Citation Nr: 1801259 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-29 064A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an initial compensable evaluation for chronic epididymitis with epididymal plaques and sterility as a residual of Q fever. 2. Entitlement to service connection for liposarcoma right thigh status post surgery with limitation of motion of the right hip, scarring, right sided radiculopathy, chronic lymphedema, and muscle injury. REPRESENTATION Veteran represented by: Mary Anne Royle, Esq. ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from September 1987 to April 1989, from January 1991 to May 1991, and from October 2003 to June 2008. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. That decision denied the claim for service connection for liposarcoma right thigh status post surgery. Further, the rating decision granted service connection for chronic epididymitis with epididymal plaques and sterility residual of Q fever; the Veteran appealed as regarding the initial assigned noncompensable (0 percent) disability rating. The Board further agrees at this time and as discussed below, the record raises an intertwined issue of entitlement to Special Monthly Compensation (SMC) per 38 U.S.C.A. § 1114(k). Additional medical evidence and lay witness statement was received from the Veteran's attorney November 2017, accompanied by a waiver of initial consideration by the RO as Agency of Original Jurisdiction (AOJ). See 38 C.F.R. §§ 20.800, 20.1304 (2017). The Veteran had previously requested a Travel Board hearing, but withdrew that request in September 2017. The increased evaluation matter is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT The medical evidence from VA and private treatment providers indicates the liposarcoma right thigh, with its residuals, originated and developed contemporaneous with the Veteran's service. CONCLUSION OF LAW The criteria are met to establish service connection for liposarcoma right thigh status post surgery with limitation of right hip, scarring, right sided radiculopathy, chronic lymphedema, and muscle injury. 38 U.S.C. §§ 1110, 1131, 5107(b) (West 2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Generally, where a chronic disease is shown during service, subsequent manifestations of the same at any later date, however remote, are service-connected, unless clearly attributable to intercurrent cause. Continuity of symptomatology is required where the condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has since clarified in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) that continuity of symptomatology as a principle to substantiate service connection is limited to where involving those specific diseases denoted as "chronic" (and for which presumptive service connection is available) under 38 C.F.R. § 3.309(a). Certain chronic diseases may be presumed to have been directly incurred in active service without need for competent evidence proving a causal relationship to service, if manifested to a 10 percent level within one-year of service discharge. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Those disorders that may be presumed service-connected on the basis of chronic disease include the condition of a malignant tumor. See 38 C.F.R. § 3.309(a) (2017). Whether to award service connection depends on review of all relevant evidence, medical evidence and lay statement, and the evaluation of its competency and credibility. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Having reviewed the record in this case, the Board observes that the medical evidence more than sufficiently provides the basis for a grant of service connection on the claim under consideration. The record shows the Veteran following his most recent period of service discharge in June 2008, in June 2010 by a private treatment provider underwent the surgical resection and removal of a myxoid liposarcoma from the medial thigh. The Veteran had previously indicated first noticing the condition in mid-2009. There was an initial March 2013 VA examination which opined that the claimed condition, the liposarcoma including status-post removal, was at least as likely as not incurred in or caused by service. The opinion provided a rationale that stated as indicated: The liposarcoma itself, is unusual in this young a man. He had exposure through his own home well to many chemicals, and as a medical flight surgeon at Fallon. He has no family or genetic markers for this cancer. Only the sudden onset of this within 14 months of service and the aggressive growth of this tumor indicates that its start was in fact while still in service. There are severe residuals from this cancer. Deformity, loss of right leg function, permanent neuropathy. Total residuals of lymphedema not curable and must be treated for life with groin high Jobst compression. Total sterility now since radiation treatment. Inability to ever have surgical repair for the right knee condition since the lymphatic vessels have been permanently destroyed and the bone has had radiation. Soft tissue sarcoma/liposarcoma can be caused by chemical exposure like polycyclic hydrocarbon, and asbestos. Both exposures this Veteran has had. Hazardous waste was found at Fallon and this Veteran's private well right next to the Air base was never tested. As liposarcoma is also most prevalent in 50 years old and up and with a 10 year growth pattern, this also supports this cancer having been started in service. He was released in June 2008 and had diagnosis July 2009. This cancer and all of the residuals are directly related to service. The Board finds this opinion probative. The Veteran's reported history and the documented history support the conclusion. Whereas generally under VA law the best evidence of hazardous chemical exposure is obtained directly from objective service records, as indicated per Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010), there is reason to find reported medical history absolutely credible here. In any event, the timetable of the development of the liposarcoma condition is also consistent with a disability of service origin, not to mention the preliminary discovery of that condition is more or less consistent with the requirements for establish presumptive service connection as to involvement of a chronic disease recognized under 38 C.F.R. § 3.309(a). Another private treatment provider's opinion followed, encapsulated below. [The Veteran] was under my care from October 2009 through March 2010 for a right thigh liposarcoma. This was originally diagnosed in August 2009 as an 8-cm tumor. Given the size of the tumor and its histologically low grade appearance, I believe that it is far more likely than not that this disease began during [the Veteran's] military service between 2004 and 2008. The foregoing opinion obviously advances further the theory that the tumor originated in service, based on the pattern of development, and what was objectively known about this kind of condition in general. The evidence probatively substantiates the claim, and it is granted. ORDER Service connection for liposarcoma right thigh status post surgery with limitation of right hip, scarring, right sided radiculopathy, chronic lymphedema, and muscle injury, is granted. REMAND In view of the depiction of symptomatology from chronic epididymitis given by the Veteran and on prior VA examination, indicated as a complex disability picture likely beyond that qualifying under the specific diagnostic code for epididymitis, and multi-faceted, and given the Veteran's express request, the Board will refer this claim for extraschedular consideration under 38 C.F.R. § 3.321(b)(1). There was indication from the Veteran he recalled the March 2017 VA examination for this condition as being abbreviated, done without reviewing the complete medical history. To ensure thoroughness a new examination is requested. Accordingly, the case is REMANDED for the following action: 1. Schedule a VA examination with a qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The VA examiner should indicate all present symptoms and manifestations from the Veteran's service-connected chronic epididymitis with epididymal plaques and sterility residual of Q fever. The examiner should provide a thorough exposition of all related symptomatology above and beyond pain/discomfort from the epididymitis itself, as regarding functional impact of service-connected disability, activities of daily life and occupational functioning, and also with regard to the component of sterility as had been included within the original adjudicated service-connected disability. The examiner should provide a complete rationale for all opinions provided. 2. Then refer this case to the VA Director of the Compensation Service for consideration of a disability rating on an extraschedular basis under 38 C.F.R. § 3.321(b)(1). 3. Review the claims file. If the directives specified in this remand have not been implemented, take proper corrective action before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 4. Thereafter, readjudicate the increased rating claim on appeal in light all additional evidence received. If any benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded the opportunity to respond before the file is returned to the Board for further appellate consideration. The Veteran 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 (2012). ______________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs