Citation Nr: 0817385	
Decision Date: 05/27/08    Archive Date: 06/09/08

DOCKET NO.  04-19 282	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, 
Michigan



THE ISSUE

Entitlement to service connection for a skin disorder, to 
include as due to herbicide exposure.



REPRESENTATION

Appellant represented by:	The American Legion



ATTORNEY FOR THE BOARD

M. Katz, Associate Counsel




INTRODUCTION

The veteran served on active duty from October 1960 to 
November 1986.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a March 2003 rating decision by the 
Department of Veterans Affairs (VA) Regional Office in 
Detroit, Michigan (RO) and Board remand.  


FINDING OF FACT

The evidence of record shows that chronic lipomas are related 
to his military service. 


CONCLUSION OF LAW

Chronic lipomas were incurred during active military service.  
38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002), 38 C.F.R. 
§ 3.303 (2007). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Without deciding whether notice and development requirements 
have been satisfied in the present case, the Board is not 
precluded from adjudicating the issue involving the 
appellant's claim for service connection for a skin disorder.  
See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 
(West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 
3.159, 3.326 (2007).  This is so because the Board is taking 
action favorable to the veteran by granting the issue at 
hand.  As such, this decision poses no risk of prejudice to 
the veteran.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 
(1993); see also Pelegrini v. Principi, 17 Vet. App. 412 
(2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992).

The veteran is seeking service connection for a skin 
disorder, diagnosed as chronic lipomas and photodermatitis, 
to include as due to herbicide exposure.  

Service connection may be granted for disability due to a 
disease or injury which was incurred in or aggravated by 
active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. 
§ 3.303.  In addition, service connection may 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).  

In order to establish service connection for a claimed 
disorder, the following must be shown: (1) medical evidence 
of a current disability; (2) medical, or in certain 
circumstances, lay evidence of in-service incurrence or 
aggravation of a disease or injury; and (3) medical evidence 
of a nexus between the claimed in-service disease or injury 
and the current disability.  Hickson v. West, 12 Vet. App. 
247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 
(1999).

In addition, VA regulations provide that if a veteran was 
exposed to an herbicide agent (Agent Orange) during active 
service, service connection is presumed for the following 
disorders: chloracne or other acneform disease consistent 
with chloracne; type 2 diabetes; Hodgkin's disease; Chronic 
lymphocytic leukemia (CLL); multiple myeloma; Non-Hodgkin's 
lymphoma; acute and subacute peripheral neuropathy; porphyria 
cutanea tarda; prostate cancer; respiratory cancers (cancer 
of the lung, bronchus, larynx, or trachea); and soft-tissue 
sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's 
sarcoma, or mesothelioma).  38 C.F.R. § 3.309(e) (2007).

VA has determined that a presumption of service connection 
based on exposure to herbicides used in the Republic of 
Vietnam during the Vietnam era is not warranted for: 
hepatobiliary cancers; nasal and/or nasopharyngeal cancer; 
bone and joint cancer; breast cancer; female reproductive 
cancers; urinary bladder cancer; renal cancer; testicular 
cancer; leukemia, other than chronic lymphocytic leukemia 
(CLL); abnormal sperm parameters and infertility; Parkinson's 
Disease and Parkinsonism; Amyotrophic Lateral Sclerosis 
(ALS); chronic persistent peripheral neuropathy; lipid and 
lipoprotein disorders; gastrointestinal and digestive disease 
including liver toxicity; immune system disorders; 
circulatory disorders; respiratory disorders (other than 
certain respiratory cancers); skin cancer; cognitive and 
neuropsychiatric effects; gastrointestinal tract tumors; 
brain tumors; AL amyloidosis (also referred to as primary 
amyloidosis); endometriosis; adverse effects on thyroid 
homeostasis; and, any other condition for which VA has not 
specifically determined that a presumption of service 
connection is warranted.  See Notice, 68 Fed. Reg. 27630 - 
27641 (May 20, 2003); see also Notice, 67 Fed. Reg. 42600 
(June 24, 2002); Notice, 66 Fed. Reg. 2376 (Jan. 11, 2001); 
Notice, 64 Fed. Reg. 59232 (November 2, 1999).

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 shall 
be presumed to have been exposed during such service to an 
herbicide agent . . . unless there is affirmative evidence to 
establish that the veteran was not exposed to any such agent 
during that service."  38 U.S.C.A. § 1116(f) (West 2002); 38 
C.F.R. § 3.307(a)(6)(iii) (2007).  Service personnel records 
indicated that the veteran served in Vietnam from February 
1967 to February 1968.  Accordingly, the veteran is presumed 
to have been exposed to Agent Orange.

Although the veteran is presumed exposed to Agent Orange, the 
Board finds that the medical evidence of record does not 
support presumptive service connection for a skin disorder.  
The veteran's diagnosed lipomas and photodermatitis are not 
among the diseases or disorders eligible for presumptive 
service connection.  38 C.F.R. § 3.309.  Accordingly, 
presumptive service connection for a skin disorder is not 
warranted.

Notwithstanding the foregoing, the United States Court of 
Appeals for the Federal Circuit has determined that the 
Veterans' Dioxin and Radiation Exposure Compensation 
Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 
5, 98 Stat. 2724, 2727-29 (1984) does not preclude a veteran 
from establishing service connection with proof of actual 
direct causation.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 
1994).  The provisions of Combee are applicable in cases 
involving Agent Orange exposure.  McCartt v. West, 12 Vet. 
App. 164, 167 (1999).

Historically, the veteran served on active duty from October 
1960 to November 1986.  In May 2001, the National Personnel 
Records Center (NPRC) sent the veteran's service medical 
records to the RO; however, the RO never received the 
veteran's service medical records.  Despite numerous 
attempts, neither the RO nor NPRC have been able to locate 
the veteran's service medical records.  In addition, pursuant 
to a Board remand, the RO requested the veteran's clinical 
records from the U.S. Army Hospital in Bad Cannstatt, 
Germany.  However, NPRC was unable to locate any records.  
The only service medical record in the veteran's claims file 
is his October 1960 enlistment examination, which indicates 
that his skin was normal at that time.

VA treatment records from March 1993 to November 2000 reveal 
complaints of and treatment for multiple lipomas.  A December 
1996 treatment record notes that the veteran had multiple 
lipomas to his arms, legs, and abdomen, and that he believed 
they were caused from Agent Orange exposure in Vietnam.  The 
VA physician reported that the lipomas were mobile, that 
there was no adenopathy noted, and that they were non-tender.  
A May 1997 treatment record noted that the veteran was 
interested in having his fat cysts removed, as they had 
become bothersome.  The VA physician stated that the veteran 
had multiple lipomas on his arms, back, and abdomen.  In 
March 1999, the veteran reported that he underwent excision 
of lipomas since 1980.  The diagnosis was lipomas.  In May 
1999, the veteran underwent excision of lipomas on his right 
and left lower abdomen.  In June 1999, the veteran underwent 
excision of a lipoma on his left upper arm, and in August 
1999, the veteran underwent excision of a lipoma on his right 
arm.

In April 2001, the veteran underwent a VA skin examination.  
He complained of a history of blackheads on his back and neck 
which had vanished, a history of increasing photosensitivity, 
a rash which frequently caused blistering on the back of his 
hands and small lumps on the back of his hands, and numerous 
subcutaneous tumors on his skin.  The VA examiner noted that 
a review of the veteran's VA records revealed that as early 
as 1980, the veteran had lipomas cut out of his body.  
Specifically, the veteran had three lipomas on his abdomen 
removed, one lipoma on his chest removed, and one lipoma on 
his back removed.  The VA examiner also indicated that the 
veteran continues to form new lipomas, and if they enlarge, 
they become painful.  The examiner noted that especially 
debilitating was a large lipoma on the left posterior flank, 
which lodges between the veteran's back and the driver's seat 
in his truck, which causes pain during his occupation as a 
truck driver.

Physical examination revealed long, essentially skin-colored 
scars.  There were three on the abdomen, on average 2 inches 
in diameter, one on the chest, 3 inches in diameter, and one 
on the left flank, 5 inches in diameter with a quarter inch 
width.  There was no adherence to lower skin structures.  The 
VA examiner also noted subcutaneous tumors on the veteran's 
body.  There was a 1 centimeter and 3.5 centimeters in 
diameter lipoma located on the left flank, a 3 centimeter by 
2 centimeter lipoma on the left interior flank, a 2 
centimeter lipoma on the right lower quadrant, a 2 centimeter 
lipoma on the left arm, a 2 centimeter lipoma and a 1 
centimeter lipoma each in front of each elbow of the left 
posterior flank, and a 2 centimeter lipoma on the right 
chest.  The diagnoses were multiple lipomas, scars from 
lipoma surgery, and photodermatitis with milia.  The VA 
examiner concluded that the "onset of lipoma was certainly 
during in service tenure."  The VA examiner noted that the 
veteran had multiple lipoma scars from lipoma surgery and 
continued to form lipomas, some of which were tender.  The VA 
examiner also noted that he did not have the expertise to 
determine whether the lipomas were related to Agent Orange 
exposure.  The examination also revealed photodermatitis with 
milia on the dorsal hands with some scarring.  Laboratory 
data was ordered, which showed urine porphyrins to be normal.  
Accordingly, the examiner ruled out an Agent Orange 
connection.

In May 2004, the veteran submitted three statements from 
fellow veterans who served with him at the time that he had 
his lipomas removed inservice.  A statement from J.K. reveals 
that he remembered the veteran having lumps removed in 1984, 
and he recalled the veteran saying that they were "some kind 
of fat lumps."  R.S. reported that he was a witness to the 
surgery that the veteran underwent to remove lumps located on 
his back and stomach.  S.C. stated that the veteran had fat 
lumps removed in 1984 or 1985, and that he had them removed 
at a military hospital in Germany.

The Board finds that service connection for a skin disorder 
on a direct basis is supported by the evidence of record.  
There is a diagnosis of a current skin disorder.  Degmetich 
v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the 
existence of a current disability is the cornerstone of a 
claim for VA disability compensation).  Although the 
veteran's service medical records have been lost, the 
veteran's statements and the statements provided by the 
veteran's fellow veterans indicate that the veteran had 
"lumps" inservice and underwent excision for "lumps" 
inservice.  38 C.F.R. §§ 3.307, 3.309; Hickson, 12 Vet. App. 
at 253 (holding that service connection requires medical, or 
in certain circumstances, lay evidence of in-service 
incurrence or aggravation of a disease or injury).  In 
addition, the evidence of record supports a relationship 
between the veteran's current lipomas and service.  Hickson, 
12 Vet. App. at 253 (holding that service connection requires 
medical evidence of a nexus between the claimed in-service 
disease or injury and the current disability); see also 
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (holding that 
the question of whether the veteran's disorder is 
etiologically related to his service requires competent 
medical evidence).  After review of the veteran's claims 
file, discussion with the veteran, and a physical 
examination, the VA examiner concluded that the "onset of 
lipomas was certainly in service tenure" and that the 
veteran has multiple scars from lipoma surgery and continues 
to form lipomas.  Accordingly, the Board finds that the 
evidence is at least in equipoise with regard to this claim, 
and therefore, with application of the benefit of the doubt 
doctrine, service connection for a skin disorder is 
warranted.  Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 
(1990).


ORDER

Service connection for a skin disorder is granted.



____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs