Citation Nr: 1308395 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 09-24 305 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for a skin disorder of the feet. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which denied service connection for foot fungus. In July 2009, the Veteran requested a Travel Board hearing. However, he failed to appear for the scheduled hearing. He did not explain his absence or request to reschedule his hearing, and thus the Board deemed his request for a hearing withdrawn. 38 C.F.R. § 20.704(d) (2012). The Board previously remanded the Veteran's claim in June 2012 for additional evidentiary development, and the case now returns to the Board for further review. FINDING OF FACT Dermatophytosis of the feet is etiologically related to service. CONCLUSION OF LAW Dermatophytosis of the feet was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Service Connection In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 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. 38 C.F.R. § 3.303(d) (2012). For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). However, service connection based on a theory of continuity of symptomatology is applicable only for those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309. Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The Veteran underwent a pre-induction examination in February 1969. He was noted to have acne scars on his back. No other skin condition, including a skin condition of the feet, was noted. In August 1969, the Veteran complained of a rash on his legs. He denied any spreading of the rash or itching. He was treated with a topical cream. There are no further entries documenting a skin condition during service. The Veteran underwent a separation examination in March 1971. No relevant abnormalities were noted. In a July 2008 statement, the Veteran reported that he developed a foot fungus during his service in Vietnam, and that this disorder had persisted ever since. A VA examination was conducted in June 2012. The Veteran reported that during his service in Vietnam, he traveled in rubber rafts exploring the rivers. His feet were constantly wet, and he developed dermatophytosis of both feet. He reported this to the medic, but no treatment was initiated at that time. Following discharge, he was treated by a civilian provider, and later switched his care to the VA facility in Worcester, MA. On examination, there were cracks seen at the base of the 3rd and 4th toes on the plantar aspect. The examiner diagnosed the Veteran with dermatophytosis. Following a review of the claims file, the examiner indicated that the Veteran's condition was at least as likely as not incurred in service. He stated that it was logical to assume that the circumstances of the Veteran's service, including wet feet for prolonged periods, would be the cause of his infection, as dermatophytosis occurs in warm and moist settings consistent with the tropical setting of Vietnam. The Board finds that service connection for dermatophytosis of the feet is warranted. The Veteran's service records do not reflect any specific skin condition of the feet. However, as noted in the Board's June 2012 remand, regardless of whether the claimed disorder was documented in service, the Veteran is competent to report the symptoms he experienced and identify readily identifiable disorders. The Veteran's Form DD-214 shows that he served in the Infantry in Vietnam. Given the Veteran's military occupational specialty (MOS) and Vietnam service, his reports of having field service and then developing a foot fungus during are credible and consistent with the circumstances of his service. Moreover, based on this history, as well as a review of the claims file and a physical examination, the VA examiner concluded that the Veteran's current condition was incurred as a result of the conditions of his service. There is no competent medical opinion to refute this conclusion, or to otherwise suggest that the Veteran's current dermatophytosis is not related to his time in the military. Therefore, the overall weight of the evidence establishes that dermatophytosis is related to service, and service connection is granted. ORDER Service connection for dermatophytosis of the feet is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs