Citation Nr: 1308982 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 09-26 397 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office(RO) in Houston, Texas THE ISSUE Entitlement to service connection for a bilateral foot rash. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to December 1969. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2008 rating decision in which the RO denied service connection for a bilateral foot rash. In August 2008, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in July 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later in July 2009. After further development, the RO continued to deny the claim in a December 2012 supplemental SOC (SSOC). In February 2013, the Veteran testified during a Board video-conference hearing. pursuant to the provisions of 38 U.S.C.A. § 7107(e), with the undersigned Veterans Law Judge was located in Washington, D.C., and the Veteran located at the RO. A transcript of this hearing is contained in the Virtual VA file (VA's electronic data storage system). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the matter herein decided has been accomplished. 2. Although the Veteran currently asserts continuous symptoms associated with a bilateral foot rash in and since service, these assertions are not deemed credible; a chronic skin rash of the feet was first diagnosed many years after service; and there is no competent, credible and/or persuasive evidence or opinion to refute the probative medical opinion of record finding that current bilateral tinea pedis is not etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a bilateral foot rash are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a September 2007 letter issued prior to the rating decision on appeal, the RO provided notice to the appellant regarding what information and evidence was needed to substantiate the claim for service connection for a foot rash, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. This letter specifically informed the Veteran to submit any evidence in his possession pertinent to the claim (consistent with Pelegrini and the version of 38 C.F.R. § 3.159 then in effect). This letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Medical evidence associated with the claims file consists of the available service treatment reports and VA and private treatment records. The record also reflects reports from a VA examination conducted in November 2012 that includes an opinion, based on a review of the claims file, addressing the question of whether a current foot rash is etiologically related to service and that is otherwise adequate for adjudication purposes. Also of record and considered in connection with the appeal is the transcript of the Veteran's February 2013 hearing contained in the Virtual VA file, along with various written statements provided by the Veteran and by his representative, on his behalf. The Board finds that no further RO action on this claim, prior to appellate consideration, is required. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder on a direct basis, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic diseases shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and the Virtual VA file. (The Virtual VA file contains no pertinent information that is not physically of record other than the transcript from the February 2013 hearing). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The service treatment reports reflect one isolated reference to a foot rash in July 1969 with treatment to include the application of foot powder and cold soaks. A foot rash was not shown during the December 1969 separation examination or upon Marine Corps Reserves examinations conducted in May 1972 and June 1975. The Veteran specifically denied having skin disease or foot trouble on medical histories collected in conjunction with the May 1972 and June 1975 examinations. After service, and in connection with a claim for service connection for frostbite filed by the Veteran in April 1990, a June 1990 VA examination revealed hyperpigmentation of the great and fifth toes with subungual debris on the first digits of each foot. Clinical reports of record thereafter, to include private clinical reports dated in 1999 and 2000 and VA outpatient treatment reports dated from September 2006 to January 2007, reflect treatment for unrelated disabilities, to include diabetes. A September 2006 VA outpatient treatment report reflects a negative physical examination of the feet, to include no skin breaks, deformity, erythema, edema, corns, or excessive callus or nail abnormalities. The aforementioned November 2012 VA examination conducted to assist in the determination of whether the Veteran had a bilateral foot rash as a result of service demonstrated white scaling on the plantar aspects of both feet consistent with tinea pedis. It was the opinion of the examiner, documented to have been based on a review of the claims file, interview with the Veteran (in which the examiner documents the Veteran describing ongoing problems with a rash of the feet since he was treated for such symptoms during service in 1969), and physical examination, that the Veteran's current tinea pedis was less likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner based this opinion on the fact that, following the isolated treatment during service for a foot rash in July 1969, there were no other complaints about a foot rash in the service treatment reports; the fact that the military examinations thereafter were negative for a foot rash; and the fact that there were no post service treatment records showing a diagnosis or complaints relating to a skin rash. The examiner specifically concluded that it was less likely as not that the tinea pedis diagnosed at this examination was "incurred or caused by the rash that occurred in July 1969." The Board accepts this opinion as probative of the medical nexus question. See, e.g., Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)) (holding that probative value and weight to be assigned to the evidence is within the province of the Board). Significantly, neither the Veteran nor his representative has presented or identified any competent medical evidence or opinion refuting the negative opinion discussed above or that otherwise supports the claim for service connection. Moreover, on these facts, the Veteran cannot controvert the medical opinion of record or otherwise support his claim on the basis of lay assertions, alone. The Veteran essentially asserts, to include in sworn testimony to the undersigned, that he has experienced continuing problems with a skin rash since the treatment for such disability shown in July 1969. The Board points out that that the United States Court of Appeals for the Federal Circuit recently clarified that the law providing for awards of service connection based on continuity of symptomatology only pertains to "chronic" diseases listed under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Tinea pedis is not among the diseases listed at section 3.309(a). In any event, the Board finds that the Veteran's assertions in this regard-advanced in connection with the current claim for monetary benefits-simply are not deemed credible. Impacting the Veteran's credibility is the fact that he specifically denied having a skin disease or foot problems when medical histories were collected in conjunction with the Reserves examinations in May 1972 and June 1975. It is also noteworthy that the claim for service connection for the foot rash disability at issue was filed well over 35 years after service in 2007, and that the private and VA clinical reports of record dated prior to the November 2012 VA examination revealed no findings or complaints relating the existence of a rash of the feet. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The overall absence of relevant findings or complaints in these reports, to include the fact that the examination of the feet in connection with VA outpatient treatment in September 2006 did not disclose or reference history of rash of the feet, are factors that tend to weigh against any current assertions of continuous symptoms, and, ultimately, the claim. The Board notes that, even if considered relevant to the disability for which service connection is currently claimed, the claim filed for service connection for frost bite was in April 1990 and the findings pertinent to the toes of the feet upon VA examination in June 1990 were still over 20 years after service, with no relevant complaints or findings in the interval between service and that time. As such, these facts do not support a positive determination as to the Veteran's credibility. Finally, as for any direct assertions of the Veteran and/or his representative that there exists a medical nexus between any current rash of the feet, to include tinea pedis, and service-the matter upon which this claim turns-the Board emphasizes that such is a medical matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran and his representative are not shown to be other than laypersons without appropriate training and expertise, neither is competent to render a probative (i.e., persuasive) opinion as to the etiology of any currently diagnosed skin rash of the feet; as such, these lay assertions have no probative value. See, e.g., Jandreau, 492 F. 3d at 372. See also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); Bostain v. West , 11 Vet. App. 124, 127 (1998) and Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Under these circumstances, the Board finds that the claim for service connection for a skin rash of the feet must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a bilateral foot rash is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs