Citation Nr: 1336710 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 08-10 617 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to service connection for a lipoma on the left lower extremity. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to April 1969. This matter is on appeal from an October 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. This appeal was remanded by the Board in February 2012 for further development and is now ready for disposition. FINDING OF FACT A lipoma on the lateral aspect of the left lower extremity was not shown in service or for many years thereafter, and is unrelated to active duty service. CONCLUSION OF LAW A lipoma on the left lower extremity was not incurred in or aggravated by service, and is not related to service. 38 U.S.C.A. §§ 1110, 1154, 5103(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA Duty to Notify and Assist 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Indeed, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in July 2007 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. It also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained the Veteran's service treatment records and VA outpatient treatment records. Further, the Veteran submitted his own statements in support of his claim. A VA examination with respect to the issue on appeal was also obtained in April 2012. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA examination obtained in this case is more than adequate, it is predicated on a full understanding of the Veteran's medical history, and provides a sufficient evidentiary basis for the claim to be adjudicated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Finally, it is noted that this appeal was remanded by the Board in February 2012 in order to afford the Veteran a VA examination. The Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, the Veteran was provided a VA examination in April 2012, which the Board finds adequate for adjudication purposes. After the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in October 2012. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection In this appeal, the Veteran is claiming entitlement to service connection for a large lipoma on lateral side of his left lower extremity. It is his contention that this originated from a combat injury where he was struck by debris while serving in the Republic of Vietnam. He specifically stated in June 2007 that his symptoms when he was injured were limited to bruising and swelling and, as a result, he did not immediately seek medical attention. However, the lipoma has since grown in size, as his representative described it, to "larger than a goose egg." Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence must show: (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, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In some cases, a relationship between the present disability and the disease or injury incurred or aggravated during service may be established through a demonstration of continuity of symptomatology for certain specific chronic disorders. 38 C.F.R. § 3.303(b); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). However, service-connection may be established under 38 C.F.R. § 3.303(b) only for disorders considered to be "chronic" under 38 C.F.R. § 3.309(a). As is relevant here, lipomas are not considered a chronic disease under 38 C.F.R. § 3.309(a), and may not be service connected under 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Nevertheless, evidence of continuous symptoms since active duty is still a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). Finally, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, "[l]ay 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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). After close consideration of the evidence, the Board concludes that service connection is not warranted for this disorder. As an initial matter, the Veteran asserts that his injury arose during his participation in combat operations. Generally, lay statements by combat veterans regarding in-service injuries are accepted as fact absent a showing of clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b). In this case, it is not entirely clear whether the Veteran is a "combat veteran" for VA purposes. While his personnel records indicate his participation in number of combat operations, he has no personal decorations indicating that he personally was engaged in combat, and his mere location in a combat area is generally not sufficient to be considered to have engaged in "combat with the enemy." See VAOPGCPREC 12-99. Regardless, this question need not be resolved, as the Board is willing to concede that the Veteran experienced the injury he described in service. However, the Board is unable to concede that the Veteran developed his lipoma resulting from this injury. As an initial matter, the service treatment records do not reflect complaints of, treatment for, or a diagnosis related to a lipoma while in service. Even though his injury may have occurred in a location or situation where he could not seek medical attention, he also did not mention the existence of a lipoma on any other occasion since that time during active duty. Significantly, the Veteran's separation physical examination in April 1969 fails to document any indication of a lipoma to the left lower extremity. In fact, the post-service evidence does not reflect the presence of a lipoma to the left lower extremity until October 1987, where he stated that he first noticed some lesions approximately 3 to 4 years before. Even if the Board were to presume that this lipoma was present as early as 1983, this is still approximately 14 years after he left active duty service. Although service connection for a disorder such as this may not be shown simply based on continuity of symptoms, see Walker, 708 F.3d at 1331, such a large gap in treatment also weighs against the Veteran's claim that the lipoma on his left lower extremity is related to service. The Board has considered the Veteran's explanation that the lipoma was not noted at his April 1969 physical examination because it was much smaller at that time, and he apparently did not consider it worth mentioning. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007) (VA must assess the credibility and probative weight of all relevant evidence, including the Veteran's statements). In this regard, the Veteran is competent to testify when he began to experience a lump in his left lower extremity, as the presence of a lipoma is not necessarily a disorder that has unique and readily identifiable features which would require a determination that is "medical in nature." Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). However, the Board determines that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not credible. In making this determination, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Notably, while the Veteran stated in his June 2007 claim that he experienced this lipoma since service, he contradicts himself in his statements made to a physician in October 1987, where he indicated that his lipomas had been present since only approximately 1983. His stated history in 1987 is supported by treatment notes in July and August 1982, where he received treatment for lipomas in other locations on his body, but did not mention the presence of a lipoma on his left lower extremity. Therefore, while his statements regarding an in-service injury may be conceded, his statements that he developed a lipoma that has lasted since that time are not credible. As such, service connection is not warranted based on these statements alone. Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed disorder to active duty, despite his contentions to the contrary. Given his assertions of an in-service injury, the Veteran was provided with a VA examination in April 2012 that was specifically directed toward this claim. On that occasion, he explained to the VA examiner that he felt a "marble-sized lump" on his left leg after being hit by flying debris from an artillery explosion in 1968. While he did not think much of it at the time, it since increased size in during the 1970s. After a complete examination of the Veteran, the VA examiner identified a large lipoma on lateral aspect of the Veteran's left lower extremity. The record also includes pictures of the lipoma. However, the examiner opined that it was less likely than not that this lipoma was related to active duty service. In providing this opinion, the examiner acknowledged that the cause of lipomas was not fully understood, although the tendency to develop them was typically hereditary. Moreover, it was possible that a minor injury could trigger growth. However, the VA examiner placed great significance in the fact that the lipoma on the Veteran's left lower extremity was not an isolated event. In fact, the Veteran had lipomas removed from his right chest and left forearm in 1982, and that an Agent Orange Registry evaluation from 1989 revealed a "large cyst" on his left lateral leg (which may or may not be the same one at issue here) and "lesions" on the legs, arms and back that were diagnosed as "possible lipoma." From the examiner's observations and comments, the Board may conclude that the Veteran appears particularly susceptible to idiopathic lipomas and the fact that he now has a lipoma where he was once injured is likely coincidental. Moreover, the examiner emphasized that there is no clinical indication of the Veteran having a lipoma on the left lower extremity for many years after leaving active duty service. The Board finds that the examination was adequate for evaluation purposes. Specifically, the examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. In arriving at this conclusion, the Board has also considered the statements made by the Veteran relating his lipoma to his active service. The Federal Circuit has held that "[l]ay 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." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, while the Veteran is competent to testify about the nature and onset of a lipoma, the Board has already determined that his assertions that it began in active duty are contradicted by other objective evidence of record and are thus not credible. Moreover, he is not competent to provide testimony regarding the etiology of lipomas from a medical standpoint. See Jandreau, 492 F.3d at 1377, n.4. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. ORDER Service connection for a lipoma on the left lower extremity is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs