Citation Nr: 1313011 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 06-05 089 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for lipomatosis, including as secondary to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran had active service from February 1969 to December 1971. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision issued by the RO. The Board remanded this claim to the RO for additional development in March 2010, July 2011 and September 2012. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The issue of service connection for tinnitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction and refers to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam era and is presumed to have been exposed during such service to certain herbicide agents, including Agent Orange. 2. The Veteran is not shown to have manifested complaints or findings referable to lipomatosis in service or for many years thereafter 3. The currently demonstrated lipomatosis is not shown to be related to an event or incident of his active service, including his presumed exposure to herbicide while serving in the Republic of Vietnam. 4. The Veteran is not found to have presented credible lay assertions that are sufficient to establish the onset of the claimed lipomatosis during his period of active service. CONCLUSION OF LAW The Veteran's disability manifested by lipomatosis is not due to disease or injury that was not incurred in or aggravated by active service, nor is any due to the presumed exposure to herbicides in the Republic of Vietnam. 38 U.S.C.A. §§ 1110, 1112, 1116, 1154 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). The notice requirements of VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2011). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any defect in timing or content of such notice is not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in an April 2010 letter issued subsequent to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of the April 2010 letter, and opportunity for the Veteran to respond, the January 2011 Supplemental Statement of the Case (SSOC) reflects readjudication of the claim. The claim was most recently readjudicated in a February 2013 SSOC. Hence, the Veteran is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, private treatment records, VA treatment records and examination reports. The VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and presenting for VA examinations. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any defect in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such defect is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C.A. §§ 1116; 38 C.F.R. § 3.307. If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and acute and subacute peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.307, 3.309(e). The enumerated diseases are AL amyloidosis; chloracne or other acneform diseases; diabetes mellitus, type 2, Hodgkin's disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), Parkinson's disease, and ischemic heart disease. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e), 3.313, 3.318. VA has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 68 Fed. Reg. 27630 -27641 (2003). The Secretary has clarified that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for the following conditions: Hepatobiliary cancers, nasopharyngeal cancer, bone and joint cancer, breast cancer, cancers of the female reproductive system, urinary bladder cancer, renal cancer, testicular cancer, abnormal sperm parameters and infertility, amyotrophic lateral sclerosis (ALS), chronic persistent peripheral neuropathy, lipid and lipoprotein disorders, gastrointestinal and digestive disease, immune system disorders, circulatory disorders, respiratory disorders (other than certain respiratory cancers), skin cancer, cognitive and neuropsychiatric effects, gastrointestinal tract tumors, brain tumors, endometriosis, adverse effects on thyroid homeostasis, and any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32,395 -32,407 (Jun. 12, 2007); see also Notice, 74 Fed. Reg. 21,258 -21260 (May 7, 2009). Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009); Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed. Cir.2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis The Veteran generally contends that he developed lipomas as a result of his active service. The February and March 1971 service treatment records show that the Veteran was rendered treatment for an infected cyst on his right leg. The Veteran indicated on his November 1971 Report of Medical History that he had suffered from boils. Additionally, the service treatment records indicate that the Veteran suffered injuries as a result of a September 1971 rollover accident in the Republic of Vietnam. In connection with the report of January 1972 VA examination, there were no complaints or findings of a cyst or lipoma. In the report of July 1991 VA examination, the examiner noted the presence of lumps on the arms and legs, reportedly since 1971. The Veteran attributes these to Agent Orange exposure. On examination, the Veteran had multiple lipomas on the upper extremities (approximately two on the right side and four on the left side), lower extremities (11 on the right thigh and two on the left thigh) and trunk (two in skin of the abdomen. There was no evidence of tenderness or soft tissue formation compression. The diagnosis was that of lipomatosis (i.e., presence of multiple scattered lipomas). The examiner remarked, "lipomas = subcutaneous fatty tumor." In the report of August 2007 registry examination, the examiner documented that subcutaneous lipomas could be palpated on various parts of the body including the thorax, left thigh and both arms. In the report of June 2010 VA examination, the Veteran reported having a 30 year history, starting in the military, of small formed fatty tumor that were noncancerous, itchy and started as 1 mm circular formations and grew as large as 6 by 6 cm. The examiner noted superficial formation of lipomatosis. There was no vascular, nerve, muscle or bone involvement. The formations were movable under the skin and caused no pain. Lipomas were displayed on the left arm (10 formations), right arm (5 formations), anterior belly area (12-15 formations) and left thigh (3 formations). The lipomas were movable, palpable, and nontender. The lipomas were completely benign. The Veteran was offered the option of removal, but decided against this. There was no other history of neoplasms, malignancies, metastatic disease or history of cancer. The fatty tumors were constant. They grew to a certain size and then stopped growing (at which point other tumors started to form). There was no intermittent size change. There were no lipomas noted on the face, head or neck. The examiner noted that literature revealed that lipomatosis formations were a hereditary skin condition when multiple lipomas presented on the body. They (lipomas) were composed of fatty tissue, soft to touch, usually movable and generally painless. They were found in adults from the ages of 40 to 60, but could also be found in children. The examiner explained that the tendency to develop a lipoma was not necessarily hereditary; although, hereditary conditions (familial multiple lipomatosis) might include lipoma development. Genetic studies in mice revealed that there was a genetic correlation. The examiner additionally noted that cases had been reported showing minor injuries were reported to have triggered the growth of a lipoma (i.e., caused posttraumatic lipomas). However, the examiner explained that the link between trauma and the development of lipomas was very controversial The examiner noted that the Veteran had no minor injuries to the forearms, abdomen or left thigh that could have developed the formations this many years later. The diagnosis was that of lipomatosis, and the examiner opined that it was not at least as likely as not, the probability was less than 50 percent that the lipomatosis was related to Agent Orange exposure or other event or incident of the Veteran's active service. Pursuant to the September 2012 Board remand, in an addendum October 2012 report of VA examination, the examiner indicated that the claimed lipomatosis was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that the Veteran had a 30 year history of simple skin lipomas affecting the left arm, anterior belly and left thigh that occurred some years after any childhood trauma and did not affect any old healed areas of trauma. The examiner noted that the only trauma noted on the Veteran's entrance examination was a compound wrist fracture of the left arm at the age of 10 that healed without residuals or lipomas. There was no evidence of lipomas in the wrist area during his period of service. During service the Veteran suffered trauma to the left shoulder area, left distal leg, left knee and left ankle. Again, the examiner noted the areas were not affected by any lipomas. The examiner documented thorough review of the submitted medical literature regarding lipoma formation (trauma causing fat necrosis may trigger lipoma formation; local inflammation secondary to fat necrosis might affect adipocytes and promote new formation). Distinguishing the Veteran's case, the examiner concluded that any trauma in the Veteran's lifetime had not caused any lipoma formation to exist (noting that the Veteran had not sustained any fat necrosis from any of the above child hood or adult traumas and that the Veteran had not sustained any trauma to an areas affected by lipoma during his period of service). The examiner explained that the Veteran did not have any evidence of lipomas or lipoma-like formations on his body at discharge from service. The examiner observed first documentation of lipomas subsequent to service was the 1991 report of VA examination, reporting the Veteran had recently developed numerous lumps under his skin which appeared to be lipomas. This evidence led the examiner to believe that the Veteran's lipomas started occurring some 20 years after his period of military service and were not related to his period of military service. Additionally, the examiner noted the Veteran's service in the Republic of Vietnam and added that the Veteran was presumed to have been exposed to Agent Orange. However the examiner explained that lipomas were not among the diseases or disorders eligible for presumptive service connection. Further, there was no literature that showed a causal relationship between lipomas and Agent Orange (herbicide) exposure. The examiner explained the process of lipoma formation and concluded that the Veteran's lipomas were less than likely related to his Agent Orange (herbicide) exposure in Vietnam, childhood trauma (fracture of left wrist) or in-service trauma. The examiner concluded that the Veteran's history of lipoma formation was at least as likely as not related to unknown familial predisposition. In this case, the preponderance of the evidence does not serve to link the onset of lipomatosis to an event or incident of the Veteran's period of service. There is no medical opinion that suggests that there exists a medical relationship, or nexus, between the current lipomatosis and any event or incident of the Veteran's active service. The Board finds that Veteran's lipomatosis is not related to his herbicide exposure during service. Lipomatosis is not on the list of diseases that VA has associated with Agent Orange exposure. The scientific studies reviewed as part of that regulatory process have associated many diseases and disorders with herbicide exposure, but not lipomatosis. Moreover, the VA physician in the October 2012 addendum VA examination stated that there was no literature that showed a causal relationship between lipomatosis and Agent Orange (herbicide) exposure. Further, in the June 2010 report of VA examination and October 2012 addendum, the examiner opined that the Veteran's claimed lipomatosis was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event or illness. In the October 2012 addendum, the examiner explained that the Veteran had a 30 year history of simple skin lipomas affecting the left arm, anterior belly and left thigh that were areas that were not affected by any old childhood trauma or in-service trauma (i.e., the Veteran had not demonstrated lipomas in areas of childhood trauma (left wrist) or in-service trauma (left shoulder, left distal leg, left knee and left ankle)). The examiner observed that the first documentation of lipomas subsequent to service was a the 1991 report of VA examination, reporting the Veteran had recently developed numerous lumps under his skin which appeared to be lipomas, concluding the Veteran's lipomas started occurring some 20 years after his period of military service and was not related to his period of military service. The Board points out that the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board is aware that the Veteran received treatment for an infected cyst on his right leg in February and March 1971; however, there were no further complaints or related sequelae after service. Although he has reported that he had a history lumps on his arms and legs since 1971 (in 1991), lipomatosis is not an enumerated chronic disease and section 3.303(b) is not applicable. 38 U.S.C.A. § 1101; 38 C.F.R. § 3.303(b). To the extent that the Veteran now asserts that he has experienced ongoing symptoms since service (38 C.F.R. § 3.303(a)), such current assertions are found to be inconsistent with earlier and more credible information provided by him in service. Significantly, the December 1971 separation examination disclosed that an examination of the Veteran's skin showed that it was normal. Similarly, in January 1972 report of VA examination, there were no complaints or findings of lipomas. Thus, on review of the entire record, the Board finds that the lay assertions have limited probative weight. The only evidence of record supporting the Veteran's claim are his various general lay assertions. In this case, the Board finds that the Veteran is competent to state that he developed lipomatosis as a result of his active service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The Board, however, must make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, in this case, the Board finds the opinion of the VA examiner in the June 2010 report VA examination and October 2012 addendum to be most probative. The VA examiner is a medical professional who has reviewed the claims file, considered the reported history, performed physical examination and reviewed the submitted medical literature. The examiner used his expertise in reviewing the facts of this case and determined that the current lipomatosis was not related to an event or incident of the Veteran's period of service. It is clear that the examiner fully understood the basis for the Veteran's claim yet still determined, after reviewing the facts of the case, that the current lipomatosis was related to causes other than the Veteran's period of active service. The Veteran has not suggested that this examination was performed in an inadequate manner. For these reasons, the Board finds that the claim of service connection for lipomatosis must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for lipomatosis, including as secondary to herbicide exposure is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs