Citation Nr: 1334454 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 07-01 084 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a pulmonary disability, to include as due to Agent Orange exposure. 2. Entitlement to service connection for lipomas, to include as due to Agent Orange exposure. REPRESENTATION Appellant represented by: Peter J. Meadows, Attorney ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran had active service from June 1971 to June 1974. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the St. Louis, Missouri Regional Office (RO) of the Department of Veterans Affairs (VA). A January 21, 2010 Board decision denied, in pertinent part, service connection for a pulmonary disability, to include as due to Agent Orange exposure, and service connection for lipomas, to include as due to Agent Orange exposure. The Veteran appealed the January 2010 Board decision to the United States Court of Appeals for Veterans Claims (Court). A January 2011 Joint Motion for Remand (JMR) requested that the Court vacate that part of the Board's decision that denied service connection for a pulmonary disability, to include as due to Agent Orange exposure, and service connection for lipomas, to include as due to Agent Orange exposure. The Court promulgated an Order on January 12, 2011 that essentially granted the JMR. This case was previously before the Board in June 2011 and was remanded for additional development. For the reasons discussed below, the Board finds that there has been substantial compliance with its prior remand, with regard to the issue decided herein. See Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to service connection for a pulmonary disability, to include as due to Agent Orange exposure, is addressed in the REMAND portion of the decision below and is REMANDED to the RO. FINDING OF FACT The most probative evidence of record fails to demonstrate that it is at least as likely as not that lipomas are due to any event or incident of the Veteran's active service, including Agent Orange exposure. CONCLUSION OF LAW Lipomas are not due to disease or injury that was incurred in or aggravated by active service, including due to the exposure to herbicides. 38 U.S.C.A. §§ 1110, 1116, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA VA has met all statutory and regulatory notice and duty to assist provisions under the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See 38 U.S.C. § 5103(a). The Board finds that the RO's letters dated in January 2005, March 2005 and March 2006 provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess, 19 Vet. App. at 490. Moreover, even if the Veteran was not provided adequate Dingess notice prior to the initial adjudication of the claim, the Board finds that providing him with adequate notice in the March 2006 letter followed by a readjudication of the claim in the October 2009 and May 2013 supplemental statements of the case, "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006). As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence including the Veteran's available service records as well as his post-service VA outpatient/inpatient treatment records, and records from the Social Security Administration (SSA). The record does not contain a complete set of the Veteran's service treatment records. Requests were made to the National Personnel Records Center (NPRC) for the Veteran's service treatment records in January 2005 and March 2005, but the NPRC responded in March 2005 that no records were on file. Subsequently, in a May 2005 memorandum, the RO made a formal finding on the unavailability of the Veteran's service records. In correspondence dated in May 2005, the Veteran was informed of the unavailability of his service treatment records, and was asked to submit copies of any service treatment records that he might have in his possession; however, he was not apprised of potential alternative sources of service treatment records. No additional service treatment records were submitted. In compliance with the January 2011 JMR, the RO sent a June 2012 letter to the Veteran advising him that his service treatment records were largely unavailable and that he may submit evidence from alternate or collateral sources, listing the type and examples of alternate evidence that may be appropriate. However, in a December 2012 letter, the Veteran's attorney notified the VA that they had no further evidence to submit. Where, as here, "service medical records are presumed destroyed, . . . the Board's obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt is heightened." O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Such cases, however, do not establish a heightened "benefit of the doubt," but rather only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision when the veteran's medical records have been destroyed. The case law does not lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. Russo v. Brown, 9 Vet. App. 46 (1996). Therefore, adjudication of this claim may go forward without these records. See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (the "'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim . . . [and] this duty is limited to specifically identified documents that by their description would be facially relevant and material to the claim"). The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). Concerning this, pursuant to the Board's June 2011 remand, an appropriate VA examination was provided to the Veteran in April 2013 to ascertain the etiology of the Veteran's lipomas. The VA examination and opinion are adequate, as the opinion is predicated on an examination of the Veteran and a review of his claims file. The opinion considered the pertinent evidence of record, to include the Veteran's lay statements and any conflicting opinion, and a rationale was provided for the opinion proffered. Therefore, the Board finds that the VA examination obtained with regard to the issue decided herein was adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Under these circumstances, the Board finds that there has been substantial compliance with its June 2011 remand. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Law and Analysis Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Additionally, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. § 1116(a); 38 C.F.R. § 3.309(e). In this context, the term "herbicide agent" is defined as a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(i). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). A presumption of service connection based on exposure to herbicides to include Agent Orange used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which VA has not specifically determined a presumption of service connection is warranted. See 72 Fed. Reg. 32,395 (2007). In this case, the Veteran claims that he has lipomas as a result of to exposure to Agent Orange during his military service. The record reflects that the Veteran served a tour of duty in Vietnam during active duty service from October 1972 to May 1973. The Veteran is therefore presumed to have been exposed to herbicide agents, to include Agent Orange. 38 U.S.C.A. § 1116(f). Here, the issue presented is whether the Veteran's current lipomas are related to his military service, including on a presumptive basis. The Veteran has a current diagnosis of lipomas or fatty tumors on various parts of his body, as documented by the Veteran's VA treatment records. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). However, as lipomas are not among those diseases presumptively linked to herbicide exposure, the Veteran's current lipomas would not warrant service connection on a presumptive basis based on Agent Orange exposure. Notwithstanding the foregoing, the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a Veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). The United States Court of Appeals for Veterans Claims has specifically held that the provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). However, service connection is also not warranted on a nonpresumptive direct-incurrence basis. Although the Veteran's service treatment records are largely unavailable, he denied a history of tumors, growths, cysts, or cancer on his May 1974 service separation examination. Likewise, the examining physician from such examination reported that the Veteran's skin and lymphatics were normal. Therefore, the evidence does not establish that the Veteran experienced lipomas during service. Nor does the Veteran contend that he was treated for or diagnosed with lipomas in service. The first clinical evidence of record reflecting the Veteran's complaint of, and treatment for, lipomas is dated in 1989, approximately 15 years after service separation. Specifically, a January 1989 VA treatment report noted lumps over several parts of the Veteran's body. Thereafter, VA outpatient treatment records dated from September 2004 through August 2009 reflect treatments for lipomas (fatty tumors) located particularly on the chest, abdomen and arms, as well as multiple soft tissue swellings on the body. The Veteran reported, in his January 2006 substantive appeal, that he had had lumps all over his body since he was in his twenties. At the April 2013 VA examination, he stated that he developed a lipoma shortly after he was discharged from service. He further stated that over the course of the years, he had developed numerous lipomas and at the time of the examination, he had 23 lipomas of various sizes on his forearms, upper arms, chest and abdomen. The Veteran is certainly competent to testify as to symptoms that are non-medical in nature, such as fatty tumors on his skin; however, he is not competent to render a medical opinion as to whether such symptoms are caused by his exposure to Agent Orange while serving in Vietnam. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (certain disabilities are not conditions capable of lay diagnosis). Concerning this, the Veteran has not demonstrated that he has expertise in medical matters. While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between an in-service event and a current condition, not all medical questions lend themselves to lay opinion evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) referred to Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) for guidance. In footnote 4 of Jandreau, the Federal Circuit indicated that the complexity of the claimed disability is to be considered in determining whether lay evidence is competent. As to a nexus opinion relating his current lipomas to his service, including Agent Orange exposure, the Board finds that the etiology of the Veteran's lipomas is too complex an issue, one typically determined by persons with medical training, to lend itself to lay opinion evidence. Hence, the Veteran's statements offered in support of the claim do not constitute competent evidence and are also lacking in probative value. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995). Additionally, the competent and most probative opinion of record does not relate the Veteran's current lipomas to his active service, to include his in-service exposure to Agent Orange. To that effect, the April 2013 VA examiner, after conducting a review of the Veteran's claims file and an in-person examination of the Veteran, opined that "[t]he claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." In support of this opinion, the examiner noted that while the tendency to develop a lipoma is not necessarily hereditary (although hereditary conditions, such as familial multiple lipomatosis, may include lipoma development), lipomatosis is believed to be a hereditary condition where multiple lipomas are present on the body. The examiner further stated that there is no medical evidence of record that supports a causal relationship between Agent Orange exposure and the development of lipomas and that such a casual relationship is not established through medical research. The Board acknowledges that the record contains a conflicting opinion as to the etiology of the Veteran's lipomas. In an April 2011 letter, C.K., LPC, stated that "there is no evidence other than [the Veteran's] exposure to Agent Orange to explain as to why he has recurring [l]ipomas" and opined that "[i]t appears at least as likely as not that his [l]ipomas are related to military service and exposure to Agent Orange. ..., decades may pass before the results of Agent Orange are experienced." However, the Board affords no probative value to this opinion. In this regard, Mr. K., who is a professional vocational and rehabilitation counselor, has not demonstrated that he has the necessary training, education or expertise to render an opinion in medical matters. As discussed above, the Board found that the etiology of the Veteran's lipomas is a complex medical issue, one typically determined by persons with medical training, which does not lend itself to lay opinion evidence. Therefore, Mr. K.'s opinion does not constitute competent evidence. Furthermore, the opinion is self-conclusory, and does not provide any convincing explanation to support the conclusion. In this regard, the April 2013 VA examiner noted that "Mr. [K.'s] opinion that the [Veteran's] lipomas have to be due to Agent Orange exposure has no basis in any research involving the development of lipomas and exposure to Agent Orange. It is based on his assumption that since there isn't any known cause, well, it must be due to Agent Orange exposure." See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is prohibited from substituting its own medical judgment in place of the opinions of competent medical professionals). Thus, the Board finds that the competent and probative evidence of record fails to establish that the Veteran's current lipomas are as a result of his service. Because lipomas are not among those diseases presumptively linked to herbicide exposure, and the evidence of record does not relate the Veteran's current lipomas to his military service, the preponderance of the evidence is against his claim for service connection. As such, the benefit of the doubt doctrine is not applicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for lipomas is denied. REMAND The Veteran is seeking service connection for a pulmonary disability, to include as due to Agent Orange exposure. Based upon its review of the Veteran's claims file, the Board finds there is a further duty to assist the Veteran with this claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran was provided a VA respiratory examination in January 2013 in conjunction with this claim. The January 2013 VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. In support of this opinion, the examiner noted that no nexus can be established between the Veteran's conditions of a nonmalignant lung mass and chronic obstructive pulmonary disease (COPD) to any VA ratified presumptive diseases based on herbicide exposure. However, the Board finds this opinion is inadequate for VA purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that if VA provides a Veteran with an examination in a service connection claim, the examination must be adequate); see also Stegall v. West, 11 Vet. App. 268 (1998). In this regard, the Federal Circuit has held that even if the statutory presumptions are inapplicable, the Veterans Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98- 542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The VA examiner neglected to consider the medical etiology of the Veteran's current pulmonary disability. For example, the VA examiner failed to address whether the Veteran's current pulmonary disability was in fact due to service, to include exposure to Agent Orange, based on the Veteran's reported medical history and documented clinical findings of record. Instead, the examiner based his opinion on an inaccurate factual premise, that the statutory presumption under the Veterans Dioxin and Radiation Exposure Compensation Standards Act is the only way to establish service connection. Given the deficiencies in the January 2013 VA examination report the Board must remand this case for another medical opinion. Accordingly, the case is REMANDED for the following action: 1. Obtain any updated treatment records for the Veteran from the Poplar Bluff, Missouri VA Medical Center, and all associated outpatient clinics, dated from August 2009 to the present. All attempts to obtain those records should be documented in the claims file. 2. Forward the Veteran's complete claims file to the VA examiner who performed the January 2013 examination, or any other appropriate physician, to determine the nature and etiology of his pulmonary disability, including nonmalignant lung mass and COPD. A copy of this Remand and the entire claims file must be made available to and reviewed by the VA examiner. If the January 2013 VA examiner is unavailable, the Veteran should be accorded an additional VA examination at the applicable VA medical facility for evaluation of the nature and etiology of his pulmonary disability. Pertinent documents should be reviewed, including service and post-service treatment records and the Veteran's statements. The examiner should then offer an opinion as to whether the Veteran's pulmonary disability, specifically including a nonmalignant lung mass and COPD, is at least as likely as not (i.e. 50 percent probability or more) etiologically related to his period of active military service, including his exposure to an herbicide while serving in Vietnam. In rendering his/her opinion, the examiner must note that a Veteran may establish service connection with proof of actual direct causation, even if there is no statutory presumption of service connection for such disability based on exposure to an herbicide in service. The examiner is advised that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of a proposition as to find against. More likely and as likely support the contended relationship; less likely weighs against the claim. All opinions should be supported by a clear rationale. 3. Lastly, readjudicate the issue of entitlement to service connection for a pulmonary disability, to include as due to exposure to Agent Orange. If the benefit sought on appeal continues to be denied, the Veteran and his representative must be provided with a supplemental statement of the case, followed by an appropriate period of time for a response. The case should then be returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs