Citation Nr: 0003784 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 98-04 383 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for multiple lipomas, to include as due to an undiagnosed illness. 2. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD Carole R. Kammel, Associate Counsel INTRODUCTION The veteran served on active duty from November 1987 to June 1993. The veteran served in Southwest Asia from August 1990 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied service connection for multiple lipomas and a low back disability. The issue of entitlement to service connection for a low back disability will be addressed in the remand portion of this decision. FINDINGS OF FACT 1. The veteran has been diagnosed as having multiple lipomas. 2. The claim of entitlement to service connection for multiple lipomas on a direct basis is not supported by evidence demonstrating that the claim is plausible or capable of substantiation. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for multiple lipomas as due to undiagnosed illness is legally insufficient. 38 C.F.R. § 3.317 (1999); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 2. The claim of entitlement to service connection for multiple lipomas on a direct is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background Service medical records are silent for any objective findings of multiple lipomas during service. In June 1989, the veteran was seen for a dome shaped benign colored lesion on his posterior neck as a result of shaving; a diagnosis of melanocytic nevus, predominantly intradermal was entered. The veteran was also seen on several occasions for recurring warts to his neck, beard area, wrist and right second toe. Numerous VA and private medical reports, dating from September 1969 to September 1998 are of record. The first post-service medical evidence of any lipomas was during an August 1993 VA examination. At that time, the veteran was found to have a palpable nodule superior and lateral to the left nipple, one overlying the tenth right rib in an anterior-lateral position, and a one centimeter nodule over the right posterior twelfth rib. The examiner indicated that the nodules were tender to palpation and some were noted to have mobile. A diagnosis of palpable nodules of an uncertain significance was entered. The examiner noted that the nodules did not appear to be in a lymphatic distribution and that there was no adenopathy palpable within the lymph node region. It was thought that the nodules might have to be biopsied. During VA skin and general medical examinations, conducted in February 1994, the veteran was found to have had a two by one centimeter movable mass, which was lateral to the left nipple. The mass was not tender or inverted and there was no evidence of any drainage or dimpling. During the VA skin examination, the examining physician indicated that there was no evidence of any skin disorder at that time. During an April 1994 VA testes, trauma or disease examination, the examiner reported that the veteran had served in the Persian Gulf as a purchasing agent for his ship. It was noted that the veteran had some eruptions on the skin and pain in the area of the chest, left arm, back and rib cage. More specifically, the veteran had subcutaneous lipomas in the upper and lower quadrant with no bruits and no ascites. An April 1994 general medical examination report reflects that the veteran had multiple lipomas, which were located on the left forearm above the wrist, on the left nipple area under the chest, in the left rib cage on the back, in the right upper quadrant and in the left upper quadrant under the skin. All of the lipomas were noted to have been tender to palpation with no evidence of any jaundice or ulceration. A diagnosis or etiological opinion with respect to the lipomas was not entered. VA medical reports, dated in April 1994 and February 1995, reflect that the veteran underwent excision of multiple lipomas of the left breast, left arm, right side of the back, abdomen and right lower anterior chest wall. A July 1995 VA general medical examination report reflects that the veteran was concerned about having been exposed to chemical warfare of some noxious emission from scud missiles during service The veteran denied having any knowledge of chemical warfare which might have been used on his particular division and that he had lost contact with most of his fellow soldiers. It was reported diagnostically that there was no evidence of any neurological disease as secondary to environmental agents. VA and medical reports, submitted by the Department of Rehabilitation Service, Larry P. Frick, M.D., Donald R. Werr, D.C., Richard S. Kyler, M.D., and the Ohio State University Medical Center, dating from January 1996 to July 1998, reflect that the veteran had a history of "Persian Gulf War syndrome," and that he had had "a lipoma" removed. The records primarily reflect that the appellant received treatment for unrelated disorders. During a September 1998 VA skin examination, the veteran related that during service in 1990, he noticed an uncomfortable and tender mass above and lateral to his left breast and, later in service, a mass in his left lower back, right low anterior rib area and left forearm. The veteran reported that after service, he continued to develop more masses, most of which were above the waist, but a few were located on his lower extremities. He indicated that the largest mass was located above his umbilicus. He related that he had had eight of the masses removed by the VA because they were uncomfortable and painful, and that they were all found to have been lipomas. The veteran reported that he had thirty four additional lipomas but that they did not bother him at that time. After an examination of the veteran, the examining physician entered a diagnosis of multiple lipomas with a number having been surgically removed with residual scars and some still remaining. II. Analysis The veteran is seeking service connection for multiple lipomas, to include as due to an undiagnosed illness. The legal question to be answered initially is whether the veteran has presented evidence of a well-grounded claim; that is, a claim that is plausible. If he has not presented a well-grounded claim, his appeal must fail with respect to this claim and there is no duty to assist him further in the development of this claim. 38 U.S.C.A. § 5107(a). As will be explained below, the Board finds that this claim is not well grounded. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). Three discrete types of evidence must be present in order for a veteran's claim for benefits to be well grounded: (1) There must be competent evidence of a current disability, usually shown by medical diagnosis; (2) There must be evidence of incurrence or aggravation of a disease or injury in service. This element may be shown by lay or medical evidence; and (3) There must be competent evidence of a nexus between the inservice injury or disease and the current disability. Such a nexus must be shown by medical evidence. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In the alternative, the chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which under case law of the Court, lay observation is competent. If chronicity is not applicable, a claim may still be well grounded on the basis of 38 C.F.R. § 3.303(b) if the condition is noted during service or during an applicable presumptive period, and if competent evidence, either medical or lay, depending on the circumstances, relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 498 (1997). Additionally, in order for a claim for benefits under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 to be well-grounded, there must be proof of active service in the Southwest Asia theater of operations during the Persian Gulf War; proof of one or more signs or symptoms of undiagnosed illness; proof of objective indications of chronic disability manifest during service or to a degree of disability of 10 percent or more during the specified presumptive period; and proof that the chronic disability is the result of the undiagnosed illness. VAOPGCPREC 4-99 (O.G.C. Prec. 4-99). A. Service connection for multiple lipomas as a result of an undiagnosed illness. Although the veteran maintains that he has multiple lipomas as a result of his service in the Persian Gulf and an undiagnosed illness, the Board notes that in Sabonis v. Brown, 6 Vet. App. 426 (1994), the Court held that in cases in which the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Id. at 430. Pursuant to 38 C.F.R. § 3.317, service connection may be granted only for undiagnosed disabilities attributed to Southwest Asia service during the Persian Gulf War. Since a longitudinal review of the record reflects that the veteran has been diagnosed as having multiple lipomas, the Board must conclude that the veteran's claim for service connection under the provisions of 38 C.F.R. § 3.317 is legally insufficient. B. Service connection for multiple lipomas disorder on a direct basis With respect to the veteran's claim for service connection for multiple lipomas on a direct basis, service medical records show no indication of any treatment for, or diagnosis of, multiple lipomas during his period of service. While post-service private and VA treatment records reflect that the first medical evidence of any lipomas was during a 1993 VA examination and that the appellant has undergone removal of multiple lipomas, the record is devoid of any competent medical evidence establishing an etiological relationship between these lipomas and the veteran's military service. Therefore, the veteran's claim for service connection for multiple lipomas on a direct basis is not well grounded and is denied. The Board acknowledges the veteran's assertions that his multiple lipomas were acquired during his service in the Persian Gulf. However while the veteran is competent to provide evidence of visible symptoms, he is not competent to provide evidence that requires medical knowledge. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). A well-grounded claim requires more than a mere assertion; the claimant must submit supporting evidence. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Since the service medical records do not show that the veteran had multiple lipomas during service and as the appellant has submitted no medical opinion or other competent evidence to show that his lipomas are related to his service or to any other incident during service, the Board finds that he has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim for service connection for multiple lipomas on a direct basis is well grounded. 38 U.S.C.A. § 5107. Hence, the benefit sought on appeal is denied. Finally, as the foregoing explains the need for competent medical evidence reflecting that the veteran's multiple lipomas were acquired during service, the Board views its discussion above sufficient to inform the veteran of the elements necessary to complete his application for service connection for the claimed disability. Robinette v. Brown, 8 Vet. App. 69, 79 (1995). For the above stated reasons, the Board must conclude that the veteran has failed to meet his initial burden of producing evidence of a well-grounded claim for service connection for multiple lipomas on a direct basis. ORDER Service connection for multiple lipomas, to include as due to an undiagnosed illness, is denied. REMAND With respect to his claim for service connection for a low back disorder, the veteran contends that he injured his low back during service in August 1990 as a result of lifting a heavy box onto a truck and that he felt it "pop." He maintains that he received medication and that X-rays were performed on his lumbar spine. The veteran contends that after he was discharged from service, he reinjured his back at work when he threw shelves off a dock. The appellant maintains that he has sought treatment for his low back from a chiropractor and that he was placed on medication. In addition, the appellant contends that he was placed on worker's compensation because it was determined that the degenerative changes in his spine had occurred prior to the 1995 accident. In support of the appellant's assertions, an August 1996 report, submitted by Donald R. Werr, D.C., reflects that the veteran reported having injured his spine during service in August 1990 as a result of lifting heavy boxes and that he had reinjured his back at work in January 1995. While Dr. Werr indicated that he was unable to determine if the veteran's degenerative joint disease of the lumbar spine was present before January 1995, he felt that it was more than probable that the degenerative joint disease did not start until after the accident in August 1990 and that the lack of timely treatment would also lead to the appellant's chronic condition. In addition, Dr. Werr concluded that the August 1990 accident could have caused a weakness in the veteran's lower back which would have contributed to the length of time that the appellant needed to recover from the January 1995 post-service accident. A VA September 1998 spine examination report reflects that the veteran's medical files were not provided to the examiner for review prior to the examination. While the appellant provided a history with respect to his low back during the examination, and a diagnosis of recurrent mechanical low back pain with X-ray evidence of decreased disc space at L5-S1 and facet sclerosis at L4-5 and L5-S1 was entered by the examining physician, an opinion concerning the etiology of the appellant's disorder was not provided. Therefore, prior to final appellate review, the Board is of the opinion that an additional clarification is warranted prior to further Board action on this claim. See Abernathy v. Principi, 3 Vet. App. 461, 464 (1992) (if an examination report is incomplete, the Board must await its completion, or order a new examination, before deciding the veteran's claim). In light of the foregoing, this case is REMANDED to the RO for appropriate action: 1. The RO should contact the veteran and request that he identify specific names, addresses, and approximate dates of treatment for all health care providers, private and VA, from whom he has received treatment since service for his low back disability. When the requested information and any necessary authorization have been received, the RO should attempt to obtain copies of all pertinent records which have not already been obtained. 2. The RO should contact the appropriate agencies of the State of Ohio and obtain copies of all records pertaining to any claim made by the veteran for disability benefits, including a copy of any decisions pertaining thereto. 2. Thereafter, the veteran should be afforded a VA examination by a Board certified orthopedist, if available, to determine the nature and extent of any low back disability found on examination. Any special diagnostic tests including X- rays, range of motion studies, stability tests and strength tests deemed necessary should be performed. The claims folder must be provided to the examiner for review prior to the examination. After a complete review of the claims file, to specifically include the August 1996 opinion of Donald R. Werr, D.C., and relevant post-service history with respect to the lumbar spine, the examiner must then provide an opinion whether it is at least as likely as not that any currently diagnosed low back disorder was a result of service. The opinions expressed should be accompanied by a written rationale. After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO must implement corrective procedures at once. 4. Then, after undertaking any development deemed necessary in addition to that specified above, the RO should readjudicate the issue of entitlement to service connection for a low back disorder. If the benefit sought on appeal is not granted, the RO should issue a supplemental statement of the case. The veteran and his representative should then be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is otherwise notified by the RO. F. JUDGE FLOWERS Member, Board of Veterans' Appeals