Citation Nr: 18158982 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 12-15 063 DATE: December 18, 2018 ORDER Entitlement to service connection for a skin disorder, diagnosed as epidermoid cysts and lipoma, to include as due to herbicide agent exposure, is denied. REMANDED Entitlement to service connection for arthritis is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to special monthly pension is remanded. FINDING OF FACT A chronic skin disorder was not shown in service or within a year of service discharge; and the evidence is against the Veteran’s claim that the diagnosed skin disorder is caused or aggravated by his active service or was the result of his presumed herbicide agent exposure therein. CONCLUSION OF LAW The criteria for service connection for a skin disorder, diagnosed as epidermoid cysts and lipoma, have not been met. 38 U.S.C § 1101, 1110, 1111, 1112, 1113, 1116, 1137 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to March 1970. This matter comes to the Board of Veterans’ Appeals (Board) from an August 2011 rating decision which, in pertinent part, denied service connection for arthritis, a bilateral shoulder disability, and fibromyalgia cysts, and denied entitlement to special monthly pension. In March 2016, the Board remanded the claims so that the Veteran could be afforded a Board hearing. In August 2016, the Board found that the Veteran’s hearing request had been withdrawn pursuant to 38 C.F.R. § 20.704(d), and remanded the claims for additional development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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). Service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that “Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of a “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With a chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Alternatively, service connection may also be established on a presumptive basis for certain disabilities resulting from exposure to herbicide agents. 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 C.F.R. § 3.307(a)(6)(iii). Entitlement to service connection for a skin disorder, diagnosed as epidermoid cysts and lipoma, and claimed as due to herbicide agent exposure. The Veteran contends that service connection is warranted for fibromyalgia cysts, to include as due to herbicide agent exposure. Specifically, the Veteran contends that he never had bumps on his body until after he was exposed to herbicide agents, and that he had fourteen cysts removed after service. The Veteran’s service records show that he served in the Republic of Vietnam. As such, exposure to herbicide agents is conceded. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease, to include exposure to herbicide agents. The Board concludes that, while the Veteran has a diagnosis of epidermoid cysts and lipoma, the preponderance of the evidence is against finding that the Veteran’s skin disorder began during active service, or is otherwise related to an in-service injury, event, or disease, to include herbicide agent exposure. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran’s February 1968 entrance examination reflects that he reported having tumors/cysts and boils, specifically, that he had a left leg cyst that ached occasionally and the occasional boil. Upon objective examination, the Veteran’s skin was found normal. The Veteran’s March 1970 separation examination reflects that the Veteran reported having boils, but upon objective examination, the Veteran’s skin was found normal. The Veteran’s service treatment records are otherwise silent for complaints of or treatment for cysts. A March 1997 VA examination report reflects that the Veteran reported having masses on his back and neck for the previous four months. An examination of the skin revealed multiple sebaceous cysts, including on the chest, neck, and back, and a lipoma on the right bicep. The examiner referred the Veteran to the surgical clinic for excision and drainage of the cysts. A September 2004 VA treatment record shows the Veteran reported that the cysts had been removed. A July 2018 VA examination report reflects diagnoses of scars from sebaceous cyst and lipoma removal and a current cyst on his neck. The examiner noted that the service treatment records were silent for an in-service skin or injury or trauma likely to result in or predispose the Veteran to the development of diagnosed skin conditions. The examiner indicated that the Veteran’s skin conditions were not one of the presumptive conditions listed under the Agent Orange Act of 1991, and that herbicide agent exposure had not been linked to the development of sebaceous cysts or lipomas. Thus, the examiner opined that the Veteran’s skin condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Upon August 2018 VA examination, the Veteran denied he had been diagnosed with fibromyalgia, but reported that he had undergone removal of his cysts in the late 1990s. The examiner noted that the Veteran’s induction examination reflected a history of boils. Upon examination, the diagnoses included a right upper arm scar from lipoma removal and scars from epidermoid cyst removal on the back and chest, with two current epidermoid cysts on the neck and back. The examiner explained that while the Veteran’s cysts had been previously diagnosed as sebaceous cysts, a sebaceous cyst was a different entity and the diagnosis of the Veteran’s cysts as epidermoid cysts was consistent with up-to-date terminology. The examiner further explained that the lipoma was also different from epidermoid cysts and that there was no known diagnosis of a fibromyalgia cyst. After examining the Veteran and reviewing the claims file, the examiner found there was no evidence that the Veteran had a diagnosis of sebaceous or epidermoid cysts while on active duty. The examiner explained that while the etiology of epidermoid cysts and lipomas was unknown, there was a familial inheritance pattern, and no published association to trauma. The examiner further explained that there was no published association of epidermoid cysts or lipomas to any herbicide agent exposure, and that neither were presumptive diagnoses due to herbicide agent exposure. Thus, the examiner opined that it was less likely than not that the Veteran’s post-service epidermoid cysts and lipoma manifested during service or was otherwise causally or etiologically related to an injury or event during service, to include herbicide agent exposure. The Board finds the July and August 2018 VA examiner’s opinions are probative in this case, as the opinions are based on an in-person examination, a review of the medical literature and the Veteran’s medical history, and the examiner’s medical expertise. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The evidence of record does not show that the Veteran complained of or sought treatment for his cysts and lipoma until the late 1990s, decades after separation from service. Furthermore, he reported onset of his cysts four month prior to his March 1997 VA examination. Thus, the evidence does not reflect onset of a skin disorder within one year of service separation. 38 C.F.R. §§ 3.307, 3.309(a) (2017). The Board acknowledges that the Veteran’s Form DD-214 shows service in the Republic of Vietnam. However, the Veteran’s diagnosed skin disorders are not among those contemplated in presumptive service connection due to exposure to herbicidal agents. 38 C.F.R. §§ 3.307, 3.309(e) (2017). Furthermore, the July and August 2018 VA examiners found that the medical literature did not support a direct nexus between the Veteran’s diagnosed skin disorders and his herbicide agent exposure, or that his skin disorders were caused by or otherwise related to service. As such, the requirements for direct and presumptive service connection for the Veteran’s skin disorders are not met at this time. Consideration has been given to the Veteran’s personal assertion that his epidermoid cysts and lipoma are due to herbicide agent exposure. Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, the etiology of a skin disorder (and more specifically whether it is the result of exposure to herbicide agents), falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4. Here, the Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to whether his skin disorder is caused by herbicide agent exposure. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the claim of service connection for a skin disorder, diagnosed as epidermoid cysts and lipoma, and claimed as due to herbicide agent exposure, is denied. REASONS FOR REMAND Evidence indicates that there may be outstanding VA treatment records. Private treatment records dated in 1998 reflect that the Veteran received VA treatment in 1995. The earliest VA treatment record associated with the Veteran’s claims file is a 1996 mental health record, which also noted the Veteran’s arthritis. The Board notes that the April 2012 SOC indicated that VA treatment records dated in and from June 2000 were considered in adjudicating the claims being remanded herewithin. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain the Veteran’s complete VA treatment records prior to June 2000. 1. Entitlement to service connection for arthritis and left and right shoulder disabilities are remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for arthritis and left and right shoulder disabilities because no VA examiner has opined whether the disabilities were caused or aggravated by service. The Veteran’s February 1968 entrance examination reflects that he reported arthritis and back trouble. The examiner noted rheumatism in the right shoulder and a low backache, but found the upper extremities and musculoskeletal system normal upon objective examination and imaging studies of the low back were normal. Service treatment records reflect that in June 1968, the Veteran reported back pain from a previous automobile accident, with pain on and off since. The Veteran was diagnosed with chronic thoracic-lumbar and lumbar-sacral back strain. The Veteran reported back trouble on his March 1970 separation examination, but an objective examination was normal. Private treatment records reflect that in May 1997, the Veteran reported his left shoulder was painful, and had been injured and painful for a long time. In October 1997, the Veteran reported that the pain in his upper back and left shoulder had worsened. The examining clinician indicated that the Veteran was sore diffusely about his upper left back around his left scapula with muscle spasm and tension. The Veteran was diagnosed with osteoarthritis, degenerative joint disease, and chronic myalgias and pain. In March 1998, the Veteran reported pain in his shoulders, upper back, around his right shoulder blade, and down into his low back. The Veteran was diagnosed with chronic pain from arthritis and old injuries with muscle spasm. The Board finds that a remand is warranted for a VA examination and medical opinion as to the nature and etiology of the Veteran’s arthritis and bilateral shoulder disability, to include whether arthritis and bilateral shoulder/scapula pain that radiated into the Veteran’s mid-to-low back in 1997 and 1998 is caused by or otherwise related to his reports of mid-to-low back pain in service. 2. Entitlement to special monthly pension is remanded. Finally, because the Veteran’s disability picture is unresolved, the claim of entitlement to special monthly pension based on the need for aid and attendance is inextricably intertwined with the service connection claims. A remand of the claims for entitlement to special monthly pension is required. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records prior to June 2000. 2. Schedule the Veteran for an examination by an appropriate clinician to of any arthritis and left and right shoulder disabilities. For each disability, the examiner must opine whether the disability clearly and unmistakably (undebatable) preexisted the Veteran’s service. If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated by service. If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it at least as likely as not (1) began during active service, to include related to an in-service injury, event, or disease, including the Veteran’s in-service complaints of thoracic-lumbar and lumbar-sacral back strain, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. 3. After completing the above, and any other development as may be indicated, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Owen, Associate Counsel