Citation Nr: 21014487 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 14-17 828 DATE: March 12, 2021 ORDER Entitlement to service connection for lipoma is denied. REMANDED Entitlement to service connection for a urinary disorder, diagnosed as recurrent urinary tract infections, benign prostatic hypertrophy and prostatitis is remanded. Entitlement to special monthly compensation (SMC) at the housebound rate prior to July 18, 2013 and after October 31, 2013 is remanded. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s claimed for lipoma condition began during active service, or is otherwise related to an in-service injury or disease, to include exposure to herbicides. CONCLUSION OF LAW The criteria for service connection for lipoma are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from September 1967 to September 1969. This matter comes before the Board of Veterans’ Appeals (Board) from August 2011, December 2011, and January 2013 rating decisions (RD) issued by a Department of Veterans Affairs (VA) Regional Office (RO). Upon remand, the Veteran’s claim for entitlement to service connection for allergic rhinitis was granted and is therefore no longer on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); January 2021 RD. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also 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). Secondary service connection requires evidence of: (1) a current disability; (2) a service-connected disability; and (3) a causal relationship between the current disability and a service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even where there is no record of such diseases during service, if they manifest to a compensable degree at any time after service, in a veteran who, during active military, naval or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. 38 C.F.R. §§ 3.307, 3.309. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. Notwithstanding the foregoing provisions regarding presumptive service connection for exposure to herbicide agents, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 1. Entitlement to service connection for lipoma The Veteran contends that his claimed for lipoma condition is caused by herbicide exposure during service. See June 2012 Statement in Support of Claim; July 2012 Statement in Support of Claim. Presumptive Service Connection… With regard to presumptive service connection based on herbicide exposure, the Veteran’s military personnel records establish that he served in the Republic of Vietnam during the presumptive period, and therefore exposure to herbicides is presumed. See DD Form 214. Service connection is not, by regulation, warranted on a presumptive basis due to herbicide exposure for the claimed for lipoma condition, as it is not listed as being a chronic disease under 38 C.F.R. § 3.309(e). Therefore, service connection for the condition on the basis of presumed exposure to herbicides is denied. Notwithstanding the inapplicability of the presumptive service connection regulations, the Board will proceed to consider the claim on a direct exposure basis. Combee v. Brown, 34 F.3d 1039, 1042-44 (Fed. Cir. 1994). Direct Service Connection… As to the first element of Shedden, for service connection the Veteran must show a current disability. Per the October 2020 VA examination report, the Veteran referred to the condition as lymphoma. A January 2021 opinion was obtained with regard to the claimed lipoma condition and the examiner clarified that the diagnosis is lipoma. It was noted that the record, including the October 2020 examination report was reviewed. Therefore his claim meets the first Shedden element to service connection. See January 2021 VA addendum medical opinion (clarifying diagnosis to be lipoma to the groin). As to the second element of Shedden, for service connection the Veteran must show an in-service incurrence or aggravation of a disease or injury. As previously indicated, the Veteran has service in Vietnam during the presumptive period for herbicide exposure, and therefore his claim meets the second Shedden element to service connection. As to the last element of Shedden, for service connection the Veteran must show a causal relationship between the current disability and the in-service disease or injury. Here, the Board notes that there are no positive nexus opinions linking the claimed for condition to service, to include as due to herbicide exposure. Weighing against the Veteran’s claim is the January 2021 VA medical examiner’s opinion that the claimed condition is less likely than (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness as there is no evidence of a lipoma until 2011, nearly 40 years post service and that genetics play the largest role, along with age. The VA examiner added that there is also not a nexus to service by way of herbicide exposure, as Agent Orange has not been associated with lipoma formation in the current, widely accepted, peer-reviewed literature including a search of Up to Date, a respected medical resource. Id. The Board acknowledges the Veteran's lay testimony relating his claimed for condition to service. Specifically, the Veteran asserts that he had legions, bumps, and a severe rash in his groin area during service and attributes the same to direct contact with Agent Orange. See July 2012 Statement in Support of Claim. While the Veteran is competent to describe symptoms relating to his condition, the record does not show that he is competent to render a diagnosis of lipoma, to include a complex medical opinion regarding the etiology of the same. As such, the question of etiology in this case may not be competently addressed by lay evidence. See Layno v. Brown, 6 Vet. App. 465, 469 - 470 (1994); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds that the preponderance of the evidence weighs against the Veteran's claim, as his currently diagnosed lipoma condition is not listed under the enumerated diseases that establish presumptive service connection as a result of herbicide exposure. See 38 C.F.R. § 3.309(e). While the Veteran may still prove service connection on a direct basis, the preponderance of the most probative evidence of record does not show that his currently diagnosed lipoma condition is related to service, where the etiology of that conditions falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) See January 2021 VA medical opinion. Lastly, the evidence of record, including the Veteran's STRs, do not also support a finding that his more recently diagnosed lipoma condition incurred during service. Accordingly, the Veteran's claim must be denied. The benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a urinary disorder, diagnosed as recurrent urinary tract infections, benign prostatic hypertrophy and prostatitis is remanded. 2. Entitlement to special monthly compensation (SMC) at the housebound rate prior to July 18, 2013 and after October 31, 2013 is remanded. 3. Entitlement to SMC based on the need for aid and attendance is remanded. Upon review of the record, the Board notes that none of the VA examiners to date have addressed the Veteran’s contention that his claimed for urinary condition(s) are directly caused by his conceded exposure to herbicides during service. See July 2010 Statement in Support of Claim. Here, the Board notes that while the Veteran’s claimed for urinary conditions are not subject to presumption service connection, he may still prove service connection on a direct exposure basis. Combee v. Brown, 34 F.3d 1039, 1042-44 (Fed. Cir. 1994). Upon remand, while the October 2020 VA examiner was asked to provide a medical opinion addressing direct service connection, that opinion merely speaks to whether the Veteran’s condition incurred during service and did not otherwise address his conceded herbicide exposure. See also October 2019 VA medical opinion; December 1996 VA medical examination. As such, the Board finds that another remand is, unfortunately, required here prior to the adjudication of the Veteran’s claim. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As the Veteran’s claim for service connection for a urinary disorder could substantially impact his claims for special monthly compensation, the Board will defer deciding those issues pending completion of the additional development herein requested. See Harris v. Derwinski, 1 Vet. App. 180 (1991); January 2012 Notice of Disagreement (contending that his disabilities entitle him to SMC). The matter is REMANDED for the following action:   1. Obtain an addendum medical opinion for the Veteran’s claim for direct service connection for his currently diagnosed urinary conditions. Upon review of the record, to include this remand, the VA examiner is requested to opine as to the following: Is it at least as likely as not (50 percent probability or greater) that the Veteran’s currently diagnosed urinary conditions are directly caused by his conceded exposure to herbicides during service?   K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.R. Fey, 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.