Citation Nr: 1007264 Decision Date: 02/26/10 Archive Date: 07/08/10 DOCKET NO. 03-08 717 DATE FEB 26 2010 On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for tinea pedis with onychomycosis. 2. Entitlement to service connection for skin disability with lesions. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran had active duty service from September 1965 to September 1968. The issue of entitlement to service connection for tinea pedis comes before the Board of Veterans' Appeals (Board) on appeal from an August 2002 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The issue of entitlement to service connection for skin disability comes before the Board on appeal from a September 2003 rating decision by the RO. The Board remanded these issues for further development in October 2007. The medical evidence shows that although the Veteran raised a claim of entitlement for service connection for tinea pedis specifically, there is medical evidence that he also has onychomycosis associated with the same symptoms. The U. S. Court of Appeals for Veterans Claims (Court) recently found that the use of 'condition(s)' in regulation 38 C.F.R. § 3.159(a)(3) indicates that a single claim can encompass more than one condition and that an appellant can reasonably expect that alternative current conditions within the scope of the filed claim will be considered. Clemons v. Shinseki, 23 Vet.App. 1 (2009). The Board therefore has recharacterized the issue as set forth on the front page of this decision. In early February 2010, as the following decision was being drafted, the Board received two additional medical statements from the Veteran in support of his claims. The Veteran did not waive preliminary RO review of the new evidence. However, in view of the following favorable decision, there is no prejudice to the Veteran by proceeding with appellate review at this time. In a July 2008 statement, the Veteran clarified that he was actually seeking service connection for scrotal nodules or cysts. However, the RO has not clearly developed this issue. Thus, this issue is also referred back to the RO for necessary action. - 2 - FINDINGS OF FACT l. Tinea pedis with onychomycosis is causally related to the Veteran's active duty service. 2. Tinea cruris and tinea corporis have been chronically worsened by the Veteran's service-connected diabetes mellitus, type II. CONCLUSIONS OF LAW 1. Tinea pedis with onychomycosis was incurred in active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). 2. Tinea cruris and tinea corporis have been aggravated by the Veteran's serviceconnected diabetes mellitus, type II. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 the active military, naval, or air 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). - 3 - Service connection is warranted for a disability, which is proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The Court has also held that service connection can be granted for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). The Board also notes that a revised version of38 C.F.R. § 3.310 became effective October l0, 2006. The revised version essentially provides that VA will not concede aggravation of a nonservice-connected disease or injury by a service-connected disease or injury unless the baseline level of severity is established by medical evidence. However, the veteran's claim was filed prior to October 10, 2006, and the Board thus reviews the appeal under the pre-October 10, 2006, version which would appear to be more favorable to the veteran. Tinea Pedis with Onychomycosis The Veteran is seeking service connection for 'tinea pedis with onychomycosis. An August 1966 service treatment record indicated that the Veteran had athletes' feet. Further, a December 1966 service treatment record showed that the Veteran had a problem with his left foot and ointment was prescribed. However, the September 1968 service examination prior to discharge showed that the feet and skin were clinically evaluated as normal. The Veteran has consistently claimed that he had skin problems on his feet while in service and was diagnosed with "black foot" and 'jungle rot" while stationed in Vietnam. Post-service private and VA treatment records showed continuing treatment for tinea pedis and onychomycosis. Significantly, a November 2000 private treatment record indicated that given that the Veteran was diabetic and prone to fissuring of his skin, Lamisil treatment was prescribed for his tinea pedis and onychomycosis. However, these records do not date back to service or provide any sort of other etiological opinion. In October 2007, the Board remanded this case in order to obtain a VA examination and etiological opinion. The Veteran was afforded a VA examination by a medical doctor in April 2009. However, the claims file was not available for review. - 4- Significantly, on examination, while problems with the Veteran's nail beds were documented, no fungus infection was found on the ventral surface of the feet or in the area between the toes. The impression was onychomycosis of toenails bilaterally with status post toenail removal on the left great toe in 2003 and status post removal of both toenails in 2004 with continued symptoms of itching, burning, and mild discomfort of his toes that were slightly moderated with treatment. Although specifically requested, the examiner was silent with respect to any findings of tinea pedis. The examiner opined that the onychomycosis was not caused by the Veteran's diabetes, but diabetics were more susceptible to the nail infection. However, he concluded that there was no evidence of aggravation by diabetes. Apparently based on the Veteran's history, he further observed that the onset of involvement of the toenails was in Vietnam in 1968. In July 2009, the same examiner reviewed the claims file and prepared an addendum. He found that it was less likely than not that the current skin disability, including that of the feet, was causally related to service as the claims file did not reflect any evidence this finding. He further stated that it was likely as not that the current skin disability including that of the feet, had been aggravated by the Veteran's service-connected diabetes. It appears that the RO sought further clarification since the addendum conflicted with the original examination report. The claims file also includes a correspondence e-mail from an individual at the VA who is not identified as a medical doctor or other medical professional. He stated that he had reviewed the initial report and addendum. He provided that no tinea pedis was found on examination so the answer to aggravation was no. He further noted that onychomycosis began in Vietnam by history obtained and it could be service-connected if verified by service treatment records. There was no evidence of worsening of the condition since the diagnosis of diabetes, and, thus, no aggravation was demonstrated. However, as this individual, who again was not identified as medical professional, did not review the claims file or examine the Veteran, and there is no indication that the original examiner assisted in this opinion, it must be assigned no probative value. - 5 - Therefore, after reviewing the totality of the evidence, and resolving the benefit of the doubt in favor of the Veteran, the Board finds that service connection for tinea pedis with onychomycosis is warranted on a direct basis. Service treatment records do indicate problems with the feet on at least two occasions. Moreover, the Veteran did serve in Vietnam and his lay assertions concerning skin infections on his feet coincide with the nature and circumstances of his service. Although the July 2009 addendum indicated that there was no causal relationship between the Veteran's foot disability and service, the examiner failed to provide any rational for this opinion or acknowledge the documented incidents in service. Significantly, the Veteran has credibly reported that he has had feet problems and toenail infections since service. Lay assertions may serve to support a claim for service connection by supporting the Occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Citing Buchanan and Jandreau, the Federal Circuit recently reiterated that it had previously and explicitly rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Here, the Veteran is competent to say that he experienced symptoms while in service. He is also competent to report a continuity of symptoms since service. In conclusion, for the reasons set forth above and when resolving the benefit of the doubt in favor of the Veteran, service connection for tinea pedis with onychomycosis is warranted. See 38 U.S.C.A. § 5107(b). Skin Disability with Lesions The Veteran is also seeking service connection for skin disability with lesions. With the exception of the incidents discussed above concerning the feet, service - 6 - treatment records were silent with respect to any skin problems. Further, the September 1968 service examination prior to discharge showed that the skin was clinically evaluated as normal. Post-service private and VA treatment records showed continuing treatment for tinea corporis. Significantly, a November 2000 private treatment record observed that the Veteran was a diabetic and prone to fissuring of his skin. However, again, these records do not date all the way back to the Veteran's discharge from service or provide any other etiological opinion. In October 2007, the Board remanded this case in order to obtain a VA examination and etiological opinion. The Veteran was afforded a VA examination by a medical doctor in April 2009. However, the claims file was not available for review. The impression was tinea cruris dating to 2002, which was caused by a fungus. The examiner opined that there was an increased susceptibility to this fungal infection in diabetics. However, there did not seem to be aggravation of this condition by diabetes because the Veteran had obtained good control on medications. The examiner reiterated that the onset was in 2002 and consistent of recurring rash and vesiculation in both inguinal areas. In July 2009, the same examiner reviewed the claims file and prepared an addendum. He found that it was less likely than not that the current skin disability, including that of the feet, was causally related to service as the claims file did not reflect any evidence this finding. He further stated that it was likely as not that the current skin disability, including that of the feet, had been aggravated by the Veteran's service-connected diabetes. It appears that the RO sought further clarification since the addendum conflicted with the original examination report. The claims file also includes a correspondence e-mail from an individual at the VA who again is not identified as a medical doctor or other medical professional. He stated that he had reviewed the initial report and addendum. He provided that tinea cruris had a normal response to topical therapy. The condition tended to be chronic and only suppressed by medications even in the non diabetic host. No aggravation by diabetes was - 7 - demonstrated. Tinea cruris is so common that it would be pure speculation and not medically defensible to say that diabetes caused the condition. However, again, as this individual did not read the claims tile or examine the Veteran, and there is no indication that the original examiner assisted in this opinion, it must be assigned no probative value. Initially, based on the medical evidence of record, the Board finds that service connection is not warranted for a skin disability with lesions under a direct theory of entitlement. Significantly, service treatment records are silent with respect to any skin problems with the exception of the feet problems discussed above. The service examination prior to discharge showed that the Veteran's skin was evaluated as clinically normal. Significantly, the Veteran himself at the most recent VA examination claimed that the onset of his skin disability was in 2002, which was 32 years after his discharge from service. Nevertheless, when determining service connection, all theories of entitlement must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004); see also Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). Thus, the Board now turns to whether service connection is warranted under a secondary theory of entitlement. The Board finds that the preponderance of the evidence is against a finding that the Veteran's skin disability is proximately due to or a direct result of the Veteran's service-connected diabetes mellitus. The April 2009 VA examiner stated the cause of the Veteran's skin disability was a fungus. However, the July 2009 addendum clearly stated that it was at least as likely as not that the Veteran's current skin disability was aggravated by his service-connected diabetes mellitus, type II. As the examiner never further clarified any inconsistency with his prior examination report, the Board must assume that he changed his opinion upon reviewing the claims file. The Board acknowledges that the most recent VA examiner only diagnosed the Veteran with tinea cruris, which only applies to a skin problem in the inguinal area. However, private treatment records showed continuing treatment for tinea corporis, which applies to a skin problem that encompasses the whole body. Resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is - 8 - warranted for both on a secondary basis as being aggravated by his service-connected diabetes mellitus, type II. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Veterans Claims Assistance Act of 2000 (VCAA) In closing, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of2000 (VCAA) and implementing regulations in this case since there is no detriment to the veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). By letters dated in March 2006 and November 2007, the Veteran was furnished notice of the manner of assigning a disability evaluation and an effective date. He will have the opportunity to initiate an appeal from these "downstream" issues if he disagrees with the determinations which will be made by the RO in giving effect to the Board's grant of service connection. ORDER Service connection for tinea pedis with onychomycosis is warranted on a direct bases. Service connection for tinea cruris and tinea corporis is also warranted, as secondary to the Veteran's service-connected diabetes mellitus, type II. The appeal is granted. ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals - 9 - \