Citation Nr: 1743977	
Decision Date: 09/15/17    Archive Date: 10/10/17

DOCKET NO.  09-09 298	)	DATE

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


Entitlement to service connection for a tumor on the spinal cord (C5 schwannoma).


Appellant represented by:	California Department of Veterans Affairs


D. J. Drucker, Counsel


The Veteran had active military service from August 1964 to July 1966. 

This case initially came to the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.

In September 2011, the Board denied the Veteran's claims for service connection for bilateral hearing loss and tinnitus, and remanded his claims for service connection for eczema/skin rash and a spinal cord tumor to the Agency of Original Jurisdiction (AOJ) for further development.  An August 2012 rating decision granted service connection for eczema, that represented a full grant of the benefits sought as to the Veteran's claim regarding a skin disability.

In April 2013, January 2016, and February 2017, the Board remanded the Veteran's claim for service connection for a tumor on his spinal cord (C5 schwannoma) to the AOJ for further development.


A spinal cord tumor (C5 schwannoma) did not have its onset during active service and is not related to a disease or injury during active service, to include exposure to herbicide agents therein.


The criteria for service connection for a tumor on the spinal cord (C5 schwannoma) are not met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016).


In letters dated in May 2007 and January 2009, the AOJ notified the Veteran of information and evidence necessary to substantiate his claim.  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015), cert. denied (U.S. Oct. 3, 2016).

VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R.§ 3.159(c).  His service treatment records were obtained.  All reasonably identified and available VA and non-VA medical records have been secured.

The Board's February 2017 remand was to obtain the final pathology report of the surgical specimen of the Veteran's C5 schwannoma collected during his August 27, 2003 surgery at the University of California San Francisco Medical Center.  The Board acknowledged that the Veteran was asked on several occasions to provide authorization to obtain records related to the pathology report and provided it in March 2016.  See e.g., 3/26/16 VA 21-4142 Authorization for Release of Information.  However, the Board noted that it sought to provide the Veteran with a decision based on all relevant evidence and the final pathology report was vital to adjudication of his claim.  The Veteran did not respond to the AOJ's March 2017 request to provide signed authorization for VA to specifically request the final pathology report.  See 03/18/17 Subsequent Development Letter; see also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.").

The Board notes that a medical opinion has not been obtained.  A medical opinion is required when needed to make a decision on the claim.  38 U.S.C.A. § 5103A(d)(1); DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008).  VA is not required to obtain an opinion when no reasonable possibility exists that such assistance would aid in substantiating the claim.  Wood v. Peake, 520 F.3d 1345, 1348 (Fed. Cir. 2008).

An assertion that one condition caused another, without more, would be insufficient to trigger VA's duty to provide an examination in the context of a service connection claim.  Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010).  Here, while there is evidence that the Veteran had a tumor of the spinal cord (C5 schwannoma), the evidence does not indicate the spinal cord tumor may be associated with his service.  The Veteran has asserted that there is a link between his spinal cord tumor and exposure to herbicides in service.  See 3/27/08 VA 21-4138 Statement in Support of Claim, page 3.  He has offered no evidence in support of this contention and, as a lay person, he would not be able to offer a competent opinion that herbicide exposure caused the development of a C5 schwannoma.  This is a complex medical question as evidenced by the fact that Congress has set up a system based largely on analysis from the National Academy of Science (NAS) to determine what conditions are likely caused by such exposure.  See 38 U.S.C.A. § 1116(b)(1)-(3).

Evidence of possible causation could come from competent sources other than the NAS but, in this case, there is no other indication that herbicide exposure or another in-service disease or injury may have caused the Veteran's C5 schwannoma.  Absent such indications, a medical opinion would not be reasonably likely to aid in substantiating the claim.

There is no evidence or argument that there is additional notice or assistance that would be reasonably likely to further substantiate the appeal.  As such, the Board will proceed to the merits.

II. Facts and Analysis


The Veteran contends that his C5 schwannoma is due to his exposure to herbicides in Vietnam.  (The Board notes that a schwannoma is a neoplasm originating from Schwann cells (of the myelin sheath) of neurons; the two types are neurilemomas and neurofibromas.  DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1703 (31st ed. 2007)).  He believed that "herbicides affect different people in different ways and [he] was affected differently.  [His] condition doesn't fit the profile but it does exist and was caused by his exposure to [A]gent [O]range."  See 3/27/08 VA 21-4138 Statement in Support of Claim, page 3.  The Veteran noted that tumors took time to develop and his neurologist said his may have taken many years to develop, especially to reach the size it was.  The Veteran had no family history of tumors but went to Vietnam and was exposed to Agent Orange and other herbicides that eventually led to the tumor on his spinal cord and his current condition.

Legal Criteria

A veteran is entitled to compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.

To establish service connection, evidence must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and 
(3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 
381 F.3d 1163, 1167 (Fed. Cir. 2004).

Certain chronic diseases, such as malignant tumors, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service.  See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  Service connection will be conceded if such disease is identified in service and at any time thereafter.  38 C.F.R. § 3.303(b).

Service incurrence for certain diseases, including soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma) that includes malignant schwannoma including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas, will be presumed on the basis of an association with certain herbicide agents (e.g., Agent Orange).  38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e).  Such a presumption, however, requires evidence of actual or presumed exposure to herbicides.  Id.  

Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure.  38 U.S.C.A. § 1116; 38 C.F.R. § 3.307.  A veteran who served on land in Vietnam is presumed to have had such exposure.  VA has extended this presumption to veterans who served in other areas where Agent Orange is known to have been used.  Id.  

Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection with proof of direct causation.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).  Thus, presumption is not the sole method for showing causation. 

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.").

The Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).

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, 53-54 (1990).

Facts and Analysis

The service department has verified that the Veteran served in the Republic of Vietnam during the Vietnam Era and may have been exposed to herbicides.  See 2/9/07 Certificate of Release or Discharge from Active Duty, e.g., DD 214.  His service in Vietnam and in-service exposure to herbicides are established.

The next question is whether the Veteran had a disease that is positively associated with exposure to Agent Orange or is otherwise related thereto.  Malignant schwannoma, but not nonmalignant schwannoma, is among the listed diseases subject to presumptive service connection on the basis of Agent Orange.  38 C.F.R. § 3.309(e). 

Service treatment records do not discuss a spinal cord tumor or malignant schwannoma disability.  The July 1966 report of medical examination reflects a completely normal clinical evaluation.  Post-service private medical records show that the Veteran was diagnosed with a spinal cord tumor in 2003.

An August 15, 2003 neurosurgical evaluation indicates that the Veteran developed upper and lower extremity weakness within the past six months and a magnetic resonance image (MRI) showed an intradural extramedullary lesion consistent with schwannoma.  See 7/5/13 Medical Treatment Record Government Facility, page 16.

An August 22, 2003 pre-surgery history and physical examination report reflects that a July 2003 MRI showed a dumbbell-shaped densely enhancing tumor at 
C5 and the C5-6 foramen thought consistent with a nerve sheath tumor probably representing an isolated schwannoma.  See 7/5/13 Medical Treatment Record Government Facility, page 13.  An August 22, 2003 pre-surgery chest X-ray revealed no evidence of acute or metastatic disease.  See 5/10/16 Medical Treatment Record Government Facility (2nd set), page 24.

On August 27, 2003, the Veteran underwent a laminectomy at C4-C6, a resection of his tumor, and spinal fusion at C3-C7.  See 7/5/13 Medical Treatment Record Government Facility, page 10.  The available surgical pathology report indicates a soft tissue cervical spine C5-6 resection and laminectomy and schwannoma with degenerative changes.  Id. at 12.  The August 2003 discharge summary includes a diagnosis of C5-6 schwannoma intradural status post resection and posterior cervical fusion and notes that the Veteran did well, postoperatively, with no neurological deficits.  Id. at 8.

Neurosurgical follow-up reports in October and December 2003, March 2004, and January 2005, are not referable to treatment for a malignant schwannoma.  See 7/5/13 Medical Treatment Record Government Facility, pps. 3, 5, 6-7.  The records indicate that the Veteran did "extremely well".  Id. at 6.  In October 2003, the Veteran's neurosurgeon stated that "[o]f note a gross total resection was achieved in the operation, and the tumor is consistent with schwannoma, so no additional treatment is necessary."  Id. at 7.  In January 2005, the neurosurgeon reported that the Veteran did very well without any significant symptoms and the impression was status post C5 schwannoma with posterior cervical fusion doing well.  Id. at 3.

During a March 2007 VA Agent Orange Clinic History and Physical evaluation, a physician-examiner noted the Veteran's history of a spinal cord tumor that was nonmalignant, but was unsure of the exact pathology per the Veteran's report.  See 5/7/07 Medical Treatment Record Government Facility, page 8.

A December 2007 VA orthopedic examiner noted that the Veteran was fully recovered after removal of the schwannoma tumor. 

Here, the Board concludes that the weight of the probative medical evidence is against a finding that the Veteran had a malignant schwannoma.  This is so because there was no evidence of metastatic disease in the August 22, 2003 pre-surgery chest X-ray and the Veteran's surgical discharge summary does not mention a malignant schwannoma.  See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (indicating that, where there is a "medical reason why a doctor would be expected to comment on" a condition, the examiner's "silence in regard to a condition can be taken as proof that a doctor did not observe" that condition).  Further, in October 2003, the Veteran's neurosurgeon explicitly stated that there was a total resection of the spinal tumor, consistent with schwannoma, and that no additional treatment was necessary.  More significantly, in March 2007, the Veteran told the VA Agent Orange clinic examiner that his tumor was nonmalignant.  

There is no competent opinion linking the Veteran's nonmalignant C5 schwannoma to Agent Orange exposure.  Although the Veteran contends that the schwannoma was the result of such exposure, as previously discussed, this is a complex medical scientific question that would not be subject to lay observation.  See 38 U.S.C.A. § 1116 (b) (providing that presumptive service connection for conditions due to Agent Orange will be based on scientific reports from the NAS).  Thus, the Veteran's opinion in this regard does not constitute competent evidence of a link between nonmalignant schwannoma and Agent Orange and has no probative value or weight.

The Veteran does not claim, and the record does not show, that the C5 schwannoma had its onset in service; and there is no other evidence of direct service incurrence.  Because the nonmalignant spinal cord tumor was identified many years after service and there is no evidence that it was present in service, service connection would not be available on the basis of the presumptions applicable to chronic diseases, including malignant tumors.  See 38 U.S.C.A. § 1112(a); see alsoWalker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology can be applied only in cases involving those diseases explicitly recognized as chronic under 38 C.F.R. § 3.309 (a)).

Absent a continuity of symptoms, the Veteran would not be competent to say that a nonmalignant schwannoma, first demonstrated decades after service, was caused by a disease or injury in service.  See Buchanan, 451 F.3d at 1337.  Lay testimony is competent if it is limited to matters that the lay person actually observed and is within the realm of the witness's personal knowledge.  See 38 C.F.R. § 3.159(a)(2) ("Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person."). 

There is no competent medical evidence of record to support the Veteran's claim that his exposure to herbicides caused him to develop the tumor on his spinal cord (C5 schwannoma). 

The appellant is correct that Agent Orange and Dioxin herbicides affected people differently and that tumors may take time to develop.  He stated that his neurologist indicated that his tumor may have taken many years to develop, especially to reach the size it was.  However, there is no competent evidence in the record that nonmalignant schwannoma has been linked to herbicide exposure, including exposure to Agent Orange.

In sum, the Board concludes that the preponderance of the medical and other evidence of record is against the claim for service connection for a tumor on the spinal cord (C5 schwannoma).  Reasonable doubt does not arise and the claim must be denied.  38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F. 3d 1361, 1365 (Fed. Cir. 2001.


Service connection for a tumor on the spinal cord (C5 schwannoma) is denied.

Paul Sorisio
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


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