Citation Nr: 1319448 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 11-11 873A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for chronic toenail disorder, to include onychomycosis and fungal disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran served on active duty from August 1998 to August 2002. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In a December 2009 rating decision, the RO denied service connection for sinusitis, asthma, dermatitis, 2-PAM chloride, nail fungus, right 5th digit toe fracture, stress fracture of bilateral feet, posttraumatic stress disorder (PTSD), and right ankle condition. The Veteran filed a notice of disagreement in January 2010 for sinusitis, asthma, dermatitis or eczema, nail fungus and PTSD. The RO granted service connection for asthma and bilateral tinea of the feet in an April 2011 decision. The RO issued a statement of the case in April 2011 for sinusitis, PTSD, dermatitis or eczema, and nail fungus. The Veteran filed a statement regarding her PTSD and fungus of her toes in May 2011. The RO accepted this document in lieu of a substantive appeal for PTSD and fungus of her toes. The Board adjudicated the issues of entitlement to service connection for PTSD and fungus of the toes in May 2012. Specifically, the Board granted service connection for PTSD, and remanded the issue of service connection for fungus of the toes to the Appeals Management Center (AMC). The AMC returned the issue of service connection for a toenail disorder, to include onychomycosis and fungal disorder, in December 2012; however, because the May 2012 remand order was not substantially complied with, the Board again remanded the issue. As was noted in the Board's December 2012 Remand, the issue of service connection for a 5th digit toe fracture has been raised by the record, in a November 2012 letter submitted by the Veteran. Although this issue has previously been adjudicated by the RO, the issue of whether new and material evidence has been submitted to reopen a previously-denied service-connection claim for a 5th digit toe fracture has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT A chronic toenail disorder, to include onychomycosis and fungal disorder, was not present in and is not etiologically related to service. CONCLUSION OF LAW The criteria for service connection of a chronic toenail disorder, to include onychomycosis and fungal disorder, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant notice by letters dated in October 2009 and November 2009. The Veteran was thus provided complete notice prior to the initial adjudication of the claim. These notice letters met the notice requirements under the law. VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant examinations, obtained a probative medical opinion as to the relationship between service and the currently diagnosed disability, onychomycosis, and afforded the appellant the opportunity to provide evidence in support of her claim. All known and available records relevant to the issue on appeal have been obtained, and the appellant has not contended otherwise. Thus, the duty to assist has been met. Finally, the Board is satisfied that there has been substantial compliance with the directives issued in the previous Board remands. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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, 1 Vet. App. at 54. Analysis In her claim filed in September 2009, the Veteran urges that service connection is warranted for toenail fungus. Parenthetically, the Board notes that she also filed a claim for a skin condition of the feet at that time, which was granted as bilateral tinea of the feet, in April 2011. The Veteran has advanced that she incurred chronic toenail fungus during an in-service rape when the assailant "pushed a straight pin under my toenail until I passed out." It is noted that the Board found her report of her assault to be credible and in May 2012 granted service connection for PTSD accordingly. Service treatment records reflect no complaints or findings of chronic toenail disorder, to include onychomycosis and fungal disorder. In her June 2002 report of medical history at separation, she noted foot trouble which was described as a broken toe. In May 2000, she was treated for a painful right 5th toe that she had hit while walking in sandals. This was assessed as a soft tissue injury. In January 2002, she was treated for nummular eczema of the feet with no reference to a toenail disorder, to include onychomycosis and fungal disorder. A report of VA examination dated in October 2009 reflects a complaint of problems with the feet since 1998. She reported pain and noted she was receiving treatment for fungal disease with powder and tincture and had been treated for both skin and nails. Examination yielded findings of prior episode of onychomycosis but no active onychomycosis visible at this time. The diagnosis included tinea pedis, apparently recovered with no current visible activity; onychomycosis, apparently recovered with no current visible activity; pes planus, mild, with no apparent functional impairment; and fracture of the 4th left and 5th right toe by history, with no current manifestations or apparent functional impairment. VA treatment records dated from 2009 include notes of treatment for toenail fungus in July 2009 and a medication list for the period from November 2010 to November 2011 showing medication for toenail fungus. She was prescribed Ketoconazole cream between toes for fungal infection, and Miconazole tincture for fungal infection on toenails and nail bed. A report of VA examination dated in March 2011 reflects a review of the skin and indicates no evidence of eczema or tinea on examination of upper and lower extremities. There were no findings of chronic toenail disorder, to include onychomycosis and fungal disorder. As noted in the December 2012 Remand, in the May 2012 remand, the Board stipulated that a new examination was warranted for the issue of service connection for chronic toenail disorder, to include onychomycosis and fungal disorder. This examination was not accomplished due to facts that were unclear and accordingly was rescheduled pursuant to Board directives in the December 2012 Remand. The examination was accomplished in April 2013. The Board instructed that a medical opinion be obtained as to whether it is as likely than not (i.e., probability of 50 percent or more) that any identified chronic toenail disorder had its onset during active service; is etiologically related to the Veteran's reported in-service toenail trauma; or otherwise originated during active service. In the April 2013 report, the examiner noted the diagnosis of onychomycosis and opined that it was less likely than not that the onychomycosis was incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that the Veteran did not have any onychomycosis in service or until she reported it in 2009. He noted that in 2009, she reported a 1.5 year history of the condition, indicating that it began in 2007, 6 years following service. The examiner explained that he reviewed the 2009 claims decision that noted onychomycosis, denied due to lack of documentation, and he concurred. He reviewed a 2011 examination and noted it was negative for onychomycosis. Service connection is not warranted for chronic toenail disorder, to include onychomycosis and fungal disorder, because the preponderance of the evidence shows that it was not present in service and is not related to service. The Board acknowledges the Veteran's report of having a pin stuck in her toe during service, and specifically instructed the examiner to address whether any current condition could at least as likely as not be the result of this trauma. The examiner in April 2013, who reviewed the entire record and was instructed to accept this premise, provided a medical opinion that the current onychomycosis is not related to this trauma or otherwise to service. The Board finds this opinion is highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (opinion's probative value determined by whether it is supported by a detailed rationale/explanation); Kowalski v. Nicholson, 19 Vet. App. 171 (2005). There is no contrary medical opinion of record. While the Veteran sincerely believes that her onychomycosis is related to her active service, the Board finds that the competent evidence does not support her claim. As provided by 38 U.S.C.A. § 1154(a), VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. With specific regard to lay evidence, the type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). For example, lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, the layperson is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Regarding nexus, although without describing specific situations, the Federal Circuit also has explicitly rejected the view that medical evidence is necessarily required when the determinative issue is etiology. See id., at 1376-77. In short, the Board cannot determine that lay evidence as to diagnosis and nexus lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). To the extent that the Veteran has provided her own opinion regarding the nexus between her current onychomycosis and her service, the Board finds that she is not competent to do so. Although the symptoms of the disorder are observable, the underlying cause or causes of the disorder are not. Rather, it involves the inner workings of the complex organ of the skin. Because the Veteran is not medically trained in this subject, and it is not observable, she is not competent to render an etiological opinion in this case. As such, the Board affords her opinion no weight. By contrast, the Board affords the April 2013 opinion of the VA examiner considerable weight. It was rendered based on a thorough examination of the Veteran; a review of the historical record; and the examiner's medical expertise. The opinion contains a reasonable rationale for the conclusion, and is supported by the record. To the extent that the Veteran has presented lay statements to the effect of experiencing toenail fungus since service, in an attempt to establish continuity of symptomatology, the Board finds that the argument is without legal merit. The Federal Circuit has held that 38 C.F.R. § 3.303(b) regarding establishing service connection through continuity of symptomatology applies only to those chronic conditions specifically listed in section 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, fungi of the foot and similar disorders are not included in the list of presumptively chronic disorders. Therefore, that avenue of service connection is not available here. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim; therefore, the benefit of the doubt provision does not apply. Service connection is not warranted. ORDER Entitlement to service connection for chronic toenail disorder, to include onychomycosis and fungal disorder is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs