BVA9503366 
DOCKET NO.  91-43 172     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Sioux Falls,
South Dakota

THE ISSUE

Entitlement to service connection for residuals of a craniotomy.

REPRESENTATION

Appellant represented by: Veterans of Foreign Wars of the
United States

ATTORNEY FOR THE BOARD

James L. March, Associate Counsel

INTRODUCTION

The veteran had active service from February 1960 to February
1963 and from August 1964 to August 1967.  This appeal comes to
the Board of Veterans' Appeals (Board) from a July 1990 rating
decision of the Department of Veterans Affairs (VA) Regional
Office (RO) in Sioux Falls, South Dakota.

In May 1970 the RO denied entitlement to service connection for
residuals of brain surgery, and the veteran was notified of the
decision and of his appellate rights.  A timely appeal was never
initiated.  In July 1990, he requested that his claim be
reopened, and additional evidence was associated with the claims
file.  In June 1992 and August 1993, the Board remanded the case
for further development which has been accomplished.

The issue certified to the Board is whether new and material
evidence has been submitted to reopen the claim of entitlement to
service connection for residuals of a craniotomy.  However, the
Board finds that the evidence received subsequent to the May 1970
rating decision is deemed to be new and material, and the issue
is reopened.  Ordinarily, when an issue is reopened by the Board,
the case is remanded for initial consideration of the merits by
the RO.  See Bernard v. Brown, 4 Vet.App. 384 (1993).  In light
of the Board's granting service connection of the issue below,
the veteran clearly is not prejudiced by the Board addressing the
issue prior to RO consideration.

In addition, in the August 1993 Remand, the RO was ordered to
adjudicate the issue of whether clear and unmistakable error
occurred in the May 1970 rating decision.  In January 1994, the
RO denied that issue and provided the veteran with notice of the
decision.  A notice of disagreement was not received; however,
the representative before the Board discussed the issue in his
written argument of March 1994.  This issue is referred to the RO
for appropriate development.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that his meningioma, which necessitated a
craniotomy, was slow growing, and was present during his active
service.  He argues, alternatively, that the meningioma was due
to Agent Orange exposure in service.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter, and
for the following reasons and bases, it is the decision of the
Board that the evidence supports the veteran's claim of
entitlement to service connection for residuals of a craniotomy
with the excision of a meningioma.

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable disposition
of the appeal has been obtained.

2.  In February 1970, the veteran was hospitalized at a VA
hospital after experiencing three grand mal seizures a couple
days earlier.  On February 26, 1970, he underwent brain surgery,
and a meningioma was excised.

3.  The overall evidence, when resolving all reasonable doubt in
the veteran's favor, establishes that the meningioma began during
service.

CONCLUSION OF LAW

A meningioma, which resulted in a craniotomy, was incurred in
service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107
(West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1993).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

As a preliminary matter, the Board finds that the veteran's claim
is plausible and capable of substantiation, and thus well
grounded within the meaning of 38 U.S.C.A. § 5107(a).  When a
veteran submits a well-grounded claim, VA must assist him in
developing facts pertinent to that claim.  38 U.S.C.A. § 5107(a).
The Board is satisfied that all available relevant evidence has
been obtained regarding the veteran's claim, and that no further
assistance to the veteran is required to comply with 38 U.S.C.A.
§ 5107(a).

Service connection may be established for disability resulting
from personal injury suffered or disease contracted in line of
duty, or for aggravation of a pre-existing injury suffered or
disease contracted in line of duty.  38 U.S.C.A. §§ 1110, 1131;
38 C.F.R. § 3.303.  Brain tumors may be presumed to have been
incurred during service if they become manifest to a degree of 10
percent within one year following separation from service, even
though there is no evidence of such tumors during the period of
service.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R.
§§ 3.307, 3.309 (1993).  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 disease was incurred in service.
38 C.F.R. § 3.303(d).  In determining whether service connection
is warranted for a disability, VA is responsible for determining
whether the evidence supports the claim or is in relative
equipoise, with the veteran prevailing in either event, or
whether a preponderance of the evidence is against the claim, in
which case the claim is denied.  Gilbert v. Derwinski, 1 Vet.App.
49 (1990).

As indicated, the veteran had active service from February 1960
to February 1963 and from August 1964 to August 1967.  At the
time of his separation from service, he was 24 years of age.  In
February 1970, the veteran was hospitalized at a VA hospital
after experiencing three grand mal seizures a couple days
earlier.  On February 26, 1970, he underwent brain surgery, and a
meningioma was excised.  The veteran contends, in essence, that
this type of tumor was slow-growing and that it would have been
present during his active service, which terminated about 2-1/2
years prior to the onset of symptoms.

The Board sent the veteran's claims folder, tissue slides and
tissue blocks to the Armed Forces Institute of Pathology (AFIP)
for review and expression of opinion on the nature and probable
time of onset of the veteran's growth.  A response, dated in
January 1995, indicated that the type of growth was a slowly
growing and benign neoplasm that not uncommonly is asymptomatic
during life.  The pathologist indicated that it was impossible to
predict with certainty, but that it was possible that the
veteran's meningioma was present at the time he separated from
service.

With the absence of any medical evidence contradicting the
possibility of service incurrence discussed in the AFIP report,
the Board resolves all reasonable doubt in the veteran's favor
and finds that the evidence supports the claim for service
connection for residuals of a craniotomy with the excision of a
meningioma.  As the Board has granted service connection,
consideration of the issue as secondary to Agent Orange exposure
is unnecessary.

ORDER

Entitlement to service connection for residuals of a craniotomy
is granted.

          F. JUDGE FLOWERS
          Member, Board of Veterans' Appeals

(CONTINUED ON NEXT PAGE)

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision,
provided that a Notice of Disagreement concerning an issue which
was before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988.  Veterans' Judicial
Review Act, Pub. L. No. 100-687, § 402 (1988).  The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have received is
your notice of the action taken on your appeal by the Board of
Veterans' Appeals.