Citation Nr: 1304153 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 10-39 827 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for asthma. 2. Entitlement to service connection for an acquired psychiatric disability. 3. Entitlement to service connection for a right knee disability. 4. Entitlement to service connection for a right leg disability. 5. Entitlement to service connection for a left foot disability. 6. Entitlement to service connection for inguinal hernia residuals. 7. Entitlement to service connection for tinea cruris. 8. Entitlement to service connection for a skin rash of the extremities. ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from September 1972 to January 1980. He was in the Marine Corps Reserves from 1980 to 2004, during which time he had periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of April 2007. As set forth on the title page, the Board has separated the issue previously identified as service connection for a skin rash into two issues, based on the history, location and nature of the conditions as shown in the current record. All issues listed on the title page except entitlement to service connection for asthma and tinea cruris are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Currently shown asthma had its onset while the Veteran was on active duty. 2. Tinea cruris is at least as likely as not of service onset. CONCLUSIONS OF LAW 1. Asthma was incurred in active peacetime service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. Tinea cruris was incurred in active peacetime service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In view of the favorable outcome of this appeal, compliance with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)) need not be discussed. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection, a veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the current disability and the in-service disease or injury (or in-service aggravation). Holton v. Shinseki, 557 F.3d 1362, 1355 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). After his period of active duty, the Veteran was in the Marine Corps Reserve from 1980 to 2004, during which time he had periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). See 38 U.S.C.A. § 101(22); see also 38 C.F.R. §§ 3.6(c)(4), 3.6(d)(4). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing ACDUTRA. 38 U.S.C.A. §§ 101(22), 106(d), 1110, 1131; 38 C.F.R. § 3.6(c), 3.303. Service connection may be granted only for disability resulting from injury incurred in or aggravated while performing INACDUTRA, and not for disease. See 38 U.S.C.A. §§ 101(22)-(24), 106(d), 1110, 1131; 38 C.F.R. § 3.6(c), (d), 3.303. Medical evidence of a nexus is not categorically required when the determinative issue involves either medical etiology or diagnosis but rather such issue may, depending on the facts of the case, be established by competent lay evidence under 38 U.S.C.A. § 1154(a). Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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. 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). 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 at 1377. 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. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Daye v. Nicholson, 20 Vet. App. 512 (2006). Except for a partially legible copy of the Veteran's pre-entrance examination, dated in March 1972, service treatment records pertaining to the Veteran's period of active duty are unavailable in this case. Where service medical records are unavailable, the Board has a heightened duty to assist and obligation to explain its findings and conclusions and to carefully consider the benefit of the doubt rule in cases such as this. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Cuevas v. Principi, 3 Vet.App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet.App. 365 (1991). The legal standard, however, for proving a claim for service connection is not lowered, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). Further, there is no adverse presumption of service connection as a result of the loss of these records. Cromer v. Nicholson, 455 F.3d 1346 (Fed. Cir. 2006). Asthma In a May 2005 statement giving the history of his claimed conditions, the Veteran said that he had developed asthma in about 1979, when he was stationed in Hawaii. However, on an examination for compensation purposes performed at a military facility in October 2006, the Veteran said that he was treated for asthma as a child, and was diagnosed again with the condition in 1978 or 1979. Likewise, periodic Reserve examinations dated in February 1995 and August 1997 indicate a history of childhood asthma, which had recurred as an adult. Therefore, the matter of whether asthma pre-existed service must be addressed. A veteran is presumed to be in sound condition when entering into military service except for conditions noted on the entrance examination or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto, and that the disease or injury was not aggravated by service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Cotant v. Principi, 17 Vet. App. 116 (2003); VAOPGCPREC 3-2003 (2003). The burden is on VA to rebut the presumption soundness, by clear and unmistakable evidence, both that the disorder at issue pre-existed service, and was not aggravated by service. See VAOPGCPREC 3-2003 (July 2003); Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). Here, the only available service treatment record which is associated with the Veteran's period of active duty is a very poor copy of a March 1972 pre-entrance examination. On the report of medical history, there is no legible indication that he reported a history of asthma. No positive findings or diagnosis were noted in the sections pertaining to explanations or physical examination findings. Therefore, the presumption of soundness applies to the period of active duty. Besides the Reserve service treatment records noted above, there are numerous other reports of an asthma history in the medical records, which do not include a history of asthma beginning in childhood. Moreover, on the occasions when childhood asthma was noted in the medical records, no continuity of symptomatology was reported; rather, he stated that asthma recurred again as an adult. Also, his reported histories of childhood asthma were recollections of events from childhood, i.e., many years before service and at a time when his ability to absorb information such as medical terms and diagnoses, was likely to be somewhat unreliable. Therefore, the Board finds that the presumption of soundness has not been rebutted. Accordingly, the case must be decided on the basis of direct service connection. In his claim, the Veteran states that asthma began in about 1979. Reserve medical records show that on an undated "Problem Summary List," Problem Number 1 was noted to be mild reactive airways disease, controlled with inhaler. The "Date Problem Recorded" was "c 1978." The source of the information for this summary is not identified, but use of the word "recorded" suggests that medical records may have been the source. This interpretation is further supported by the identification of the condition as "reactive airways disease," a term rarely if ever used by the Veteran. Other medical records compiled during the Veteran's period of Reserve service, including periodic examination reports, note a history of asthma. Even when he said, in August 1997, that he had been treated as a child, he said it had recurred when he was 26 years old; as he was born in 1953, this would be in about 1979. In August 2000, RAD (reactive airways disease), stable, was noted. On an examination in preparation for retirement, in April 2004, a history of asthma was noted. The medical offer commented that the complaints of asthma were subjective, with no evaluation by the military documented. As most of his treatment was provided by Japanese civilians, and was written in Kanji, the medical officer could not fully evaluate his claims of health history. However, during his time in the Reserves, his asthma was described variously as "mild," "intermittent," and/or "exercise-induced," and he was able to perform his duties, using an inhaler when needed. Thus, the Board does not find the absence of military documentation of his asthma to be inconsistent with the presence of the condition, since it was well-controlled. Moreover, on the compensation examination for VA purposes in October 2006, a diagnosis of asthma was entered. Pulmonary function tests in November 2006 were interpreted as showing mild obstruction with positive bronchodilator response, consistent with asthma. Thus, the existence of asthma has been medically confirmed. That examiner did not provide an opinion as to nexus. The Veteran, however, is competent to report his history of asthma, which was eventually clinically confirmed by on examination in October 2006. Moreover, in view of the consistent history provided by the Veteran over a period of many years, with no conflicting evidence, the Board finds the Veteran's statements to be credible. In these circumstances, a nexus opinion is not necessary. See Jandreau v. Nicholson, 492 F.3d at 1377 (lay evidence can be sufficient to establish a nexus when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Moreover, the Veteran's credible statements, together with the Reserve treatment records, are sufficient to establish continuity of symptomatology. Accordingly, the Board finds that service connection for asthma is warranted, based on the evidence currently of record. In reaching this determination, the benefit-of-the-doubt rule has been applied. 38 U.S.C.A. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Tinea Cruris The Veteran contends that he first developed a groin rash in about 1974 or 1975, when he was stationed in Puerto Rico. On the compensation examination for VA purposes in October 2006, a history of the Veteran's having been diagnosed with tinea cruris in 1974-1975 while on active duty, which had presented since, was reported. On examination, he had erythema and scaling noted in the groin bilaterally. The diagnosis was moderate to severe tinea cruris, which had not been adequately treated, although he was able to keep symptoms controlled with medications. The examiner did not express an opinion as to a nexus to active service. In considering whether there is sufficient evidence of service incurrence and continuity of symptomatology, most Reserve military periodic examination reports do not specifically mention a skin condition involving the groin. However, the Reserve records show several pertinent complaints. In April 1993, the Veteran reported a rash in groin, which had possibly been diagnosed as tinea cruris. An undated treatment record, most likely created sometime from late 1994 to early 1995, it was noted that the Veteran complained of a pruritic groin rash present for more than 10 years, which may or may not extend back to his period of active duty 15 year earlier. It reportedly responded partially to antifungal cream. On examination there was a red, macular confluent rash in the groin, with a few red papular scattered lesions. The assessment was groin rash, most like tinea cruris, with history of response to antifungal treatment, but with persistent rash despite daily antifungal treatment. It was thought to be possibly erythrosis. On an examination in May 2002, he had a history of "jock itch 1985." On the retirement examination in August 2004, however, the Veteran reported a history of "jock itch" since 1975. As noted above, on the October 2006 compensation examination, the Veteran had erythema and scaling noted in the groin bilaterally, diagnosed as tinea cruris, which had not been adequately treated, although he was able to keep symptoms controlled with medications. In assessing the credibility of the Veteran's history of tinea cruris since his period of active duty, the only seemingly inconsistent statement is the history of "jock itch 1985" noted in May 2002. This was unaccompanied by any explanation of whether this meant in, until, or since 1985. It also appears from the records that the condition has been recurrent, as well as sometimes more responsive to treatment, which could explain the lack of a pertinent history noted at times, as well as the reference to 1985. Taken as a whole, the Board finds that the Veteran's current statements that he has had tinea cruris since he was on active duty to be credible, as they are largely consistent with the other evidence of record, in particular when considered as a recurrent condition which can often be well-controlled. He also has a current diagnosis of tinea cruris. In this regard, although the examination was in October 2006, there is a current disability for VA purposes when an appellant has a disability at the time a claim is filed or during the pendency of that claim, even if that disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319 (2007). Given these factors, the Board finds that the evidence is in equipoise. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Therefore, with the application of the reasonable doubt doctrine, service connection for tinea cruris is warranted. 38 U.S.C.A. § 5107(b); see Ortiz, supra; Gilbert, supra. ORDER Service connection for asthma is granted. Service connection for tinea cruris is granted. REMAND With respect to the remaining issues, additional development is required prior to an appellate decision. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). First, efforts to obtain service treatment records for the Veteran's period of active duty have been unsuccessful to date. In a deferred rating action dated in January 2010, it was noted that VA had been unable to locate the Veteran's active duty service treatment records, and that negative responses had been received from National Personnel Records Center (NPRC) and Records Management Center (RMC). It was noted that the Veteran had provided a statement that his active duty records were at Camp Pendleton in 1980 when he was discharged from active duty, and that he had been in the Reserves in Ohio after that. He provided specific addresses for these records, and it was noted that the Marine Corps records would have been forwarded to the Reserve unit. Accordingly records from these locations were to be requested. However, there is no indication that this action was completed. Instead, a summary of the PIES requests was printed in July 2010, documenting efforts made through May 2006. However, that simply shows that the records were not available at NPRC, or in the DPRIS records already sent to VA. in July 2010, a request was sent to the RMC for the Veteran's service treatment records, with no response noted. Previously, the Veteran's service treatment records had been requested from RMC in January 2006, with a response later that month from RMC that no additional records were found. Therefore, only if there is reason to believe that the Veteran's service treatment records for his period of active duty would have been received at the RMC after January 2006, does that request need to be pursued. In addition, the compensation examination for VA purposes in October 2006, although reporting findings and diagnoses, did not provide nexus opinions, and such are needed concerning the issues of service connection for right knee, right leg, and left foot disabilities. Therefore, a medical opinion (or, if the clinician deems necessary, an examination) is needed to address the nexus questions. Accordingly, the case is REMANDED for the following action: 1. With respect to the unanswered RMC request dated in July 2010, review the PIES requests completed in May 2006 (printed in July 2010) as well as the January 2006 RMC request, and ensure that all appropriate efforts have been made to obtain the Veteran's active duty service treatment records from those locations, in view of any time lag that may have occurred between his retirement from the Marine Corps Reserves in November 2004 and the forwarding of his records to NPRC or RMC. If indicated, make all necessary requests for these records, which must be documented in the claims file. 2. If the active duty service treatment records are still missing, contact the Military Police Company in Dayton, Ohio, identified in the January 2010 Deferred Rating Decision, using, as appropriate, the address, phone number, and dates listed on that document. In addition, request the active duty service treatment records from Camp Pendleton, California, for his period of active duty from September 1972 to January 1980. All efforts made to obtain these records must be documented in the claims file. 3. Then, obtain an examination or opinion, as appropriate, concerning the following disabilities: * Right knee disabilities, diagnosed as patellofemoral pain syndrome and tricompartmental degenerative changes on the October 2006 examination; * Right lower leg disability, diagnosed as "tug reaction caused by the origin of the soleus muscle" on the October 2006 examination; * Left foot disability, diagnosed as plantar fasciitis on the October 2006 examination, with X-rays showing spurring in the calcaneus. The opinion should address whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that any such disability had its onset during the Veteran's period of active duty from September 1972 to January 1980. It must be kept in mind that the records compiled during the Veteran's Reserve service, from 1980 to 2004, are important primarily for purpose of helping to establish continuity of symptomatology. If the physician finds that the onset of any of the conditions was during the period that he was in the Reserves, a specific period of ACDUTRA or INACDUTRA must be identified as the time of onset. The Veteran's claims file must be reviewed by the examiner in conjunction with the opinions. The examiner must explain the rationale for all opinions. 4. After assuring compliance with the above development, and any other notice and development action required by law, the RO should readjudicate the claims on appeal. If any claim is denied, the Veteran should be provided with a supplemental statement of the case, and given an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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). ______________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs