Citation Nr: 0002341 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 94-43 904 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for a skin disorder, manifested by an epidermal cyst of the upper back, to include as due to herbicide exposure in Vietnam. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD A. C. Mackenzie, Associate Counsel INTRODUCTION The veteran served on active duty from August 1967 to December 1972, with service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1994 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Board remanded this case to the RO for further development in April 1997, and the case has since been returned to the Board. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained by the RO. 2. The veteran has not been diagnosed with any current disability recognized by the VA as etiologically related to exposure to herbicide agents used in Vietnam. 3. There is evidence indicating an etiological relationship between the veteran's current epidermal cyst of the upper back and service. CONCLUSION OF LAW A skin disorder, manifested by an epidermal cyst of the upper back, was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). For the showing of 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). VA regulations also provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam Era and has one of the diseases listed in 38 C.F.R. § 3.309(e) (1999) shall be presumed to have been exposed during such service to an herbicide agent, such as Agent Orange, 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. § 3.307(a)(6)(iii) (1999). Service connection due to exposure to an herbicide agent may be granted on a presumptive basis for certain diseases listed in 38 C.F.R. § 3.309(e) (1999). For example, service connection may be granted for an acneform disease consistent with chloracne, or porphyria cutanea tarda, if such a disease is manifested to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active service. 38 C.F.R. § 3.307(a)(6)(ii) (1999). See The Agent Orange Act of 1991, Public Law No. 102-4, § 2, 105 Stat. 11 (1991). The Secretary of Veterans Affairs (Secretary) has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See 59 Fed. Reg. 341-46 (1994); see also 61 Fed. Reg. 41,422-449 (1996). Nonetheless, even if a veteran has not been diagnosed with a disease listed in 38 C.F.R. § 3.309(e) (1999), he or she is not precluded from establishing service connection by proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1999), cert. denied, 118 S.Ct. 1171 (1998). In the present case, the veteran has claimed that he incurred multiple rashes as a result of service. During his February 1995 VA hearing, he reported cysts on the back and in the area of his groin. In reviewing the veteran's service medical records, the Board observes that he was treated for skin abnormalities on several occasions during service. In May 1971, the veteran was seen for complaints of a rash over his entire body and was prescribed Benadryl. In May 1971, he was treated for complaints of a sore on his penis. Subsequently, he was seen in October 1971 to rule out a shaving rash on his face, and he was treated for complaints of a facial rash in June and September of 1972. In November 1972, the veteran complained of a rash on the chest and raised pimples over the chest and arms. A second consultation note from that month indicates that the veteran had no relief from medications, and impressions of questionable contact dermatitis and a questionable allergic reaction were rendered. The report of the veteran's December 1972 separation examination does not specifically indicate any rashes, but there is a notation of a "B.M. on back." The report of a November 1974 VA examination is negative for any skin abnormalities, other than scars. However, a VA Agent Orange examination, dated in May 1994, revealed two lumps in the right upper thigh in the groin area and one lesion on the back of the neck. A March 1995 VA skin examination report contains diagnoses of an epidermal cyst of the upper back (past neck) and a history of a cyst versus abscesses on the left thigh, noted to not be currently present. Similarly, a May 1996 VA skin examination report contains a diagnosis of comedones of the back, with cystic formation. Following the Board's April 1997 remand, the veteran underwent a third VA skin examination, and the report of this examination contains diagnoses of an epidermal cyst of the upper back, noted to be asymptomatic and depressed; and a recurrent history of groin boils, noted to be clear upon examination. In considering the evidence discussed above, the Board initially observes that the veteran has not been diagnosed with any current disability recognized by the VA as etiologically related to exposure to herbicide agents used in Vietnam, such as chloracne. As such, consideration under 38 U.S.C.A. §§ 3.307(a)(6)(iii) and 3.309(e) (1999) is not warranted, and the Board has therefore considered the veteran's claim only on a direct service connection basis. Moreover, the Board observes that, while the veteran was treated for numerous body rashes in service, these were noted to have resolved by the time of separation from service. However, a skin abnormality of the back was noted in the report of the veteran's separation examination, and a current diagnosis of an epidermal cyst of the back has been noted in several recent VA examination reports. The anatomical location of this current disability, as compared to that of the abnormality noted in the separation examination report, raises a question as to whether the veteran had a chronic skin disorder of the back in service and still has such a condition. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). In this regard, the Board observes that there is no evidence of record directly contradicting the veteran's assertion that his epidermal cyst of the back was of service onset. In view of the facts noted above, and after resolving all doubt in the veteran's favor, the Board concludes that it is reasonably probable that the veteran's current epidermal cyst had its in service. See 38 U.S.C.A. § 5107(b) (West 1991); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, service connection is warranted for the veteran's skin disorder, manifested by an epidermal cyst of the upper back. ORDER Entitlement to service connection for a skin disorder, manifested by an epidermal cyst of the upper back, is granted. STEVEN L. COHN Member, Board of Veterans' Appeals