Citation Nr: 1007201 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 08-19 392 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a disability manifested by bilateral foot itching/fungus. 2. Entitlement to service connection for melanomas of the left hand, back, and left side of neck, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. Armstrong, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1967 to August 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO). The matter of entitlement to service connection for melanomas of the left hand, back, and left side of neck is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The competent and probative medical evidence preponderates against a finding that the Veteran has a current disability related to bilateral foot itching/fungus that is due to any incident or event in military service. CONCLUSION OF LAW Service connection for a disability manifested by bilateral foot itching/fungus is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claims prior to their initial adjudication. An October 2006 letter explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing. This letter also informed the Veteran of disability rating and effective date criteria. He has had ample opportunity to respond and supplement the record and he has not alleged that notice in this case was less than adequate. Governing regulation provides that an examination or opinion is necessary if the evidence of record: (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (B) establishes that the Veteran suffered an event, injury or disease in service; (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4). With respect to the factor C listed, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As discussed below, the record does not contain competent evidence of a current bilateral foot itching/fungus disability and, thus, a VA examination is not warranted. The Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The Veteran has not identified any pertinent evidence that remains outstanding. Therefore, the Board finds VA's duty to assist is met. Accordingly, the Board will address the merits of the claims on appeal. Legal Criteria, Factual Background, and Analysis Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, there must be: (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 current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran's STRs are silent for complaints, findings, treatment, or diagnosis relating to bilateral foot itching or fungus. On May 1969 separation examination the Veteran's feet were normal. Post-service treatment records, including records from the Ft. Worth Clinic, dated from August 1973 through January 1989, and P. R., M. D., dated from November 1997 to December 1998, are silent for complaints, findings, treatment, or diagnosis relating to bilateral foot itching or fungus. However, subsequent treatment records reveal a diagnosis of tinea pedis in March 1998. See private medical records from D.T., M.D., dated from May 1998 to February 2006. The post- service treatment records do not contain any other mention of the Veteran's feet or tinea pedis. Indeed, VA outpatient treatment records, dated from October 2006 to January 2008, are silent for complaints, findings, treatment, or diagnosis relating to bilateral foot itching or fungus. The threshold matter that must be addressed in this case (as with any claim seeking service connection) is whether the Veteran has the disability for which service connection is sought, i.e., a disability related to bilateral itching feet/fungus. However, after carefully reviewing the evidence of record, the Board finds the evidentiary record does not contain any evidence of treatment related to a current diagnosis of bilateral itching feet/fungus. Without proof of the existence of the disability being claimed, there can be no valid claim. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmitech v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The Board recognizes that the Court of Appeals for Veterans Claims has held that the presence of a chronic disability at any time during the claims process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, while the evidence shows the Veteran was diagnosed with tinea pedis in 1998, that diagnosis is unaccompanied by any follow-up treatment or mention in treatment records, particularly treatment provided during the pendency of this claim and appeal. Indeed, as noted, current VA treatment records do not contain any treatment or complaints of tinea pedis or any other foot fungus condition. In summary, there is no competent medical evidence showing or suggesting that the Veteran has a current disability related to bilateral foot itching/fungus. A threshold requirement for establishing service connection for such disability is not met. See Hickson, 12 Vet. App. at 253; see also Brammer, 3 Vet. App. at 225. Accordingly, the analysis does not need to proceed any further and the claim must be denied. ORDER Service connection for bilateral foot itching/fungus is denied. REMAND While the notice provisions of the VCAA appear to be satisfied, the Board is of the opinion that further development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to his claim. See 38 C.F.R. § 3.159 (2009). Private treatment records reveal the Veteran was diagnosed and treated with various melanomas of the left hand, back, and left side of his neck. While the Veteran has asserted that his current melanomas of the left hand, back, and left neck are secondary to his exposure to herbicides during service, there is medical evidence of record that suggests the Veteran's melanomas are directly related to his military service. In an August 2007 letter, Dr. D. T. stated that the Veteran had been his patient since March 1998 and had sought follow- up care for a malignant melanoma of the left mid-back. Dr. D. T. stated that he treated the Veteran for actinic keratoses, which are precancerous lesions caused by cumulative sun exposure over the years of life. He also stated that the Veteran served in the military during the Vietnam war and received excess exposure to the sun during service. Dr. D.T. opined that "[u]ndoubtedly there is some relation with this exposure to his recurring problems with skin cancers and premalignant lesions." Because the Veteran has submitted competent medical evidence which indicates that the Veteran's current skin disability may be related to his period of military service, and there is insufficient medical evidence of record on which to decide the claim, including a recent VA examination, the Board finds that a VA examination is warranted. See McLendon, 20 Vet. App. at 83. Accordingly, the case is REMANDED for the following: 1. Schedule the Veteran for a dermatological examination to determine if his melanomas/skin cancers are etiologically related to his military service. All indicated tests and studies should be conducted, and all findings described in detail. The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination and the examination report must reflect that such review was accomplished. a. The examiner should opine whether it is at least as likely as not (a 50 percent or better probability) or unlikely (i.e., a probability of less than 50 percent) that the Veteran's melanomas/skin cancers are/were related to his military service , to include any sun exposure therein. b. The examiner must explain the rationale for the opinion. c. If it cannot be determined whether the Veteran's melanomas/skin cancer are/were directly related to his military service, on a medical or scientific basis and without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify in the report, and explain why this is so. 2. The RO should then re-adjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise informed. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. ______________________________________________ A. J. Turnipseed Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs