Citation Nr: 1315244 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 08-33 825A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for migraines, to include as secondary to a cervical spine disorder. 2. Entitlement to service connection for bilateral foot fungus, currently diagnosed as tinea pedis, to include as due to exposure to herbicides. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION The Veteran had active service from August 1969 to August 1973. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran now resides in Texas, so the matter is now handled by the RO in Waco, Texas. The Veteran was scheduled to present testimony at a travel board hearing before a Veterans Law Judge in December 2012. However, the Veteran cancelled the hearing in November 2012. As the record does not contain any additional requests for an appeals hearing, the Board deems the Veteran's request for a hearing to be withdrawn. See 38 C.F.R. § 20.702 (2012). In January 2013, the Board remanded these claims for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). That development having been completed, the claim is now ready for appellate review. FINDINGS OF FACT 1. The Veteran's migraines are not causally or etiologically due to service, and are not proximately due to or aggravated by any service-connected cervical spine disability. 2. The Veteran's bilateral foot fungus, currently diagnosed as tinea pedis, is not causally or etiologically due to service, to include exposure to herbicides. (CONTINUED ON NEXT PAGE) CONCLUSIONS OF LAW 1. Service connection for migraines is not established. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310 (2012). 2. Service connection for bilateral foot fungus, currently diagnosed as tinea pedis, to include as due to exposure to herbicides, is not established. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As set forth in the Veterans Claims Assistance Act of 2000 (VCAA), the Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012). Under the VCAA, when VA receives a claim, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim; that VA will seeks to provide; and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the regional office. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The VCAA duty to notify was satisfied by a letter sent to the Veteran in January 2008 that fully addressed the entire notice element. The letter informed him of what evidence was required to substantiate his claims and of his and the VA's respective duties for obtaining evidence. In any event, in his statements and testimony, the Veteran demonstrated his actual knowledge of the elements necessary to substantiate his claim. See Short Bear v. Nicholson, 19 Vet. App. 341, 344 (2005). There is no allegation from the Veteran that he has any evidence in his possession that is needed for full and fair adjudication of these claims, and the Board finds that the notification requirements of the VCAA have been satisfied as to timing and content. To fulfill Dingess requirements, in January 2008, the regional office provided the Veteran with notice as to what type of information and evidence was needed to establish a disability rating and the possible effective date of the benefits. The regional office successfully completed the notice requirements with respect to the issue on appeal. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Additionally, VA has a duty to assist the Veteran in claim development. This includes assisting in the procurement of service treatment and hospitalization records and pertinent medical records, as well as providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The regional office has obtained service treatment records, VA outpatient medical records, and VA medical opinions and examinations pertinent to the issue on appeal. Virtual VA records have been reviewed. Therefore, the available medical evidence and records have been obtained in order to make an adequate determination. Neither the Veteran nor his representative has identified any additional existing evidence that has not been obtained or is necessary for a fair adjudication of the claims. The VA's duty to assist in the development of the claims is complete, and no further notice or assistance to the Veteran is required to fulfill the duty. Smith v. Gober, 14 Vet. App. 227 (2000), Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Service Connection Claims The Veteran is seeking entitlement to service connection for migraines and bilateral foot fungus. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). With chronic diseases 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 attributable to intercurrent causes. 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. When the disease entity is established, there is no requirement of evidentiary showing of continuity. If the condition noted during service (or in the presumptive period) is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, then generally a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit recently limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic diseases" in 38 C.F.R. § 3.309(a). Because migraines are specifically listed as a chronic disease under 38 C.F.R. § 3.309(a) (organic disease of the nervous system), the theory of continuity of symptomatology is for application in the Veteran's claim of service connection for migraines, but is not for application for the claim of bilateral foot fungus. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (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 v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009. A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of psychiatric, respiratory, or orthopedic disorders. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). A. Entitlement to Service Connection for Migraines, to Include as Secondary to a Cervical Spine Disorder The Veteran seeks entitlement to service connection for migraines. He asserts he experienced migraines during service. Alternatively, the Veteran asserts his migraines are secondary to a cervical spine disorder. See July 2010 VA Form 21-4138. Secondary service connection can be established by evidence demonstrating the current disability was either (a) caused by OR (b) aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). Importantly, the Board notes that the Veteran has been denied service connection for a cervical spine disorder. See April 2012 rating decision. As such, service connection for migraines on a secondary basis, as due to a cervical spine disorder, cannot be established as a matter of law. Service records were reviewed. The Veteran's entrance examination from July 1969 did not indicate any neurological abnormalities. In October 1969, the Veteran complained of chest pain, cough, high temperature, sore throat, runny nose, and bad headaches when coughing. He was diagnosed with bilateral lower lobe pneumonia. In November 1969, he complained of headaches, runny nose, stomach pain, and a fever. Again, he was diagnosed with pneumonia. In February 1972, he complained of sore throat and headaches. It was noted he had postnasal drip. The Veteran's July 1973 separation examination did not note any neurologic abnormalities. Post-service records were reviewed. VA treatment records indicate treatment and a diagnosis of migraines, starting in approximately 2007. See February 2007 VA treatment note and May 2008 Active Problem List. The Veteran was afforded a VA examination in March 2013. It was noted that the Veteran was diagnosed with migraines in 2000. The examiner noted that there were headache complaints during service associated with upper respiratory infections and pneumonia. The examiner also noted that the Veteran was diagnosed with migraines in 2000 to 2001 and treated with medication. The examiner opined that the Veteran's current migraines were less likely than not related to his headache complaints during service as the Veteran's headache complaints during service were associated with upper respiratory infections and he had no documented migraine characteristics at the time. The Veteran's lay statements in support of his claim have been considered. The Board notes that the Veteran is competent to comment on any symptoms, such as pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Importantly, however, the Veteran has not submitted any statements indicating that he has experienced continuous symptoms of migraines during the years following his discharge from service. To date, there is no medical evidence demonstrating a causal relationship between the Veteran's time in service and his currently diagnosed migraines. Because of the absence of a medical nexus between his current diagnosis and his time service, the Board finds that the evidence is against a grant of service connection. Importantly, the VA examiner from March 2013 opined that the Veteran's migraines are less likely than not related to service. As it is not shown that the Veteran has had medical training or experience, given the circumstances of this case, his assertions concerning the etiology of his migraine headaches can be accorded minimal probative weight. In summary, the weight of the evidence reflects that the Veteran was diagnosed with migraines many years after service. Additionally, there were no symptoms or diagnosis of migraines during service, aside from the occasional headache associated with colds and infections. As such, service connection may not be granted on a presumptive basis for chronic disability. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a). There is no evidence of continuity of symptomatology as migraines were not specifically noted in service and were not noted in post-service treatment records until many years after service. Furthermore, a VA examiner has opined that the Veteran's current migraines are less likely than not due to service. Consequently, the Board finds that the preponderance of the evidence is against entitlement to service connection for migraines. As the preponderance of the evidence is against his claim, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the appeal is denied. B. Entitlement to Service Connection for Bilateral Foot Fungus, to Include as Due to Exposure to Herbicides The Veteran seeks entitlement to service connection for bilateral foot fungus. He also asserts his fungus is due to exposure to Agent Orange. See July 2010 VA Form 21-4138. The statutory provision specifically covering Agent Orange is 38 U.S.C.A. § 1116. Under 38 U.S.C.A. § 1116(f), a claimant, who, during active service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during that service. Disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309, will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; type 2 diabetes, non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma. 38 C.F.R. § 3.309(e). Importantly, fungal infections of the feet are not a presumptive condition. Therefore, even if exposure to herbicides were to be conceded, a fungal infection of the foot may not be presumed to have incurred during service as a result of exposure to herbicides. Service records were reviewed. The Veteran's entrance examination from July 1969 did not indicate any foot abnormalities. In August and September 1971, it was noted that he had multiple areas of fungal infection of the right 2nd and 3rd fingers. In October 1971, he was diagnosed with pityriasis versicolor. In October 1972, the Veteran complained of rectal itching and was diagnosed with tinea corporis. The Veteran's July 1973 separation examination did not note any foot abnormalities. Post-service records were reviewed. VA treatment records indicate treatment for fungus. See December 2007 Problem List. In September 2008, the Veteran sought treatment for right foot fungus, and it was noted that he has had it for a "long, long, time." He reported there was a scab between one of the toes and the little toenail had been coming off. It was noted that he uses a powder he was prescribed a long time ago and was out of Clotrimazole cream. In March 2009, Clotrimazole cream was listed as an active medication for athletes feet. The Veteran was afforded a VA examination in November 2012. It was noted that the Veteran was diagnosed with tinea pedis. The examiner noted that service treatment records were silent for tinea pedis or any skin condition of the feet, although the Veteran claims tinea pedis while stationed in Japan. The examiner opined that the Veteran's current tinea pedis is not related to the skin fungal conditions of the hands or tinea versicolor noted in the service treatment records. The examiner explained that tinea versicolor is a different species of fungus than tinea pedis and there is no indication that fungus of the hands was chronic and infected the feet. The Veteran's lay statements in support of his claim have been considered. The Board notes that the Veteran is competent to comment on any symptoms, such as pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, although laypersons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, which involves differentiating between types of fungus, falls outside the realm of common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). To date, there is no medical evidence demonstrating a causal relationship between the Veteran's time in service and his currently diagnosed tinea pedis. Because of the absence of a medical nexus between his current diagnosis and his time service, the Board finds that the evidence is against a grant of service connection. Importantly, the VA examiner from November 2012 opined that the Veteran's tinea pedis is less likely than not related to service. In summary, the weight of the evidence reflects that the Veteran was diagnosed with tinea pedis many years after service. Additionally, there were no symptoms or diagnosis of tinea pedis during service. Furthermore, a VA examiner has opined that the Veteran's current tinea pedis less likely than not due to service. Consequently, the Board finds that the preponderance of the evidence is against entitlement to service connection for bilateral foot fungus. As the preponderance of the evidence is against his claim, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the appeal is denied. ORDER Entitlement to service connection for migraines, to include as secondary to a cervical spine disorder, is denied. Entitlement to service connection for bilateral foot fungus, to include as due to exposure to herbicides, is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs