Citation Nr: 21021575 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 17-64 032 DATE: April 13, 2021 REMANDED Entitlement to service connection for Dercum's disease is remanded. REASONS FOR REMAND The Veteran had active service from January 1989 to June 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a hearing in January 2021. A transcript is of record. 1. Entitlement to service connection for Dercum's disease is remanded. The Veteran seeks service connection for Dercum’s disease. Unfortunately, a remand is necessary to obtain an addendum VA medical opinion. The Veteran’s December 1988 enlistment examination showed a scar on the left elbow on entrance into service, but was silent for any specific report or diagnosis of a skin disorder or of Dercum’s disease. The Veteran submitted a medical opinion from Dr. J.G. dated in December 2014, in support of his claim. Dr. J.G. opined that Dercum’s disease has a genetic component, but has also been shown to have an association with jet fuel, which can exacerbate the symptoms. He opined that the Veteran’s adiposis dolorosa was aggravated by exposure to jet fuel in service. The Veteran underwent a VA examination in April 2015 in connection with this claim for service connection. The examiner diagnosed adiposis dolorosa or Dercum’s disease. The examiner opined that the Veteran’s Dercum’s disease is less likely than not related to active service, including his reported exposure to jet fuel. While the VA opinion is probative and persuasive, Dr. J.G.’s December 2014 opinion raises the question of whether the Veteran’s Dercum’s disease is developmental or congenital. This was not specifically addressed by the April 2015 VA opinion. VA distinguishes between congenital or developmental “defects” and “diseases” for service connection purposes. Distinguishing between a congenital disease and a congenital defect turns on whether the condition is dynamic or static in nature. A congenital disease is dynamic and “capable of improving or deteriorating.” Quirin v. Shinseki, 22 Vet. App. 390, 394-95 (2009). On the other hand, a defect is a structural or inherent abnormality or condition that is more or less stationary in nature. A congenital disease may be service connected if it was aggravated during service. 38 C.F.R. § 3.306 (a). On the other hand, a congenital or developmental defect may not be service connected, unless an additional disability due to disease or injury was superimposed upon a defect during service. VAOPGCPREC 82-90 (1990). Accordingly, an addendum opinion is needed to clarify whether the Veteran’s Dercum’s disease is a congenital condition, and if so, whether it is a disease or defect. If the Veteran’s Dercum’s disease is a congenital ‘disease,’ then the presumption of soundness attaches because it was not noted at entry into service. To rebut the presumption of soundness, VA would need to establish by clear and unmistakable evidence that: (i) this disease clearly and unmistakably pre-existed service and (ii) it was not aggravated during service. If Dercum’s disease is determined to be a congenital ‘defect,’ a medical opinion is necessary to determine whether any additional disability due to disease or injury was superimposed on it during service. The matters are REMANDED for the following action: Obtain an addendum opinion regarding the etiology of the Veteran’s Dercum’s disease. The claims file, to include a copy of this Remand which contains relevant information, must be reviewed by the examiner. The examiner is to address the following: a) Is this Veteran’s Dercum’s disease congenital in nature? Please explain why or why not. In so doing, the examiner is to consider the December 2014 opinion from Dr. J.G. who indicated that Dercum’s disease has a genetic component. (b.) If it is determined that this Veteran’s Dercum’s disease is congenital, the examiner must then determine whether this condition is either a congenital ‘defect’ or a congenital ‘disease.’ For VA adjudication purposes, the terms ‘disease’ and ‘defect’ are mutually exclusive. ‘Disease’ generally refers to a condition considered capable of improving or deteriorating, whereas ‘defect’ generally refers to a structural or inherent abnormalities or conditions that are more or less stationary in nature. (c.) If it is determined that this Veteran’s Dercum’s disease is a congenital defect, then was any other disease or injury superimposed upon the congenital defect as a result of service? (d.) If it is determined that this Veteran’s Dercum’s disease is a congenital disease, then is it clear and unmistakable (i.e. undebatable) it preexisted his active service? (e.) If it is clear and unmistakable that Dercum’s disease preexisted the Veteran’s active service, is it also clear and unmistakable that it was not aggravated (i.e., underwent a permanent increase in severity, beyond the natural progress of the condition) during active service? A complete rationale should be provided for all opinions given. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Lauritzen, 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.