Citation Nr: 21000812 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-57 590 DATE: January 6, 2021 ORDER Entitlement to service connection for a right-sided neck mass, including as due to exposure to toxic substances, claimed as a lump on the side of his neck and diagnosed as a lipoma, is denied. FINDING OF FACT The evidence does not warrant a finding of entitlement to service connection for a right-side neck mass, including as related to toxic substance exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for right-side neck mass, including as due to exposure to toxic substances, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from August 1987 to March 2000 and from July 2004 to July 2005 and is a Veteran of the Gulf War and Peacetime Eras. This matter returns to the Board of Veterans’ Appeals (Board) from a January 2019 remand (2019 Board Remand) of the Veteran’s claim back to the Department of Veterans Affairs (VA) Regional Office (RO) which is the agency of original jurisdiction (AOJ). This remand requested additional development which included scheduling the Veteran for an examination to determine the nature and etiology of his right-side neck mass. Service connection for the other disabilities remanded in the 2019 Board Remand have since been granted and are no longer before the Board. Seri v. Nicholson, 21 Vet. App. 441, 447 (2007); Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); 38 U.S.C. § 7104, 38 C.F.R. § 20.104. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for right-side neck mass, including as due to exposure to toxic substances The Veteran contends that he has a lump on the right side of his neck, referred to as a right neck mass, which is due to his military service including as due to exposure to toxic substances and/or herbicide agents. VA concedes that the Veteran has a current diagnosis of a right-side neck lipoma. The question which now remains is whether that condition is due to his military service. Establishing service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for certain specific diseases may be established on a presumptive basis by showing that such a disease manifested itself to a compensable degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. § 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307 (a). Further, service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Skin lipoma is not one of the “chronic diseases” listed under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provision of 38 C.F.R. § 3.303 (b) does not apply to those claims. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Notwithstanding the foregoing presumption provisions, the U.S. Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, the Veteran can still prevail on his claim if he can establish a direct connection between his right-side neck mass and his service, to include exposure to an herbicidal agent. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed or experienced, and which are within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). However, without specialized medical training a lay witness is not competent to either diagnose or make a nexus opinion concerning most medical conditions. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to.” Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Evidence of Record The Veteran’s military service treatment records (STRs) do not contain any complaints of, treatment for, or diagnosis of a neck mass or related condition. The Veteran has not alleged that this disorder began during service. The VA treatment records contained in the claims file show that he first complained of a mass on his neck in 2009. The Veteran’s military records do indicate that he was assigned to ordnance units and that he participated in activities to retrograde chemicals from Europe, for which he was awarded an Army Achievement Medal in 1990. However, there is no evidence that the was specifically exposed to herbicide agents, or directly exposed to any toxic chemical, such as in a chemical spill. The Veteran’s private medical provider records indicate he was first diagnosed with a lipoma in the right side of his neck after undergoing a fine needle aspiration cytology procedure in February 2011. No other negative findings were recorded as a result of that procedure. Prior to that, in December 2009, an examination of his neck by his private physician, Dr. J.M., indicated there were no neck masses and no enlarged lymph nodes. The Veteran did not submit any private medical records which contain an opinion that his neck mass is related to or caused by his military service or that it was due to exposure to toxic substances. In the report of the VA examination provided to the Veteran after the 2019 Board Remand, the examiner found that it is less likely than so (less than 50 percent likely) that the Veteran’s right neck mass was due to or incurred in the active military service, including as due to exposure to toxic substances. The VA examiner both reviewed the Veteran’s file as well as conducted an in-person examination of the Veteran. When asked about the medical history of the right neck mass, the Veteran indicated that he did not remember when it first appeared but did state that it is growing. He stated he believed it to be from his exposure to dangerous chemicals with which he was involved in transporting while in service. The VA examiner indicated that she explained to the Veteran that the neck mass is a “simple lipoma” and what that it is essentially only a fatty growth that is moveable and squishy, that they may run in families, occur after an injury, or just develop, and that they are benign. The VA examiner’s report also did not indicate any impact on the Veteran’s ability to work due to the neck mass. Both the Veteran and his wife provided written lay statements related to the right neck mass. In the Veteran’s wife’s March 2016 written statement, she merely indicated that it is present and that the Veteran is certain it is from toxin exposure. In the Veteran’s October 2014 written statement, concerning his right-side neck mass, he only stated that he was assigned to an Army ordinance company which moved chemical rounds, claimed to be nerve agents, from one location to another. He did not state when the neck mass first appeared. Analysis and Findings The Board has considered the lay statements from the Veteran and his wife and finds them competent to provide testimony concerning those facts for which they have personal knowledge or experience. Jandreau, 492 F.3d at 1377. However, the Board finds that the establishment of a nexus between the Veteran’s right-side neck mass and his military service is a complex issue which requires an opinion from a trained medical professional. Neither the Veteran nor his wife have been shown to have the required medical training to render a competent opinion on this issue. Layno, 6 Vet. App. at 470. The Board finds the Veteran’s wife’s statement to be of no helpful probative value as she merely states the Veteran’s belief of the cause of his right-side neck mass, for which he is not competent to testify. The Veteran’s statement is also of little probative value as he only confirms that he was assigned to an Army ordinance company which handled chemical munitions, but he provides no other information concerning the actual symptoms of the right-side neck mass. Based on the foregoing, the Board finds that the preponderance of the evidence is against the finding that the Veteran’s current right-side neck mass was caused by an event or injury during or is a result of his military service, including as due to exposure to toxins. The neck mass, diagnosed as a lipoma, is not a condition which is afforded presumptive service connection. There is no competent medical evidence which states that the lipoma is related to his service or any chemical exposures while in service. The VA examiner’s opinion is the most probative evidence of record, and it weighs against the appeal. To the extent that the Veteran and his wife provided opinions regarding the cause of his lipoma, their opinions are outweighed by the VA examiner’s opinion, as that was provided by a medical professional with expertise. The VA examiner’s opinion is thorough, based upon an accurate review of the claims file, and contains a definitive opinion with rationale. Further, the mass was not present during his December 2009 private medical examination and was not diagnosed until February 2011 when a medical surgical procedure indicated the diagnosis, and no other adverse markers. This is 6 years after he separated from the military. In reaching these conclusions the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim, and doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). The Veteran’s claim is denied. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bannach, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.