, the examiner should consider the Veteran as "sound" at service entrance. The examiner should also consider that the Veteran's documented in-service complaints are primarily limited to acute gastrointestinal complaints in October and December 1960 and March 1961. The examiner should also consider post service evidence including: A June 1969 private treatment report showed complaints of dizziness. An x-ray report of the skull at that time revealed normal sella and an uncalcified pineal. The records reflects that there was no unusual intracranial calcification or evidence, of increased pressure nor: was there healing or recent skull fracture. The conclusion was "normal skull." Likewise, a June 1969 electro-encephalogram (EEG) was interpreted as normal. October 1969 correspondence from a private Dr. Greenwood indicating that he examined the veteran in August 1969. At that time, the veteran's chief complaint was generalized weakness. The Veteran reported that symptoms of stomach trouble began in 1959, but more recently, he had periods of dizziness. Neurological examination showed a paucity of speech; thought was slow, and somewhat disconnected in sequence of history and symptoms. The impression was, "Undiagnosed condition of the central nervous system, manifested by generalized weakness, occasional dizziness, with vomiting, constipation, pain in the abdomen, etc." A June 2, 1980, private treatment records reflecting that the Veteran underwent left frontotemporal craniotomy for partial removal of a huge ("grapefruit" size), frontotemporal dural tumor. Because of the size, the tumor had displaced the Sylvian figure and other cortical 'structures and filled the entire middle fossa. Some sinuses and the posterior tentorium were penetrated, and the fifth (trigeminal) nerve had to be sacrificed. Some of the surrounding bone had deteriorated, indicating longstanding presence of the tumor. Postoperatively, the veteran experienced a resultant neurological deficit and nerve palsy. The discharge diagnosis was frontotemporal schwannoma, with residual third and sixth 'nerve, palsies, secondary to excision of the tumor and that the Veteran underwent an excision of a brain tumor after service in 1980. A complete rationale should be provided for any opinions reached. If the examiner cannot provide some or all of such opinions, the examiner must make clear that he or she has considered all relevant, procurable data, but that any member of the medical community at large could not provide such an opinion without resorting to speculation. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Gray, 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. ยง 20.1303.