Citation Nr: 0943952	
Decision Date: 11/18/09    Archive Date: 11/25/09

DOCKET NO.  08-11 732	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in 
Philadelphia, Pennsylvania


THE ISSUE

Entitlement to service connection for toenail fungus, 
bilateral feet.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

D. Johnson, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from November 1963 to 
November 1965.  

This case comes before the Board of Veterans' Appeals (Board) 
on appeal from a November 2007 decision rendered by the 
Philadelphia, Pennsylvania Regional Office (RO) of the 
Department of Veterans Affairs (VA).

The Veteran testified before the undersigned at a hearing in 
May 2009.  A transcript of the hearing is of record.


FINDING OF FACT

The Veteran's current toenail fungus, bilateral feet is 
related to active service.


CONCLUSION OF LAW

Toenail fungus, bilateral feet was incurred in active duty 
military service.  38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 
C.F.R. §§ 3.102, 3.303 (2009).


REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board grants service connection for 
toenail fungus of the right and left foot, which represents a 
complete grant of the benefit sought on appeal.  As such, no 
discussion of VA's duty to notify and assist is necessary.

Service connection will be granted for disability resulting 
from disease or injury incurred in or aggravated by active 
service.  38 U.S.C.A. § 1110.  Establishing service 
connection generally requires (1) medical evidence of a 
current disability; (2) medical or, in certain circumstances, 
lay evidence of in-service incurrence or aggravation of a 
disease or injury; and (3) medical evidence of a nexus 
between the claimed in-service disease or injury and the 
present disability.  Shedden v. Principi, 381 F.3d 1163 (Fed. 
Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498 (1995), 
aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson 
v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

Under 38 C.F.R. § 3.303(b), an alternative method of 
establishing the second and third Shedden/Caluza element is 
through a demonstration of continuity of symptomatology.  
Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. 
Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. 
West, 12 Vet. App. 296, 302 (1999).  Continuity of 
symptomatology may be established if a claimant can 
demonstrate (1) that a condition was "noted" during service; 
(2) evidence of post- service continuity of the same 
symptomatology; and (3) medical or, in certain circumstances, 
lay evidence of a nexus between the present disability and 
the post-service symptomatology.  Savage, 10 Vet. App. at 
495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-
service incurrence sufficient in some circumstances for 
purposes of establishing service connection); 38 C.F.R. § 
3.303(b).  "Symptoms, not treatment, are the essence of any 
evidence of continuity of symptomatology."  Savage, 10 Vet. 
App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 
(1991). 

When there is an approximate balance of positive and negative 
evidence regarding any issue material to the determination of 
a matter, the Secretary shall give the benefit of the doubt 
to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also 
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran contends that he incurred a toenail fungus on 
both feet as a result of active duty service.  

The Veteran's service treatment records are unavailable; 
however, he has testified that he was treated for a fungal 
infection on his toenails in service.  The Veteran also 
testified that the fungal infection of his toenails has 
persisted ever since service, despite treatment.  He further 
testified that he was treated for the fungal infection 
shortly after service, but was unable to obtain the private 
medical records dated between 1966 and 1997, because that 
physician is now deceased.  

The claims file contains private medical records from Dr. L. 
which show diagnosis and treatment for onychomycosis, 
bilateral feet, beginning in 1997.  In a May 2008 statement, 
Dr. L. indicated that the Veteran's diabetes could 
theoretically aggravate his onychomycosis.

The Veteran was afforded a VA examination in June 2008.  He 
reported that his foot symptoms had been present since his 
Vietnam service.  After the clinical examination, the 
diagnosis was mycotic-appearing toenails.  The examiner 
opined that he could not resolve the question of whether a 
causal relationship existed between the service-connected 
diabetes mellitus and the current mycotic nails without 
resorting to speculation.  His rationale was that such a 
relationship has not been definitely proven.  However, he 
further opined that based upon the Veteran's report that his 
nail problem began in service; [the current nail problem] was 
at least as likely [as] not related to the hot moist 
environment of Vietnam.

The Veteran's wife submitted a lay statement in which she 
indicated that she dated the Veteran prior to him entering 
military service.  She averred that the Veteran did not have 
a fungal infection of the toes prior to service in Vietnam, 
but did when he returned and this infection has persisted 
ever since, despite treatment.

Based on the evidence of record, the Board finds that service 
connection for the claimed toenail fungus, bilateral feet is 
warranted.  A current fungal infection on the toenails, 
bilateral feet has been established from the private medical 
records and the findings at the VA examination.  
Unfortunately, the Veteran's service treatment records are 
not of record and therefore, the in-service occurrence of the 
chronic toenail fungal infection cannot be confirmed.  The 
Veteran is, however, competent to report the in-service 
toenail symptoms.  The Board finds his testimony to be 
credible.

The Veteran has reported a continuity of symptomalogy from 
service until now.  Despite the lack of medical records 
documenting ongoing treatment since service, the Board finds 
the Veteran's testimony to be both competent and credible.  
In this regard, the record does not contain any evidence to 
contradict his testimony.  Moreover, his wife's statement 
confirms that he did not have a fungal infection of the 
toenails prior to service, but did after he returned from 
Vietnam and it has persisted since then.  In addition, the VA 
examiner opined that the Veteran's toenail disorder began 
during active duty service.  Thus, there is a positive 
medical opinion of a causal link between service and the 
current disorder.  There is no other medical opinion on 
record to refute that finding.  Therefore, resolving all 
doubt in the Veteran's favor, service connection for a 
toenail fungus, bilateral feet disability is granted.


ORDER

Service connection for toenail fungus, bilateral feet is 
granted.



____________________________________________
STEVEN D. REISS
Acting Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs