Citation Nr: 1317485 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 06-37 303A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for residuals of ganglion cyst of the face, to include ulcers, cysts, lesions and ganglion. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from September 1976 to February 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO), which found new and material evidence had not been submitted to reopen the claim of service connection for post-operative residuals of ganglion cyst of the face. The Veteran testified a videoconference hearing before a Veterans Law Judge (VLJ) in September 2010. A transcript of that hearing is of record and associated with the claims folder. In November 2012, the Veteran was notified that the VLJ who conducted his claim on appeal no longer was employed by the Board. He was offered the opportunity to testify at anther Board hearing and in that same month, he responded by letter, indicating that he did not wish to appear at another hearing. He requested that his case be considered on the evidence of record. In May 2011, the Board found sufficient evidence to reopen the claim for service connection for ulcers, cysts, lesions or ganglion of the face, on a secondary service connection theory. The Board then remanded the instant claim for further development. FINDINGS OF FACT 1. The Veteran is service-connected for vitiligo and pseudofolliculitis barbae. 2. The Veteran has ulcers, cyst, lesions, and/or ganglion of the face due to or as a consequence of his service-connected vitiligo and pseudofolliculitis barbae. CONCLUSION OF LAW Ulcers, cysts, lesions, and or ganglion of the face are due to service-connected vitiligo and pseudofolliculitis barbae. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Assist and Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran's new and material evidence claim was reopened and remanded in May 2011, for further development. In reviewing the issue presently before the Board for decision, the evidence of record reflects sufficient evidence to grant the benefits in full. Accordingly, assuming, without deciding, that there was any error with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. Service Connection The Veteran claims that service connection is warranted for ulcers, cysts, lesions, or ganglions of the face due to his service-connected vitiligo and pseudofolliculitis barbae disorders. He maintains, in essence, that these service-connected disabilities cause infections which cause him to develop infections which cause the cysts, ulcers, lesions, and/or ganglion of the face. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Further, service connection may also 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 U.S.C.A. § 1113(b) West 2002); 38 C.F.R. § 3.303(d) (2012). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet.App. 110, 111 (2002); Caluza v. Brown, 7 Vet.App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Service connection may also be granted when a claimed disability is found to be proximately due to or the result of a service- connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service- connected disability, not to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(a) (2011); see also Allen v. Brown, 7 Vet.App. 439, 448 (1995). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744 -47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. However, because this claim was made prior to 2006 (2005), the law in effect prior to the October 2006 codification will be applied. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2012). Based on the evidence of record, and resolving all doubt in his favor, the Board finds that service connection for ulcers, cysts, lesions and/or ganglion of the face, secondary to the Veteran's service-connected vitiligo and pseudofolliculitis barbae disabilities, is warranted. At the outset, the evidence does not show, although the Veteran initially alleged, that his ganglion of the face had its onset in service. The Veteran later indicated that ulcers, cysts, lesion and/or a post operative ganglion of the face occurred after service and was caused by skin infections caused by his service-connected vitiligo and pseudofolliculitis barbae. Therefore, service connection for a disorder caused by ulcers, cysts, lesion and and/or a post operative ganglion of the face on a direct basis is not warranted. As previously stated, he claims this skin disability is caused by his already service-connected vitiligo and pseudofolliculitis barbae. In order to establish service connection for a claimed disability on a secondary basis, there must be: (1) medical evidence of a current disability; (2) a service-connected disability; and (3) evidence of a nexus between the service-connected disease or injury and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). As to Wallin element (1), the medical evidence of record demonstrates that the Veteran is currently diagnosed with a disorder which includes cysts, ulcers, lesions and/or a post-operative ganglion of the face. Specifically, in a March 2009 dermatology note, it was indicated that the Veteran had a long history of chronic ulcerations of the face and that an ulcer culture grew out of a staph infection in October 2007. With respect to Wallin element (2), the Veteran is currently service-connected for vitiligo and pseudofolliculitis barbae Turning to the crucial Wallin element (3), the evidence includes an August 2012 VA dermatology examination with medical opinion. This examination was requested due to a May 2011 Board remand to determine the etiology of the Veteran's claimed cysts, lesions, ulcers, and/or a post operative ganglion of the face. The August 2012 VA examination clearly shows a nexus between the service-connected vitiligo and pseudofolliculitis barbae and the Veteran's claimed cysts, lesions, ulcers, and/or post-operative ganglion of the face. This examiner stated that the Veteran's cysts and ulcers are more likely than not (greater than 50 percent) related to or caused by, his service-connected skin conditions. He stated that the key to this opinion (rationale) was the dermatology notes in the claims file. He stated that the Veteran was followed closely by the dermatology clinic. These dermatology notes showed that his service-connected conditions caused him the symptoms of itching, which in turn, caused breaks in the skin which in turn, caused superimposed infections leading to cysts and ulcers. These cysts and ulcers, according to the examiner, occur on a sporadic basis. The examiner also stated that he would consider these ulcers, cysts, and superimposed infections as an expected consequence of the Veteran's current service-connected vitiligo and pseudofolliculitis barbae. He stated he would however, consider them as separate conditions. As the Veteran has had during this appeals period evidence of ulcers, cysts, lesions and /or ganglion of the face, he was able to relate the onset of these symptoms since the onset of and in connection with his service-connected skin disabilities, and the August 2012 VA examiner has established a nexus between the service-connected skin disabilities and his cysts, lesions, ulcers, and/or ganglion of the face, to support his rationale, the Board finds that there is sufficient evidence to demonstrate that the Veteran's facial ulcers, cysts, lesions and ganglion of the face disorder were caused or aggravated by his service-connected vitiligo and pseudofolliculitis barbae disabilities. To the extent these disorders have already been rated under the Veteran's already service-connected vitiligo and pseudofolliculitis barbae, they cannot be rated twice. See 38 C.F.R. § 4.14 (2012). However, given the fact that the August 2012 VA examiner's opinion supports the conclusion that these are potentially separately ratable disorders, additional separate ratings must be considered. ORDER Service connection for facial ulcers, cysts, lesions, and ganglion of the face, secondary to service-connected vitiligo and pseudofolliculitis barbae, is granted. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs