Citation Nr: 1310027 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 08-36 086 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a skin disorder of the feet, claimed as jungle rot. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD William Alan Nelson II, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from December 1967 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran appeared and provided testimony before the undersigned Acting Veterans Law Judge (AVLJ) in June 2011. A transcript of the hearing has been associated with the claims file. The claim at issue was previously remanded by the Board in March 2012 for further evidentiary development to include requesting any outstanding VA treatment records and requesting a VA skin examination with a diagnosis and a medical nexus opinion. This was accomplished, and the claim was readjudicated in an October 2012 supplemental statement of the case. For this reason, the Board concludes that it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran sustained a foot injury in service. 2. Symptoms of a skin disorder of the feet were not chronic in service. 3. The Veteran's current skin disorder of the feet is not related to his active service. CONCLUSION OF LAW A skin disorder of the feet was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1112, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In a timely September 2007 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran and what evidence VA would obtain. The notice included provisions for disability ratings and for the effective date of the claim. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence, including affording VA skin examinations in September 2010 and April 2012. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinions and findings obtained in this case are adequate. The VA nexus opinions provided consider all of the pertinent evidence of record, to include the statements of the Veteran, and provide a complete rationale for the opinions stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue of service connection for a skin disorder of the feet has been met. 38 C.F.R. § 3.159(c)(4). The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence, including affording VA examinations. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records, VA examination reports that include nexus opinions, and the Veteran's statements. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). For the 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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). Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary standard. Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429, *15 (Fed. Cir. Feb. 21, 2013) (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show 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." Id. Thus, the mere manifestation during service of potentially relevant symptoms does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. The Federal Circuit noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a veteran can establish service connection for a chronic disease" under subsection 3.303(b). Walker, 2013 WL 628429, at *9. Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation"). Significantly, the Federal Circuit indicated that showing a continuity of symptomatology after service is a lesser evidentiary burden than the nexus requirement of the three-part test discussed above: "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology." Id. at *14 (emphasis added). Not all diseases that may be considered "chronic" from a medical standpoint qualify for the more relaxed evidentiary standard under section 3.303(b). Rather, the Federal Circuit held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Id. at *13-14. Thus, if the Veteran does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "medical nexus of a relationship [sic] between the condition in service and the present condition is required." Id. at *13, *15-16 (holding that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as hearing loss was not among the chronic diseases listed in section 3.309(a)). Because the Veteran's skin disorder of the feet is not defined as a chronic disease in section 3.309(a), the provisions of subsection 3.303(b) for chronic disabilities do not apply, and evidence of a continuity of symptomatology after service is not sufficient by itself to support the claim. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. See 38 U.S.C.A. § 1154(b); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). The standard used to determine whether a veteran engaged in combat with the enemy is reasonable doubt, which is to be resolved in a veteran's favor. See VAOPGCPREC 12-99. The provisions of 38 U.S.C.A. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder. See Libertine, 9 Vet. App. at 522-23. The provisions of 38 U.S.C.A. § 1154(b) do not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on a veteran's behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection for a Skin Disorder of the Feet The Veteran contends that he has a skin disorder of the feet, and that this disorder originated in service and has continued since that time. The Veteran marked the box labeled "foot trouble" on the service entrance "Report of Medical History;" however, the August 1967 service entrance examination is negative for a diagnosis of a skin disorder of the feet. The service examiner reported athlete's foot prior to service that was treated and had no sequelae (no current symptoms or condition). The service entrance physical examination indicated the Veteran to be qualified for service. Because a skin disorder of the feet was not "noted" at the August 1967 service entrance examination, the Veteran is entitled to the presumption of soundness at service entrance. 38 U.S.C.A. § 1111. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran sustained a foot injury in service, but symptoms of a skin disorder of the feet were not chronic in service. The Veteran's military occupational specialty was rifleman. In addition, as the Veteran received the Combat Action Ribbon, the Board finds that the Veteran engaged in combat. In an October 1968 service treatment record, the service examiner diagnosed immersion foot; the Veteran was given shower shoes and was placed on restricted duty for seven days. In the September 2010 Decision Review Officer (DRO) hearing, the Veteran testified that his toenails began falling off during service. In the June 2011 Board personal hearing, the Veteran testified that during monsoon season in Vietnam, he was in the water for up to twelve days. The Veteran is competent to report skin symptoms in service. See Bennett v. Brown, 10 Vet. App. 178 (1997) (the Board may rely upon lay testimony as to observable facts). Because the Board has found that the Veteran engaged in combat, the Board accepts as credible the Veteran's assertion of skin symptoms in service as consistent with the duties and circumstances of his service. See 38 U.S.C.A. § 1154(b). The Veteran's service treatment records indicate that his skin symptoms resolved with treatment, so were not chronic in service. The Veteran was not placed on permanent profile or permanent restriction in service because of a skin disorder of the feet. The evidence in this case includes the June 1969 service separation examination report, which includes a summary of the Veteran's significant in-service medical history. The June 1969 service separation examiner's review of the history is negative for any reports of foot symptoms. Neither the Veteran's history, separation examiner's summary of history, nor clinical examination at service separation reflect any complaints, treatment, or diagnosis of skin disorder of the feet either during service or at service separation in June 1969. As noted above, because the Veteran's skin disorder of the feet is not defined as a chronic disease in section 3.309(a), the provisions of subsection 3.303(b) for chronic disabilities do not apply, and evidence of a continuity of symptomatology after service is not sufficient by itself to support the claim. See Walker. Service connection may still be established if all the evidence of record shows that the Veteran's skin disorder of the feet is related to active service. See 38 C.F.R. §§ 3.303(d). However, such a relationship must be established by a medical nexus. See 38 C.F.R. § 3.303(a); Walker, 2013 WL 628429, at *13. The Board finds that the weight of the competent evidence demonstrates that the Veteran's currently diagnosed skin disorder of the feet is not related to active service, specifically including the feet injuries during service. In the September 2010 VA skin opinion, which weighs against the Veteran's claim, the Veteran was diagnosed with onychomycosis of the feet. The VA examiner opined that the Veteran's skin disorder of the feet was less likely than not (less than a 50/50 probability) caused by or the result of active military service. The VA examiner reasoned that there was no evidence of continuous treatment for a skin disorder of the feet after service separation. In the April 2012 VA skin opinion, which weighs against the Veteran's claim, the Veteran was diagnosed with onychomycosis of the feet. The VA examiner opined that the Veteran's skin disorder of the feet was less likely than not (less than a 50/50 probability) caused by or the result of active military service. The VA examiner reasoned that even though the Veteran was treated for immersion foot in service, the Veteran did not report any foot symptoms at the June 1969 service separation examination and was not diagnosed with any skin disorder of the feet at service separation. The VA examiner further reasoned that aging is the most common risk factor for onychomycosis due to diminished blood flow, longer exposure to fungi, and nails which grow more slowly and thicken, increasing susceptibility to infection. The VA examiner further reasoned that the Veteran's incarceration would have placed the Veteran in a public shower situation with fungal organisms and that the Veteran was diagnosed with onychomycosis shortly after release from prison. The VA examiner opined that there was no other evidence to show chronicity after service and that the Veteran's current onychomycosis was a new and separate condition apart from the in-service condition. The Board finds that the September 2010 VA opinion is of little probative value. The September 2010 VA examiner provided a nexus opinion based on the absence of treatment for a skin disorder of the feet after service separation, but did not comment on the Veteran's credibly reported symptoms of a skin disorder of the feet post-service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on a veteran's report of in-service injury and instead relied on the absence of evidence in a veteran's service treatment records to provide a negative opinion). The April 2012 VA skin opinion is of high probative value because it is based on a factually accurate history, as it appears the VA examiner was informed of the relevant evidence in this case that included skin symptoms in service. The VA examiner relied on accurate facts, and gave a fully articulated opinion that is consistent with the accurate facts found in this case and is supported by sound reasoning. The only evidence of record supporting the Veteran's claim is his own lay opinion that his currently diagnosed skin disorder of the feet is related to his period of service. In this regard, the Board acknowledges that the Veteran can provide competent evidence about what he experienced; for example, his statements are competent evidence as to continuous skin symptoms after service separation; however, as noted above, skin disorder of the feet is not a disorder that can be proven by continuity of symptomatology. See Walker. In addition, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (i.e., where the condition is simple, for example, a broken leg), (2) the lay person 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, 1376-77 (Fed. Cir. 2007). However, while the Veteran may be sincere in his belief that his skin disorder of the feet is related to his service, his expressions of such belief have little, if any, probative value. The determination of whether a current disability is related to service is a complex medical question not capable of resolution by mere lay observation; it requires medical expertise. In addition, the Board does not find that the Veteran's skin disorder of the feet is subject to lay diagnosis, as medical tests are required to establish such an assessment. The Veteran is a layperson with no medical training; he does not cite to any medical texts or treatises to support his self-diagnoses and/or theory of causation; and he does not offer any explanation or rationale for his opinions. See Jandreau, 492 F.3d at 1377. Specialized education and/or training are required for a determination as to determine the etiology of a skin disorder of the feet. The Veteran is not competent to provide an opinion on the causation of his skin disorder of the feet. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a skin disorder of the feet, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a skin disorder of the feet is denied. ____________________________________________ T. D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs