Citation Nr: 1310455 Decision Date: 03/29/13 Archive Date: 04/09/13 DOCKET NO. 05-02 340 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right axilla lipoma (claimed as a liposarcoma), to include as due to herbicide exposure. 2. Entitlement to an initial evaluation in excess of 10 percent for Osgood-Schlatter's disease of the right knee. 3. Entitlement to an initial evaluation in excess of 10 percent for Osgood-Schlatter's disease of the left knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from November 1966 to August 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). In May 2005, the Veteran testified at a personal hearing before a Decision Review Officer (DRO). A copy of the transcript is of record. The Board notes that a hearing was held before a Veterans Law Judge in February 2007. The Veterans Law Judge who conducted the hearing subsequently left the Board. In January 2011, the Veteran was offered the opportunity to have another hearing before a member of the Board. The Veteran informed the Board that he did not wish to have another Board hearing; therefore, no additional action is needed in this regard. In a March 2008 decision, the Board, in pertinent part, denied entitlement to service connection for right axilla lipoma (claimed as liposarcoma), to include as due to herbicide exposure (Agent Orange) and for posttraumatic stress disorder (PTSD). The Board also denied entitlement to increased ratings for the Veteran's service-connected Osgood-Schlatter's disease of the right and left knees. The Veteran appealed the Board's March 2008 decision as to these issues to the United States Court of Appeals for Veterans Claims (Court). In an October 2010 Memorandum Decision, the Court set aside the Board's March 10, 2008, decision with regard to the issues involving the right axilla lipoma as due to herbicide exposure, PTSD, and Osgood-Schlatter's disease of the right and left knees. Those issues were then returned to the Board for further adjudication in light of the Court's action. In an October 2011 decision, the Board denied the Veteran increased initial ratings for his Osgood-Schlatter's disease of the bilateral knees, and remanded the service connection claims for PTSD and for a right axilla lipoma. The Veteran again appealed the denial of increased initial ratings to the Court. In a July 2012 order, the Court granted a Joint Motion for Remand (Joint Motion) which had the effect of vacating the October 2011 denial of increased initial ratings, and returned these issues to the Board for further consideration. In a November 2012 rating decision, the RO awarded the Veteran service connection for PTSD. Because the appellant was awarded service connection for this disability, it is no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). The remaining issue remanded to the agency of original jurisdiction, entitlement to service connection for right axilla lipoma, has been returned to the Board. Pursuant to the Board's remand order, the Veteran was afforded a January 2012 VA medical examination, and a medical opinion was provided within an October 2012 addendum. Thus, the required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). The issues of entitlement to increased initial ratings for Osgood-Schlatter's disease of the bilateral knees are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran had military service in Vietnam, and is presumed to have been exposed to herbicides therein. 2. A right axilla lipoma or any other similar growth was not incurred during service or manifested to a compensable degree within a year of service separation, and has not been continuous since service. 3. A right axilla lipoma was not incurred as due to or the result of herbicide exposure in service. 4. The Veteran does not have a current diagnosis of a liposarcoma. CONCLUSION OF LAW Entitlement to service connection for a right axilla lipoma, claimed as a liposarcoma, is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1117, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). For the reasons to be discussed, the Board finds that VA has satisfied its duties to the appellant under the VCAA. A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). VA has made all reasonable efforts to assist the Veteran in the development of his claim, has notified him of the information and evidence necessary to substantiate the claim, and has fully disclosed VA's duties to assist him. In May 2004, September 2006, and October 2011 letters, the Veteran was notified of the information and evidence needed to substantiate and complete the claim on appeal. Additionally, the September 2006 letter provided him with the general criteria for the assignment of an effective date and initial rating. Id. The Board notes that, in the present case, initial notice was issued prior to the October 2004 adverse determination on appeal; thus, no timing issue exists with regard to the notice provided the claimant. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. It appears that all known and available records relevant to the pending appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's service treatment records, as well as VA and non-VA medical records. He has also been afforded a VA medical examination and opinion in January 2012, with an October 2012 addendum. The Board notes that the VA medical evidence contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal and is adequate for purposes of this appeal. In February 2007, the Veteran was afforded the opportunity to testify before a Veterans Law Judge. During the hearing, the Veterans Law Judge clarified the issue and asked about the possibility of forgotten records. Such actions supplement the VCAA and comply with 38 C.F.R. § 3.103. The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. The Board notes that in the Joint Motion, the Veteran's claims file was found inadequate for judicial review, as it consisted only of "the current Board decision and some recent medical records." VA was ordered to locate the Veteran's file or, if the file could not be found, conduct a thorough search of all medical facilities at which the Veteran had received pertinent medical care. Upon review of the file, the Board observes that at the time the issues of entitlement to increased initial ratings for Osgood-Schlatter's disease of the bilateral knees was before the Court, the agency of original jurisdiction was considering the Veteran's service connection claims for PTSD and for a right axilla lipoma. These issues were remanded to the agency of original jurisdiction within the same October 2011 Board action which had denied the Veteran increased initial ratings for his bilateral knee disorders and had subsequently been appealed to the Court. Thus, the agency of original jurisdiction apparently had possession of the Veteran's claims file, and it has been returned to the Board. It appears to be complete, and neither the Veteran nor his representative has pointed to any relevant private or VA records which remain outstanding. Thus, the Board finds VA's duty to assist the Veteran has been fulfilled at the present time, and no additional pertinent evidence, either lay or medical, has yet to be obtained. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by any failure of VA in its duties to notify and assist him, and that any such violations could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claim at this time is warranted. Service Connection The Veteran seeks service connection for a right axilla lipoma, claimed as a liposarcoma. He contends he developed a growth under his right arm shortly after his return from Vietnam and his separation from service, and he contends this growth is the result of his exposure to Agent Orange. He also contends this growth is properly diagnosed as a liposarcoma, and not a lipoma. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2012). 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2012). Service connection may also 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) (2012). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as any type of malignant tumor, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309. In the recent case of Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Malignant tumors are recognized as chronic disorder by 38 C.F.R. § 3.309(a), as noted above. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Additionally, the Board notes that the Veteran had service in Vietnam during his active duty period, and has alleged a current diagnosis of a liposarcoma, a type of soft-tissue sarcoma as defined by VA. See 38 C.F.R. § 3.309(e). VA is bound to consider all pertinent theories of service connection, whether or not a theory is raised by the Veteran. See Schroeder v. West, 212 F.3d 1265 (Fed. Cir.2000) (holding that a claim for disability compensation should be broadly construed to encompass all possible theories of entitlement). Thus, the Board must consider whether service connection for a liposarcoma, as claimed by the Veteran, is warranted. Any Veteran who, during active military, naval or air service, served in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed during such service to certain herbicidal agents (e.g., Agent Orange) unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during service. If the Veteran was exposed to an herbicide agent during service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there was no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied; chloracne or other acneform disease consistent with chloracne, Type II diabetes (also known as Type II diabetes colitis or adult-onset diabetes), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutaneous tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchitis, laryngitis or trachea) and soft tissue sarcomas, other than osteosarcoma, chondrosarcoma Kaposi's sarcoma, or mesothelioma. 38 C.F.R. § 3.309(e). The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation, or on any other recognized basis. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Review of the record does not indicate the Veteran's right axilla lipoma began during active duty service. His service treatment records are negative for any diagnosis of or treatment for a lipoma of the right upper extremity, or any related growth. At his February 2007 personal hearing before a Veterans Law Judge, he stated he first noticed a lump under his right arm in approximately 1970, post-service, when he sought treatment for an unrelated disorder. He was told it was just fat tissue, according to his account, and he did not need to worry about it. He subsequently had a biopsy done in approximately 1990, according to his testimony, and his right axilla lipoma was not found to be cancerous. The Veteran made similar contentions at his May 2005 personal hearing before a Decision Review Officer. At his 2005 hearing, he also admitted his growth has been diagnosed as a lipoma, and no doctor has actually confirmed that this growth was cancerous. A March 1993 private treatment record indicates the Veteran sought treatment at that time for a knot under his right arm. He reportedly noticed this growth in the past year, and suspected it was increasing in size. On physical examination, he had a golf ball-sized growth in the right axillary region. This growth was soft and nontender. The assessment was of a right axillary mass, probable lipoma. A subsequent October 1998 private treatment note again confirmed the diagnosis of a lipoma. Onset was noted to have been several years ago. Based on these private records, the Board concludes the Veteran's right axilla lipoma did not manifest either during service, or for many years thereafter, as he has claimed. When the Veteran initially sought medical care for his lipoma in 1993 and again in 1998, he stated he had only noticed this growth within the past several years, indicating onset in approximately 1992, more than 20 years after service separation. These statements, made for treatment purposes and many years prior to receipt of his compensation claim, are found by the Board to carry significant probative weight. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). The Veteran has testified that he was seen for this growth of the right arm within a year or so of service separation, but no records of such treatment are available. According to the Veteran, the private physician who examined him in approximately 1969 or 1970 is now deceased, and the hospital at which he was seen has been destroyed. Thus, no such records are available, by the Veteran's own admission. In the absence of any competent evidence to the contrary, and in light of the Veteran's statements within his private treatment records, the Board does not find his hearing testimony regarding the date of onset of his right axilla lipoma to be credible, as it conflicts with the statements made by him while seeking private treatment in 1993 and 1998. The Veteran also contends that his growth is a liposarcoma, for which presumptive service connection would apply for veterans with confirmed herbicide exposure. 38 C.F.R. § 3.309(e). On private MRI study of his growth in September 2001, a physician concluded the Veteran's growth was "most likely a lipoma" but, given its size, "a liposarcoma cannot be excluded but is considered less likely." This report was labeled as "preliminary". The Board notes, however, that the private physician specifically stated that a lipoma was "most likely" the correct diagnosis, and liposarcoma was "considered less likely." Given that subsequent VA and private medical records all reflect a diagnosis of lipoma, and further that a diagnosis of liposarcoma was not subsequently confirmed within the record, such a diagnosis was not warranted. The most recent examination report of record, dated in January 2012, concluded this growth was benign and not cancerous. The diagnosis of lipoma was confirmed in an October 2012 examination report addendum which concluded, based on review of the claims file and physical examination of the Veteran, that it was less likely than not that the Veteran's lipoma was due to, incurred in, or otherwise caused by service. At his 2005 personal hearing, the Veteran stated that his growth has in fact been diagnosed as a lipoma by his private medical care providers, and that no physician has in fact told him this growth is cancerous, to include a liposarcoma. Thus, the Board finds the preponderance of the evidence is against a finding of a current diagnosis of a liposarcoma, and presumptive service connection on that basis is not warranted. Having found that the Veteran's right axilla lipoma did not have its onset during service or within a year thereafter, the Board must next consider whether this disorder is related to his confirmed exposure to herbicides during his active duty period. See Combee, 34 F.3d at 1039. A VA examiner concluded in 2012, after physical examination of the Veteran and review of the claims file, that it was less likely than not that the Veteran's lipoma was due to, incurred in, or otherwise caused by any incident of service. The examiner noted that lipomas are common, and found no indication of any nexus to service, to include the Veteran's confirmed herbicide exposure, a fact which was specifically noted within the examination report. The Veteran has not submitted any statement from a medical expert regarding the etiology of his right axilla lipoma, to include an etiological nexus with herbicide exposure during service. In support of his claim, the Veteran has, however, submitted copies of various articles regarding the effects of herbicide exposure. Medical treatise evidence can, in some circumstances, constitute competent medical evidence. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). Medical evidence, however, that is speculative, general, inconclusive in nature, or unaccompanied by the opinion of a competent professional cannot support a claim in and of itself. See Sacks v. West, 11 Vet. App. 314 (1998) (holding that a medical article or treatise can provide support for a claim, but must be combined with an opinion of a medical professional and be reflective of the specific facts of a case as opposed to a discussion of generic relationships). Here, the articles submitted by the Veteran are general in nature and do not specifically relate to the facts and circumstances surrounding the Veteran's case. They do not specifically relate either to the Veteran or to his right axilla lipoma. They also do not confirm a current diagnosis of liposarcoma for this Veteran, and no competent expert has suggested these articles are applicable or otherwise related to the Veteran's specific case. As such, this evidence has limited probative value. The Veteran himself contends that he may have a liposarcoma, or that his right axilla lipoma is related to his herbicide exposure in service. The Board concedes that a layperson such as the Veteran is competent to testify regarding such observable symptomatology as a growth at or slightly below the surface of the skin, as the Veteran has done. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). For the reasons discussed above, however, the Board has rejected the Veteran's assertions that this growth began shortly after his return from Vietnam and his service separation. Additionally, the Board does not find the Veteran to be competent either to render a current diagnosis of a liposarcoma, or that his lipoma is related to any incident of service, to include herbicide exposure. Opinions regarding the proper diagnosis and etiology of any type of tumor, benign or malignant, require specialized skill, knowledge, and/or training, which the Veteran has not demonstrated. Such growths are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran's statements therein cannot be accepted as competent evidence. In conclusion, the preponderance of the evidence is against the award of service connection for a right axilla lipoma, claimed as a liposarcoma, as such a disorder was not incurred during service or within a year thereafter, and may not be presumed to have been incurred therein. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER Service connection for a right axilla lipoma, claimed as liposarcoma, is denied. REMAND The Veteran has also appealed the 10 percent separate initial ratings assigned for his Osgood-Schlatter's disease of the bilateral knees. His most recent VA medical examination of these disabilities, dated in November 2006, was negative for any lateral instability or laxity of either knee. During his February 2007 hearing, however, he stated that his knees gave out on him on occasion due to instability of the knee joints. As the Veteran has reported a worsening of his service-connected disabilities subsequent to his most recent VA medical examinations, further evaluation is required. Where the record does not adequately reveal the current state of the claimant's disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. See 38 U.S.C.A. § 5103A(d); Chotta v. Peake, 22 Vet. App. 80, 84 (2008). Remand is therefore required to determine the current state of the Veteran's service-connected bilateral knee disabilities. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for the appropriate VA examination to determine the current severity and impairment of his service-connected right and left knee disabilities. Any and all indicated evaluation studies and tests deemed necessary by the examiner should be accomplished. The Veteran's claims file should also be made available to and reviewed by the examiner. The examination report should reflect that such review was accomplished. All pertinent symptomatology and findings should be reported in detail, including range of motion (ROM) testing. The examiner should address the extent of functional impairment attributable to any reported pain. In this regard, the examiner should specifically indicate whether there is any pain and whether there is likely to be additional impairment of either knee caused by any of the following: (1) pain in use, including during flare-ups; (2) weakened movement; (3) excess fatigability; (4) incoordination. The examiner should describe whether any existing pain significantly limits functional mobility of either knee during flare-ups or when repeatedly used. The examiner should also report whether the Veteran has any recurrent instability or lateral subluxation of either knee, and if so, should describe whether such instability or subluxation is slight, moderate, or severe in degree. If it is not feasible to address the functional limitation, this should be stated and discussed in the examination report. If the Veteran does not have pain or any other factors, that fact should be noted as well. 2. After undertaking any additional development deemed appropriate, and giving the Veteran the full opportunity to supplement the record, readjudicate the claims for increased initial ratings for Osgood-Schlatter's disease of the bilateral knees in light of all additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case, and should be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or 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.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs