Citation Nr: 1800577	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  14-22 335	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to service connection for a tumor of the left latissimus dorsi muscle (claimed as histiocytoma and soft tissue sarcoma), to include as due to an undiagnosed illness and/or exposure to Gulf War environmental hazards.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K.C. Spragins, Associate Counsel
INTRODUCTION

The Veteran had active duty service in the United States Marine Corps from June 1999 to July 2003.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  The RO in Muskogee, Oklahoma certified the case to the Board on appeal.

The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in July 2017.  A transcript from that proceeding is associated with the Veterans Benefits Management System (VBMS) folder.


FINDING OF FACT

The Veteran does not have a current tumor of the left latissimus dorsi muscle.  The Veteran's symptoms were attributed to a known clinical diagnosis, myxoid solitary fibrous tumor (benign), and the evidence does not reflect that he had a tumor due to an undiagnosed illness or a medically unexplained chronic multisymptom illness. The benign tumor was excised before the Veteran filed his claim, and there is no evidence of recurrence.  


CONCLUSION OF LAW

The requirements to establish entitlement to service connection for a tumor of the left latissimus dorsi muscle (claimed as histiocytoma and soft tissue sarcoma), to include as due to an undiagnosed illness and/or exposure to Gulf War environmental hazards, have not been met.  38 U.S.C. § 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.159, 3.303, 3.304, 3.317 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

II.  Law and Analysis

Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  To establish a right to compensation for a present disability, a veteran 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 (nexus) between the present disability and the disease or injury incurred or aggravated during service.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  The absence of any one element will result in denial of service connection.  Coburn v. Nicholson, 19 Vet. App. 247, 431 (2006).  

The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim."  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  The standard is whether a disability exists at the time the claim was filed.  See Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013).

Service connection may also be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including malignant tumors, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309.  For the showing of a 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), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Service connection may additionally be granted to a Persian Gulf War veteran who exhibits objective indications of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal disorders)).  38 U.S.C. § 1117; 38 C.F.R. § 3.317 (2017).

Under those provisions, service connection may be established for objective indications of a qualifying chronic disability resulting from an undiagnosed illness or illnesses, provided that such disability (1) became manifest in service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021; and (2) by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis.  38 U.S.C. § 1117, 38 C.F.R. § 3.317. 

Signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to:  fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders.  38 C.F.R. § 3.317(b).

In this case, the record shows that the Veteran served in Southwest Asia from February 2003 to May 2003.  He is therefore considered Persian Gulf War veteran.  38 C.F.R. § 3.317(e).  In evaluating the Veteran's service connection claim for a tumor of the left latissimus dorsi muscle, the Board will first determine whether he has a current disability.

The Veteran was provided with a VA examination related to his claim in April 2014.  The Veteran reported that he sought treatment from VA in May 2011 for a knot posterior to the left axilla, and he was told that he had pulled a muscle.  He returned a week later and requested surgical intervention.  A May 12, 2011 x-ray revealed an unremarkable radiographic appearance of the left shoulder and axillary soft tissue swelling.  On May 13, 2011, an upper extremity venous ultrasound showed a 5.5 x 5.5 x 4.5 centimeter heterogenous vascular mass within the left axilla.  It was interpreted to be an enlarged lymph node.  On June 9, 2011 an MRI of the upper extremity showed a large enhancing intramuscular tumor mass with high-signal intensity and enhancement.  It was interpreted to be a liposarcoma.  It was recommended that the Veteran be evaluated at Louisiana State University (LSU).

On June 27, 2011, a VA treatment record noted that the pathology report for a biopsy of the left shoulder mass/back lesion performed on June 14, 2011 showed a low-grade sarcoma.  The record stated that his surgery for resection of the teres major and associated musculature grouping was tentatively scheduled for the next day.  The Veteran underwent a surgical excision of a mass from the left latissimus dorsi at LSU on June 28, 2011. 

On September 27, 2011, a VA treatment record stated that the Veteran had recovered well since his incision had healed.  He reported that his incisional pain was not well controlled.  The assessment noted STS (soft tissue sarcoma), myxoid-low grade of the left upper chest wall, diagnosed and resected on June 28, 2011 at Louisiana State University.  The record stated that they needed to formally stage the Veteran with scans and needed to get a second opinion on the pathology sample to make sure it was not high-grade.

However, the April 2014 VA examiner reviewed the evidence of record and determined that the Veteran had a myxoid solitary fibrous tumor (benign) rather than a soft tissue sarcoma.  In this regard, the Board notes that "[w]hen the term sarcoma is part of the name of the disease, it means the tumor is malignant (cancer)."  See What is a Soft Tissue Sarcoma?, American Cancer Society (Dec. 22, 2017), https://www.cancer.org/cancer/soft-tissue-sarcoma/about/soft-tissue-sarcoma.html.  The examiner explained that a microscopic pathology examination performed at the LSU Health Science Center diagnosed myxoid solitary fibrous tumor (benign).  The examiner observed that these findings were later confirmed by Dr. F., a professor of pathology at Harvard Medical School.  The examiner stated that Dr. F. was a renowned pathologist who specialized in soft tissue tumors.  According to the examiner, it was noted that solitary fibrous tumors may have malignant potential.  In addition, the examiner noted that Dr. C., a pathologist at VA, reviewed the findings on September 28, 2011.

Moreover, the examiner's summary is consistent with the findings reported in a VA treatment record dated in January 2012, after the September 27, 2011 record.  This record had a problem list that included malignant neoplasm of connective and other soft tissue.  However, the documented assessment was myxoid solitary fibrous tumor that was benign.  The record indicated that this determination was based on the review of a Harvard pathologist.  It was low-grade in the left upper chest wall, and it had been diagnosed and resected on June 28, 2011.  The record also reported that the last follow up scans failed to show any recurrence at that time.  The April 2014 VA examiner additionally noted that a January 2014 MRI of the left shoulder showed postsurgical changes with the presence of multiple, non-enlarged, axillary lymph nodes.  As the examiner arrived at his determination using her medical knowledge and relevant facts from the Veteran's history, the Board finds it to be highly probative.

Consequently, the most probative evidence of record reflects that the Veteran did not have a malignant tumor.  In addition, the benign tumor of the left latissimus dorsi was removed approximately six months before the Veteran filed his claim in January 2012 with no evidence of recurrence.  The Veteran also does not contend that his tumor returned after it was excised.  See July 2017 Board Hearing Transcript, page 12-13.  Although the examiner indicated that the Veteran's benign tumor could have malignant potential, neither the examiner nor the other evidence of record reflects that it actually became malignant prior to, or during, the current appeal period.  As a result, the chronic disease presumption does not apply.

The Board notes that the Veteran filed his claim in January 2012.  Although the June 2011 evidence of the tumor was within several months of the date of claim, the Board finds that this case is distinguishable from Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).  The most probative evidence reflects that the Veteran's benign tumor of the left latissimus dorsi was no longer extant at the time the claim was filed as it had been excised prior to that date.  As previously discussed, the record also does not reflect that there has been any evidence of a tumor of the left latissimus dorsi since its removal.

Based on the foregoing, the evidence shows there has been no current diagnosis of a tumor of the left latissimus dorsi at any time during the appeal period or within close proximity thereto.  The existence of a current disorder is a required element of a claim for VA disability compensation.  38 U.S.C.A. § 1110, 1131; Degmetich v. Brown, 104 F.2d 1328, 1332 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

The Board has also considered whether the Veteran has symptoms that might be manifestations of a chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multisymptom illness.  The April 2014 VA examiner completed a Gulf War General Medical Examination in which she stated that the Veteran did not have diagnosed illnesses for which no etiology was established.  The findings from the report also reflect that the Veteran did not report any additional signs and/or symptoms that could represent an undiagnosed illness or a diagnosed medically unexplained chronic multisymptom illness.  The examiner remarked the Veteran had a normal physical examination apart from the findings noted in the separate examination report for the previously diagnosed myxoid solitary fibrous tumor (benign).  The Board finds that the examiner's conclusions provide great probative value as they are based on the examiner's medical expertise and her evaluation of the Veteran.  As a myxoid solitary fibrous tumor (benign) is a diagnosed disease with at least partially understood etiology and pathophysiology, it does not qualify as an undiagnosed illness or medically unexplained chronic multisymptom illness to allow for consideration under these provisions.  See 38 C.F.R. § 3.307(a)(2).  Therefore, his service connection claim cannot be granted under this theory.  

The Board also notes that in the records after the June 2011 surgery, the Veteran has reported residual symptoms of pain and limitation of motion.  However, the Veteran is already service-connected for residuals related to the June 2011 surgery, including left shoulder superior subluxation of the left clavicle at the left acromioclavicular joint, and an associated left shoulder scar.

The Board acknowledges the Veteran's contention that he had a malignant tumor.  The Veteran, as a lay person, is competent to report his observable symptoms.  See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994).  The Board also acknowledges that under certain circumstances, lay persons are competent to provide opinions on medical matters such as diagnosis and etiology.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  However, the determination of whether specific symptoms are attributable to a certain diagnosis, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness, is not the type of question that is readily amenable to mere lay diagnosis or nexus opinion as testing and other specific findings are needed to properly make such a finding.  Thus, the Board finds that the Veteran is not competent to assess whether a tumor of the left latissimus dorsi muscle is malignant, or to opine as to whether his symptoms are due to an undiagnosed illness or medically unexplained chronic multisymptom illness.

For the foregoing reasons, the Board finds that the preponderance of the evidence is against the Veteran's service connection claim for a tumor of the left latissimus dorsi muscle, to include as due to an undiagnosed illness and/or exposure to Gulf War environmental hazards.  Therefore, the benefit of the doubt doctrine is not available for application.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).



ORDER

Entitlement to service connection for a tumor of the left latissimus dorsi muscle (claimed as histiocytoma and soft tissue sarcoma), to include as due to an undiagnosed illness and/or exposure to Gulf War environmental hazards, is denied.









____________________________________________
GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs