Citation Nr: 1723167 Decision Date: 06/21/17 Archive Date: 06/29/17 DOCKET NO. 15-14 276 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for residuals of liposarcoma of the right thigh, to include as secondary to myotonic dystrophy. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD K. Cruz, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1980 to January 1982. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in December 2014 of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The Veteran and his wife testified before the undersigned Veterans Law Judge in an August 2015 hearing. A transcript of that hearing is in the claims file. This case was previously before the Board in January 2016 and February 2017, on which occasions it was remanded for further development. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The weight of the evidence is against a finding that the Veteran's liposarcoma had its onset in service, was manifested within one year of service separation, or is otherwise related to his active military service. CONCLUSION OF LAW The criteria for service connection for liposarcoma have not been met. 38 U.S.C.A. §§ 1101, 1131, 5107(a) (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist VA notified the Veteran of the evidence and information necessary to substantiate his claims in June 2014 and July 2014. Concerning the duty to assist, all identified, pertinent treatment records have been obtained and considered. The Veteran has undergone multiple VA examinations to determine the etiology of the claimed right thigh disability. See VA examinations dated November 2014, November 2016, and an addendum opinion in February 2017. The Board finds the February 2017 particularly probative. There is no argument or indication that this opinion is inadequate or that the findings are otherwise deficient. In sum, there is no additional notice or assistance that would be reasonably likely to aid in substantiating the issue on appeal. Legal Criteria Generally, to establish service connection, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires (1) competent evidence (a medical diagnosis) of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Moreover, for chronic diseases under 38 C.F.R. § 3.309(a) a showing of continuity of symptomatology, standing alone, can be sufficient for an award of service connection. Walker v. Shinseki, 708 F.3d 1331 ( Fed. Cir. 2013). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding in veterans' cases is to be done by the Board")). Facts The Veteran contends that his liposarcoma was caused by his service-connected myotonic dystrophy. In correspondence, he related that there is a high chance of developing cancer for myotonic dystrophy patients and indicated there was a high probability that his liposarcoma was related to his disability. He provided links for articles to support his statements. 8/11/2014 Correspondence, at 3. The Veteran found a lump in his right thigh in December 2009 and had a surgical excision in January 2010. He was diagnosed with myxoid liposarcoma and underwent chemotherapy until May 2010 after the excision. 9/28/2011 Medical Treatment Record Government Facility, at 28-32. In correspondence, the Veteran stated that doctors in Physical Medicine and Rehabilitation Clinic, Neuromuscular Clinic, the Blue Clinic, and the genetic counseling clinic have told him that his liposarcoma is a result of his myotonic dystrophy. 12/31/2014 Notice of Disagreement, 5/13/2015, VA 21-4138 Statement in Support of Claim, at 2. He has also states that the connection of his liposarcoma to his disability is well documented. 4/15/2015 VA 9 Appeal to Board of Appeals. At a hearing in August 2015, the Veteran indicated that he was exposed to chemicals around 1981while stationed at Fort Leavenworth, Kansas and that this put him at a higher risk for cancer. 8/27/2015 Hearing Transcript, at 6. He also stated that doctors told him that myotonic dystrophy patients have a high rate of cancer and that his liposarcoma was connected to this, but he could not get them to put it in writing. Id, at 8-9. Two doctors from the Salt Lake City Veteran's Hospital wrote letters in August 2015 and March 2016 stating that the Veteran was seen for myotonic dystrophy, which is a hereditary condition. They explained that it increased incidence of certain forms of cancer. They also stated that the Veteran was seen by oncology for myxoid liposarcoma. 9/15/2015, Summaries of Inpatient Treatment, 3/29/2016 Medical Treatment Record-Government. However, neither stated that the liposarcoma in this case was caused by myotonic dystrophy. In November 2016, the Veteran underwent a VA examination. However, the Board sought another opinion to properly adjudicate the claim. In February 2017, a neurologist issued an addendum opinion. The examiner indicated that the Veteran's liposarcoma was not aggravated beyond its natural progression by his myotonic dystrophy. Moreover, regarding direct causation, the examiner reviewed medical literature and found that while individuals with myotonic dystrophy have an increased general risk of cancer, no conventional literature shows that it contributes to the development of liposarcoma. It was also noted that myotonic dystrophy is a genetic condition based upon nucleotide repeat expansions in two genes. No conventional literature relates liposarcoma to mutations in either of these particular genes. 2/16/2017 C&P Examination, at 2. The examiner from the February 2017 addendum opinion also determined that the Veteran's liposarcoma was less likely than not related to chemical exposure in-service, including at Fort Leavenworth. The examiner stated that the pathology of the tumor in his right thigh was myxoid liposarcoma with focal round cell differentiation. This type of liposarcoma is typically related to a chromosomal translocation. Based on conventional medical literature, his particular chemical exposure would not have led to the typical genetic defect underlying his type of liposarcoma. Id. Analysis At the outset, the Board acknowledges that the Veteran was diagnosed with liposarcoma that caused residual problems. The question for consideration is whether the residuals are related to active service, to include as secondary to myotonic dystrophy. As noted above, the Veteran claimed to be exposed to chemicals while stationed at Fort Leavenworth, KS around 1981. In the present case, the weight of the evidence is against a finding that chemical exposure led to the liposarcoma. There is no mention of chemical exposure or injections in service treatment records. 1/3/2014 STR-Medical. There is also no mention of chemical exposure as described in the hearing in post-service treatment records. Nevertheless, the Board accepts the Veteran's statements as to such exposure. In this regard, a report titled, "FY 2015 Fort Leavenworth, Army Defense Environmental Restoration Program Installation Action Plan," was associated with the claims file. The purpose of the report was to outline a multi-year cleanup program for an installation. It identified environmental cleanup requirements at each site or area of concern. 10/29/2016 Third Party Release of Information, at 4. Fort Leavenworth was noted to contain contaminants including herbicides, metals, pesticides, PCBs, semi-volatiles and volatiles. The report does not specify the chemicals used at any given point in time. However, the Board resolves doubt in the Veteran's favor and accepts that some form of chemical exposure at least as likely as not occurred during his time there. Despite conceding chemical exposure in this case, the evidence is against a finding that the claimed liposarcoma is related to such exposure; the evidence is similarly against a finding that the liposarcoma was caused or aggravated by the service-connected myotonic dystrophy, based on the competent medical opinions described above. The examiner in February 2017 took the Army report, the medical literature and the rest of the claims file into consideration when determining that the Veteran's liposarcoma was not related to chemical exposure in service. The opinion was accompanied by a clear rationale. For these reasons, it is deemed highly probative. Moreover, no other competent evidence of record refutes the examiner's February 2017 opinion. In sum, service records and post-service records do not show evidence of liposarcoma for almost three decades after discharge from active duty. There is no scientific or medical evidence linking it to his service. As such, the weight of the competent medical evidence is against a link between the Veteran's liposarcoma and chemical exposure at Fort Leavenworth. The Board must also consider whether service connection can be granted based on a chronic disease. While liposarcoma is not a specifically listed chronic disease, it is included under the broader listed category of malignant tumors, and therefore service connection can be established via continuity of symptomatology. 38 C.F.R. § 3.303 (b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331. A chronic disease under 38 C.F.R. § 3.309 (a), credible evidence of continuity of symptomatology could enable a grant of service connection even in the absence of favorable nexus evidence. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, in the present case, the record does not establish continuity of symptomatology, either through the documented clinical reports or the lay statements of the Veteran. There is a significant gap in time between separation from service and the diagnosis of liposarcoma. In this regard, the passage of so many years between the Veteran's separation from active service and diagnosis or documented treatment, while not dispositive, may be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). However, such absence of documented treatment, in and of itself, is not a basis for discrediting his lay statements of continuity. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran's service treatment records do not show evidence of liposarcoma. Additionally, there is also no evidence of manifestation within one year of service. A diagnosis was not made until January 2010, almost three decades after separation from service. In the present case, the weight of the evidence is against a finding of continuity of symptomatology from service to the present. Furthermore, the Veteran's own lay statements fail to indicate continuous relevant symptomatology since active service. The Board must also consider whether service connection can be granted as a secondary condition to myotonic dystrophy. In this case, the weight of the evidence is against a finding that liposarcoma was caused or aggravated by myotonic dystrophy. In reaching this conclusion, the Board notes that the February 2017 addendum opinion provides the most probative evidence against the claim on a secondary basis. The examiner opined the myotonic dystrophy was a genetic condition and no conventional medical literature relates liposarcoma to those particular genes. He determined that the liposarcoma was neither caused nor aggravated by the Veteran's myotonic dystrophy. As the VA examiner's opinion was based on a review of the pertinent medical history and is supported by sound medical rationale, it provides compelling evidence against the Veteran's claim that his liposarcoma is secondary to a service-connected disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (indicating "[i]t 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"). Additionally, as stated above, the Veteran's doctors did not provide opinions linking liposarcoma to myotonic dystrophy. The Board recognizes the Veteran's belief that his liposarcoma is due to active service, to include as to a secondary condition. In this regard, lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the disability involves an internal medical process that extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372, (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Thus, the lay statements as to etiology in this case cannot serve to enable an award of service connection here. As noted above, in order to establish service connection, the evidence must be at least in equipoise as to whether the current disability is related to service. It is the Veteran's general evidentiary burden to establish all elements of the claim, including a connection, if any, between the current disability and an in-service incident. 38 U.S.C.A. § 5107 (a); Fagan v. Shinseki, 573 F.3d. 1282, 1286 (Fed. Cir. 2009). Based on the evidence set forth above, it is not shown that the Veteran's liposarcoma began in service, is the result of any medical condition incurred in service, or is otherwise related to the Veteran's active duty service. In the absence of such evidence, the preponderance of the evidence is against the claim and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107 (b). ORDER Entitlement to service connection for residuals of liposarcoma of the right thigh, to include as secondary to myotonic dystrophy is denied. ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs