Citation Nr: 1338560 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 08-35 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for disorder manifested by lipomas and swollen lymph nodes, claimed as due to herbicide exposure. 2. Entitlement to service connection for a prostate disorder, claimed as due to herbicide exposure. 3. Entitlement to service connection for hypertension, claimed as due to herbicide exposure, or, in the alternative, as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to November 1971. Service in the Republic of Vietnam is indicated by the record. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which denied the Veteran's claims. In September 2012, the Veteran presented sworn testimony during a personal hearing in Los Angeles, California, which was chaired by the undersigned. A transcript of the hearing has been associated with the Veteran's VA claims file. Relevant to this proceeding, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the individual who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the undersigned noted the basis of the prior determination and noted the elements that were lacking to substantiate the claim for benefits. In addition, the undersigned sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claim. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), or otherwise identified any prejudice in the conduct of the hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. In a January 2013 Board decision, the claims were remanded for further evidentiary development. As will be discussed below, a review of the record reflects substantial compliance with the Board's Remand directives as to the claim of entitlement to service connection for disorder manifested by swollen lymph nodes and lipomas. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA Appeals Management Center (AMC) continued the previous denials in a May 2013 supplemental statement of the case (SSOC). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. The issues of entitlement to service connection for a prostate disorder and hypertension 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. The Veteran will be notified if further action on his part is necessary. FINDINGS OF FACT 1. The competent evidence of record does not support a finding that the Veteran is currently diagnosed with a disorder manifested by swollen lymph nodes. 2. The competent evidence of record does not support a finding that the currently diagnosed lipomas had their clinical onset in service or are otherwise related to active duty, to include in-service herbicide exposure. CONCLUSION OF LAW A disorder manifested by lipomas and swollen lymph nodes was not incurred in or aggravated by the Veteran's military service. 38 U.S.C.A. §§ 1110, 1131, 1154(b), 5107 (West 2002 & West Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's 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, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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). The VCAA notice 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). As to the current claim, a letter dated in March 2006 notified the Veteran of the information and evidence needed to substantiate a claim of service connection. Specifically, he was apprised of what the evidence must show to establish entitlement to the benefit, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. A July 2006 letter also notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist as to the claims on appeal, the RO obtained the Veteran's service treatment records (STRs), as well as, VA and private treatment records in furtherance of his claim. There is no indication that any additional action is needed to comply with the duty to assist. The Veteran was afforded a VA medical opinion in February 2013. The medical opinion reflected that the VA examiner thoroughly reviewed the Veteran's past medical history, documented his medical conditions, and rendered an opinion which appears to be consistent with the remainder of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). The Board therefore concludes that the February 2013 VA examination report is adequate for evaluation purposes with respect to the current claim. See 38 C.F.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Thus, given the standard of the regulation, the Board finds that VA does not have a duty to assist that was unmet. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). Service connection connotes many factors but basically means that the evidence establishes that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisted such service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish direct service connection for the claimed disorder, generally, there must be competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay evidence can be competent and sufficient to establish the elements of service connection 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. See Jandreau, 492 F.3d at 1377. Here, the Veteran has asserted entitlement to service connection for a disorder manifested by lipomas and swollen lymph nodes, which he contends is due to his military service. Specifically, the Veteran contends that he suffers from this disorder as a result of herbicide exposure in the Republic of Vietnam. See, e.g., the September 2012 Board hearing transcript. As indicated above, the Veteran served on active duty from February 1969 to November 1971. His STRs are absent any complaint or diagnosis as to the lymph nodes and/or lipomas. The Board notes that the November 1971 service separation examination documented "[d]iffuse mild [abdominal] tenderness; no rebound; bowel sounds - within normal limits." Upon examination, the etiology of these symptoms was determined to be epigastric distress. No findings concerning swollen lymph nodes or lipomas were reported. In any event, the Veteran has not contended that he was diagnosed with swollen lymph nodes or lipomas in service, or sought in-service medical treatment for related complaints. Rather, he has asserted that he was exposed to herbicides, specifically Agent Orange, during his military service which caused or contributed to the development of a disorder manifested by lipomas and swollen lymph nodes. To this end, the record shows that the Veteran served in the Republic of Vietnam from July 1969 to July 1970 and from February 1971 to November 1971. Thus, herbicide exposure is conceded based on the circumstances of the Veteran's military service. See 38 U.S.C.A. § 1116(f) (West 2002). Post-service treatment records document a continuing diagnosis of lipomas dating from August 2003. A VA treatment records dated November 2005 note a past medical history of abdominal wall lipomas. VA treatment records dated May 2008 document a past history of lymphangitis. At the August 2007 RO hearing, the Veteran testified that he had been experiencing swollen lymph nodes for six or seven years. However, he indicated that he has not been diagnosed with cancer. See the August 2007 RO hearing transcript. At the September 2012 Board hearing, the Veteran presented sworn personal testimony that he had been experiencing inflamed lymph nodes dating from the early 1990's. See the September 2012 Board hearing transcript, pgs. 14-15. The Veteran was afforded a VA examination in February 2013 at which time the examiner documented the Veteran's report that he has had "bumps" all over his abdominal area from 2002. The Veteran indicated that the bumps are painful to touch. Upon physical examination, the examiner noted "[m]ultiple round palpable subcutaneous fatty deposits under the skin of the abdomen." She further indicated that based upon the physical examination, she identified seven total lipomas; the largest lipoma measured approximately one centimeter and the smallest one measured approximately two millimeters. She stated, "I have palpated seven lipomas and they were not tender to touch." With respect to the question of medical nexus, the examiner concluded 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." She explained: A lipoma is a slow-growing, fatty lump that's most often situated between a person's skin and the underlying muscle layer. Often a lipoma is easy to identify because it moves readily with slight finger pressure. It's doughy to touch and usually not tender. A person may have more than one lipoma. Lipomas can occur at any age, but they're most often detected during middle age. A lipoma isn't cancer and is usually harmless. Treatment generally isn't necessary, but if the lipoma is bothersome and is painful and is growing, one may want to have it removed. When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Court has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez, 22 Vet. App. at 295. However, a medical opinion based on an inaccurate factual premise is not probative. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. See Miller v. West, 11 Vet. App. 345, 348 (1998); see also Leshore v. Brown, 8 Vet. App. 409 (1995). In this matter, the medical evidence demonstrates that the Veteran does not suffer from a disorder manifested by swollen lymph nodes. The Board recognizes that a past history of lymphangitis, or swollen lymph nodes, was indicated in the VA treatment records. See the VA treatment record dated May 2008. Although the Veteran is competent to describe observable symptoms such as swollen lymph nodes, he has not been shown to be a medical professional and is not competent to diagnose a disorder manifested by swollen lymph nodes. See Jandreau, 492 F.3d at 1376-1377 (layperson competent to identify simple conditions such a broken leg, but not complex conditions such as cancer). Rather, a diagnosis of a specific disorder manifested by swollen lymph nodes requires specialized medical training and expertise to properly identify, and is therefore not capable of lay observation. See Jandreau, 492 F.3d at 1376-1377 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-309 (2007) (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). Accordingly, the Veteran's lay reports self diagnosing a disorder manifested by swollen lymph nodes have no probative value. The competent medical evidence of record indicates that, although the Veteran has been treated for symptoms of swollen lymph nodes, he has not been diagnosed with a specific disorder manifested by swollen lymph nodes. Symptoms alone, such as swollen lymph nodes, without a diagnosed or identifiable underlying malady or condition, do not in and of themselves constitute a disability for which service connection may be granted. See Sanchez-Benitez-West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part, sub nom., Sanchez-Benitez-Principi, 259 F.3d 1356 (Fed. Cir. 2001). As noted above, the February 2013 VA examiner found that the Veteran is not currently diagnosed with a disorder manifested by swollen lymph nodes. Rather, the February 2013 VA examiner as well as the medical evidence of record demonstrates that the Veteran is currently diagnosed with lipomas. To this end, VA regulations provide for a presumption of service connection for certain disabilities associated with herbicide exposure under 38 C.F.R. §§ 3.307 and 3.309 (2013). Lipomas are not subject to presumptive service connection under 38 C.F.R. §§ 3.307 and 3.309. However, the United States Court of Appeals for the Federal Circuit has determined that a Veteran is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Therefore, while service connection on a presumptive basis is not possible for the Veteran's claimed disability, the Board has considered whether service connection is warranted as directly due to active duty service and exposure to herbicides. Crucially, the competent medical evidence of record shows that the currently diagnosed lipomas are not due to the Veteran's military service to include presumed herbicide exposure. Specifically, the Board finds the February 2013 VA medical opinion particularly probative as to the question of etiology, as it appears to have been based upon a thorough review of the record and thoughtful analysis of the Veteran's entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Crucially, the February 2013 VA examiner concluded that the Veteran's diagnosed lipomas are not the result of his military service. The rationale was substantial, thorough, and based on the overall record. The Veteran has not produced a medical opinion to refute the conclusions set forth in the February 2013 VA medical opinion concerning medical nexus. As was explained in the VCAA section above, he has been afforded ample opportunity to present competent medical evidence in support of his pending claim. He has not done so. See 38 U.S.C.A. § 5107(a) (it is the claimant's responsibility to support a claim for VA benefits). Thus, the February 2013 VA medical opinion stands unchallenged as competent medical evidence on the crucial question of medical nexus. The Board has considered the testimony of the Veteran connecting his lipomas to service, but as a lay person, he is not competent to opine as to medical etiology or render medical opinions. Barr, 21 Vet. App. at 308-309. The Board acknowledges that the Veteran is competent to testify as to observable symptoms, such as the presence of bumps under his skin, but finds that his opinion as to the cause of these bumps simply cannot be accepted as competent evidence. See Jandreau, 492 F.3d 1376-77; Buchanan, 451 F.3d 1336. In addition, the Veteran has not reported a continuity of symptoms since service. The history he has provided is to the effect that he was exposed to herbicides during service which caused the development of lipomas more than twenty years later. See, e.g., the September 2012 Board hearing transcript. The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran's favor when the evidence is in equipoise. Considering the overall evidence, including the post-service medical evidence, the VA medical opinion, and the lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater probative value. In conclusion, the preponderance of the evidence is against the claim that current lipomas are related to active military service. Thus, the benefit-of-the-doubt rule is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for a disorder manifested by lipomas and swollen lymph nodes denied. REMAND After having considered the matter, and for reasons expressed immediately below, the Board finds that the remaining claims on appeal-entitlement to service connection for hypertension and a prostate disorder-must again be remanded for further development. In its January 2013 action, the Board remanded the claims for a VA examination with medical opinion to address the questions of whether the Veteran is diagnosed with hypertension that is at least as likely as not the result of his military service to include his presumed exposure to herbicides (Agent Orange) or whether it is at least as likely as not that hypertension is proximately due to or aggravated by his service-connected PTSD. The examiner was also to identify all current prostate disorders and render an opinion as to whether it is at least as likely as not that such is the result of the Veteran's service to include his presumed exposure to herbicides. Pursuant to the January 2013 remand, the Veteran was afforded a VA examination in February 2013 as to the pending claims. With respect to the hypertension claim, the examiner confirmed a diagnosis of isolated systolic hypertension and noted the Veteran's report that he was diagnosed with hypertension in 2002. In rendering her opinion, the examiner indicated that the Veteran's post-service medical records "show elevated readings in 2002, an assessment of hypertension from 2009, and diagnosis of PTSD from 1997." The examiner then reported the Veteran's risk factors for hypertension and concluded, "[a]n obese body habitus, high sodium intake, and a sedentary lifestyle are not related to service, exposure to herbicides (Agent Orange) in the Republic of Vietnam, or at least as likely as not that hypertension is AGGRAVATED by the Veteran's service-connected PTSD." Critically, although the examiner indicated that she reviewed the claims file, she failed to address the private treatment records dated April 1983, which documented a notation of "hypertension - probable labile; rule-out episodic hypertension." To this end, the Board notes that the examiner also did not recognize VA treatment evidence of a continuing diagnosis of hypertension in January 1999. Moreover, with respect to the claimed prostate disorder, the examiner diagnosed the Veteran with prostate hypertrophy. She did not discuss the continuing diagnosis of chronic prostatitis repeatedly documented in the Veteran's VA treatment records. See, e.g., the VA treatment records dated January 1999 to November 2012. Moreover, in rendering an opinion with respect to medical nexus, the examiner's findings were inconsistent with the conclusion rendered. Specifically, the examiner explained that the diagnosed prostate hypertrophy (enlarged prostate) "is a common and a benign condition, it is my opinion that this Veteran's prostate disorder is at least likely as not caused by exposure to herbicides (Agent Orange)." In sum, the evidence of record demonstrates that the February 2013 VA examiner's findings with respect to the hypertension and prostate disorder claims are inconsistent with the evidence of record and conflicting in nature. Thus, the pending claims must be remanded for clarification of the examiner's findings. Additionally, a review of the Veteran's claims file and Virtual VA file shows that he receives ongoing VA medical treatment. Therefore, on remand, ongoing medical records should be also obtained. 38 U.S.C.A. § 5103A(c) (West 2002). Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate releases where necessary, procure records of any treatment that the Veteran has recently received. The Board is particularly interested in records of treatment or evaluation that the Veteran may have received through any VA healthcare system or facility since November 2012. All such available documents should be associated with the claims file. 2. VBA should refer the VA claims file to the physician who conducted the February 2013 VA examination; if she is unavailable the claims file should be referred to a physician with appropriate expertise. The Veteran does not need to be examined. The examiner is requested to review the claims file in its entirety including all VA and private treatment records. Then, the examiner should respond to the following: a. Is it at least as likely as not that the currently diagnosed hypertension is the result of the Veteran's service to include his presumed exposure to herbicides (Agent Orange) in the Republic of Vietnam? In rendering her opinion, the examiner should discuss the April 1983 private treatment record documenting a diagnosis of hypertension. b. Is it at least as likely as not that the diagnosed hypertension is proximately due to the Veteran's service-connected PTSD? In rendering her opinion, the examiner should discuss the April 1983 private treatment record documenting a diagnosis of hypertension. c. Is it at least as likely as not that the diagnosed hypertension is aggravated by the Veteran's service-connected PTSD? In rendering her opinion, the examiner should discuss the April 1983 private treatment record documenting a diagnosis of hypertension. d. Is it at least as likely as not that the diagnosed prostate hypertrophy and chronic prostatitis are the result of the Veteran's military service to include his presumed exposure to herbicides (Agent Orange) in the Republic of Vietnam? (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it.) If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). The AOJ should ensure that any additional development suggested by the examiner should be undertaken so that a definite opinion can be obtained. 3. Thereafter, readjudicate the issues remaining on appeal. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a SSOC and an appropriate period of time for response before the case is returned to the Board. 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). These claims 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). ______________________________________________ THOMAS H. O'SHAY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs