Citation Nr: 1306506 Decision Date: 02/26/13 Archive Date: 03/01/13 DOCKET NO. 09-27 308 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a skin disorder, and, if so, whether service connection is warranted. 2. Entitlement to service connection for left fifth toe amputation, including as secondary to a skin disorder. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran had active service from August 1965 to August 1968. He is a decorated Vietnam War Veteran, having been awarded several medals and awards to include a Combat Infantryman Badge and a Bronze Star Medal with "V" Device. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2007 and March 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board notes that the RO characterized the issue on appeal as one to reopen a claim for epidermophytosis pedis with pigmentation right thigh and right leg. However, in reviewing the medical evidence and Veteran's statements, and the characterization of the issue by prior final rating decision as entitlement to service connection for a skin condition, the Board has reframed the issue as service connection for a skin disorder. See generally Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). A hearing was held on November 26, 2012, by means of video conferencing equipment with the appellant in Atlanta, Georgia, before Kathleen K. Gallagher, a Veterans Law Judge (VLJ), sitting in Washington, DC, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the Veteran's electronic claims file. In December 2011, the Veteran submitted a written statement raising the claims of entitlement to an increased rating for posttraumatic stress disorder (PTSD), and entitlement to service connection for erectile dysfunction, hypertension, hernia, and sleep apnea, all of which he contends are due to the PTSD. These claims have not yet been adjudicated by the RO and are, therefore, REFERRED to the RO for appropriate action. FINDINGS OF FACT 1. In January 1985, the RO denied service connection for a skin condition; the decision was not appealed. 2. Some of the evidence received since January 1985, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for a skin disorder and raises a reasonable possibility of substantiating the claim. 3. The Veteran's skin disorder had its onset in active service and has continued ever since. 4. It is at least as likely that the Veteran's left fifth toe amputation is proximately due to or the result of the Veteran's service-connected skin disorder as it is the result of some other cause or factor. CONCLUSIONS OF LAW 1. The January 1985 rating decision denying service connection for a skin disorder is final. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.102, 20.1103 (2012). 2. The evidence received subsequent to the January 1985 rating decision is new and material and the claim for service connection for a skin disorder is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. Resolving reasonable doubt in favor of the Veteran's claim, the Veteran's skin disorder was incurred in active service. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(d) (2012). 4. Resolving reasonable doubt in favor of the Veteran's claim, left fifth toe amputation is proximately due to or the result of the Veteran's service-connected skin disorder. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.310(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS DUTIES TO NOTIFY AND ASSIST With respect to each of the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Board is taking action favorable to the Veteran by reopening the claim of entitlement to service connection for a skin disorder and granting the underlying service connection claim, as well as granting service connection for left fifth toe amputation secondary to the skin disorder. Accordingly, without deciding that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and need not be further considered as this decision poses no risk of prejudice to the Veteran. LAW AND ANALYSIS I. New and Material Evidence The Veteran's claim for service connection for a skin condition was originally denied by a June 1985 rating decision. The Veteran was provided notification of the decision and his appellate and procedural rights, but did not appeal the decision. Therefore, the decision is final. 38 C.F.R. § 20.1103. The Veteran submitted a petition to reopen his claim for service connection in March 2007. Despite the finality of a prior decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Court of Appeals for Veterans Claims (Court) has held that when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Further, the Court has also held that in order to reopen a previously and finally disallowed claim there must be new and material evidence presented since the time the claim was finally disallowed on any basis, not only since the time the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996) (overruled on other grounds). For claims filed on or after August 29, 2001, 38 C.F.R. § 3.156(a) provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 66 Fed. Reg. 45,628, 45,630 (August 29, 2001). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence on file at the time of the previous denial in January 1985 consists of service treatment records, the Veteran's claim, and post-service VA treatment records dated in 1983 and 1984. The January 1985 rating decision denied the Veteran's claim for service connection because there was not evidence to show that the Veteran's skin condition was incurred in service, including no evidence of a skin condition related to exposure to herbicides during service. As the previous denial of service connection was premised on a finding that there was no evidence that the Veteran's disability was associated with his military service, for evidence to be new and material, (i.e., relating to unestablished facts necessary to substantiate the claim and raising a reasonable possibility of substantiating the claim), the evidence would have to tend to show that the Veteran's disability was in fact incurred during his active military service. The evidence associated with the claims file subsequent to the January 1985 rating decision includes the Veteran's written statements and hearing testimony, private and VA treatment records, and a statement from the Veteran's wife. The Board finds that the private records, Veteran's statements, and his wife's statement, all constitute evidence that may be considered both new and material, and sufficient to reopen his claim for service connection for a skin disorder. First, the Board finds that the lay statements and medical records are "new" in that they were not of record at the time of the January 1985 rating decision. The primary basis of the prior claim was that the Veteran had sores attributable to in-service herbicide exposure. Since that time, the Veteran has submitted statements and provided hearing testimony suggesting that he experienced skin problems during his Vietnam tour and that these symptoms have continued ever since that time. Moreover, two of the Veteran's private physicians submitted statements in 2007 related to the possibility that the Veteran's current skin condition is a result of his active service. No such medical opinions existed at the time of the January 1985 rating decision. The Board also finds that the Veteran's statements and testimony, as well as the private physician opinions, are "material." As noted above, evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The Board notes that in a recent case, the Court clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. Here, the Board finds that the Veteran's statements and testimony, as well as the positive private nexus opinions, are related to an unsubstantiated element, i.e., whether his current skin disorder initially manifested during his active service. The Veteran is competent to state whether he experienced symptoms of a skin disorder at any given time, as well as whether he has experienced any such symptoms since his active service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), Charles v. Principi, 16 Vet. App. 370, 374 (2002); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran and the private physicians are also presumed credible with respect to their statements. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Furthermore, when the Veteran's lay statements and the positive private opinions are viewed in conjunction with other evidence of record (the Veteran's confirmed combat service and VA treatment records showing reports that the Veteran has experienced ongoing skin disorder symptoms since the early 1970's, shortly following his discharge from service), the new evidence raises a reasonable possibility of substantiating the claim. See Shade. Therefore, the Veteran's statements and testimony and the 2007 private physician reports are found to be new and material evidence and the Veteran's request to reopen the claim for service connection for a skin disorder is granted. II. Service Connection Laws and Regulations 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. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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. 38 C.F.R. § 3.303(d). In order to establish direct service connection for a disability or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). In addition, in the case of any Veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation. Every reasonable doubt shall be resolved in favor of the Veteran. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). "Satisfactory evidence" is credible evidence. Collette v. Brown, 82 F.3d 389, 392 (1996). Such credible, consistent evidence may be rebutted only by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The provisions of 38 U.S.C.A. § 1154(b) do not establish a presumption of service connection but ease the combat Veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. Clyburn v. West, 12 Vet. App. 296, 303 (1999); Caluza v. Brown, 7 Vet. App. 498, 507 (1995). "Section 1154(b) provides a factual basis upon which a determination can be made that a particular . . . injury was incurred . . . in service but not a basis to link etiologically the [injury] in service to the current condition." Cohen v. Brown, 10 Vet. App. 128, 138 (1997) (citing Libertine v. Brown, 9 Vet. App. 521, 524 (1996)). Thus, the provisions of section 1154(b) apply only to the second material issue involved in establishing direct service connection, i.e., evidence of the incurrence of a disease or injury in service. Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (a link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Factual Background During service, the Veteran received almost no treatment of his skin. In December 1966, he sought treatment for a rash, however the area of the body was not identified in the clinical notes, and there is no evidence that he was treated at any other time during his active service for complaints related to the skin. His June 1968 separation examination is without mention of symptoms or a diagnosis related to the skin. Following the Veteran's August 1968 discharge from active service, the first symptoms of a skin disorder in the medical evidence are found in a March 1983 note, followed by an April 1983 follow-up note. The March 1983 note indicates that the Veteran complained of a chronic skin rash off and on for twelve years, which was noted as localized to the right leg. The Board observes that this approximation dates the symptoms back to 1971, very close in time with the Veteran's active service. Moreover, in the history portion of this report, it is noted that the Veteran reported that he developed a skin rash upon his return from Vietnam, which had been intermittent for the prior twelve years. This note could conceivably indicate that the Veteran experienced a skin rash from the time of his Vietnam tour until approximately 1971, after which it became intermittent. The April 1983 follow-up treatment note confirms the Veteran's diagnosis as eczematous dermatitis, and notes that there is mildly inflammatory keratosis pilaris on the upper anterior arm, as well as right lower leg post-inflammatory changes. In December 1984, the Veteran underwent VA examination of his skin. At that time, the Veteran confirmed that he had not received actual treatment of his skin in service, but he could not recall the symptoms experienced during service. He did confirm recurrent rash on his arms, right lower extremity, lower back, and right foot over the prior ten years. At the time of examination, he had areas of darkish pigmentation on the lower right thigh, right lower leg above the ankles, as well as scattered papules on the upper back and between the toes. The diagnosis at that time was pigmentation of the right thigh and right leg, and epidermo-phytosis pedis. Private treatment notes dated between June 1999 and October 2001 from Dr. L.F.S. show ongoing skin conditions. The June 1999 notes show that the Veteran started treatment after having treated with VA for some time. He was noted to have had a skin issue on his leg that subsequently spread to other areas. At the time, he had hyperpigmented, lichenified, honey-colored encrusted plaque of the right leg, as well as papulovesiculation of the trunk and extremities. By September 1999, he was noted to have hyperkeratosis of the plantar surfaces of the feet. In November 1999, the area covered was noted to be the neck, chest, and back, and in December 1999 he was noted to have skip toenail plate subungual hyperkeratosis, onycholysis, interdigital toe web maceration and scaling. In 2000, onychomycosis and tinea pedis was continuously reported, as well as intermittent issues related to his back and extremities through October 2001. An April 2005 x-ray of the left foot revealed erosive changes involving the middle phalanx and distal phalanx, and the findings were noted as "worrisome for osteomyelitis." A June 2005 MRI yielded abnormal results, particularly in the area of the entire middle phalanx of the left fifth toe, with edema and fluid collection. The findings were deemed to represent osteomyelitis, possibly chronic, primarily confined to the middle phalanx. In June 2005, Dr. R.D.C., a private physician, submitted a statement in which he noted that the Veteran had been his patient for a "number of years" during which he has continually needed Lidex cream for his eczema. March 2006 private notes indicate that the Veteran's "skin problems persist." The Veteran underwent a VA Agent Orange Registry examination in December 2006. He was reported to have no conditions attributable to Agent Orange exposure. Physical examination revealed that he had no unusual rashes or lesions other than plaque on the feet consistent with eczematous process. A January 2007 VA outpatient note from the Carl Vinson VA Medical Center shows that the Veteran reported for treatment of skin lesions. A punch biopsy was ordered related to a lesion on his back. In February 2007, the veteran reported to a VA civilian based outpatient clinic for the first time for treatment. While presenting his history to his new physician, the Veteran noted a long history of inflammatory dermatitis with post inflammatory hyperpigmentation. In October 2007, Dr. R.D.C. submitted a statement confirming that he had treated the Veteran since 1994 and that ever since then, the Veteran has had problems with his skin. In particular, the Veteran was reported to have multiple scattered hyperpigmented lesions, as well as chronic abnormalities of the toenails. The doctor also confirmed that the Veteran reported to him that he has had these skin problems ever since he was in Vietnam. Based upon these facts, this physician deemed it "more likely" that the Veteran's skin condition is a result of his military service. Another October 2007 report, this one from Dr. F.B., shows that the Veteran has had treatment related to the skin condition on his feet for over ten years prior to this report, and that following dermatitis, he was diagnosed with osteomyelitis of the left foot. The doctor concluded that this problem is more likely a result of the Veteran's years of military service. The Veteran's wife also submitted a statement in support of his claim in October 2007, in which she recalled that he had ongoing skin problems at the time of their marriage in 1977. By March 2008, the Veteran was experiencing a severe fungal rash to both feet, with an infection to the bone of the left fifth toe, which was associated with a breakdown of the skin and infection. Amputation of the left fifth toe was scheduled as a result. In April 2008, the Veteran underwent amputation of the left fifth toe. The operative report shows that this procedure as associated with left fifth toe osteomyelitis. Most recently, the Veteran provided sworn testimony at a videoconference hearing before the undersigned Veterans Law Judge. He reported at that time that he initially had problems with his skin in the early 1970s, to include rash, discoloration, scaly skin, blisters and bumps. He recalled that during service he did have issues while on the field in Vietnam, but that the circumstances did not allow for sick call visits and, rather, there were medics assigned to the unit, from which he received ointments and foot powder. Analysis - Skin Disorder As to the initial element of a service connection claim, the Board finds that the Veteran does have a current skin disorder. Throughout the course of this claim and appeal, as discussed above, the evidence has shown that he has been treated for eczema over various parts of his body, as well as osteomyelitis on his feet. There is no doubt that the Veteran has had a current skin disorder throughout this claim and appeal. The question is whether a causal connection can be shown between his skin condition and his active service. As to whether there was an in-service incurrence of a skin disorder, as noted above, there is one complaint related to the skin in 1966 noted in the service treatment records. However, the Veteran asserts that he also experienced issues with his skin during his tour in Vietnam, at which time there was no access to a medical clinic. He personally recalls receiving ointments and powders for his skin from medics in the field during his combat tour in Vietnam. As noted in the Introduction, the Veteran's service is very distinguished, and his tour resulted in receipt of numerous medals and awards, to include a Combat Infantryman Badge and a Bronze Star Medal with "V" Device, indicative of combat service. Moreover, the Veteran is presumed competent to report experiences which he has endured first-hand, and are consistent with the type of combat service he experienced in Vietnam, and there is no evidence which clearly rebuts his assertions of experiencing a skin condition in service. Thus, in-service incurrence of the claimed disability has been demonstrated. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d); also see Collette v. Brown, 82 F.3d 389, 392 (1996). As to the matter of whether the Veteran's current skin disorder is causally connected to the showing of in-service incurrence of a skin disorder, the Board finds that the Veteran's lay statements combined with the medical evidence of record show that the in-service skin condition has continued to the present. In particular, the Veteran's statements, both at his hearing, and as far back as in 1983 to a physician, show that he experienced symptoms of a skin condition in service and ever since. The medical records clearly document that the condition was reported as back to the early 1970's, following the late 1960's separation of the Veteran from active service. Moreover, his statements, for which the Board finds no reason to question credibility, have been consistent for years in dating his symptoms to his time in Vietnam. And, medical records show ongoing treatment for the skin complaints ever since the initial medical record showing treatment in 1983. Furthermore, a thorough review of the entire record reveals that there is no evidence whatsoever challenging the notion that this skin disorder initially manifested in service and has continued ever since. Thus, the Board finds that the preponderance of the evidence supports the notion that the Veteran experienced symptoms of a skin disorder during his combat tour in Vietnam, which culminated into continuing symptoms since that time, with later treatment of a skin disorder, which continues to the present. Because the preponderance of the evidence supports the Veteran's claim, service connection for a skin disorder is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis - Left Fifth Toe Amputation As discussed above, the medical evidence shows that the Veteran underwent a left fifth toe amputation in 2008. His skin condition, according to the medical records, had led to a breakdown in the skin and resulting infection, which ultimately led to an infection in the bone of the left fifth toe. Due to the bone infection, the toe was amputated. The operative report actually documented that the procedure was associated with left fifth toe osteomyelitis. An earlier, 2007 report showed that the Veteran's treatment for dermatitis over the years had led to osteomyelitis. Thus, it is clear in the medical evidence that the Veteran's ongoing skin condition ultimately led to osteomyelitis in the toe, which caused the skin to breakdown and become infected, after which the bone became infected, causing the left fifth toe amputation in 2008. Because the evidence shows that the now service-connected skin condition ultimately caused the left fifth toe amputation, it can be said that the amputation was proximately due to the service-connected disability. Therefore, entitlement to service connection for left fifth toe amputation is warranted as secondary to service-connected skin disorder. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 3.310. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a skin disorder is reopened. Entitlement to service connection for a skin disorder is granted. Entitlement to service connection for left fifth toe amputation, as secondary to the service-connected skin disorder, is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs