Citation Nr: 21072850 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-46 162 DATE: December 6, 2021 ORDER Entitlement to initial compensable disability for a right long finger disability has been withdrawn. Entitlement to a total disability rating based on individual unemployability (TDIU) has been withdrawn. Entitlement to service connection for pericallosal midline lipoma of the brain is granted. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for diplopia, to include as secondary to pericallosal midline lipoma of the brain, is remanded. Entitlement to an initial compensable disability rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. On July 23, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the issue of entitlement to an initial compensable disability rating for a right long finger disability is requested. 2. On July 23, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the issue of entitlement to TDIU is requested. 3. Clear and unmistakable evidence establishes that the Veteran had pericallosal midline lipoma of the brain prior to his period of active duty from January 2003 to March 2004. 4. The record does not show by clear and unmistakable evidence that the Veteran's preexisting pericallosal midline lipoma of the brain was not aggravated during his period of active duty from January 2003 to March 2004. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to an initial compensable disability rating for a right long finger disability by the Veteran (or his or her authorized representative) have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2021). 2. The criteria for withdrawal of the issue of entitlement to TDIU by the Veteran (or his or her authorized representative) have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2021). 3. The criteria for entitlement to service connection for pericallosal midline lipoma of the brain have been met. 38 U.S.C. §§ 1110, 1111 (2012); 38 C.F.R. §§ 3.303, 3.304 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2003 to March 2004 with additional service in the Army National Guard from July 1997 to January 2003, from March 2004 to June 2004, and from December 2004 to December 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2012 (denials of service connection and TDIU and grant of service connection for a right long finger disability) and July 2012 (grant of service connection for bilateral hearing loss) rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, the Veteran testified at a decision review officer hearing held at the RO. In July 2021, the Veteran testified at a virtual hearing held before the undersigned Veterans Law Judge on the issues on appeal. Transcripts of those two hearing has been associated with the electronic record. 1. Entitlement to an initial compensable disability for a right long finger disability 2. Entitlement to TDIU The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 19.55. In the present case, the Veteran has withdrawn the appeal of the issues of entitlement to an initial compensable disability rating for a right long finger disability and entitlement to TDIU and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of the issues of entitlement to an initial compensable disability rating for a right long finger disability and entitlement to TDIU, and they are dismissed. 3. Entitlement to service connection for pericallosal midline lipoma of the brain Governing law and regulations In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(a). To establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence"). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The burden of proof is on VA to rebut the presumption by producing clear and unmistakable evidence that a disability existed prior to service. See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). The determination of whether there is clear and unmistakable evidence that a defect, infirmity, or disorder existed prior to service should be based on "thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof." 38 C.F.R. § 3.304(b)(1). A preexisting disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Service connection can be granted for a familial disease that was initially manifested itself in service or was aggravated by service. In other words, service connection cannot be denied merely on the basis that a veteran has the genetic trait for the disease. See VAOPGCPREC 67-90 (July 18, 1990); VAOPGCPREC 82-90 (July 18, 1990). For diseases that are congenital, developmental, or familial in origin, VA adjudicators ordinarily are justified in finding that such disease, by its very nature, preexisted a Veterans' military service. Typically, entitlement to service connection in these cases should turn on the question of whether manifestations of the disease in service constituted aggravation of the disease. This question must be resolved by applying the same stringent legal standards that are applicable in cases involving acquired diseases. VAOPGCPREC 82-90 (July 18, 1990). Analysis A May 2017 VA examination report reveals a diagnosis of pericallosal midline lipoma of the brain. Therefore, Hickson element (1), current disability, is shown. In this case, the May 2017 VA examiner noted that research indicates that intracranial lipomas are thought to be a benign, slow-growing, congenital hamartomata. The Veteran's entrance examination for his period of active duty when he was called up for active duty from the Army National Guard in January 2003, assuming that he underwent one, is not of record. Therefore, the Veteran is entitled to the presumption of soundness as to lipoma of the brain for his period of active duty starting in January 2003. The next matter is whether there is clear and unmistakable evidence that the Veteran's lipoma of the brain preexisted his period of active duty. The Veteran's service treatment records show that he was treated in early December 2003 for dizziness. Later in December 2003, it was noted that a magnetic resonating imaging (MRI) scan of the brain and a computed tomography (CT) scan of the brain were done. Pericallosal midline lipoma of the brain was diagnosed. The May 2017 VA examiner noted that the date of onset was in 2003 and that the symptoms of the disorder were red eyes and dizziness. The May 2017 VA examiner stated that the lipoma is a congenital disorder. That examiner also opined that there is clear and unmistakable evidence that the lipoma preexisted his active service. Clear and unmistakable evidence establishes that the Veteran had a lipoma of the brain prior to his period of active duty. The Board finds that the medical evidence is undebatable on this question. The crux of this case thus revolves around whether there is clear and unmistakable evidence that the Veteran's lipoma was not aggravated during service when the date of onset of symptomatology was in 2003 and, in particular, the symptoms of dizziness and red eyes first manifested itself during service. The manifestation of dizziness and red eyes during active duty is evidence of an increase in severity during active duty. The Board acknowledges that there is a negative medical opinion in the record. The May 2017 VA examiner opined that the lipoma was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner reviewed the December 2003 CT scan of the brain and MRI scan of the brain. The examiner indicated that more imaging is needed to determine baseline and determine progression and/or natural progression. Given the examiner's acknowledgment that she could not establish the baseline of the lipoma to determine the natural progression of the benign tumor, the Board does not consider this opinion to be clear and unmistakable evidence to rebut the statutory presumption of aggravation. Given the evidence of the development of symptomatology of the lipoma in service, as well as no evidence clearly and unmistakably establishing the contrary regarding aggravation of the congenital benign brain tumor, the Board reaches the conclusion that the record, viewed as a whole, does not show by clear and unmistakable evidence that the Veteran's pericallosal midline lipoma of the brain was not aggravated during service. Thus, service connection for pericallosal midline lipoma of the brain is warranted. The benefit sought on appeal is accordingly granted. REASONS FOR REMAND The Veteran alleges that his back disability is secondary to an infection from exposure to environmental toxins while serving in Mississippi in September 2005 in the Army National Guard in the aftermath of Hurricane Katrina. His service personnel records show that he served in support of Operation Vigilant Relief following Hurricane Katrina in September 2005. An August 2011 statement from a VA doctor reveals a diagnosis of spondylodiscitis at T12-L1 and that image studies demonstrated post-infectious degenerative changes. At the February 2017 hearing, the Veteran testified that he had a back injury during his period of active duty for which he received treatment. February 2017 hearing transcript, page 6. The Veteran's service treatment records reflect that in December 2003 he reported pain in the back of the right shoulder. In light of the above, a VA examination is necessary. At the July 2021 hearing, the Veteran testified that he has been receiving treatment at the Houston VA Medical Center since 2010. July 2021 hearing transcript, page 8. While the RO has obtained many records from that facility at various times during the appeal period, the RO should obtain any additional records from that facility for the periods from January 2010 to March 2010, from May 2017 to June 2020, and from July 2021 to the present. At the July 2021 hearing, the Veteran also testified that he received treatment at the Austin VA outpatient clinic. July 2021 hearing transcript, page 6. The RO last obtained records from the Central Texas Veterans Health Care System in December 2013 and should obtain any additional records from them for the period from December 2013 to the present. The Veteran was last examined for possible diplopia in October 2011. Given the passage of time since that exam, another VA examination is warranted to determine whether the Veteran has or has had diplopia during the appeal period and, if so, whether the disability is related to active service or the now-service-connected lipoma of the brain. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all treatment for his hearing loss, back disability, diplopia, and lipoma of the brain. Obtain any identified records. Obtain the Veteran's VA treatment records from the Houston VA Medical Center for the periods from January 2010 to March 2010, from May 2017 to June 2020, and from July 2021 to the present. Obtain the Veteran's VA treatment records from the Central Texas Veterans Health Care System Houston VA Medical Center for the period from December 2013 to the present. 2. After the development in 1 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature of any diplopia. For any diplopia that the Veteran has or has had since December 2010, the examiner must opine on whether the disability is at least as likely as not related to an in-service injury, event, or disease. For any diplopia that the Veteran has or has had since December 2010, the examiner must opine on whether it is at least as likely as not that the disability was (1) caused by or (2) aggravated by the service-connected pericallosal midline lipoma of the brain. If the examiner finds that diplopia was aggravated by the service-connected pericallosal midline lipoma of the brain, then the medical professional should quantify the degree of aggravation. 3. After the development in 1 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature of the back disability. The examiner must opine on whether the disability is at least as likely as not related to an in-service injury, event, or disease during the Veteran's period of active duty from January 2003 to March 2004, to include the Veteran's reported back injury during that period of service and his reporting in December 2003 of pain in the back of the right shoulder. The examiner must opine on whether the disability is at least as likely as not related to the Veteran's service in September 2005 in Mississippi in the aftermath of Hurricane Katrina, to include any infection he had due to exposure to environmental toxins. 4. After development in 1 is complete, the RO should undertake any necessary development on the issue of an increased rating for bilateral hearing loss as warranted by any additional evidence of record. 5. After development above has been completed, the RO should readjudicate the Veteran's claims with consideration of all evidence of record. If any claim remains denied, the Veteran should be issued a supplemental statement of the case, with a copy to his representative, and afforded an opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Cherry, 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.