New and material evidence having been received, the claim for service connection for residuals of a brain tumor is reopened.
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Citation Nr: 22008518
Decision Date: 02/14/22 Archive Date: 02/14/22
DOCKET NO. 12-11 418A
DATE: February 14, 2022
ORDER
New and material evidence having been received, the claim for service connection for residuals of a brain tumor is reopened.
REMANDED
Service connection for residuals of a brain tumor.
REASONS AND BASES FOR FINDING AND CONCLUSION
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 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.
The Veteran appealed the Board's November 2015 denial to the United States Court of Appeals for Veterans Claims (Court), which issued an order in November 2016 granting a November 2016 Joint Motion for Remand (JMR) filed by the Veteran's representative before the Court and VA's Office of the General Counsel ("the parties"). 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.
Whether new and material evidence has been received to reopen a claim for service connection for residuals of a brain tumor.
Legal Criteria
Board decisions are final when issued. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100(a). Exceptions are when the Board Chairman orders reconsideration or after a final decision is reviewed by the Court. 38 C.F.R. § 20.1100(a), (b).
The Board finds that new and material evidence has been submitted so that the previously denied claim for service connection for residuals of a brain tumor is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). See also August 2015 statement from Dr. Travis Calvin received in October 2019. The Board notes that reopening the claim addresses the concerns of the August 2021 JMR.
REASONS FOR REMAND
Service connection for residuals of a brain tumor.
The Veteran is seeking service connection for residuals of a brain tumor. The Veteran asserted 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.
In this case, the Board finds remand is warranted to obtain a new opinion. Although several opinions are of record, they are 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.
In this regard, the evidence of record includes a March 1984 statement from Dr. Lawrence Marshall, a neurosurgeon who treated the Veteran's tumor in 1980. He stated, after considering the Veteran's symptoms prior to entry to service, that it is impossible for him to absolutely determine whether the brain tumor was present before service.
The Board obtained a VA opinion in March 2005. The opinion was provided by a Dr. Ronald Ignelzi, a VA neurologist. He considered the evidence of record reflecting that the Veteran experienced headaches, dizziness, and gastrointestinal complaints prior to and during service. He stated the Veteran had manifestations of a brain tumor when he entered service as those symptoms are frequently part of the presentation of a person with a brain tumor. He also stated that the tumor probably progressed minimally when the Veteran was in the service, as the type of tumor he had was slow growing.
The evidence of record also includes a January 2006 private opinion by Dr. Craig Bash, a neuroradiologist. He opined the Veteran's tumor did not predate service, based on the Veteran's preservice and in-service complaints being attributed to gastrointestinal illness at the time. He also stated that in his opinion, the tumor significantly advanced permanently during service based on the Veteran's reports of eye trouble at separation, which likely represents a major progression of symptoms. He stated that he disagreed with Dr. Ignelzi's determination that the tumor progressed minimally during service but also stated that he agreed with Dr. Ignelzi that this type of tumor is known for its slow growth.
The Board remanded the claim to obtain an independent medical examination (IME) opinion pursuant to 38 U.S.C.§ 5109. The opinion was obtained in November 2006. The opinion was provided by Dr. Roger Weir, an associate professor of neurology at Howard University Hospital. After reviewing the evidence of record, Dr. Weir stated that in his opinion, the tumor began growth before 1960, and that its growth during service was gradual and unremarkable. In response to Dr. Bash's opinion, Dr. Weir stated that a visual acuity of 20/20 at separation does not support a complaint of visual changes or worsening, and that another treatment record dated in August of 1979 states that the Veteran reported blurry vision in his left eye began two weeks prior.
The evidence of record also includes an August 2015 letter (received in October 2019) prepared by Dr. Travis Calvin, a neurosurgeon who treated the Veteran in 1980. The Veteran requested that Dr. Calvin provide an opinion concerning whether his brain tumor was made worse during his service. After reviewing the evidence available to him, Dr. Calvin stated that he does not find evidence that the presence of a tumor was either verified or that it was made worse by the time he served in the Army. He stated further, that based on probability, the tumor may have been present and growing, whether or not the Veteran was in the service, and it is likely that his symptoms would have progressed in the same manner whether or not the Veteran was in the Army.
Due to the conflicting opinions of record, the Board finds an additional opinion is warranted regarding the onset and the development of the Veteran's brain tumor. Accordingly, the Board finds that an independent expert medical opinion should be obtained pursuant to 38 U.S.C. § 5109.
The matters are REMANDED for the following action:
Forward the claims file to a neurosurgeon, for an independent medical opinion under 38 U.S.C. § 5109. 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.
Aggravation is an increase in severity beyond the natural progress of the disease or temporary flare-up. "Not" aggravated cannot be shown solely by no evidence of aggravation.
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 (50 percent probability or greater) that the Veteran's brain tumor had its onset during service.
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; and (6) the August 2015 letter (received in October 2019) prepared by Dr. Travis Calvin, a neurosurgeon who treated the Veteran 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, Associate 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. § 20.1303.