Citation NR: 9803150 Decision Date: 01/30/98 Archive Date: 02/03/98 DOCKET NO. 92-22 699 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for skin disability, to include jungle rot of the feet. 2. Entitlement to service connection for arthritis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The veteran served on active duty from May 1968 to May 1970. The issues noted on the title page were remanded by the Board of Veterans’ Appeals (Board) in December 1996 to the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, for additional development. The issue of entitlement to service connection for arthritis will be addressed in the remand portion of this action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his current skin disorders are causally related to the skin problems which he had in service and should, therefore, be service connected. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran’s claim for service connection for skin disability, to include jungle rot of the feet. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable determination of the veteran's claim for service connection for skin disability, to include jungle rot of the feet, has been obtained by the RO. 2. The veteran is not shown to have porphyria cutanea tarda, chloracne or other disease consistent with chloracne. 3. The veteran’s current skin disability was not present during service and is not etiologically related to service. CONCLUSION OF LAW Chronic skin disability, to include jungle rot of the feet, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991); 38 C.F.R. § 3.303 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the veteran's claim for service connection for skin disability, to include jungle rot of the feet, is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the Board finds that he has presented a claim that is plausible. The Board is also satisfied that all relevant facts have been properly developed with respect to this issue and that no further assistance to the veteran is required to comply with the duty to assist mandated by statute. Service connection is granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). 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, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1996). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed during such service to a 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) (1996). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected, even though there is no record of such disease during service: chloracne or other acneform diseases consistent with chloracne, Hodgkin’s disease, multiple myeloma, non-Hodgkin’s lymphoma, porphyria cutanea tarda, respiratory cancers, and soft-tissue sarcoma. 38 C.F.R. § 3.309(e) (1996). The veteran’s service medical records reveal that he did not have any skin problems on preservice examination in March 1968. Whitish spots on his back, chest, and arms were noted in February 1969; the impression was tinea versicolor. He had a mass on the lateral aspect of his right lower leg in February 1970. He did not note any skin problem on his February 1970 discharge medical history report, and his skin was normal on physical examination in February 1970. A lump was removed from his right leg in April 1970. He had a blister on his left foot in May 1970. Appalachian Regional Hospital treatment records for March 1975 contain a notation of a rash, which was considered due to allergy. VA outpatient records for March 1985 reveal areas of acne and tinea pedis. The veteran reported on psychiatric examination by Robert C. Overton, M.D., in August 1985, that he had developed a skin problem in 1971 after having served in Vietnam and been exposed to Agent Orange. He also complained of jungle rot on his feet that was exacerbated by hot weather. On VA compensation and pension examination in September 1985, the pertinent diagnoses were comedon lesions on body, prurigo nodularis, and rash secondary to Agent Orange not found. On VA fee basis skin examination in September 1985, the veteran had multiple hyperpigmented and papulonodular type lesions on his shoulders and arms, most of which had been excoriated and were slightly secondarily infected, and small papular lesions on the medial aspect of the right great toe. The assessment was prurigo nodularis. According to a May 1988 medical report from John Marshall Medical Services, the veteran complained of recurrent, intermittent skin problems since Vietnam, consisting of “pimples” which scarred when they healed, especially on the face, back and chest. The examiner concluded that the veteran’s skin problems represented chloracne as a result of Agent Orange exposure. An undated Physician’s Report from Logan General Hospital, which appears to have been written in approximately November 1990, contains an assessment of fungal infection of the left great toe nail. A lump on the left leg was noted in Logan General Hospital records dated in April 1991. According to private outpatient records for October 1991, the veteran had actinic skin damage and chronic tinea pedis, with no evidence of chloracne. An October 1991 treatment report from Ronald D. Hall, M.D., reveals that the veteran complained of lesions on his face, neck, and arms; of blistering eruptions on his feet, which were diagnosed as inflammatory tinea; and of acneform dermatitis on his back. VA outpatient records for November and December 1991 reveal that the veteran complained of a nodule on his left calf. Tinea pedis was diagnosed. The veteran testified at his personal hearing at the RO in January 1992 that he has had skin lesions on various areas of his body since service due to Agent Orange. Logan General Hospital records for March 1993 reveal a 3 cm nodule on the outer aspect of the left calf. The veteran complained on VA outpatient records dated in February 1995 of a rash on his left foot, as well as on his neck and back, since his return from Vietnam. The examiner’s impressions were athlete’s feet and dermatitis; medication was prescribed. The impression on VA outpatient records for March 1995 was multiple skin lesions of unclear etiology, with exposure to Agent Orange in Vietnam. The veteran underwent VA skin examinations in August and September 1995. The diagnoses in August were bilateral tinea pedis, onychomycosis of the left great toenail, and acne keloidalis; the diagnoses in September were the same, except the onychomycosis was bilateral. According to a March 1996 VA skin evaluation by the same physician who examined the veteran in August and September 1995, the veteran did not have chloracne and his skin problems were not related to Agent Orange exposure. The March 1996 diagnoses were tinea pedis with onychomycosis, acne keloidalis of the neck, and nummular eczema of the right shin. The examiner noted that the disorders started while the veteran was in service and were service-connected. In a statement dated in April 1996, the same examiner disclosed that he had said that the veteran’s tinea pedis with onychomycosis was service-connected based on the medical history that the veteran had provided; he also indicated that the other skin disorders diagnosed would not be service connected. VA outpatient records from October 1996 to January 1997 reveal a right plantar callus. On VA skin examination in September 1997, the veteran noted a history of a papular rash on his back and arms and a fungal infection of the feet and toenails since service. The diagnoses were keratosis pilaris, chronic tinea pedis, chronic onychomycosis, and Picker’s nodule. The examiner concluded that because tinea pedis and onychomycosis were very common conditions and could be acquired just about anywhere, resolve, and be acquired again, they could not be absolutely linked to service in Vietnam. Although the veteran had skin complaints in service, these were isolated incidents diagnosed as tinea versicolor in February 1969 and a foot blister in May 1970; there were no skin complaints or findings on the veteran’s discharge medical history and physical examination reports dated in February 1970. The initial post-service evidence of skin disability was in March 1975 and there was no notation of tinea pedis or onychomycosis until March 1985, which is many years after service discharge. Even though chloracne was diagnosed in May 1988, no subsequent skin evaluation diagnosed chloracne or other disability subject to presumptive service connection on an AO basis under 38 C.F.R. § 3.309(e). In fact, an examiner noted on VA examination in March 1996 that the veteran’s skin problems were not due to Agent Orange exposure. The VA physician concluded in March 1996 that the veteran’s tinea pedis with onychomycosis was incurred in service; however, an April 1996 statement from this examiner indicates that his conclusion of a link to service was due to the veteran’s subjective medical history and not to an independent opinion based on a review of the veteran’s claims file. A different VA physician concluded on VA skin examination in September 1997 that tinea pedis and onychomycosis were common conditions that could be acquired just about anywhere and could not be definitely linked to service. Since the only competent evidence in support of the veteran’s claim, the March 1996 VA physician’s opinion was based on the veteran’s subjective history, and the service medical records on file do not support the veteran’s subjective history of tinea pedis and onychomycosis, the Board finds that the evidence against the claim to be more persuasive than the evidence supporting the claim. Therefore, the Board concludes that the preponderance of the evidence is against the veteran’s claim. ORDER Service connection for skin disability, to include jungle rot of the feet, is denied. REMAND The December 1996 Board remand, which notes that the record reveals back complaints on Appalachian Regional Hospitals’ records dated in February 1974, August 1974, April 1975, and February 1979, requested an orthopedic examination of the veteran’s spine and an opinion whether any current back arthritis is etiologically related to the back injury noted in service. Although a VA examiner concluded on VA orthopedic examination in July 1997 that the veteran’s current spinal arthritis is not due to service back injury, the examiner noted that the veteran did not have any specific back pain from service discharge in 1970 until a complaint in 1980. However, as noted above, the veteran did complain of back pain on several occasions between 1974 and 1980. Based on the above, the Board finds that additional development is required prior to final determination of the issue of entitlement to service connection for arthritis. Accordingly, this issue is REMANDED to the RO for the following actions: 1. The veteran should be requested to provide the names, addresses and approximate dates of treatment for any health care providers, including VA, who may possess additional records pertinent to his claim for service connection for arthritis. After obtaining any necessary consent forms for the release of the veteran's private medical records, the RO should obtain, and associate with the file, all records noted by the veteran that are not currently on file. 2. After the above has been completed, the examiner who conducted the July 1997 evaluation should have access to and should again review the claims files including a copy of this REMAND, to determine the etiology of the veteran’s current back arthritis. After a complete review of the claims file, to include the Appalachian Regional Hospital records noted above, the examiner should again provide an opinion as to whether it is at least as likely as not that the veteran’s current spinal arthritis is etiologically related to the back injury noted in service. The rationale for all opinions expressed should be fully explained. 3. Thereafter, the RO should readjudicate the veteran’s claim for service connection for arthritis. 4. If the benefit sought on appeal is not granted to the veteran’s satisfaction, the RO should issue a supplemental statement of the case. The RO should then provide the veteran and his representative with an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is otherwise notified by the RO. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans’ Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1997) (Historical and Statutory Notes). In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. SHANE A. DURKIN Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), a decision of the Board of Veterans’ Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States (CONTINUED ON NEXT PAGE) Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. Appellate rights do not attach to the issue addressed in the remand portion of the Board’s decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1996). - 2 -