Citation Nr: 1316057 Decision Date: 05/15/13 Archive Date: 05/29/13 DOCKET NO. 08-22 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a skin disorder of the feet, claimed as jungle rot. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD N. L. Northcutt, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to January 1970, including over two years of service in the Republic of Vietnam. These matters are before the Board of Veterans' Appeals (Board) on appeal of a March 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In September 2012, the Board remanded the case for further development Since the Veteran's appeal was last adjudicated in March 2013, the Veteran submitted evidence relevant to his appeal without a waiver of initial RO consideration. As the evidence pertains to the Veteran's foot skin disorder service connection claim, and the Board is granting the benefit sought, any failure to remand the appeal to allow for initial RO consideration of this newly submitted evidence is rendered moot. The issue of service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran experienced a skin disorder of his feet during service, which has continued to recur since service. 2. The probative medical evidence establishes the onset of the Veteran's currently-diagnosed recurrent tinea pedis to service. CONCLUSION OF LAW The criteria for service connection for a skin disorder of the feet, diagnosed as tinea pedis, have been met. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. With regard to the Veteran's claim for a skin disorder of his feet, the Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Service Connection Claim The Veteran contends that he developed a recurrent, chronic skin disorder affecting his feet (which he has characterized as jungle rot) during his Vietnam service and that his symptoms have persisted, recurring intermittently since service. In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active service in the Armed Forces, or if preexisting such service, was aggravated therein. Establishing direct service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence 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. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). In the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). While the Veteran's service treatment records do not expressly reference his complaints of experiencing a skin disorder affecting his feet during his Vietnam service, the Veteran's DD Form 214 confirms that he served 26 months in the Republic of Vietnam during the Vietnam Conflict. The Veteran has also consistently reported participating in combat during his 26 months of Vietnam service. Indeed, based on his reports of experiencing combat-related psychological stressors during his Vietnam service, the Veteran has been awarded service connection for posttraumatic stress disorder (PTSD). The evidence establishes the Veteran's participation in combat, and his reports of experiencing a skin disorder of his feet during service are consistent with the circumstances of his Vietnam service. As climate conditions would likely increase the likelihood of him contracting such a disorder, and combat situations would likely decrease the likelihood of seeking treatment, the Veteran's report is sufficient to establish the in-service incurrence of a foot skin disorder. The Veteran has reported receiving VA treatment for his skin disorder of his feet in 1970 soon after his discharge from service. While the Veteran's claims file reflects that he requested and received VA dental treatment in June of 1970, no corresponding VA treatment records from 1970 have been located, including the Veteran's reported dermatological treatment. The first available post-service VA treatment records reflect the Veteran's treatment for a fungal rash of his left hand and bilateral feet in March and April 1985 and treatment for tinea of the hands and feet in September 1985. A December 1997 private treatment record reflects treatment for fungus of the hands and feet, and private and VA treatments from 2005 to the present reflect the Veteran's ongoing treatment for recurring fungal injections of his feet, including his hospitalization for a related infection in October 2006, as well as his continual use of prophylactic, anti-fungal, topical prescription medicine. The Veteran's current VA problem list includes the diagnosis of "tinea." Numerous statements submitted by the Veteran's life-long friends and family members reflect their recollection of the Veteran returning from his service in Vietnam with a skin disorder of his feet and experiencing recurrent symptoms since service. The Veteran's friends and family members are competent to report their recollection of these events, and their reports are uncontroverted and consistent with the Veteran's available post-service treatment records; thus, these accounts are deemed credible. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran's post-service treatment records and the lay evidence of record establish continuity of symptomatology since service. The Veteran was afforded a VA dermatological examination in June 2010, during which he reported the onset of his foot skin disorder symptoms during service. The examiner diagnosed the Veteran with tinea pedis, but opined that his tinea pedis was unrelated to service. In support of this opinion, the examiner cited the lack of any evidence of the disease at the time of this VA examination, and the lack of any documentation of related complaints in the Veteran's service treatment records. However, the lack of evidence of the Veteran's skin disorder during a particular examination cannot serve as a basis for denying a claim, as the Veteran has characterized his skin disorder as recurring periodically, and as he has been diagnosed with tinea during the course of this appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) A medical opinion may also not rely solely on the absence of medical treatment for a claimed condition during service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). This opinion is therefore accorded no probative value. In support of his claim, the Veteran has submitted two statements authored by physicians. In May 2007, a physician who has known the Veteran since his birth reported observing the skin disorder of the Veteran's feet when the Veteran was serving on active duty and visited the physician's family in Hawaii. He opined that at this time, the Veteran's skin disorder appeared quite severe. The physician reported that he observed the Veteran's foot symptoms again soon after service, and stated that despite antibiotic treatment, the Veteran's symptoms would reoccur. The physician characterized this skin disorder as a recurring disease. In July 2008, a VA physician also related the onset of the Veteran's foot skin disorder to service, stating that the Veteran's fungal inflammation of the foot is as likely as not related to his tour of duty in Vietnam. While the latter opinion provides no supporting rationale, when the opinion is viewed in conjunction with the other evidence of record, namely the established in-service incurrence of the Veteran's skin foot disorder; the chronicity of symptoms and treatment since service; and the characterization of this skin disorder as a recurrent disease with onset in service; the medical opinion is sufficient to establish the requisite nexus to service. As the three elements of service connection have been met, service connection for the Veteran's foot skin disorder, diagnosed as tinea pedis, is warranted. ORDER Service connection for a skin disorder of the feet, diagnosed as tinea pedis, is granted. REMAND The Veteran contends that during his 26 months of service in the Republic of Vietnam, he was exposed to excessive noise from firearms, bomb explosions, and jet and helicopter engines, without issued hearing protection, resulting in his current bilateral hearing loss. The Veteran asserts that his post-service career as a high school teacher did not contribute to his current hearing loss, and that while he had perceived some decrease in hearing acuity during and since service, his hearing loss was first detected in 1985 by an audiogram required by his employer (the audiogram was administered as a prerequisite to mandatory school bus driving lessons for all high school teachers). VA examiners have opined that the Veteran's currently-diagnosed bilateral hearing loss is neither related to acoustic trauma in service, as reflected in a February 2007 VA examination report, or to his in-service ear infections, as reflected in a June 2010 VA examination report. With regard to the 2007 VA medical opinion, when determining that the Veteran's current sensorineural hearing loss is unrelated to service, the examiner cited the lack of in-service audiometric findings reflecting decreased hearing acuity in service and the Veteran's report of the onset of his hearing loss in 1985. However, a complete review of the record reflects the Veteran's assertion that his hearing loss was first detected in 1985, not that hearing loss began at that time. Moreover, the opinion provides no proffered etiology for the Veteran's current hearing loss, which is relevant to the appeal given the Veteran's assertion of significant in-service noise exposure and minimal post-service noise exposure. This omission is even more significant given that the examiner did find a relationship between the Veteran's noise-induced tinnitus and service. Given these deficiencies, a new VA examination and medical opinion must be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records since January 2013. 2. Obtain a medical opinion regarding the etiology of the Veteran's currently-diagnosed bilateral hearing loss from an appropriate medical professional, who must be provided with the Veteran's claims file for review. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's currently-diagnosed bilateral hearing loss is related to service. The examiner is advised of the following relevant evidence: * The Veteran was exposed to acoustic trauma during his two years of Vietnam service. * The Veteran reports minimal post-service noise exposure in the form of yard maintenance equipment, and reports minimal noise exposure in his post-service career as a high school teacher. * The Veteran reports that his hearing loss was first detected in 1985 by his employer's audiogram (not that his hearing loss began in 1985). * The Veteran is currently service-connected for tinnitus as the result of in-service noise exposure. If the examiner determines that the Veteran's bilateral hearing loss is unrelated to service, the likely etiology of his hearing loss must be provided. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Review the claims file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs