Citation Nr: 1311797	
Decision Date: 04/09/13    Archive Date: 04/19/13

DOCKET NO.  02-06 136	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for a lipoma of the left thigh, to include excision of such.  

2.  Entitlement to a temporary total evaluation under 38 C.F.R. § 4.30 (2012) for left thigh lipoma excision surgery performed on February 12, 2007, requiring convalescence.  

3.  Entitlement to an initial evaluation in excess of 20 percent for a left shoulder disability.  

4.  Entitlement to an initial evaluation in excess of 20 percent for a low back disability.  

5.  Entitlement to an initial evaluation in excess of 10 percent for left carpal tunnel syndrome.  



REPRESENTATION

Veteran represented by:	Paralyzed Veterans of America, Inc.


ATTORNEY FOR THE BOARD

S. Dale, Counsel


INTRODUCTION

The Veteran served on active duty from August 1976 to April 1984.

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from February 2002, July 2006 and August 2011 determinations of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  The Veteran appealed those decisions to BVA, and the case was referred to the Board for appellate review.

The Veteran, through his representative, repeated his desire to not have a hearing in the case in April 2011.  The RO scheduled the Veteran for a local hearing in July 2011 with notice provided in June 2011.  The Veteran, through his representative, responded in June 2011 that he did not want a hearing and asked that his request be withdrawn.  In light of the Veteran's three statements evincing his desire to have his request for a local hearing be withdrawn, the Board finds the request for a local hearing is withdrawn and will conduct its appellate review based on the evidence of record.

In March 2012, the Board remanded the claims on appeal for further development.  As will be discussed further below, that development has been substantially completed, and the Veteran's claims have been returned to the Board.  

The issues of (1) entitlement to an initial evaluation in excess of 20 percent for a left shoulder disability, (2) entitlement to an initial evaluation in excess of 20 percent for a low back disability, and (3) entitlement to an initial evaluation in excess of 10 percent for left carpal tunnel syndrome, 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 evidence of record does not reflect that the Veteran's left thigh lipoma, to include excision of such, is causally related to his service.  

2.  The Veteran underwent surgery on February 12, 2007, for a nonservice-connected disability.


CONCLUSIONS OF LAW

1.  Service connection for a left thigh lipoma, to include excision of such, is not warranted.  

2.  The criteria for a temporary total rating pursuant to the provisions of 38 C.F.R. § 4.30 have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.30 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (the VCAA)

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his/her representative, if applicable, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from 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; and (3) that the claimant is expected to provide.  This notice must be provided prior to an initial unfavorable decision by the AOJ.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

Further, in Dingess v. Nicholson, the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his/her claim.  19 Vet. App. 473 (2006); see also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded.

The Board finds that the VCAA duty to notify was satisfied by letters sent to the Veteran in April 2006 and August 2007 with regard to the claim to establish service connection as well as a temporary total evaluation under 38 C.F.R. § 4.30.  The letters addressed all of the notice elements and was sent prior to the initial unfavorable decision by the RO in August 2011.  The letters provided the Veteran with notice concerning the assignment of disability ratings and effective dates as per the Court's holding in Dingess.  Any defect in the timing of the notice was harmless error as service connection is being denied, and therefore no rating or effective date is being assigned.  Therefore, the Board finds that VA has fulfilled its duty to notify under the VCAA.

VA has also satisfied its duty to assist the Veteran at every stage of this case with regard to his claims.  All available service treatment records as well as all identified medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claims.  In particular, the Board notes that the Veteran's claims decided herein were remanded for the purpose of obtaining outstanding VA and private treatment records which may pertain to the claims.  The AMC requested older and updated treatment records from several VA facilities and private physicians.  All VA and private treatment records identified by the Veteran have been sought, obtained, and associated with the Veteran's claims file or Virtual VA file.  To that extent, the Board March 2012 remand directives with respect to the issues decided herein have been substantially complied with, and therefore a new remand is not required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998).  Dyment v. West, 13 Vet. App. 141 (1999), D'Aries v. Peake, 22 Vet. App. 97 (2008).  

The Board observes that VA treatment records were sought from the VA Medical Center (VAMC) in Tuscaloosa, Alabama.  In June 2012, that facility responded that there were no treatment records pertaining to the Veteran at the Tuscaloosa VAMC.  A June 2012 Report of General Information reflects that a VA employee contacted the Veteran concerning the lack of VA treatment records at the Tuscaloosa VAMC, to which the Veteran responded that he had never been treated at that facility.  See a June 2012 Report of General Information.  Nonetheless, the AMC produced a Formal Finding of the Unavailability of these records in July 2012.  

The Court has held that in cases where the Veteran's records are unavailable, through no fault of the Veteran, as is the case here, there is a "heightened duty" to assist the Veteran in the development of the case.  See generally McCormick v. Gober, 14 Vet. App. 39, 45-49 (2000); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  However, as noted above, the Veteran has specifically stated that he was never treated at the Tuscaloosa VAMC.  Accordingly, there is no prejudice to the Veteran in the Board's adjudication of his claims decided herein.  Bernard v. Brown, 4 Vet. App. 384.  

The Board acknowledges that the Veteran has not been afforded a VA examination in connection with the present claims.  The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case.  The Board concludes an examination is not needed in this case because the Veteran's service treatment/personnel records are absent for evidence of findings related to the Veteran's left thigh, to include a lipoma.  Further, as will be discussed below, the Veteran has not alleged that he experienced a lipoma of the left thigh or associated symptomatology during his service.  Even if he had done so, the Court has held that there is "no prejudicial error in Board's statement of reasons or bases regarding why a medical opinion was not warranted because there was no reasonable possibility that such an opinion could substantiate the Veteran's claim because there was no evidence, other than his own lay assertion, that "'reflect[ed] that he suffered an event, injury[,] or disease in service' that may be associated with [his] symptoms").  See Duenas v. Principi, 18 Vet. App. 512, 519 (2004); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a veteran's conclusory generalized statement that a service illness caused his present medical problems was not enough to entitle him to a VA medical examination since all veterans could make such a statement, and such a theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require VA to provide such examinations as a matter of course in virtually every disability case).

The first medical record on file pertaining to the Veteran's left thigh is dated in November 2006.  In addition, there is no indication that the Veteran's left thigh lipoma, to include excision of such, may be related to his service.  See Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003) (noting that the Board has no obligation to obtain a medical opinion when there is no competent evidence that the appellant's disability or symptoms are associated with his service).  Accordingly, it is not necessary to obtain a medical examination or medical opinion in order to decide the left thigh lipoma claim in this case.  38 C.F.R. § 3.159(c)(4)(i); see Duenas, 18 Vet. App. at 517, citing Paralyzed Veterans of Am. V. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease).

Further, as will be discussed below, the Veteran's claim for benefits under 38 C.F.R. § 4.30 cannot succeed unless service connection for a lipoma of the left thigh is granted.  As the Veteran's service connection claim is being denied by the Board, no medical examination is necessary concerning his claim for benefits under 38 C.F.R. § 4.30.  

VA has also assisted the Veteran and his representative throughout the course of this appeal by providing them with a statements of the case and supplemental statements of the case, which informed them of the laws and regulations relevant to his claim.  For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case.

Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C.A. § 1110, 1131.  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).

In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits.  Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  However, medical evidence of a current disability and nexus is not always required to establish service connection.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  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) (footnote omitted).

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  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.  38 C.F.R. § 3.159(a)(2).

If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a).  The Federal Circuit Court recently held that the theory of continuity of symptomatology under 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).  See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013).  

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify.").

Discussion

With respect to element (1) of establish service connection, evidence of a current disability, the evidence reflects that the Veteran first complained of a left thigh mass in November 2006.  See a November 2006 VA treatment record.  Thereafter, the Veteran sought treatment for this disorder from B.C.G., M.D., a private physician.  The initial entry from January 2007 shows that the Veteran reported with a three month history of a left thigh mass.  An MRI of the left thigh showed an intramuscular lipoma of the left quadriceps femoris muscle.  The Veteran had surgery to remove the lipoma in February 2007, and a pathology report later that month confirmed the mass to be an intramuscular lipoma composed of unremarkable adipose tissue.  Later that month, B.C.G., M.D. stated that the Veteran would be unable to return to work until March 14, 2007, due to this surgery.  In light of above, element (1) has been demonstrated.  

Concerning element (2) for direct service connection, evidence of an in-service injury or disease, the Veteran's service treatment records are devoid of any instance of complaints of or treatment for a left thigh lipoma or congruent symptomatology.  Indeed, the Veteran specifically denied any tumors, growths or cysts on his March 2004 separation examination.  Further, the Board has thoroughly reviewed the statements in support of this claim, and neither the Veteran nor his representative has asserted that the Veteran experienced a left thigh lipoma or congruent symptomatology during his service.  Accordingly, element (2) has not been demonstrated.  

Even if element (2) of direct service connection had been demonstrated, which it has not, the Board notes that there is no evidence associated with the claims file suggesting that the Veteran's left thigh lipoma is causally related to his service (i.e., element (3) of direct service connection).  Crucially, neither the Veteran nor his representative has alleged that this disorder is proximately due to or the result of any incident of the Veteran's service or asserted the claim to establish service connection under another theory of entitlement.  In this respect, the Board observes that the claims file is devoid of any evidence, to include assertions from the Veteran or his representative, that the Veteran's left thigh lipoma is caused or aggravated by any of his service-connected disabilities (i.e., secondary service connection).  

As noted above, the Board acknowledges that service connection may be established on the basis of chronicity and/or continuity of symptomatology under 38 C.F.R. § 3.303(b).  However, since lipomas are not listed among the disorders determined by VA to be "chronic" in 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) pertaining to chronicity and continuity of symptomatology are not for application in the present case.  See Walker, supra.  

In light of above, the Board concludes that service connection for a lipoma of the left thigh, to include excision of such, is not warranted.  The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2012), but does not find that the evidence is of such approximate balance as to warrant its application.  Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).

Temporary Total Evaluation for Convalescence - 38 C.F.R. § 4.30

A total disability evaluation (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted under 38 C.F.R. §§ 4.30(a)(1), (2), or (3), effective the date of hospital admission or outpatient treatment and continuing for a period of one, two, or three months from the first day of the month following such hospital discharge or outpatient release.

Under 38 C.F.R. § 4.30(a), total ratings will be assigned if treatment of a service-connected disability resulted in:

(1) Surgery necessitating at least one month of convalescence;

(2) Surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight- bearing prohibited); or

(3) Immobilization by cast, without surgery, of one major joint or more.

The Veteran seeks a temporary total evaluation based on convalescence following his left thigh lipoma excision surgery in February 2007.  Since service connection for a left thigh lipoma has been denied, as discussed directly above, there is no basis on which his claim may be granted.  Sabonis v Brown, 6 Vet. App. 426, 450 (1994), the Court held that in a case where the law is dispositive of the claim, it should be denied because of lack of legal entitlement under the law.  Accordingly, the Veteran's claim is denied as a matter of law.  


ORDER

Entitlement to service connection for a lipoma of the left thigh, to include excision of such, is denied.  

Entitlement to a temporary total evaluation under 38 C.F.R. § 4.30 (2012) for left thigh lipoma excision surgery performed on February 12, 2007, requiring convalescence, is denied.  



REMAND

In March 2012, the Board, inter alia, remanded the Veteran's claims to establish service connection for a left shoulder disorder, a low back disorder, and left carpal tunnel syndrome for additional development.  In a November 2012 rating decision, the AMC established service connection for these disorders; evaluation of 20 percent (left shoulder and low back) and 10 percent (left carpal tunnel syndrome) were assigned.  

In a February 2013 statement, the Veteran's representative indicated that the Veteran was dissatisfied with the evaluations assigned by the AMC for these service-connected disabilities.  See a February 2013 statement from the Veteran's representative.  

The filing of a notice of disagreement (NOD), such as the February 2013 statement from the Veteran's representative, places a claim in appellate status.  When there has been an adjudication of a claim and a NOD as to its denial, the claimant is entitled to statement of the case. 38 C.F.R. § 19.26 (2012).  Thus, a remand for issuance of a statement of the case on the issues of entitlement to increased initial evaluation for a left shoulder disorder, a low back disorder and left carpal tunnel syndrome is necessary.  Manlincon v. West, 12 Vet. App. 238 (1999).  However, these issues will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal.  Smallwood v. Brown, 10 Vet. App. 93, 97 (1997).

Accordingly, the case is REMANDED for the following action:

The RO/AMC should issue a statement of the case addressing the issues of (1) entitlement to an initial evaluation in excess of 20 percent for a left shoulder disability, (2) entitlement to an initial evaluation in excess of 20 percent for a low back disability, and (3) entitlement to an initial evaluation in excess of 10 percent for left carpal tunnel syndrome.  Manlincon, 12 Vet. App. 238.  The statement of the case should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations.  The Veteran and his representative should be advised of the time period in which to perfect his appeal.  Only if the Veteran's appeal as to these issues is perfected within the applicable time period should such return to the Board for appellate review.

The Veteran 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 or by the Court 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).



______________________________________________
L.M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs