Citation Nr: 21026840 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-09 353 DATE: May 4, 2021 ORDER Service connection for sebaceous cysts of the lower back and head is denied. FINDING OF FACT There is no evidence of a chronic skin disorder during military service, and no competent evidence linking the Veteran's post-service sebaceous cysts of the lower back and head with his military service, to include his presumed herbicide exposure. CONCLUSION OF LAW The criteria for service connection for sebaceous cyst of the lower back and head have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1963 to June 1983, including service in the Republic of Vietnam from February 1969 to December 1971. This case is before the Board of Veterans' Appeals (Board) on appeal from a November 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied service connection for sebaceous cyst of the lower back and head. The Veteran's notice of disagreement (NOD) was received in March 2014. The RO issued the statement of the case (SOC) in February 2015, and the Veteran's VA Form 9, substantive appeal was received in March 2015. In September 2018, the Board remanded the case for further development and adjudicative action. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Certain chronic diseases, listed in 38 C.F.R. § 3.309(a), are subject to presumptive service connection under 38 C.F.R. § 3.03(b). 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. In order to establish a disease is "chronic" in service, there must be a combination of manifestations sufficient to identify the disease and sufficient observation to establish chronicity at the time of service. When a chronic disease is shown in service, subsequent manifestation 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 to establish service connection. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a Veteran served at least ninety days of active service, and certain chronic diseases become manifest to a degree of ten percent or more within one year after the date of separation from such service, such a disease shall be presumed to have been incurred in service, even though there is no evidence of such a disease during the period of active service. 38 U.S.C. §§ 1101,1112, 1113; 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. The governing law provides that 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. § 1116(f). Furthermore, VA regulations provide that, if a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for certain disabilities listed in 38 C.F.R. § 3.309(e). Analysis The Veteran contends that he experiences sebaceous cysts, of the lower back and head, which are related to service. Specifically, he asserts that the cysts are related to in-service herbicide exposure. See, e.g. March 2015 VA Form 9. Notably, the Veteran is already service connected for several skin disabilities, to include basal cell carcinoma seborrheic keratoses, actinic keratosis, a scar, and tinea pedis. Initially, the Veteran has a current disability of sebaceous cysts, as demonstrated by a January 2021 VA skin diseases examination Disability Benefits Questionnaire (DBQ). Specifically, examination revealed nodular lesions located (i) on the top of the head, in the right parietal area; (ii) in the lumbar area, right of midline; and (iii) in the lumbar area, midline. As so, the first elementa current disabilityis met. Accordingly, the dispositive issue in this case is whether the sebaceous cysts are related to the Veteran's service, including any in-service herbicide exposure. Initially, as above, the Veteran's service personnel records reflect that he served in Vietnam during the Vietnam War. See, e.g. oversea service records (showing Vietnam service from February 1969 to December 1971). Accordingly, a presumption of herbicide exposure arises. Significantly, pursuant to 38 C.F.R. § 3.309(e), presumptive service connection is available for chloracne, other acneform disease consistent with chloracne, and porphyria cutanea tarda. Significantly, there is no evidence that the Veteran was ever diagnosed with any of these skin disorders. Notwithstanding the inapplicability of the herbicide presumptive service connection regulations, in this case the Board is obligated to fully consider the appellant's claim on a direct service connection basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). As such, service connection may yet be warranted if the record shows that the Veteran's sebaceous cysts are otherwise related to service. A December 1964 Report of Medical History shows that the Veteran checked the box for "yes" for tumor, growth, cyst, cancer. An attending physician indicated that the Veteran either had an operation to "have cyst removed from end of spine." Service Treatment Records (STRs) from July 1965 show a recurrent pilonidal cyst. March 1972 STRs show he was treated for boils on the right side of the back, just above the waist. STRs from January 1983 and May 1983 show that he was treated for complaints of foot rash and scaly lesions of the left foot. The treating physicians noted impression of tinea pedis ("athlete's foot"). Private treatment records from February 2001 to April 2005 show that the Veteran was treated for various skin conditions, including warts, actinic keratosis, and skin tags. The Veteran had VA skin conditions examinations in July 2012, December 2012, and June 2013. However, those examinations are related to separate skin conditions of chloracne, face and back; basal cell carcinoma; verucca vulgaris (warts); and actinic keratosis. An October VA 2013 primary care note shows diagnoses of sebaceous cyst; basal cell carcinoma; seborrheic and actinic keratoses; and seborrheic dermatoses; and verruca vulgaris. A November 2013 note shows epidermal inclusion cysts - two of the lower back, and one of the scalp. In January 2021, for the first time, a VA examiner was asked to specifically opine as to whether the Veteran had any sebaceous cysts which were related to the Veteran's military service, including his presumed in-service herbicide exposure. The examiner conducted an in-person examination and reviewed the claims file. The examiner also set forth a detailed history of the Veteran's treatment for his numerous skin conditions since service. Specifically, the examiner acknowledged the STRs; the private treatment records, from 2011 to the present, showing treatment for numerous skin conditions including chloracne of the face and back, basal cell carcinoma, verucca vulgaris, and actinic keratosis; and the October 2013 VA primary care note showing a diagnosis of sebaceous cyst. The examiner then noted diagnoses of three sebaceous cysts, described as nodular lesions located (i) on the top of the head, in the right parietal area; (ii) in the lumbar area, right of midline; and (iii) in the lumbar area, midline. Then, the examiner opined that the sebaceous cysts of the low back and head were less likely than not related to service, including the Veteran's presumed exposure to herbicides. The examiner acknowledged the STRs showing removal of a cyst at the end of the spine but then noted that there were "no other records found to establish nexus [from the cyst removed from the end of the spine] to the current sebaceous cyst[s]." The examiner discussed that sebaceous cysts come from the sebaceous glands, and "can develop if the gland or its duct (the passage through which the sebum leaves for the skin) gets damaged or blocked." The examiner stated that "no literature is found that will state that sebaceous cyst is a[] result of herbicide exposure." The examiner also distinguished the Veteran's sebaceous cysts from his other service-connected skin conditions including basal cell carcinoma, actinic keratoses, and tine pedis/corporis. Specifically, the examiner stated that "sebaceous cysts are separate and distinct from" each of those conditions, as shown by how sebaceous cysts develop when the sebaceous glands/ducts become damaged or blocked. In light of this evidence, the analysis turns to whether the Veteran's current disabilitysebaceous cysts of the low back and headare related to his military service, including his presumed herbicide exposure. On that issue, the record contains a single medical opinionthat of the January 2021 VA examiner. The opinion was formed after consideration for the STRs, the private treatment records, the VA treatment records, and an in-person examination with the Veteran. The examiner considered the Veteran's unique history of treatment and care for his numerous skin conditions, and applied the medical literature to form the opinion addressing whether the sebaceous cyst was caused by the Veteran's military service, including his presumed herbicide exposure. The examiner's opinion is thoroughly supported, concise, and unambiguous in opining against a nexus between the Veteran's sebaceous cysts and his military serviceincluding his presumed herbicide exposure. Additionally, the examiner addressed the possibility of a link between the sebaceous cysts and the Veteran's other skin conditions, including basal cell carcinoma, actinic keratoses, and tine pedis. The examiner's opinion that the conditions are separate and distinct was supported by a discussion of the nature of sebaceous cysts, and the language and intent of the opinion was abundantly clear. For those reasons, the January 2021 VA examiner's opinion in this regard carries significant probative weight. Finally, the Board acknowledges the Veteran's sincere belief of a link between the sebaceous cysts and his military service, including as due to his presumed herbicide exposure. However, the issue of a "nexus" from the sebaceous cysts to service, including the Veteran's presumed herbicide exposure, is medically complex, and requires specialized medical expertise, training, and skills. The record does not show that the Veteran has the requisite medical expertise to provide such an opinion. As a result, the Veteran's lay belief that a link exists which would satisfy the "nexus" requirement of the service connection claim carries no probative value. Based on the foregoing, the weight of the probative evidence is against finding that the sebaceous cysts were caused by or incurred during the Veteran's service, including as due to his presumed herbicide exposure. There is no reasonable doubt to resolve in the Veteran's favor and the claim is denied. APRIL MADDOX Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. KAYS HUKILL 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.