Citation Nr: 1761150
Decision Date: 12/29/17 Archive Date: 01/02/18

DOCKET NO. 14-38 783A ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida

THE ISSUES

1. Entitlement to a rating in excess of 20 percent for a benign tumor of the third ventricle (“brain tumor”).

2. Entitlement to service connection for the residuals of a stroke and chronic imbalance, to include as secondary to service-connected benign brain tumor (“residuals of stroke” or “stroke residuals”).

3. Entitlement to special monthly compensation based on housebound status and/or the need for the regular aid and attendance of another.

REPRESENTATION

Veteran represented by: The American Legion

WITNESSES AT HEARING ON APPEAL

The Veteran, his wife, and his daughter

ATTORNEY FOR THE BOARD

T. Talamantes, Associate Counsel

INTRODUCTION

The Veteran served on active duty from January 1969 to March 1974.

This matter comes before the Board of Veterans Appeals’ (Board) on appeal from a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Jurisdiction over the Veteran’s claim is currently with the RO in St. Petersburg, Florida.

The Board remanded these matters in July 2017, to afford the Veteran a hearing. The Veteran testified before the undersigned Veterans Law Judge in an October 2017 video conference hearing. A transcript of that hearing has been associated with the file.

This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012).

The issues of increased rating for benign tumor of the third ventricle and special monthly compensation are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDING OF FACT

The Veteran’s stroke residuals are secondary to his service connected benign tumor of the third ventricle.

CONCLUSION OF LAW

The criteria for service connection for the residuals of a stroke have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303, 3.310 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

Legal Criteria

Given the favorable outcome of this decision, a further discussion of the notice, development and assistance actions accomplished during the course of the appeal is unnecessary. See U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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).

Generally, to establish direct service connection a Veteran 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Depending on the evidence and the contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Service connection may be granted for disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2017). Service connection on a secondary basis may not be granted without medical evidence of a current disability and medical evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512-514 (1998); see also Allen v. Brown, 7 Vet. App. 439, 488 (1995) (en banc).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence of the record; every item of evidence does not have the same probative value. When there is an approximate balance of evidence for and against the issue, reasonable doubt will be resolved in the Veteran’s favor. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Factual Background and Analysis

The Veteran has provided competent and credible medical evidence to support the conclusion that he has suffered a stroke and has been diagnosed with the residuals of a stroke and chronic imbalance, including left hemiparesis

The Veteran is service connected for a benign tumor of the third ventricle. His wife and daughter provided competent and credible testimony that they witnessed Veteran’s condition worsened since undergoing radiation treatment for brain tumor. Eventually, he was treated for strokes. The Veteran’s wife testified that after one of his strokes, he experienced loss of balance, confusion, headaches, abdominal infections, loss of peripheral vision in his left eye, significant cataract in his left eye, and poor motor skills. She provided compelling testimony stating that his body has deteriorated to the point where he is totally handicapped and he is unable to walk or speak.

By resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s stroke residuals are shown to be secondary to his service-connected brain tumor. In other words, service connection for stroke residuals is warranted on a secondary basis.

The Board notes that there are two pertinent private opinions of record. In a June 2012 letter, a private examiner stated that he has been treating the Veteran since 1993 and that the stroke could be consistent with scar tissue related to his previous brain tumor. In a February 2013 evaluation report, a private doctor concluded that the Veteran’s continuous neurological decline is late sequelae of his brain tumor treatment. The Board finds these opinions highly probative.

In a June 2013 medical follow up letter, a private examiner opined that the Veteran’s radiation damage could have contributed to causing his stroke.

In an August 2014 letter, a private oncologist opined that the Veteran’s decline at an early age is secondary to his tumor and radiation therapy. The oncologist stated that the Veteran’s radiation therapy treatments could not be excluded as a cause of his mental decline.

A VA examiner provided an opinion in April 2013. The VA examiner opined that the Veteran’s stroke is less likely as not due to or aggravated by his service connected tumor disability. The rationale provided was that strokes generally manifest within 15 years of exposure to radiation therapy. The examiner also added that a review of the Veteran’s medical record indicates that he was treated for hypertension after his first stroke, which he concluded further supports an arteriosclerotic cause. The Veteran was not examined.

A VA examiner provided an opinion in October 2014. The examiner opined that the Veteran’s stroke was not caused by his service connected condition. The examiner based his rationale on a review of medical records, medical literature and clinical experience as a neurologist. He stated there is no relationship between the Veteran’s stroke and remote history of a brain tumor. He stated that the only residual of radiation may be some white matter injury, but this would not cause or aggravate a stroke 30 years later. He concluded that it is much more likely that a patient with hypertension would have a stroke. Lastly, he stated that the prior medical opinions are not credible as none of the examining physicians were neurologists. The Veteran was not examined.

In March 2016 a neurologist examined the Veteran and provided an opinion. This neurologist noted that the Veteran had a brain tumor, shunt placement, radiation treatment, and opined that he was now significantly disabled due to post-radiation changes and progression of disease. The neurologist noted that the Veteran has a gait disorder secondary to radiation treatment and shunt malfunction.

Another VA neurologist examined the Veteran and provided an opinion. The receipt date is October 2017. This neurologist opined that the Veteran’s gait disorder and cognitive dysfunction since radiation is most likely caused by or aggravated by military service. The VA neurologist explained that the history of brain tumor, radiation, and shunt present contributed to the stroke, which left the Veteran with worsening cognitive and mental function and physical disabilities that all started post-radiation.

Although the April 2013 VA examiner and October 2014 VA examiner opined that there is no connection between the Veteran’s stroke residuals and his service-connected tumor disability, the Board finds that the other evidence of record including the four private opinions and two VA opinions by neurologists- all agree that his service-connected tumor disability and or treatment for it caused his stroke residuals. Those positive opinions outweigh the 2013 and 2014 negative VA opinions.

In sum, the preponderance of the evidence shows that the Veteran’s stroke residuals are secondary to his service-connected benign brain tumor. Service connection is warranted.
ORDER

Service connection for stroke residuals is granted, subject to the laws and regulations governing the award of monetary benefits.

REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s remaining claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159.

A review of the record indicates that the severity of the Veteran’s tumor disability has worsened since the last VA examination. The Veteran was last provided a VA examination in connection with his service-connected tumor disability in June 2014.

Private records dated February and March 2016 confirm the progression of severity. As stated above, the Veteran’s wife provided testimony during the October 2017 hearing, providing details of his current health, stating that his body has deteriorated to the point where he is totally handicapped and he is unable to walk or speak. The Veteran was unable to provide any oral testimony during the hearing.

For these reasons, a new VA examination is warranted to assess the current severity of his tumor disability. In addition, the record indicates that the Veteran may have residuals of psychotic manifestations, speech disturbances, and impairment to vision that are possibly related. A new examination is needed to determine what residuals of his brain tumor and the severity of such.

With respect to the Veteran’s special monthly compensation claim, the Board finds that a remand is required prior to adjudication of the claim. This issue is inextricably intertwined with the claim for increased rating for tumor disability and this matter has not been adjudicated to account for the residuals of stroke that was just service connected. In addition, the last examination was in May 2014 and as described above the Veteran’s symptoms have increased in severity.

Thus, the Board finds that, on remand, the Veteran should also be scheduled for an appropriate VA aid and attendance examination.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)

1. If possible, schedule the Veteran for an appropriate examination with a qualified VA examiner for the purpose of ascertaining his current level of disability due to residuals of his brain tumor disability.

Any residuals of the Veteran’s disability should be identified.

The examiner is advised that the Veteran is unable to communicate effectively and relies on his caregiver (his wife) to communicate.

A rationale for all opinions expressed should be provided.

2. If possible, schedule the Veteran for an appropriate aid and attendance examination. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran and/or his caregiver (his wife) should be asked to provide a complete medical history, if possible.

Based on a review of the claims file and the results of the Veteran’s physical examination, and statements made by the Veteran and/or his caregiver (his wife) regarding his need for the regular aid and attendance of another person, the examiner is asked to state whether the Veteran needs the regular aid and attendance of another person or is housebound as a result of his service-connected disabilities.

The examiner is advised that the Veteran is unable to communicate effectively and relies on his caregiver (his wife) to communicate.

3. After completion of the above, the AOJ should review the expanded record and determine if the appeals can be granted. If the claims remain denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case. After an opportunity to respond, the case should be returned to the Board for appellate review.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).

______________________________________________
H.M. WALKER
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s