Citation Nr: 1302956 Decision Date: 01/28/13 Archive Date: 02/05/13 DOCKET NO. 10-09 021 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a foot fungus. REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from June 1998 to July 1998 and from January 2003 to May 2004. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran is seeking to establish service connection for a foot fungus. He contends that he had no issues with a fungus on his foot prior to his 2003/2004 deployment and that such issues developed during that deployment and have continued ever since. In disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record "indicates" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. Under the circumstances of this case, the Board finds that the Veteran should be afforded a VA examination to determine whether there is any relationship between the current skin disorder on his feet and his military service. In making this determination, the Board notes that the Veteran's service treatment records are largely devoid of clinical notations related to the Veteran's feet. A March 2004 service treatment record shows that the Veteran did indeed seek treatment in the dermatology clinic following his deployment and that he was noted to have a "facial skin condition [that] started overseas" in April 2003 and has not resolved. There is a notation for dermatology to evaluate, but there are no further notes. The Veteran reported at his hearing that he was not evaluated further in service and that he separated from service shortly thereafter. The Veteran also testified that this treatment was, in fact, related to his feet, not his face, and that he believes that the notation of "facial" was indicative of a condition on the surface of the skin. Following service, the Veteran reports that the issues with his feet continued and that he self-medicated. In October 2008, he saw a Dr. W., who submitted a statement on his behalf. In this statement the physician reported that the Veteran developed a "severe rash of his feet" in 2003, and that the problem has continued since that time. The physician went on to say, "[t]his clearly appears to be a service related problem." The physician, however, did not provide a diagnosis as the nature of the Veteran's skin condition at that time. In November 2012, the Veteran saw a private dermatologist who also submitted a statement in support of the Veteran's claim. The physician noted that the Veteran reported a "problem that began on his right foot about one year ago," but then reported that he has had "problems with his feet since 2004." Later in this statement, the physician diagnosed pitted keratolysis overlying hereditary keratoderma, and suggested that the waxy yellow thickening on the soles of the Veteran's feet had been ongoing his whole life, but then went on to say that "it is impossible to say exactly how long this process has been going on for, but certainly any condition with warmth, occlusion and humidity could promote an ideal environment for tissue maceration and bacterial overgrowth leading to this condition." While this report was seemingly submitted to support the Veteran's claim and suggests a possible relationship to service, it is unfortunately largely ambiguous and internally inconsistent. It is unclear whether the Veteran has a hereditary condition that has existed his whole life, or a right foot problem existing for just one year, or an ongoing problem with both feet since 2004. While the Board indeed considers this opinion in its analysis, it finds the opinion to be insufficient for a determination as to whether the Veteran has a current foot fungus or other dermatological foot condition that initially manifested in service and has continued ever since. Under these circumstances, the low threshold set forth in McLendon in determining whether a VA examination is warranted have been met. Id. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should schedule the Veteran for a VA examination to evaluate his claimed skin disorder, in particular his claimed foot fungus. A copy of the claims folder and this REMAND must be made available to the examiner in conjunction with the examination. The examination report must include an assessment of the nature of any currently diagnosed foot fungus, or other foot skin disorder, as well as an assessment as to whether any currently diagnosed skin disorder, to include a foot fungus, is at least as likely as not (50 percent likelihood or greater) causally or etiologically related to the Veteran's active service, to include an assessment as to whether this condition initially manifested during active service and has continued ever since. This opinion must include comment on the March 2004 service treatment dermatology note, Dr. W.'s October 2008 private report, and Dr. S.'s November 2012 private report. The examiner should also consider all lay statements by the Veteran related to the initial onset and continuation of symptoms related to his feet, and should also comment on the Veteran's contention that the term "facial" in the 2004 service treatment record is meant to describe a skin condition on the surface of the Veteran's feet. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2012), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 2. Thereafter, the RO/AMC should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the requested examination report and required medical opinion should be reviewed to ensure that they are responsive to and in complete compliance with the directives of this remand and if not, corrective procedures should be implemented. The Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). 3. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The Veteran has the right to submit additional evidence and/or argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until he is notified. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).