Citation Nr: 18139565 Decision Date: 10/01/18 Archive Date: 09/28/18 DOCKET NO. 10-38 737 DATE: October 1, 2018 ORDER Entitlement to service connection for a skin disorder, diagnosed as multiple lipomas, is granted. REMANDED Entitlement to service connection for a low back disorder, to include as secondary to service-connected dorsal spine strain, is remanded. Entitlement to service connection for sudden-onset paralysis, to include as secondary to service-connected dorsal spine strain or as due to herbicide exposure, is remanded. Entitlement to a rating in excess of 10 percent for dorsal spine strain is remanded. FINDING OF FACT The Veteran’s multiple lipomas were incurred during active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for multiple lipoma have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1969 to August 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In May 2012, the Veteran testified at a hearing before a Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. In April 2015, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. In January 2018, the Veteran was notified that the previous VLJ was no longer employed at the Board. He was also notified of his right to have another hearing before the VLJ who would issue a decision on his appeal. Pursuant to his request, the Veteran testified at a March 2018 hearing before the undersigned VLJ. A transcript of that hearing has been associated with the claims file. Entitlement to service connection for multiple lipomas. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent medical or 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). The Veteran asserts entitlement to service connection for multiple lipomas. Specifically, the Veteran testified that he first developed lipomas within six months after his overseas service in Thailand. See March 2018 Hearing Transcript. The Veteran’s military personnel records reflect that he served at the Korat Royal Thai Air Force Base (RTAFB) from April 1971 to January 1972. See Undated Listing of Service; February 1972 Narrative Summary (noting the Veteran left Thailand via air evacuation). The Board notes that the Veteran was released from his active duty service in August 1972, more than six months after his return from Thailand. See DD-214 Certificate of Release or Discharge from Active Duty Service. The Veteran has a current diagnosis of skin lipomas. See February 2017 Skin Diseases DBQ. The Veteran has testified that his skin lipomas have existed since service. See March 2018 Hearing Transcript. Though a layperson, the Veteran is competent to report such observable symptomatology as a skin growth. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran also testified that his skin lipomas have been present and continuous since they first developed. See March 2018 Hearing Transcript. The Board notes that negative etiological opinions exist in the form of a February 2017 examination report and April 2017 addendum opinion, which opined that the Veteran’s multiple lipomas was less likely than not incurred in or caused by his active duty service, to include his exposure to herbicides. See February 2017 Skin Diseases DBQ; April 2017 C&P Examination Note. The Board finds these opinions inadequate, as each merely relied on the absence of evidence in the Veteran’s records. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate when the examiner did not comment on the Veteran’s report of in-service injury and instead relied on the absence of evidence in the Veteran’s service medical records to provide a negative opinion). In sum, the Board finds that it is as least as likely as not that the Veteran’s multiple lipomas, although not formally diagnosed until after service, were incurred during active service. In this regard, the Board finds the Veteran’s testimony to be competent, credible, and highly probative of the fact that his lipomas began during his active service and have continued since. See Jandreau, 492 F.3d 1372. Although there is a conflicting medical record, the Board finds that, at the least, the evidence for and against the claims is in relative equipoise. When the evidence for and against a claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. 1154(b); 5107; 38 C.F.R. 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, the benefit of the doubt must be resolved in favor of the Veteran and entitlement to service connection for multiple lipomas is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a low back disorder, to include as secondary to service-connected dorsal spine strain Following the Board’s April 2015 remand, the Veteran was provided with a VA examination to address whether he has a lumbar spine disability separate from his service-connected dorsal spine strain, and if so, whether that disability is related to his active duty service, or is secondary to his dorsal spine strain. The Veteran underwent a December 2016 VA Back Examination and an April 2017 addendum opinion was obtained. The April 2017 addendum diagnosed the Veteran with degenerative disc disease of the lumbosacral spine. The examiner opined that the Veteran’s lumbosacral spine disorder was less likely than not caused by his active duty service. In reaching this opinion, the examiner relied on the absence of evidence of this condition in the Veteran’s service treatment records. See April 2017 C&P Examination Note. Further, the examiner did not address whether the Veteran’s lumbosacral spine disorder is related to his in-service July 1972 motor vehicle accident. Regarding the Veteran’s claim that his low back disorder is secondary to his service-connected dorsal spine strain, the examiner stated that medical evidence does not support the claim that a dorsal spine strain would cause a lumbosacral spine disorder. The examiner did not address whether the Veteran’s dorsal spine strain has aggravated his lumbosacral spine disorder. See April 2017 C&P Examination Note. Accordingly, the Board finds the December 2016 and April 2017 opinions inadequate, as each merely relied on the absence of evidence in the Veteran’s records. Barr, 21 Vet. App. at 312; Dalton, 21 Vet. App. 23(an examination was inadequate when the examiner did not comment on the Veteran’s report of in-service injury and instead relied on the absence of evidence in the Veteran’s service medical records to provide a negative opinion). Additionally, the April 2017 examiner did not address whether the Veteran’s documented in-service motor vehicle accident caused his lumbosacral spine disorder. He also failed to address whether the Veteran’s dorsal spine disorder has aggravated his lumbosacral spine disorder. 2. Entitlement to service connection for sudden onset paralysis, to include as due to service-connected dorsal spine strain or as due to herbicide exposure is remanded. The Board finds a new examination is warranted for this claim. In this regard, an April 2017 addendum opinion opined that the Veteran’s sudden onset paralysis was less likely than not incurred in or caused by his active duty service, to include his exposure to herbicides. See April 2017 C&P Examination Note. The Board finds this opinion inadequate, as it merely relied on the absence of evidence in the Veteran’s records. Barr, 21 Vet. App. at 312; Dalton, 21 Vet. App. 23(an examination was inadequate when the examiner did not comment on the Veteran’s report of in-service injury and instead relied on the absence of evidence in the Veteran’s service medical records to provide a negative opinion). Additionally, the examiner did not take into account the Veteran’s lay statements regarding the initial onset of his sudden onset paralysis and its continued symptomatology. See March 2018 Hearing Transcript (testifying that he becomes paralyzed when moving his back a certain way). Finally, the examiner relied on the fact that VA does not consider “sudden onset paralysis” as a conceded condition for herbicide exposure under 38 C.F.R. § 3.307. Although entitlement to service connection for sudden onset paralysis cannot be presumed, this does not prevent the Veteran from presenting evidence showing a direct causation in this particular case. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Therefore, on remand, the Veteran should be afforded a new VA examination, which addresses his statements regarding his ongoing sudden onset paralysis. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr, 21 Vet. App. at 307-08 (holding that lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Smith v. Derwinski, 1 Vet. App. 235, 237-38 (1991) (credibility determinations are within the purview of the Board). Specifically, the examiner is requested to address whether the Veteran’s described symptomatology is its own diagnostic entity, or is a symptom of his service-connected dorsal spine disability, as directed below. 3. Entitlement to a rating in excess of 10 percent for dorsal spine strain is remanded. It appears that the Veteran’s dorsal spine disability may have worsened in severity since his last VA examination. At the March 2018 Board hearing, the Veteran testified that his service-connected dorsal spine disorder has worsened in severity since his last VA examination. On remand, the Veteran should be afforded a VA examination to determine the severity of his dorsal spine disorder. Additionally, the Veteran must be provided with a new examination that complies with Correia v. McDonald, 28 Vet. App. 158 (2016). In a recent precedential decision, the U.S. Court of Appeals for Veterans Claims (Court) held that for VA examinations to be adequate for rating musculoskeletal disabilities, they must record range of motion testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of motion of the opposite undamaged joint. Correia, 28 Vet. App. 158 at 169-70 (citing 38 C.F.R. § 4.59 (2016)). If the examiner is unable to conduct the required testing, or concludes that the required testing is not necessary, he or she should clearly explain why what that is so. Id. at 170. The April 2017 VA examination report provides range of motion results for the thoracolumbar spine, but does not specify the type of testing on which these results were based (i.e. active or passive, weight-bearing or nonweight-bearing), or provide results for each type of test, as required under Correia. If only active range-of-motion testing was performed, and the other tests were deemed not necessary or possible, the examiner did not state this in the report. As these are determinations that require medical judgment, the Board may not make its own independent finding on this issue. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). As such, additional development is required concerning this claim. Finally, as this matter is being remanded, the Veteran’s updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Make arrangements to obtain the Veteran’s VA treatment records, dated from August 2018, forward. 2. Thereafter, schedule the Veteran for an appropriate VA examination to address the nature and etiology of his lumbosacral degenerative disc disease. The entire claims file must be reviewed by the examiner in conjunction with the opinion. The examiner should confirm in the examination report that he or she has reviewed the folder in conjunction with the examination. The examiner should elicit a full history from the Veteran. The examiner should provide the following opinions: (a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s lumbosacral degenerative disc disease had its clinical onset during active service or is related to any in-service disease, event, or injury, to include the Veteran’s July 1972 motor vehicle accident. (b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s lumbosacral degenerative disc disease was either (i) caused by, or (ii) aggravated by, the Veteran’s dorsal spine strain. All examination findings, along with a complete rationale for all opinions expressed, must be set forth in the examination report. 3. Schedule the Veteran for an appropriate VA examination to address the nature and etiology of his sudden-onset paralysis. The entire claims file must be reviewed by the examiner in conjunction with the opinion. The examiner should confirm in the examination report that he or she has reviewed the folder in conjunction with the examination. The examiner should elicit a full history from the Veteran. The examiner should provide the following opinions: (a) Does the Veteran have a disability manifested by sudden-onset paralysis? Is the Veteran’s sudden onset paralysis is its own diagnostic entity? (b) If so, did is have its clinical onset during active service or is related to any in-service disease, event, or injury, to include the Veteran’s July 1972 motor vehicle accident, or exposure to herbicide agents. (c) Is it is at least as likely as not (50 percent or greater probability) that sudden-onset paralysis is a symptom or manifestation of his service-connected dorsal spine strain, or was either (i) caused by, or (ii) aggravated by his dorsal spine strain? All examination findings, along with a complete rationale for all opinions expressed, must be set forth in the examination report. 4. Schedule the Veteran for appropriate VA examinations to assess the severity of his service-connected dorsal spine strain. The entire claims file must be reviewed by the examiner in conjunction with the opinion. The examiner should confirm in the examination report that he or she has reviewed the folder in conjunction with the examination. The examination should be performed in accordance with the DBQs. The examiner is to specifically test the range of motion of the dorsal spine in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or conclude that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. If the examination is not performed during a flare-up, the examiner must provide an estimate of additional loss of range of motion during a flare-up. If the examiner is unable to provide an estimate of additional loss of motion during a flare-up, the examiner must provide a specific explanation as to why the available information, including the Veteran’s own statements, is not sufficient to make such an estimate. All examination findings, along with a complete rationale for all opinions expressed, must be set forth in the examination report. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. M. Stedman, Associate Counsel