Citation Nr: 0003647 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 98-10 353 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for residuals of a pilonidal cyst. 2. Entitlement to service connection for skin disability, including as due to Agent Orange exposure. REPRESENTATION Appellant represented by: The American Legion INTRODUCTION The veteran had active military service from October 1965 to July 1967, including service in Vietnam. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 1997 rating decision by the Detroit, Michigan, Regional Office (RO). A notice of disagreement was received in February 1998, a statement of the case was issued in April 1998, and a substantive appeal was received in June 1998. FINDINGS OF FACT 1. The veteran suffers from post-operative residuals of pilonidal cyst surgery which are related to his period of active military service. 2. There is no medical evidence of a nexus between any current skin disability and the veteran's period of active military service. CONCLUSIONS OF LAW 1. Residuals of pilonidal cyst surgery were incurred in the veteran's active military service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 2. The veteran's claim of entitlement to service connection for skin disability is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The issues before the Board involve claims of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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 C.F.R. § 3.303(d). It should also be noted that disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309, will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma. 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) must have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy must have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). 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. 2725, 2727-29 (1984), does not preclude establishment of service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, it should be noted at the outset that statutory law as enacted by the Congress charges a claimant for VA benefits with the initial burden of presenting evidence of a well- grounded claim. 38 U.S.C.A. § 5107(a). A well-grounded claim has been defined by the United States Court of Appeals for Veterans Claims (Court) as "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 91 (1990). Where the determinative issue involves a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). A claimant therefore cannot meet this burden merely by presenting lay testimony and/or lay statements because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, lay assertions of medical causation cannot constitute evidence to render a claim well-grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well- grounded. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). In order for a service connection claim to be well-grounded, there must be competent evidence: i) of current disability (a medical diagnosis); ii) of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and; iii) of a nexus between the inservice injury or disease and the current disability (medical evidence). Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet.App. 498, 506 (1995). Moreover, the truthfulness of evidence is presumed in determining whether a claim is well- grounded. King v. Brown, 5 Vet.App. 19, 21 (1993). The Board emphasizes, however, that the doctrine of reasonable doubt does not ease the veteran's initial burden of submitting a well-grounded claim. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). Alternatively, the Court has indicated that a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488 (1997). The Court held that the chronicity provision applies where there is evidence, regardless of its date, which shows that a veteran had a chronic condition either in service or during an applicable presumption period and that the veteran still has such condition. That evidence must be medical, unless it relates to a condition that the Court has indicated may be attested to by lay observation. If the chronicity provision does not apply, a claim may still be well grounded "if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology." Savage, 10 Vet. App. at 498. A. Pilonidal Cyst The Board views the October 1998 VA examination diagnosis of status post pilonidal cyst operation by history to be sufficient for well-grounded purposes (in the context of the reported clinical findings). The veteran's assertions regarding inservice incurrence are accepted as true for well- grounded purposes (an are in fact supported by certain service medical records). Further, the claims file includes evidence of a link to service in the form of VA hospital records dated in August 1968 and the report of the October 1998 VA examination. The Board therefore finds the claim to be well-grounded under 38 U.S.C.A. § 5107a). While certain evidence is not entirely clear, the Board finds that the duty to assist the veteran does not require further development, especially in light of the following decision. Service medical records dated in March 1966 show that the veteran was developing a "boil" between the buttocks. A June 1966 clinical entry refers to a "POR check," but no details were furnished. On separation examination in July 1967, the veteran reported that he had or had had boils; on clinical examination, the veteran's skin was evaluated as normal. The veteran was hospitalized at a VA facility in August and September 1968 for pilonidal cyst draining. At that time, he stated to hospital personnel that he had had this problem since 1966. The hospital report was to the effect that the veteran was to return in three weeks for surgical treatment of his pilonidal cyst. On VA examination in October 1998, the veteran reported history of a boil in the buttock area in around 1965 with frequent recurrence of swelling, pain and discharge. He also reported 1968 surgery at a VA hospital. It was reported that since then there was no recurrence, but the veteran reported occasional discomfort and pain which he treated by hot baths. Clinical examination revealed a small skin deep scar near the coccyx which was reported to be well-healed. There was no sinus drainage. The examiner commented that there had been no recurrence of the cyst since 1968. A separate cystic lesion was reported in the left sacroiliac area, but the examiner opined that this lesion was not related to the service-related pilonidal cyst surgery. After considering the above-evidence, the Board believes that service connection is warranted for post-operative residuals of a pilonidal cyst. While there may be some medical distinction between a "boil" and a "cyst," the Board believes it reasonable to assume that the problem in the buttock area treated during service was one and the same as the problem in the buttock area which required surgery in 1968. Further, although there has apparently been no recurrence according to the October 1998 VA examiner's report, the examiner did refer to a scar which in the context of the clinical examination findings must be attributed to the surgery related to the cyst. B. Skin Disability After reviewing the evidence of record, the Board finds the skin disability claim to be not well-grounded. While there are post-service medical records showing dermatitis as well as cellulitis of the left upper extremity, there is no medical evidence linking any current chronic skin disorder to the veteran's military service. Except for the boil discussed above, service medical records do not document complaints or treatment for skin problems. On discharge examination in July 1967, the veteran's skin was clinically evaluated as normal. It should also be noted that general medical examination in 1968 in connection with the hospitalization for a pilonidal cyst was reported to show no abnormal findings. It appears that the first post-service medical evidence of skin problems is a January 1985 VA examination for Agent Orange purposes. It appears from that report that the veteran reported that he had had a rash for 6 years. Based on the record, there is no medical evidence of a continuity of pertinent symptoms to relate any current skin disability to service. Further, while the veteran did serve in Vietnam, the necessary nexus to service cannot otherwise be established under the provisions of 38 C.F.R. §§ 3.307(a)(6), 3.309(e) because there is no medical evidence showing that chloracne or other acneform disease consistent with chloracne was manifested within one year of exposure to a herbicide agent. By this decision, the Board is informing the veteran that to well-ground his skin disability claim, there must be medical evidence of a current skin disability and medical evidence linking that disability to his military service. 38 U.S.C.A. § 5103(a) (West 1991); Robinette v. Brown, 8 Vet.App. 69 (1995). ORDER Entitlement to service connection for post-operative residuals of a pilonidal cyst is warranted. To this extent, the appeal is granted. The veteran's claim of entitlement to service connection for skin disability, to include as due to Agent Orange exposure, is not well-grounded. To this extent, the appeal is denied. ALAN S. PEEVY Member, Board of Veterans' Appeals