Citation Nr: 0812117 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 06-26 081 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for jungle rot of the left leg and foot. ATTORNEY FOR THE BOARD David Gratz, Associate Counsel INTRODUCTION The veteran served on active duty from May 1968 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision issued by the Department Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a VA Form 21-4138 dated in February 2007, the veteran indicated that he was seeking entitlement to service connection for bilateral hearing loss and tinnitus. As these issues have not yet been addressed, they are referred to the RO for appropriate action. FINDING OF FACT There is no competent medical evidence showing the veteran's claimed jungle rot of the left leg and foot is related to active service. CONCLUSION OF LAW Jungle rot of the left leg and foot was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Such notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A January 2005 VA notice and duty to assist letter satisfied the VA's duty to notify under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159, as it informed the veteran of what evidence was needed to establish his service connection claim, what the VA would do and had done, and what evidence he should provide. The January 2005 letter also informed the veteran that it was his responsibility to help the VA obtain medical evidence or other non-government records necessary to support his claim, and asked him to provide any information in his possession. With respect to the VA's duty to assist, the RO obtained, or made reasonable attempts to obtain, all relevant evidence identified by the veteran, including VA medical treatment records. Since the veteran has failed to provide any competent medical evidence that his disability began or was exacerbated during his military service, the VA has no duty to provide the veteran with a clarifying medical examination. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). Thus, the Board considers the VA's duty to assist satisfied. Accordingly, the Board finds that no further assistance to the veteran in acquiring evidence is required by statute. 38 U.S.C.A. § 5103A. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Since the veteran's claim is being denied, neither a disability rating nor an effective date will be assigned, so there can be no possibility of any prejudice to the claimant under the holding in Dingess, supra. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. §§ 3.1(k), 3.303(a) (2007). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that an appellant had a chronic condition in service or during the applicable presumptive period. Service connection also 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) (2007). In order to prevail in a claim for service connection there must be medical evidence of a current disability as established by a medical diagnosis; of incurrence or aggravation of a disease or injury in service, established by lay or medical evidence; and of a nexus between the in- service injury or disease and the current disability, established by medical evidence. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The veteran contends that he has jungle rot on his left leg and foot as a result of his service in Vietnam. The veteran's service medical records show no evidence of any skin disease on his left leg or foot during his time in service. Indeed, despite checking off other ailments at the time, the veteran checked "no" for the presence of "skin diseases" in both his enlistment physical of April 1968, and in his separation physical of December 1969. Moreover, the veteran acknowledged in his January 2005 statement that he was not treated for jungle rot while in service. In September 2003, the veteran was diagnosed by a private physician at the North Okaloosa Medical Center as having edema and cellulitis of his lower left extremity. He was again diagnosed by a private physician at the North Okaloosa Medical Center as having cellulitis in August 2006, although the record does not specify to which leg the diagnosis applies. The veteran asserted in his August 2006 substantive appeal that VA doctors told him that the diagnosis of cellulitis was in error, because he did not have puss pockets. Indeed, VA medical records from January 2005 show that the veteran had edema of the left leg, and that this condition began in December 2004. The VA medical records from January 2005 also show that the veteran had stated that he had been admitted to the hospital for ten days for a fungal skin infection on his left foot in 2004, and that he claimed that he was given antibiotics. However, the veteran's most recent medical records, from January 2005 through November 2006, show no diagnosis of any current fungal skin infection. In fact, these records reflect several skin disorders of the back and right forearm, as well as the face. In this regard, there is no mention of a skin disorder of the left foot and leg. The assessments were actinic keratosis, basal cell cancer and seborrheic keratosis. The lack of any objective evidence of complaints, symptoms, or findings of a disability for many years after the period of active duty is itself evidence which tends to show that the condition did not first manifest during active duty. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Here, the thirty-five year period between the veteran's completion of service in December 1969 and his December 2004 claim suggests that his left foot and leg disability is not connected to any incident in service. While the veteran is competent to describe a rash on his legs and feet, and to relate its onset to his time in service, the Board must evaluate the credibility of his statements. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Given the fact that the veteran has no record of treatment for said rash for many years, and that he denied having a skin condition at separation, his statements on this topic are not credible. As such, regardless of whether the veteran's current left leg and foot disability is diagnosed as dermatophytosis (fungal skin infection), cellulitis, edema, or some combination of the three, no medical evidence has been presented linking his current disability and his active service, and therefore the criteria for service connection have not been met. McClendon v. Nicholson, 20 Vet. App. 79 (2006), holds that, in disability compensation (service connection) claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Here, the standards of McClendon are not met, because there is nothing of record to suggest that the veteran's claimed jungle rot of the left foot and leg is related to active military service. Consequently, no VA examination is warranted. The preponderance of the evidence is against the award of service connection for the veteran's claim for jungle rot of the left foot and leg; it follows that the benefit of the doubt doctrine is not applicable in the instant appeal. 38 U.S.C.A. § 5107(b) (West 2007); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). As such, the veteran's claim is denied. ORDER Service connection for jungle rot of the left leg and foot is denied. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs