Citation Nr: 1311091 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 06-19 450 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a benign tumor of the right leg. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1958 to November 1960. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before a Decision Review Officer (DRO) in July 2006 and before the undersigned Board member in October 2008. These transcripts have been associated with the file. In a March 2009 decision the Board denied entitlement to service connection for a benign tumor of the right leg. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In December 2010 the Court issued a memorandum decision vacating the Board's denial and remanding the matter for further proceedings. The case was again before the Board in September 2011, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his appeal. The requested development was not completed and the case was remanded again in October 2012 to assist the Veteran in his appeal by affording him a new VA examination. The Veteran was afforded a VA examination in December 2012. Therefore, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT A benign tumor of the right leg preexisted service and was aggravated beyond its natural progression by service. CONCLUSION OF LAW The criteria for service connection for a benign tumor of the right leg have been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) Since the Board is granting entitlement to service connection for a benign tumor of the right leg, the entire benefit sought on appeal has been granted. Thus, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out in the VCAA. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Analysis The Veteran contends that he entered service status post tibia and fibula fracture with a benign tumor of the right leg. He contends that this condition was aggravated beyond natural progression by active duty. In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 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) (2011). 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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. This presumption attaches only where there has been an induction examination in which the later complained of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term 'noted' denotes '[o]nly such conditions as are recorded in examination reports,' 38 C.F.R. § 3.304(b), and that '[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions.' Id. at (b)(1). The Veteran underwent a health examination at entrance to service in May 1958 where it was noted that he had a right tibia fracture in March 1958. There are no medical entries that the Veteran complained of, or was treated for, a right leg disorder in service. At his November 1960 separation examination the Veteran reported discomfort in his right leg after standing for a long period. Initially, the Board recognizes that the Veteran entered service status post fracture of the right tibia and fibula, as noted on his entrance examination. Therefore, the presumption of sound condition does not apply. In a September 2000 private treatment record the Veteran complained of a soft mass tissue on his right leg which had existed for at least 20 years. At his October 2008 hearing the Veteran clarified that he had said the condition existed since separation from service. A November 2008 statement from the Veteran's private physician indicated that he began receiving treatment in 1993 for his right leg pain, although the Veteran reported that the pain had existed for quite some time. At an October 2011 VA examination the examiner opined the Veteran's lipoma was at least as likely as not related to his right leg complaints in service. The Veteran was afforded a VA examination in December 2012. He reported that he had a swelling on his right knee which began in service. He reported that since service the swelling has increased and caused leg discomfort. The examiner reviewed the claims file and performed a physical examination of the Veteran. He opined that the Veteran's right leg condition clearly and unmistakably existed prior to service and was aggravated beyond its natural progression by an in service injury, event, or illness. His rationale was that the Veteran entered service with a preexisting right tibia and fibula fracture with a small lipoma to the right knee. The Veteran's statements indicated that during service the lipoma became larger due to aggravation by service activity. At his July 2006 DRO hearing the Veteran testified that in service he had pain and weakness in his right leg from standing. He also testified that he received pain capsules from the infirmary. He testified that he wanted to file a claim prior to separating from service, but that he would have to wait additional days before separating and he could not do that. At his October 2008 Board hearing he testified that he began having problems with his right leg in basic training. He also testified that his leg size varied while he was in service. The Veteran's friends and family have also submitted lay statements regarding the Veteran's right leg. A November 2008 statement noted the Veteran complained of right leg pain at separation from service and that the Veteran's legs were different sizes. An August 2011 statement from his friend stated that he had worked with the Veteran in service and that he witnessed the Veteran limping. The Board notes that the Veteran has submitted lay statements in support of his claim. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. The Board will resolve reasonable doubt in favor of the Veteran, and grant his claim of service connection. 38 U.S.C.A. § 5107 (West 2002). To the extent that the December 2012 physician's opinion is based on statements provided by the Veteran, the Board finds that these statements are competent, as they address observable symptoms such as a large mass on the right leg and pain. See 38 C.F.R. § 3.159(c)(2); see also Layno v. Brown, 6 Vet. App. 465 (1991). Moreover, these statements are credible as they are generally consistent with each other and with the other evidence of record. Therefore, service connection is warranted. ORDER Entitlement to service connection for a benign tumor of the right leg is granted. ____________________________________________ ROBERT O'BRIEN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs