Citation Nr: 21024103 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 11-06 439 DATE: April 22, 2021 ORDER Entitlement to service connection for lipomas, to include on the neck, status post-excision, is denied. REMANDED Entitlement to service connection for an abdominal hernia is remanded. FINDINGS OF FACT 1. The Veteran’s current lipomas were neither incurred in nor related to service. 2. If considered a lipoma, the Veteran no longer has the right forearm lipoma that was present during service. CONCLUSION OF LAW The criteria for entitlement to service connection for lipomas have not been met. 38 U.S.C. §§ 1110, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1969 to May 1971, with service in Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from July 2012 and September 2013 rating decisions by the Department of Veterans Affairs (VA). This case was remanded in January 2018 and September 2020 for further development. In September 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. After reviewing the evidence of record, and in light of Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Board has recharacterized the issue of service connection for a lipoma of the neck, status post-excision, to encompass any lipomas. Entitlement to service connection for lipomas, to include lipomas other than the neck. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In the absence of a current diagnosed disability, service connection cannot be granted for such disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or at any time during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). During service, the Veteran was noted to have a growth on his right forearm and the physician diagnosed a possible lipoma. See March 1971 service treatment records (STRs). Later, in July 1977, the Veteran was diagnosed with a benign mixed tumor of the right parotid gland. He reported that the mass had been present for six to 12 months. See July 1977 VA treatment records. A few years later, he was diagnosed with a lipoma on his posterior neck. See January 1984 VA treatment records. Around that time, the Veteran reported that the lipomas began in about 1974 and he had some removed in 1980, 1983, and 1984. See May 1984 statement. VA treatment records reflect that the Veteran reported one bump on his leg and arm since his teens, but that he now had three more on his right arm. See November 2001 VA treatment records. About a year later, he reported he had four masses on his right forearm and one on his right thigh since the 1970s. The physician noted lipomas over the right arm ulnar surface that had been enlarging. See October 2002 VA treatment records. In December 2008, the Veteran had an excision of a lipoma on his right forearm. See December 2008 VA treatment records. The Veteran reported that he had small lumps on his chest, neck, and forearm for several years after service, including in 1977 and 1984. See October 2011 statement. In April 2012, he reported that he had four new lipomas, including one on the right arm, where one had been removed but was returning. See April 2012 statement. Medical records reflect lipomas on the right arm in April 2014. See April 2014 VA treatment records. In January 2017, the Veteran’s representative asserted that the Veteran had a benign cyst removed while in service. See January 2017 statement of accredited representative. The Veteran testified that he originally had a lipoma during service after he got out of the hospital for his eye surgery and he started to see the lumps coming out of his arm, neck, and legs. A doctor in Germany asked him if he was in Vietnam. The lipomas started to appear about six months before separation and after he returned from Vietnam. The Veteran believed exposure to Agent Orange was the cause of the bumps. The lipomas kept appearing and would be removed all the time since service. See September 2017 Board hearing. During an October 2020 VA examination, an examiner diagnosed lipomas. The examiner opined it was less likely than not that the Veteran’s lipomas are related to service, but the opinion is inadequate because it did not discuss the Veteran’s history of continued lipomas since service. Thus, the opinion is given no probative weight. A November 2020 VA examiner reviewed the file and opined it was less likely than not that the Veteran’s lipomas were related to service. The examiner first discussed that the benign, mixed parotid tumor in 1977 is a separate entity from lipomas and completely unrelated pathophysiologically, but the rationale provided for lipomas also applied to the parotid tumor. The November 2020 VA examiner explained that the cause of lipomas is not completely understood, but there is a strong genetic relationship. The examiner noted that while the Veteran did not have lipomas prior to service, they arise independently of each other and one lipoma does not cause another. Once an individual is known to form lipomas, their course is variable; individuals may have only one or multiple fibromas. As such, the examiner explained that each lipoma is separate and unrelated to another lipoma and cannot be aggravated beyond the natural course. They are not known to be due to environmental exposures, including Agent Orange and other herbicide agents. The examiner stated that a current review of the widely accepted, peer-reviewed literature did not yield any causal relationship. The November 2020 VA examiner stated that, if the presence of a lipoma on the right forearm during service is conceded, any service connection would apply only to that one lipoma. The examiner stated that no exposure or event in service, in particular, caused the Veteran to have the lipoma or lipomas in service, other than its apparent discovery during service. Thus, the examiner opined, based on the medical evidence, all other lipomas arose as new, unrelated entities, after separation. The Board finds that the November 2020 VA examiner opinion is adequate for appellate review. The examiner relied on review of the file, and he provided a full and detailed rationale that included discussion of the Veteran’s diagnosed disabilities of record and lay statements of reported history. Although the examiner initially discussed that there was no confirmation of a lipoma during service, he provided an opinion that conceded that there was a lipoma during service. The examiner also considered whether exposure to herbicide agents in Vietnam was a possible cause of the disability. Additionally, the examiner discussed, in detail, the Veteran’s history of lipomas and benign tumors, which inherently includes consideration of the Veteran’s lay report that he has had lipomas and tumors continuing since service. Because the opinion is considered adequate, it is assigned significant probative weight. There is no probative medical evidence regarding the cause of the Veteran’s current lipomas that contradicts the opinion by the November 2020 VA examiner that the Veteran’s lipomas arise independently and are unrelated to one another, to include the possible lipoma in service. The Veteran’s testimony regarding the doctor in Germany is not considered evidence of a contradictory opinion, because the Veteran never stated that the German doctor told him that his lipomas were due to exposure to Agency Orange; the doctor instead merely asked if he had been in Vietnam. Thus, to the extent that the German doctor is asserted to be evidence of a connection to herbicide agents, the evidence is given no probative weight. Thus, the preponderance of the evidence reflects that, even if the Veteran had a lipoma during service, any other lipomas (or benign tumors) are unrelated to that lipoma and are unrelated to exposure to herbicide agents during service. The Board also finds that the preponderance of the evidence reflects that the Veteran no longer has the asserted right forearm lipoma that occurred during service, nor has any residuals from that lipoma. The Veteran’s representative asserted that the lipoma was excised in service, indicating that it is no longer present. Moreover, although there are notations of lipomas in the right forearm during the appeal period, including a lipoma that returned in April 2012, the record reflects that the returning right forearm lipoma could be a different lipoma than the one from service, as he was noted to have multiple right forearm lipomas in October 2002. Indeed, there is no evidence that reflects he has had the same lipoma from service through the present. The Board notes that the Veteran still ultimately bears some burden of production. 38 U.S.C. § 5107(a). Thus, the preponderance of the evidence reflects that the Veteran does not currently have the right forearm lipoma—if considered a lipoma—that was present during service or any residuals therefrom. Because the preponderance of the evidence reflects that the Veteran’s current lipomas were neither incurred in nor related to service and that he does not currently have the asserted right forearm lipoma that was present during service, service connection for lipomas is not warranted and the matter must be denied. REASONS FOR REMAND Entitlement to service connection for an abdominal hernia. STRs reflect that the Veteran had complaints of testicular pain during service, but the physician explicitly noted that a hernia was not detected. See November 1969 STRs. The Veteran testified that he continued to have pain since service and up to the time he was diagnosed with a hernia in 2013. See September 2017 Board hearing; see also October 2020 VA examination. His representative also asserted that his hernia could be interrelated to his service-connected duodenal ulcer. See January 2017 statement of accredited representative. An October 2020 VA examiner diagnosed an inguinal hernia and opined (in two separate opinions) that it was less likely than not related to service, because there was no evidence of a hernia in service and the Veteran was not diagnosed with a hernia until 42 years after service. The examiner also noted that there was no evidence to support the Veteran’s continued testicular complaints after service. The examiner’s opinions are inadequate because they do not consider the Veteran’s report of testicular pain since service. As a result, remand for a new opinion regarding direct service connection is warranted. The October 2020 VA examiner also opined that it was less likely than not that the Veteran’s service-connected duodenal ulcer caused or aggravated his inguinal hernia. The causation opinion is inadequate because it solely discusses medical literature without discussing the facts of the Veteran’s case. The aggravation opinion is inadequate because the rationale does not discuss the ulcer and only states that there was a 42 year gap between complaints of right testicular pain and the diagnosed inguinal hernia. Because these opinions are inadequate, remand for new opinions is necessary. The matter is REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from November 2020 to the present. 2. After the above development is completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of his inguinal hernia. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Is it at least as likely as not (50% or greater probability) that the Veteran’s inguinal hernia was either incurred in or otherwise related to his military service? Please explain why. The examiner must discuss the Veteran’s report of testicular pain, corroborated by STRs, and his report of pain continuing since service. The examiner may not rely solely on the absence of medical evidence during or immediately after service. (b.) Is it at least as likely as not (50% or greater probability) that the Veteran’s inguinal hernia was either caused or aggravated by his service-connected duodenal ulcer? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The examiner may not rely solely on medical literature without discussing the specifics of the Veteran’s case. 3. If upon completion of the above action the issue remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Sandler, 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.