Citation Nr: 1139932 Decision Date: 10/27/11 Archive Date: 11/07/11 DOCKET NO. 07-27 820 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a skin disorder, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1966 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) from a February 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for a skin disorder (alternately claimed as a foot condition and cancer). In September 2009, the Board remanded this appeal for additional development. The issue of service connection for orthopedic manifestations of a right foot/ankle disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's current skin disorder affecting the toenails is at least as likely as not related to active service. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, a skin disorder affecting the toenails was incurred in active service. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that he currently suffers from a skin disorder that was caused by exposure to Agent Orange during his period of service in Vietnam. Alternatively, the Veteran contends that his current skin disorder first manifested in service and that he has experienced a continuity of symptomatology since that time. A Veteran may be entitled to a presumption of service connection if he is diagnosed with certain diseases associated with exposure to certain herbicide agents and meets certain other requirements. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010). Specifically, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. A Veteran who served in the Republic of Vietnam shall be presumed to have been exposed to herbicides. 38 U.S.C.A. § 1116 (2010). In this case, the Veteran's service personnel records indicate that he had active service in the Republic of Vietnam during the Vietnam era and is therefore presumed to have been exposed to herbicides. Diseases associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e) (2010), will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. The evidence of record, however, does not show that the Veteran has been diagnosed with one of those diseases or disorders. 38 C.F.R. §§ 3.307(a)(6)(iii); 3.307(d), 3.309(e) (2010). The availability of presumptive service connection for a disability based on exposure to herbicides, however, does not preclude an appellant from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 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, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). Disability which is proximately due to or the result of a disease or injury incurred in or aggravated by service will also be service-connected. 38 C.F.R. § 3.310 (2010). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Degmetich v. Brown, 104 F.3d 1328 (1997); Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection for certain listed chronic diseases will be rebuttably presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010). However, the evidence does not show that the Veteran has any disability of the skin which is subject to presumptive service connection. Service connection 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (2010). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2010). Service connection may also be granted for a 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. § 3.03(d) (2010). In determining whether service connection is warranted for a disability, 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's service medical records show that in June 1966 he was treated for a right foot sore, which he now maintains was the initial manifestation of his current skin disability. The Veteran's right foot sore was treated and dressed, and the Veteran was advised to wear shower shoes for seven days. Subsequent service medical records, including his February 1969 separation exam, are negative for any complaints or clinical findings of skin problems. Post-service medical records show that in May 2003, the Veteran was treated for cracked and dry feet. His feet were noted to have a crusted, yellowish scale, and seborrheic dermatitis of the foot was diagnosed. In July 2004, a physical examination revealed fungal dystrophic nail changes. In January 2005, the Veteran was treated for an inflammation involving multiple toenails and given a provisional diagnosis of a "Vietnam fungus." The following month, the Veteran was afforded a VA dermatology consultation in which he was found to have a generalized fungus infection that was "old Vietnam acquired" and prescribed an antibiotic to treat that condition. In May 2005, the Veteran was afforded a VA Agent Orange examination in which he reported a history of toenail fungus since his service in Vietnam. Following clinical examination, the VA Agent Orange examiner diagnosed the Veteran with toenail onychomycosis, but did not render an opinion as to whether that specific skin condition had its onset in Vietnam or was otherwise related to his active service. The record thereafter shows that the Veteran continued to receive occasional treatment for skin problems. Specifically, in June 2008, he was hospitalized for a generalized macular/papular rash "all over his body," which was diagnosed as allergic or contact dermatitis, and in November 2008 he was treated for a painful "stitch" on the left side of his neck. In September 2009 and December 2009, the Veteran presented to VA podiatry to have his toenails trimmed. His toenails were noted to be clinically mycotic, long, thick, discolored, brittle, and impacted in the nail grooves. His skin was noted to be dry. He also reported some discomfort along the tibial and fibular border of the big toe nails. He was diagnosed with elongated nails and xerosis. In March 2010, the Veteran sought treatment for lesions on his scalp. It was noted at that time that the Veteran had a history of basal cell carcinoma and atypical nevus. Objectively, there were multiple verrucous papules on the scalp, right temple, and back, and some cherry hemangiomas were observed on the chest. Seborrheic keratosis and hemangiomas were assessed. In April 2010, the Veteran was afforded a VA feet/skin examination. It was noted that there was no current mycosis of the nails. The Veteran reported a history of pain in the arch and ankle, which started in April 1967. He reported that when he was in Vietnam, he got "jungle rot," but that he did not receive treatment for the condition in Vietnam. He indicated that a podiatrist had told him previously that he had jungle rot and had given him some pills to take, which cleared up the fungus on his toes. The Veteran also reported in-service foot/ankle trauma from a jeep accident and foot symptoms of pain, swelling, heat, redness, stiffness, fatigability, weakness, and lack of endurance. The Veteran reported flare-ups of his orthopedic foot symptoms, and functional limitations due to orthopedic symptoms. On physical examination of the left foot, there was tenderness and hallux abductus noted as "right #1." There was no skin or vascular foot abnormality noted, nor was there muscle atrophy or other foot deformity. Physical examination of the right foot revealed mild swelling, tenderness along the deltoid ligament and lateral collateral ligament, and mild hallux valgus along the first metacarpophalangeal joint. There was no skin or vascular foot abnormality. The Veteran was noted to have flat feet and dry skin, bilaterally. X-ray examination of both feet revealed no evidence of fracture, dislocation, or destructive bone or joint disease. Based on examination of the Veteran and a review of the claims file, the VA examiner stated that the evidence was inconclusive as to whether the Veteran's current skin condition is related to past active service, as no notes were seen regarding a past skin condition. The examiner indicated that past notes were needed to determine if there was a positive correlation. With respect to a causal connection between herbicide exposure and the Veteran's toenail fungus, the examination report states that the skin condition is as least as likely as not caused by or a result of "patient relates that herbicide exposure caused mycosis of the toe nails." The rationale given was that medical records were reviewed, and the examiner commented that there was "No evidence noted in Notes [sic] to support whether skin disability is secondary to herbicide exposure." The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. While the Board may not ignore the opinion of a physician, it is certainly free to discount the credibility of that physician's statement. Sanden v. Derwinski, 2 Vet. App. 97 (1992). In evaluating the probative value of competent medical evidence, the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board finds that a preponderance of the evidence is against a finding of direct service connection for a toenail fungus due to herbicide exposure. Although the Veteran has established a current condition, and is presumed to have been exposed to Agent Orange during his service in Vietnam, the record lacks competent and credible medical evidence of a nexus between the two. The April 2010 VA examination report is unclear as to whether the examiner found a causal relationship between herbicide exposure and toenail fungus, however the examiner's notation that there was no evidence to support whether the skin disability is secondary to herbicide exposure weighs against a finding of causation. As the Veteran has not provided any competent medical evidence establishing a nexus between herbicide exposure and toenail fungus, the Board finds that service connection is not warranted. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004) The Board recognizes the Veteran's assertions that his current toenail fungus disorder is the result of Agent Orange exposure in service. However, as a layperson, he is not competent to give a medical opinion on diagnosis, causation, or aggravation of a medical condition. Bostain v. West, 11 Vet. App. 124 (1998); Routen v. West, 142 F.3d. 1434 (Fed. Cir. 1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board acknowledges that the Veteran is competent to give evidence about what he experienced or observed. Layno v. Brown, 6 Vet. App. 465 (1994). However, competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). Therefore, the Veteran can testify to that which he is competent to observe, such a toenail fungus, but he is not competent to relate any toenail fungus medically to Agent Orange exposure in service. Thus, the Veteran's lay assertions that his current toenail fungus is due to Agent Orange exposure in service are not competent or sufficient evidence to establish nexus. Accordingly, the Board finds that the preponderance of the evidence is against a finding of direct service connection for a toenail fungus due to Agent Orange exposure. However, resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran has submitted competent medical evidence showing that his skin disorder affecting the toenails is related to his active service based on continuity of symptomatology. The Board finds that the Veteran's lay statements made during January 2005 VA treatment and a May 2005 VA Agent Orange examination that his toenail fungus manifested in service and had persisted since that time are persuasive evidence. While the service medical records are silent for complaints of a skin disorder related to the toenails, they do show treatment for a sore on the right foot and a medical recommendation that the Veteran wear shower shoes. Post service medical records also show that, on multiple occasions, the Veteran reported having the toenail fungus since Vietnam. The Board finds it significant that those statements were made in furtherance of treatment, and not in connection with a claim for benefits. Therefore, they are afforded significant probative weight. The Board also notes that there is no negative opinion of record. Furthermore, the evidence shows that some physicians have reported the toenail fungus as being Vietnam-related. The Board recognizes that the record includes a lengthy absence of treatment for a toenail fungus post service. However, lay evidence does not necessarily lack credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Veteran can attest to factual matters of which he had first-hand knowledge, such as developing an observable skin disorder affecting the toenails in service and having persistent symptoms since. Washington v. Nicholson, 19 Vet. App. 362 (2005); Layno v. Brown, 6 Vet. App. 465 (1994); Falzone v. Brown, 8 Vet. App. 398 (1995). Furthermore, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board is within its province to weigh that testimony and make credibility determinations as to whether the evidence supports a finding of service incurrence or continuity of symptomatology. Barr v. Nicholson, 21. Vet. App. 303 (2007). Consequently, the Veteran is competent to contend that he had symptoms of a skin disorder affecting his toenails immediately following service that continued until the first documented symptoms in July 2004. Thus, for the above reasons, the Board finds the Veteran's account of continual symptoms subsequent to service to be credible. The Board also recognizes that the April 2010 VA examiner stated that the evidence was inconclusive as to whether there is a correlation between the Veteran's toenail fungus and his active service because there were no notes regarding a past skin condition. However, in January 2005, a physician diagnosed Vietnam fungus. And in February 2005, a physician related to the fungus to Vietnam. The Board finds that the April 2010 VA opinion carries little persuasive value or weight because of the failure to provide any definitive opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). Where a physician is unable to provide a definite casual connection, the opinion on the issue constitutes what may be characterized as non-evidence. Permen v. Brown, 5 Vet. App. 237 (1993); Beausoleil v. Brown, 8 Vet. App. 459 (1996) (generic statement about the possibility of a link is too general and inconclusive). In sum, the Board finds that the positive and negative evidence is at least in equipoise as to whether the Veteran's skin disability of the toenails is related to his service. Accordingly, reasonable doubt is resolved in the Veteran's favor and service connection for a skin disorder affecting his toenails is granted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a skin disorder affecting the toenails is granted. ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs