Citation Nr: 1303560 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 06-25 125A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for soft tissue sarcoma, to include as due to herbicide exposure and secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an abdominal lipoma, to include as due to herbicide exposure and secondary to service-connected PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from March 1963 to January 1967 with service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, continued a previous denial of service connection for sarcoma and a lipoma. In October 2007, the Veteran testified before the undersigned Veterans Law Judge at a hearing conducted at the RO. A transcript of the hearing is of record. In January 2008 and May 2010, the Board remanded the case for further action by the originating agency. In May 2010, the Board also found that new and material evidence had been submitted sufficient to reopen the claims for entitlement to service connection for sarcoma and an abdominal lipoma. The case has returned to the Board for further appellate action. In October 2007, the Veteran filed a claim for entitlement to service connection for a liver tumor. Review of the claims file and the Veteran's arguments indicates that he contends the liver tumor is a manifestation of claimed soft tissue sarcoma, currently on appeal. The Court of Appeals for Veterans Claims (Court) has held that a claim for service connection encompasses all related symptomatology, regardless of how that symptomatology is diagnosed. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In light of Clemons, the Board will address the Veteran's contentions regarding the claimed liver tumor in the context of the claim for service connection for soft tissue sarcoma. FINDINGS OF FACT 1. The Veteran does not have soft tissue sarcoma. 2. An abdominal lipoma was demonstrated years after service and is not etiologically related to a disease or injury in service, including exposure to herbicides, or a service-connected disease or injury. CONCLUSIONS OF LAW 1. Soft tissue sarcoma was not incurred or aggravated by active duty service. 38 U.S.C.A. §§ 1110, 1116, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. An abdominal lipoma was not incurred in or aggravated by active service, its incurrence or aggravation may not be presumed, and it is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1116, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that service connection is warranted for soft tissue sarcoma and an abdominal lipoma as they were incurred due to herbicide exposure in Vietnam, or in the alternative, because are secondary to service-connected PTSD. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also provided for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). Soft Tissue Sarcoma As noted above, service connection requires competent evidence showing the existence of a present disability. Shedden, 381 F.3d at 1163, 1167; see also Caluza, 7 Vet. App. at 498. With respect to the Veteran's contentions that service connection is warranted for soft tissue sarcoma, the Board finds that evidence of record is against a finding that there is a current disease or disability. Service treatment records are negative for complaints or treatment pertaining to sarcoma or any other malignant other tumors. The Veteran's abdomen was also normal upon examination for separation in November 1966 and he denied a history of tumors, growths, cysts, or cancer on the accompanying report of medical history. The post-service medical evidence of record demonstrates that while the Veteran has received treatment for an abdominal lipoma and suspected liver lesion, there are no medical diagnoses of soft tissue sarcoma. In October 2002, the Veteran underwent an excision of an abdominal mass with a private physician. A biopsy of the mass confirmed it was a lipoma (i.e. benign fibroadipose mass). Several years later, in October 2005, the Veteran again complained of abdominal pain and a private ultrasound performed in the Philippines indicated a large lesion on the liver. The Veteran moved to Florida and began treatment at the Tampa VA Medical Center (VAMC) in November 2005. However, CTs of the abdomen and pelvis and a sonogram of the liver were all negative for masses and the VA doctors only diagnosed fatty infiltrates of the liver. The Veteran has not undergone any other treatment for masses of the liver or abdomen and a CT of the pelvis in January 2010 was negative for suspicious tumors. Thus, the post-service treatment records are negative for a formal diagnosis of soft tissue sarcoma. The weight of the other medical evidence of record is also against a finding of sarcoma. In August 2012, a VA examiner who reviewed the claims file and physically examined the Veteran concluded that the Veteran had never received a diagnosis of sarcoma. A January 2003 VA examiner also noted the Veteran's history of an abdominal mass excision in October 2002, but specifically characterized the mass as a lipoma. The Veteran's private physician suspected the presence of liposarcoma with possible metastasis to the liver based on the October 2005 ultrasound, but the Board finds that this opinion is clearly speculative. The private doctor stated that the Veteran "might have liposarcoma" with "possible metastasis." The doctor also noted that further testing was needed to rule out the diagnosis. Additional ultrasounds and CTs performed at the Tampa VAMC definitively ruled out the presence of sarcoma, and the private physician's October 2005 opinion was rendered prior to these tests. In any event, the opinion is clearly speculative as it is only identifies a possible diagnosis. The Court has held that medical opinions that are speculative, general, or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). The private opinion is of very little probative value and is clearly outweighed by the opinions of the VA examiners that the Veteran has not been diagnosed with sarcoma. The Veteran has consistently maintained throughout the claims period that the excision of an abdominal mass in October 2002 and the October 2005 liver ultrasound demonstrate the presence of soft tissue sarcoma. Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Whether lay evidence is competent and sufficient to establish a diagnosis in a particular case is a fact issue to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, the Board finds that the Veteran is not competent to diagnose the presence of soft tissue sarcoma. He is competent to identify and explain the symptoms that he observes and experiences, such as the presence of an abdominal mass, but the specific disability on appeal requires more than simple observation of symptoms. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Internet information submitted by the Veteran states that sarcoma is a cancer of the soft tissue and is diagnosed based on biopsy or other similar objective medical test. It requires specialized medical training and expertise to properly identify, and is therefore not capable of lay observation. See Jandreau 1376-1377 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-309 (2007) (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). The evidence is therefore against a finding of any current disability characterized as soft tissue sarcoma or other malignant tumor. Absent proof of the existence of the disability being claimed, there can be no valid claim. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmitech v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Accordingly, the Board must conclude that the preponderance of the evidence is against the claim for sarcoma. Abdominal Lipoma The Veteran also contends that service connection is warranted for his abdominal lipoma on a direct or secondary basis. The record clearly demonstrates the presence of an abdominal lipoma status post excision in October 2002. As discussed above, the Veteran underwent an excision of an abdominal mass in October 2002 with a private physician in the Philippines. A biopsy confirmed the tumor was a benign fibroadipose mass and a lipoma. The Veteran has not received any other treatment for the lipoma, but a well-healed scar was noted upon VA examination in January 2003 and August 2012. The first element of service connection-a current disability-is therefore demonstrated. With respect to whether the Veteran incurred a service injury, service records are negative for evidence pertaining to an abdominal lipoma. There are no complaints or treatment during service for an abdominal mass, and examination of the Veteran's abdomen was normal at the November 1966 separation examination. He also denied a history of a tumor, growth, cyst, or cancer on the November 1966 report of medical history. The Veteran contends that an abdominal lipoma was incurred due to herbicide exposure during active duty service. Although service treatment records do not document any findings indicative of a lipoma, personnel records confirm the Veteran's presence in Vietnam during active duty service. His exposure to herbicides is therefore presumed and an in-service injury is established. See 38 U.S.C.A. §§ 1116(f), 1154; 38 C.F.R. § 3.309(e); see also Haas v. Peake, 525 F.3d 1168 (2008); VAOPGCPREC 27-97. VA regulations provide for a presumption of service connection for certain disabilities associated with herbicide exposure under 38 C.F.R. §§ 3.307 and 3.309 (2012). Lipomas are not subject to presumptive service connection under 38 C.F.R. §§ 3.307 and 3.309. However, the United States Court of Appeals for the Federal Circuit has determined that a Veteran is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Therefore, while service connection on a presumptive basis is not possible for the Veteran's claimed disability, the Board will determine whether service connection is warranted as directly due to active duty service and exposure to herbicides. Regarding the third element of service connection, a nexus between the Veteran's current disability and the in-service injury, the Board notes that service records do not indicate such a link. No chronic conditions were noted on the November 1966 separation examination and the Veteran denied experiencing any symptoms of an abdominal mass on the accompanying report of medical history. There is also no evidence of a lipoma until June 2002, more than 30 years after service, when the Veteran complained of a stomach lump during a primary care appointment at the Manila VAMC. The absence of any clinical evidence for decades after service weighs the evidence against a finding that the Veteran's lipoma was present in service or in the year immediately after service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The weight of the medical evidence is also against a finding of service connection. The Veteran has not provided any medical evidence in support of his claim, and the record contains a VA medical opinion weighing against the claim. The Veteran's claims file was provided to a VA physician in August 2012 for an expert opinion. The VA physician concluded that it was less likely as not that the Veteran's abdominal lipoma was etiologically related to an incident of service, to include exposure to herbicides. The physician noted that there was no scientific evidence supporting a link between herbicide exposure and the subsequent development of a benign lipoma. The August 2012 opinion was based on a thorough review of the Veteran's medical records and included a full and well-explained basis for the provided opinion. It is therefore afforded significant probative weight. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The Board has considered the testimony of the Veteran connecting his abdominal lipoma to service, but as a lay person, he is not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). The Board acknowledges that the Veteran is competent to testify as to observable symptoms, such as the presence of an abdominal mass, but finds that his opinion as to the cause of the mass simply cannot be accepted as competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). In addition, the Veteran has not reported a continuity of symptoms since service. The history he has provided is to the effect that he was exposed to herbicides during service which caused an abdominal lipoma almost 40 years later. As there is no competent evidence in support of a nexus between the Veteran's abdominal lipoma, service connection on a direct basis is not warranted. The Board will now determine whether service connection is warranted for the claimed lipoma as secondary to service-connected PTSD. In April 2008, the Veteran's therapist provided a letter in support of the claim for service connection, noting that the Veteran's PTSD compounded the effect of his other diseases. Although this opinion appears to support a finding of aggravation from the Veteran's PTSD, the Board notes that the private provider does not specifically identify the lipoma as a disability affected by the Veteran's PTSD. In addition, later in the statement, the therapist discusses in more detail the effect of PTSD on the Veteran's coronary artery disease and heart disease, but does not mention an abdominal lipoma. As the April 2008 opinion does not specifically address a relationship between the Veteran's lipoma and service-connected PTSD, the Board finds that it is too general in nature to support the claim for secondary service connection. See Obert at 33. Additionally, the record contains an expert medical opinion from a VA physician that clearly outweighs the speculative opinion in support of the claim. After reviewing the Veteran's complete records in August 2012, a VA physician determined that the Veteran's PTSD had not caused or aggravated his abdominal lipoma. This opinion was based on the lack of scientific literature suggesting or supporting a relationship between psychological stress and the development or subsequent growth of benign lipomas. The August 2012 VA expert opinion was based on review of the Veteran's records and included a full rationale and basis for the stated conclusions. It is highly probative and outweighs the speculative opinion of the Veteran's therapist. Nieves, supra. The Veteran has also not provided any clear statements in support of his claim for secondary service connection, and the Board therefore finds that service connection for an abdominal lipoma as secondary to service-connected PTSD is not appropriate. In sum, the post-service medical evidence of record shows that the first evidence of the Veteran's claimed disability was several decades after his separation from active duty. In addition, the weight of the competent medical evidence is against a finding that the Veteran's abdominal lipoma is related to his military service or a service-connected disability. The Board finds that the evidence is against a nexus between the Veteran's claimed disability and service or a service-connected disability. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim and it is denied. 38 U.S.C.A. § 5107(b) (West 2002). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in a December 2005 letter. The Veteran also received notice regarding the disability-rating and effective-date elements of the claims in a March 2006 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice should be given before an initial AOJ decision is issued on a claim. Pelegrini II, 18 Vet. App. at 119-120. While complete VCAA notice was provided after the initial adjudication of the claims, this timing deficiency was remedied by the issuance of VCAA notice followed by readjudication of the claims. Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006). The claims were readjudicated in the December 2011 SSOC. Therefore, any timing deficiency has been remedied. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, and private medical records. Additionally, the Veteran was provided a proper VA examination and medical opinion in August 2010 and August 2012 in response to his claims. The Board also finds that VA has complied with the January 2008 and May 2010 remand orders of the Board. In response to the Board's remands, VA obtained copies of the Veteran's medical records from the Tampa VAMC and associated them with the claims file. The Veteran was also physically examined by VA in August 2010 and an expert medical opinion was provided by a VA physician in August 2012. The case was then readjudicated in December 2011. Therefore, VA has complied with the remand orders of the Board. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to service connection for soft tissue sarcoma, to include as due to herbicide exposure and secondary to service-connected PTSD, is denied. Entitlement to service connection for an abdominal lipoma, to include as due to herbicide exposure and secondary to service-connected PTSD, is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs