Citation Nr: 1300349 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 08-14 544 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUES Entitlement to service connection for a claimed foot disorder to include tinea pedis and onychomycosis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from March 1967 to March 1970. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision issued by the RO. The Board remanded the issue on appeal in October 2011 for further development of the record. After completing the requested development, the RO/AMC continued to deny the claim (as reflected in a June 2012 supplemental statement of the case (SSOC)) and has returned the matter on appeal to the Board for further consideration. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. The Veteran is not shown to have manifested complaints or findings referable to a foot disorder in service or for many years thereafter. 2. The currently demonstrated foot disorder to include tinea pedis and onychomycosis is not shown to be causally related to an event or incident of the Veteran's period of active service. CONCLUSION OF LAW The Veteran's foot disability manifested by tinea pedis and onychomycosis is not due to disease or injury that was incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2011). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in an August 2006 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's VA treatment records and examination report. The VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and presenting for a VA examination. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). I. Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); see also 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). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson 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, 1377 (Fed. Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009); Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed. Cir.2006). "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). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 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). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage, 10 Vet. App. at 494-95. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). II. Analysis The Veteran's service treatment records are negative for complaints or findings of a foot disorder to include tinea pedis and onychomycosis. Significantly, his feet were noted to be normal at the time of his service entrance examination. Moreover, at the time of his separation examination in January 1970, the Veteran denied having or ever having foot trouble or skin disease. Subsequent to service, the Veteran generally asserts that his foot disorder had its onset in service. Specifically, he reports having contracted jungle rot of the feet during his service in the Republic of Vietnam. He also reports that, after dropping a 55-gallon drum of jet fuel on his toes, he lost his big toenails. A February 2007 VA treatment record shows that the Veteran has tinea pedis. The Veteran was advised to maintain good hygiene, use lotrimin cream after bathing, change his socks daily, apply gold bond anti-fungal powder to his shoes intermittently and alternate his shoes. The September and November 2007 VA podiatry treatment records confirmed that he had tinea pedis and pes planovalgus and onychomycosis. The records reflect the Veteran's complaint that he had the foot disorder "... since Vietnam." However, this post-service evidence alone does not serve to link the onset of the pes planovalgus, tinea pedis or onychomycosis to period of active service. The Board points out that the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Significantly, there is no competent medical evidence or opinion that even suggests that there exists a medical relationship, or nexus, between the current foot disorder to include tinea pedis and onychomycosis and the Veteran's active service. In the March 2012 report of VA examination, the examiner opined that the claimed foot disorder was less likely as not (less than 50/50 probability) caused by or a result of disease or injury incurred during military service. The examiner explained that there was no evidence of treatment for a foot disorder in service and the first documentation of any foot disorder was 37 years after the Veteran's period of service. Neither the Veteran nor his representative has identified, presented, or alluded to the existence of any medical evidence or opinion to contradict that provided by the VA examiner based on his review of the evidence of record. In short, there is no competent medical evidence to support the claim of service connection for a foot disorder. The only evidence of record supporting the Veteran's claim is his various lay assertions. Although the Veteran is competent to provide evidence of visible symptoms, he is not competent to provide evidence that requires medical knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Moreover, the Veteran's lay assertions are not found to be credible for the purpose of establishing a continuity of symptomatology referable to a foot condition since service because they are not consistent with the earlier and more reliable information provided by him at the time of his separation from service when he denied having foot or skin problems. For the foregoing reasons, the Board finds that the claim of service connection for a foot disorder to include tinea pedis and onychomycosis must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a foot disorder to include tinea pedis and onychomycosis is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs