Citation Nr: 21010248 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 16-15 768A DATE: February 24, 2021 ORDER Entitlement to service connection for lipoma, right thigh, is granted. REMANDED Entitlement to service connection for defective stereopsis is remanded. FINDING OF FACT The Veteran’s right inner thigh lipoma is of service origin. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran the criteria for service connection for right inner thigh lipoma have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from December 1988 to August 1996 and December 2000 to April 2012. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified before the undersigned Veterans Law Judge. The transcript from the hearing is of record. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service treatment records do not reveal any findings of right thigh nodules/lipoma. The Veteran was seen with complaints of lipoma on his left thigh in April 2012. Service connection is in effect for lipoma of the left thigh. The Veteran has testified that she suffered a thigh injury while she was on active duty. She also indicated that she served as a military trainer in service. In that role, she had operations in the woods and her thigh injury would be re-injured from bumping and falling into things in the woods. She also testified that she did a lot of traveling which required her to get in and out of cargo aircraft and her thigh would get bumped in the process. The Veteran’s spouse testified that he noticed these bumps when they were married, which was about two months prior to her being separated from service. In a March 2019 letter, the Veteran’s private physician, C. S., M.D., indicated that the Veteran had a mass on her left lateral thigh due to trauma, which appeared to be a lipoma. She stated that the onset of this condition was 1989. The mass caused her pain with prolonged periods of sitting. At the time of an October 2020 VA examination, the Veteran was diagnosed as having bilateral lipomas of the thighs. The examiner opined that it was less likely than not that the claimed condition was related to military service. The examiner's rationale was that no evidence of right thigh lipoma found in service treatment records (STRs). There was clear evidence of left lateral thigh lipoma noted on April 26, 2012. No treatment provided (normal course of action). No follow-ups reported or noted since then. The examiner indicated that the Veteran testified that she suffered a thigh injury while on active duty. The Veteran also explained that she served as a military trainer in service. In that role, she had operations in the woods and her thigh injury would be re-injured from bumping and falling into things in the woods. The examiner noted that the Veteran also testified that she did a lot of traveling which required her to get in and out of cargo aircraft and her thigh would get bumped in the process. The Veteran reported having had recurrent pain on the affected side since then, especially when driving for long periods of time from Delaware to DC twice a week. The examiner indicated that there were multiple etiologies for a lipoma including trauma and benign neoplastic changes on the local tissue. However, there was no medical exam, test or diagnostic modality that could be utilized to find the exact etiology or tentative time frame for lipoma incidence. In no case, will finding out the etiology change the outcome or treatment plan for the lipoma. The examiner stated that since the right thigh lipoma was not documented in the 2012 service treatment record, it was difficult to find consistency between the Veteran’s lay testimony of the etiology of the lipoma to the medical records available. Therefore, it was less than likely (less than 50 percent) that her symptoms were due to trauma, as opined by Dr. S. in 2019, and in statements provided by the Veteran, as there were no STRs to support the claim. The Veteran has currently been diagnosed as having right inner thigh lipomas. The Veteran has testified as to having had right thigh lipomas in service. The Veteran’s statements are supported by the testimony of her spouse, who indicated that he noticed the lipomas on the right thigh when they were married, about two months prior to her separation from service. The Veteran is competent to report having seen nodules-like entities in her thighs are they are in plain sight. Although the VA examiner provided a negative opinion, it was based upon the discrepancy in the service treatment records and the statements from the Veteran, which found the examiner stating it was difficult to find consistency between the Veteran’s lay testimony of the etiology of the lipoma to the medical records available. The Board finds the Veteran’s statements credible that the onset of the current lipomas of the inner right thigh occurred in service. Her statements are bolstered by the testimony of her spouse. Given the Veteran’s current diagnosis of right inner thigh lipoma and her statements as to onset and continuous symptoms, which are confirmed by her spouse’s testimony, the Board will resolve reasonable doubt in favor of the Veteran and find that the current right inner thigh lipomas had their onset in service. REASONS FOR REMAND The Veteran contends that her defective stereopsis is a direct result of active service. Specifically, the Veteran asserts that her military occupational specialty (MOS) as Operations Intelligence required her to stare at images causing her defective stereopsis. At her Board hearing, the Veteran testified that when she “look[s] at certain things [she feels] a little dizziness or feel a little off.” According to the Veteran, this was the same sensation that she felt in-service when she tried to discern images. Service treatment records demonstrate that the Veteran was diagnosed with defective stereopsis in November 2011. Additional treatment records from that same month show that the Veteran failed the depth perception screen test and was seeking a waiver for it. The Veteran was afforded a VA examination in August 2015, at which time the Veteran was found to have decreased stereopsis. The examiner did not render an opinion as to the etiology of any eye disability and its relationship to the Veteran’s period of service. In its July 2019 remand, the Board noted the lack of diagnosis and opinion in the prior examination and requested that the Veteran be afforded an additional VA examination. The Board indicated that if the Veteran was found to have a diagnosis of defective stereopsis, the examiner was to opine whether it was at least as likely as not (i.e., 50 percent or greater probability) that her currently diagnosed defective stereopsis was incurred in or was otherwise related to her active service. The examiner was to specifically discuss the reports from the Veteran’s Board Hearing of feeling dizzy when looking at the computer or images. The examiner was to provide all findings, along with a complete rationale for the opinion. The requested opinion was obtained in October 2020. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed inservice event, illness, or injury. The examiner indicated that based on her medical experience, the etiology of stereopsis was usually developmental (congenital) in nature. The Veteran’s primary MOS and specialty was operations intelligence. The Veteran’s difficulty with stereopsis occurred during the Veteran’s time in service. However, the Veteran had no in-service incidence such as trauma that would explain etiology related to service. The issue appeared to have developed during time in service; however, there was no identifiable cause or incident in service to explain etiology. She noted that the Veteran reported during the Board hearing feeling dizzy when looking at computer images. She stated that in her medical opinion, feeling dizzy would most likely be a cause of vestibular or other etiology and not primarily from reduced stereopsis. Therefore, the Veteran's left eye defective stereopsis was less than likely incurred in or otherwise related to her active service. While the examiner provided the requested opinion, she also identified the Veteran’s condition as congenital (developmental). Unfortunately, as a result of this classification, additional development is warranted, to include obtaining an addendum opinion. The matter is REMANDED for the following action: Return the claims folder to the examiner who provided the October 2020 eye opinion. Following a review of the entire claims folder please render the following opinions: Is the Veteran’s defective stereopsis a congenital/developmental defect? If so, is it as likely as not (50 percent probability or greater) that there was additional disability superimposed upon that defect during service. This opinion should consider all pertinent evidence. Also state whether or not the disability increased in severity during service. If so, state whether any increase in disability was due to the natural progress of the disorder. If the defective stereopsis is not a congenital/developmental defect, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disability had its onset in service or is otherwise related to service. Complete detailed rationale is requested for each opinion that is rendered. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. S. Kelly, 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.