Citation Nr: 1300380 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 10-23 576 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES Entitlement to service connection for a fungal infection of the feet, diagnosed as tinea unguium/onychomycosis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. R. dela Rosa, Associate Counsel INTRODUCTION The Veteran had active service from January 1942 to January 1946. This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 2009 decision by the Department of Veterans Affairs (VA) St. Petersburg, Florida Regional Office (RO). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for tinnitus 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 Tinea unguium/onychomycosis was first documented decades after service, and the most credible evidence does not link its onset to service. CONCLUSION OF LAW Tinea unguium/onychomycosis was not incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The VA has a duty to provide notification to the Veteran with to respect establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). VA's notice requirements were addressed by a letter issued in May 2009, which advised the Veteran of the criteria for establishing service connection, as well as the evidence he was responsible for obtaining and the evidence VA would obtain on his behalf. The letter further informed the Veteran of the methods by which VA determines disability ratings and establishes effective dates. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, the Board finds that all relevant facts have been properly developed and that all available evidence necessary for the equitable resolution of the issue on appeal has been obtained. The Veteran's VA medical records have been obtained. VA attempted to obtain the Veteran's service treatment records (STRs) from the National Personnel Records Center (NPRC), but received notification in June 2008 that the records are unavailable as they were fire related. The Veteran was informed of the records' unavailability in a September 2008 notice letter and responded in a September 2008 letter that he did not have his STRs. The Veteran was also offered an opportunity to testify at a hearing before the Board, but he declined the offer, and he was examined in connection with this claim. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough. There must be chronic disability resulting from that injury or disease. When a chronic disease identity is established in service, then a showing of continuity after discharge is not required. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran seeks service connection for a fungal infection of his feet, which he avers is due to constant emersion of both feet in salt water while working in the boat wells on board various ships in the Pacific. See April 2009 Statement. The Veteran has a current disability, diagnosed as tinea unguium/onychomycosis. Therefore, the question is whether this was incurred in service. The evidence for consideration includes the period of time since the Veteran's service, his statements and those from his wife and friends, the post service documentation of the disability, and the report of an examination conducted for VA purposes in connection with this claim. As indicated above, the Veteran in this case served 4 years during World War II. He was discharged 63 years prior to his application for the benefits at issue. Because his service treatment records were lost in the 1973 fire where records from that era were stored, there is no contemporaneous documentation of the Veteran's claimed condition during service. However, in the 63 years since the Veteran was discharged from service, he has not identified or produced any record dated prior to 2009 documenting the presence of the claimed disability. Thus, there is a 63 year period of time where if there were any records produced reflecting the presence of the claimed disorder, it would be the responsibility of the Veteran to submit them, or to identify where they could be obtained. He has not done so. Although it would not be appropriate to conclude that the failure to document the claimed condition for 6 decades conclusively establishes it has not been a chronic problem since service, it certainly may be a consideration in that regard. In an apparent effort to fill in this 63 year gap, several statements have been submitted. One from the Veteran's wife, dated in 2009, two others from friends of the Veteran, also dated in 2009, and those from the Veteran. As to the wife's statement, it comes 63 years after service, so it certainly is not itself a record at all contemporaneous with service. Further, in the statement, she acknowledges she has only known the Veteran 38 years, or since 1972, when they met in Vietnam, which itself is 26 years after the Veteran's period of service. Thus, she could not personally know the condition of the Veteran's feet until more than 2 decades after his service. It is also noteworthy, that the Veteran and his wife did not marry until 1998, according to a marriage certificate associated with the claims file. It is not clear from her narrative, but there was some period of separation between when she and the Veteran first met, and when they re-united after her arrival in the United States in 1975. In any event, she appears to be relating the content of their conversations from the early 1970's, where he told her he had toenail fungus from having his feet in water while he was in the military during World War II. She went on that she recalled he told her that the Veteran's military doctor suggested to the Veteran his toenails be removed, but that the Veteran preferred not to have that occur, so he stopped seeing that doctor. The Board considers it implausible on its face that the Veteran's wife could recall this level of detail of a conversation about the Veteran's toenails some 35 years after the conversation is supposed to have occurred. This is particularly so, when it is considered that during the interval, she and the Veteran had some sort of separation before reuniting and marrying. As such, the Board does not accord this any probative value. Similarly, the Board considers it implausible that the Veteran's friends could recall the level of detail they report from a conversation that took place in the 1970s. The one would have it that she recalls an appointment for a pedicure in 1978, and the other a conversation from the late 1970's while fishing with the Veteran, when he is supposed to have informed them he acquired some fungus effecting his feet during World War II. Moreover, since they acknowledge they only first met the Veteran in the 1970's, any personal observation of the Veteran's feet would have occurred more than 2 decades after service, too remote from service to support a conclusion the condition had been present since service. Therefore, the Board does not accord these statements any probative value. Also for consideration is the report of the examination conducted in connection with this claim in October 2011, which addressed the Veteran's contentions as to how he acquired his current condition. He asserts it arose in connection with his feet being constantly immersed in water while working in the wells of various ships during service. The examiner, however, explained that the condition affecting the Veteran's toes is not associated with profound humidity or wetness. This refutes the scenario the Veteran has described, which in turn further diminishes the probative value of the statement from the Veteran's wife and his friends. For his part, the Veteran is not shown to possess the medical expertise to competently diagnose a fungal condition and while competent to describe his observations of his feet, given the VA examiner negated the Veteran's version of causation, the Veteran's description of his historical observations are not considered credible. Furthermore, in an early statement received in June 2009, the Veteran described having the condition after service, "most of the rest of my life." That expression does not describe a chronic condition present continually since service, which raises the scenario that any in-service condition resolved, and that the Veteran experienced a subsequent re-introduction of a fungus post service, that happens to have been long term. Thus, with the first medical documentation of the claimed condition occurring 6 decades after service, a medical opinion refuting the manner of incurrence in service the Veteran has described, and the implausible nature of the statements provided by the Veteran's wife and friends in support of the claim, the Board concludes the greater weight of the evidence is against the claim for service connection, and the appeal is denied. ORDER Service connection for a fungal infection of the feet, diagnosed as tinea unguium/onychomycosis is denied. ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs