Citation Nr: 21040327 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 14-03 715 DATE: July 3, 2021 ORDER Entitlement to an earlier effective date of February 1, 2008, for an award of service connection for multiple lipomas of the abdomen, back, right arm, and right shoulder is granted. FINDING OF FACT 1. The record evidence shows that, in statements on a letter date-stamped as received by the Agency of Original Jurisdiction (AOJ) on February 1, 2008, the Veteran filed an informal claim of service connection for multiple lipomas of the abdomen, back, right arm, and right shoulder. 2. In an email from AOJ personnel sent to the Veteran on February 19, 2008, VA acknowledged his February 1, 2008, statement and advised him that he would be receiving a letter from VA on this matter. 3. In a letter dated on March 17, 2008, and mailed to the Veteran and his then-service representative, the AOJ informed him that his February 1, 2008, statement would be treated as an informal increased rating claim for residuals of removal of a lipoma of the right abdominal wall and invited him to file a service connection claim for multiple lipomas in other areas of the body; this was error. 4. VA examination on April 8, 2008, showed a benign lipoma of the right flank or thigh without pain or recurrence; the diagnoses included status-post benign lipoma excision of the right thigh. 5. In statements on a VA Form 21-0958 dated on March 11, 2015, and date-stamped as received by the AOJ on March 20, 2015, the Veteran asserted that he had incurred multiple lipomas during service which were painful and located in multiple areas of the body; the AOJ interpreted this statement as a claim of service connection for multiple lipomas of the abdomen, back, right arm, and right shoulder. 6. In the currently appealed rating decision issued in November 2015, the AOJ granted service connection for multiple lipomas of the abdomen, back, right arm, and right shoulder, effective March 21, 2015. 7. In statements on a December 2015 VA Form 21-0958, "Notice Of Disagreement," the Veteran requested an earlier effective date than March 21, 2015, for the award of service connection for multiple lipomas of the abdomen, back, right arm, and right shoulder. 8. In a rating decision issued in March 2016, the AOJ assigned an earlier effective date of March 20, 2015, for the award of service connection for multiple lipomas of the abdomen, back, right arm, and right shoulder. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date of February 1, 2008, for an award of service connection for multiple lipomas of the abdomen, back, right arm, and right shoulder have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had a period of active duty for training (ACDUTRA) from January to May 1987 and a period of active service from October 1988 to April 1993. He currently is incarcerated with a scheduled release date in approximately June 2024. This appeal has a long and complicated procedural history. Most recently, in March 2020, the Board denied, in pertinent part, the Veteran's claim of entitlement to an earlier effective date of February 1, 2008, for an award of service connection for multiple lipomas of the abdomen, back, right arm, and right shoulder. Both the Veteran, through an attorney, and VA's Office of General Counsel, appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) by filing a Joint Motion for Partial Remand (Joint Motion). The Court granted the Joint Motion in February 2021, vacating and remanding only that part of the Board's March 2020 decision which denied the Veteran's claim of entitlement to an earlier effective date of February 1, 2008, for an award of service connection for multiple lipomas of the abdomen, back, right arm, and right shoulder. Because the Veteran is incarcerated in the state of Missouri and maintains a home address in that state, the RO in St. Louis, Missouri, has jurisdiction in this appeal and is the Agency of Original Jurisdiction (AOJ) here. The Board finds that the evidence supports assigning an earlier effective date of February 1, 2008, for an award of service connection for multiple lipomas of the abdomen, back, right arm, and right shoulder. Both parties to the Joint Motion asserted that the Board had erred in its March 2020 decision by concluding that a February 1, 2008, statement from the Veteran did not constitute an informal service connection claim for an award of service connection for multiple lipomas of the abdomen, back, right arm, and right shoulder. Both parties also contended that, on remand, the Board must determine whether this statement satisfied the requirements for an informal service connection claim. The Board notes that it is bound by the Court's March 2021 Order granting the Joint Motion. Having reviewed the record evidence, and as discussed below in greater detail, the Board agrees with both parties to the Joint Motion that the February 1, 2008, statement from the Veteran constitutes an informal service connection claim for multiple lipomas of the abdomen, back, right arm, and right shoulder and entitles him to an earlier effective date for the grant of service connection for this disability. The record evidence shows that, in a letter dated on December 5, 2007, and date-stamped as received by the AOJ on February 1, 2008, the Veteran stated, "I was treated for a condition of non malignant tumors in service. They continue to grow over time and currently I need to have surgery to have several removed. Due to the fact [sic], they are painful and uncomfortable." The Board notes here that lipomas are defined as benign, soft, rubbery, encapsulated tumors of adipose tissue, usually composed of mature fat cells which generally occur as solitary lesions in the subcutaneous tissue of the trunk, nucha, or forearms but may occur in deeper soft tissues. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1056 (30th ed. 2003). In response to this letter from the Veteran, the AOJ sent him a VCAA notice letter dated on February 5, 2008. This letter did not address lipomas. In an email message submitted directly to VA via IRIS on February 18, 2008, the Veteran noted that the recent letter which he received from VA did not address the issue of "subcutaneous lipomas." He also noted that his service treatment records showed complaints of and treatment for this disability. He asked that the AOJ address this claim. In a response sent directly to the Veteran via IRIS on February 19, 2008, AOJ personnel stated that "it does not appear that you have made claims either now or in the past for subcutaneous lipomas...We will pull your file and pass this information on to the appropriate [AOJ personnel] for processing. You should be receiving a letter on this shortly." The next relevant correspondence occurred when the AOJ sent a second VCAA notice letter to the Veteran dated on March 17, 2008. This letter stated: We are also working on your claim for increase in service connected compensation for...residuals, removal lymphoma [sic], right abdominal wall. Please note: Our letter of February 5, 2008, did not cover all of your claimed conditions. Our letter should have included your claim for increase in left knee and residuals of removal lymphoma [sic], right abdominal wall...We apologize for any inconvenience this may have caused. Regarding your claim of multiple large lymphomas [sic]. We are taking this as a claim for an increased evaluation of your service connected residuals, removed, lymphoma [sic], right abdominal wall. If you would like to claim service connection of lymphomas [sic] as any other body areas, please let use [sic] know. (Emphasis in original.) The Board notes that this letter erroneously referred to the Veteran's lipomas as "lymphoma." More importantly, the Board finds that it was error for the AOJ not to consider a claim of service connection for multiple lipomas of the abdomen, back, right arm, and right shoulder in addition to the increased rating claim for residuals of a removal of a lipoma of the right abdominal wall when it sent the Veteran this letter. VA examination on April 8, 2008, showed a benign lipoma of the right flank or thigh without pain or recurrence. The diagnoses included status-post benign lipoma excision of the right thigh. At a Board hearing before a different Veterans Law Judge involving other claims not relevant to this appeal, the Veteran testified that VA never had addressed his claim of service connection for multiple lipomas of the abdomen, back, right arm, and right shoulder in addition to the increased rating claim for residuals of a removal of a lipoma of the right abdominal wall. See Board hearing transcript dated August 31, 2010, at pp. 8. Unfortunately, because this testimony included a discussion of the Veteran's increased rating claim for residuals of a removal of a lipoma of the right abdominal wall, it appears that VA did not interpret it as raising the issue of entitlement to service connection for multiple lipomas of the abdomen, back, right arm, and right shoulder in addition to the increased rating claim. The Veteran was incarcerated in Missouri state prison in approximately April 2012 for a 19-year sentence following multiple felony convictions. As noted in the Introduction, he remains incarcerated with a scheduled release date of approximately June 2024. In statements on a VA Form 21-0958 which was dated on March 11, 2015, and date-stamped as received by the AOJ on March 20, 2015, the Veteran asserted that he had incurred multiple lipomas during service which were painful and located in multiple areas of the body. The AOJ interpreted this statement as a claim of service connection for multiple lipomas of the abdomen, back, right arm, and right shoulder. On VA skin diseases Disability Benefits Questionnaire (DBQ) in October 2015, it was noted that the Veteran developed multiple lipomas and had 2 of them surgically removed during service. The VA examiner reviewed the Veteran's electronic claims file, including his service treatment records and post-service VA treatment records. Physical examination showed multiple benign lipomas ranging in size from 5 centimeters (cm) to 1 cm in diameter with the majority located on the abdomen, back, right arm, and right shoulder. They occasionally disturbed the Veteran's sleep due to pain resulting in fatigue. The diagnosis was lipoma. In the currently appealed rating decision issued in November 2015, the AOJ granted service connection for multiple lipomas of the abdomen, back, right arm, and right shoulder, effective March 21, 2015. The AOJ concluded that this was the appropriate effective date for a grant of service connection for this disability because this was the date that VA received the Veteran's claim. In statements on a December 2015 VA Form 21-0958, "Notice Of Disagreement," the Veteran requested an earlier effective date than March 21, 2015, for the award of service connection for multiple lipomas of the abdomen, back, right arm, and right shoulder. He asserted that the appropriate effective date was the day after the date of his discharge from active service. "The lipomas cover my entire torso, are continuingly [sic] growing, and some have become as large as a walnut or a chicken egg. They are painful, and as such the Army removed two of them while I was in service." In a rating decision issued in March 2016, the AOJ assigned an earlier effective date of March 20, 2015, for the award of service connection for multiple lipomas of the abdomen, back, right arm, and right shoulder. The AOJ concluded that the assignment of the effective date for the grant of service connection for this disability in the November 2015 rating decision was the product of clear and unmistakable error (CUE). The AOJ also concluded that the Veteran's original claim for this disability was date-stamped as received on March 20, 2015, so that was the correct effective date for a grant of service connection for this disability. The Board observes that the effective date for service connection claims generally will be the day following separation from active service or date entitlement arose if the claim is filed within one year of discharge from service; otherwise, the effective date is the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). The Veteran has asserted that, in fact, the appropriate effective date for the grant of service connection for multiple lipomas of the abdomen, back, right arm, and right shoulder is the day after the date of his discharge from active service in April 1993. This assertion is not supported by the record evidence. It shows instead that he did not file a claim of service connection for multiple lipomas of the abdomen, back, right arm, and right shoulder within 1 year of the date of his discharge from active service in April 1993 (or by April 1994). It also shows instead that he pursued other VA compensation claims, to include service connection claims for residuals of a left knee meniscal tear and residuals of a removal of a lipoma from the right abdominal wall, between his separation from service and February 1, 2008, when VA received his informal service connection claim for multiple lipomas of the abdomen, back, right arm, and right shoulder. Critically, the record evidence shows that the AOJ erred by not interpreting the Veteran's February 1, 2008, statement as including an informal claim of service connection for multiple lipomas of the abdomen, back, right arm, and right shoulder. It is not clear to the Board why this statement did not trigger VA's duty to assist with respect to this claim at the AOJ. As outlined above, the AOJ erroneously informed the Veteran via IRIS later in February 2008 that he had never filed a claim of service connection for "subcutaneous lipomas" when, in fact, he had filed claims of service connection and for an increased rating for residuals of a removal of a lipoma from the right abdominal wall over the years. The AOJ compounded its errors by subsequently inviting the Veteran to file a claim of service connection for multiple lipomas of the abdomen, back, right arm, and right shoulder in a VCAA notice letter issued in March 2008 even though this claim was included in his February 2008 letter. The AOJ also erred in concluding that March 20, 2015, is the appropriate effective date for the grant of service connection for multiple lipomas of the abdomen, back, right arm, and right shoulder. Although the AOJ reasonably interpreted the Veteran's statements on his March 20, 2015, VA Form 21-0958 as an informal service connection claim for this disability, the record evidence shows that, in fact, this claim was pending as of February 1, 2008. VA examination in April 2008 subsequently confirmed that a lipoma had been removed surgically from the Veteran's right thigh. This was not addressed in his increased rating claim for residuals of removal of a lipoma from the right abdominal wall. In other words, the record evidence reasonably demonstrates that a claim of service connection for multiple lipomas of the abdomen, back, right arm, and right shoulder was pending as of February 1, 2008. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that the criteria for an earlier effective date of February 1, 2008, for a grant of service connection for multiple lipomas of the abdomen, back, right arm, and right shoulder have been met. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.