Citation Nr: 25000306 Decision Date: 01/10/25 Archive Date: 01/10/25 DOCKET NO. 12-11 418A DATE: January 10, 2025 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 of 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. In January 2024, the Board remanded the claim for additional development. 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 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 January 2024 as the opinions of record were not entirely sufficient to decide the claim. In this regard, the Board noted that opinions are of record conflict regarding the onset and the development of the Veteran's brain tumor. Additional opinions were obtained in February 2024 and October 2024. The examiner who provided an opinion in February 2024 determined that 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. She stated Veteran experienced symptoms in 1958 (prior to service) and reported symptoms on his enlistment physical, but it is not possible to a provide a definitive opinion without imaging although the reported symptoms support the presence of a tumor prior to enlistment. Concerning whether the condition was clearly and unmistakably not aggravated during service, the examiner stated that there is no evidence that the condition was aggravated beyond its natural progression. She noted that symptoms including experiencing nausea, dizziness, and hallucinations, difficulty hearing, and trouble concentrating were reported in 1974 which is 12 years after discharge. She also stated that EEG and skull x-rays in 1969 were normal, and the diagnosis of the tumor was in 1980, which is 18 years after discharge. The examiner did not provide an opinion concerning direct service connection. The examiner who provided the October 2024 opinion found that it cannot be established that the condition clearly and unmistakably preexisted service. The explained the Veteran exhibited symptoms prior to serving on active duty between 1960 and 1962. In this regard, the examiner noted that while in high school, the Veteran reportedly experienced headaches, dizziness, nightmares, and clumsiness, and missed approximately four months of school due to these symptoms. He explained that although these symptoms are more likely than not early indications of what years later proved to be a "huge" schwannoma involving the left temporal fossa, it cannot be stated that those symptoms represented clear and unmistakable evidence that the brain tumor existed prior to the Veteran entering service. The examiner noted that the only way in which such clear and unmistakable evidence could have been obtained is if the Veteran had a contemporaneous detailed neurologic history and physical examination performed along with diagnostic radiographic studies available at that time, i.e., in the 1950s, prior to service entrance. He stated that that radiographic studies would have included cerebral arteriography, encephalopathy, and/or radioisotope brain scan, and without all of this additional information, it is speculation as to whether or not the Veteran's symptoms in 1958 were due to a brain tumor. However, he stated, based upon his training, knowledge, and experience, of more than 40 years as a board certified neurologist, it is his medical opinion that it is at least as likely as not that the symptoms were early manifestations of the brain tumor, as a schwannoma is a slow growing tumor, and it would have been present for many years before reaching the size it attained at the time of surgery in 1980. The examiner also determined that the tumor was clearly and unmistakably not aggravated by miliary service. He explained that a schwannoma is a slow growing tumor which would be expected to gradually produce increasing signs and symptoms under normal circumstances, and there is no indication in the Veteran's service treatment records of any event or circumstance which occurred to aggravate the usual course of tumor growth. Concerning the question of whether the tumor had its onset during service, the examiner stated that because it is at least as likely as not that the Veteran's symptoms in 1958 were an early expression of the brain tumor, then it would follow that that it is less likely than not that the tumor had its onset during service, as it had its onset prior to 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 had its onset during service, the February 2024 examiner did not provide an opinion pertaining to direct service connection. In addition, the October 2024 examiner's opinion concerning direct service connection is not adequate as the examiner's rationale was based on the Veteran having a preexisting condition at service entrance when instead he should have provided an opinion with consideration as the Veteran as "sound" at service entrance. The Board notes that the January 2024 Board remand directives requested that the examiner consider the Veteran "sound" at entrance for purposes of the opinion concerning direct service connection. Accordingly, there was not substantial compliance with the Board's remand directives, and an addendum opinion is needed. See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008). 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; 7) the September 2023 VA opinion provided by Dr. Maya Babu, a neurosurgeon; and the October 2024 opinion provided by Dr. Stephen Gershwind. 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. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gray, Elissa A. 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.