Citation Nr: 1320840 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 07-19 682 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a bilateral foot condition claimed as foot fungus. REPRESENTATION Appellant represented by: Minnesota Department of Veterans Affairs ATTORNEY FOR THE BOARD G. Wasik, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to June 1969. Thereafter, he served with the Army Reserve from April 1978 to May 1996. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which denied the benefit sought on appeal. In September 2008, September 2010, February 2012, and January 2013, the Board remanded the matter for further development. FINDING OF FACT The Veteran does not have a current foot fungus which was incurred in or aggravated by active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for foot fungus are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2012). REASONS AND BASES FOR FINDING 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) 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). 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. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 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. 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 November 2006 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for a foot condition, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The letter also provided the Veteran with notice of what is required to establish a disability rating and an effective date for the disability on appeal. Additional letters sent in November 2008 and February 2013 also provided the Veteran with the same information. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. The Veteran has not indentified any medical evidence which is pertinent to his claim of entitlement to service connection for foot fungus which remains outstanding. Appropriate VA examinations were conducted in connection with the claim. The examiner who conducted a June 2010 VA examination had access to and reviewed all the evidence in the claims file, recorded the Veteran's subjective complaints and provided an opinion regarding whether there was an etiologic link between active duty and current complaints of foot fungus. The etiology opinion was supported by an adequate rationale including citations to evidence in the claims file. The Board finds that no additional RO action to further develop the record in connection with this claim, prior to appellate consideration, is warranted. The Board further finds that the examination report complies with the Board's remand directives. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices, the appellant has been notified and made aware of the evidence needed to substantiate the 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 this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the appellant 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, 20 Vet. App. at 543 (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. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). A veteran is a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 C.F.R. § 3.1(d). The term active military, naval, or air service includes: (1) active duty; (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(2), (24); 38 C.F.R. § 3.6(a). INACDUTRA includes duty (other than full-time duty) performed by a member of the National Guard of any State, under 32 U.S.C. §§ 316, 502, 503, 504, or 505, or the prior corresponding provisions of law. 38 C.F.R. § 3.6(d)(4). In order for the appellant to be eligible for service connection for disability claimed during his service, the record must establish by a preponderance of the evidence that he was disabled during ACDUTRA due to a disease or injury incurred or aggravated in the line of duty or that he was disabled from an injury incurred or aggravated during INACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415 (1998); Paulson v. Brown, 7 Vet. App. 466 (1995). In rendering a decision on appeal, 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. In October 2006, the Veteran submitted a claim of entitlement to service connection for chronic foot problems. He indicated on the application that the disability began in April 1995. In February 2010, the Veteran indicated that he was claiming service connection of foot fungus. The Veteran asserts that he has foot fungus as a result of his active military service. The service treatment records reveal that, in April 1995, the Veteran sought treatment for jungle rot of the feet which he had indicated had been present for one year. The Veteran reported his feet were sometimes painful when walking but there was no itching. The pertinent diagnosis was skin fungus of the toes. Service treatment records dated prior to and subsequent to that time are devoid of evidence of complaints of, diagnosis of, or treatment for foot fungus. There were records documenting the Veteran complaining of foot pain, but a foot fungus was not included as a diagnosis on these records. These complaints were attributed to pes planus. The service personnel records document that the Veteran was on ACDUTRA in April 1995. In May 2006, the Veteran sought treatment for left foot pain. The Veteran denied any injury but reported his foot and ankle had been swollen for approximately two weeks. A diagnosis of cellulitis of the left foot was made. Another record dated the same month reveals the Veteran reported his left foot had been swollen and erythematous. He denied any trauma to the foot. He had callus on the bottom of the foot which he tried to scrape off but punctured himself which was minimally painful. He denied any chronic medical problems. The assessment was swollen red left foot. A partial ray resection involving the head of the second metatarsal and the great toe of the left foot was performed in June 2006. In August 2006, the Veteran was diagnosed with osteomyelitis of the second metatarsal of the left foot. In November 2006, the Veteran was seen for follow-up for his feet. He had a sore on the distal aspect of the fourth toe of the left foot. Physical examination was conducted. The assessment was that the Veteran had a new ulceration of the fourth toe of the left foot. The Veteran had significant foot deformities. Foot fungus was not diagnosed. A buddy statement dated in March 2007 reveals the author knew the Veteran had fungus on his feet and received treatment for it during annual Reserve training in April 1995. The author remembered the Veteran had problems wearing combat boots and had had foot problems intermittently for a long time. Other buddy statements dated the same month indicate the authors remembered the Veteran complaining about his feet. The Veteran's spouse submitted a lay statement indicating that they were married in June 1970. She noticed that the Veteran had problems with his feet beginning in approximately 1990. In April 2007, the Veteran wrote that he had had foot problems for years beginning in April 1995 while he was on annual guard duty. A VA examination was conducted in November 2009. The Veteran complained of chronic foot pain. He did not take any medication for either foot. In 2006, he developed an infection in three toes of his left foot and amputations were performed. Physical examination revealed severe onychomycosis and scaling of the plantar surface of the feet. The diagnoses were pes planus of the feet. A VA skin examination was conducted in May 2010. The examiner found the Veteran was a poor historian. The Veteran reported that his skin condition began in the 1980's but it wasn't bad before he went to Guatemala. While in Guatemala, his skin condition increased in symptomatology, and he was treated in a field hospital. He was given some foot powder. When he returned home after two weeks in Guatemala, the skin condition continued to the present. Physical examination was conducted. The diagnosis was dry skin. A Mycology report from May 2010 was referenced as revealing no fungal elements. The examiner opined that tinea pedis was not permanently aggravated by the Veteran's active duty service in Guatemala. The rationale was that there was no evidence of tinea pedis as noted by the skin scraping performed at the time of the examination. The Veteran denied the need for any chronic antifungal medication and reported he only used lotion for his feet. While there was an indication the Veteran was seen for tinea pedis during his service in Guatemala, there is no medical documentation that the Veteran continued to have problems with tinea pedis after his return home. Tinea pedis was not present at the time of the examination. In September 2010, the Veteran's spouse wrote that the fungus in the Veteran's feet started during the 1980's. She opined that the Veteran's army boots caused the problems. In November 2012, the RO granted service connection for bilateral pes planus. An addendum to the May 2010 VA skin examination was prepared in June 2010. The examiner was informed that he had to address the Veteran's allegations of continuous foot symptoms from the time he served in Guatemala to the present. The examiner opined that the tinea pedis was less likely than not aggravated beyond its normal progression by the Veteran's active duty service. The rationale was based on a review of the medical evidence. It was observed that the Veteran was seen in April 1995 complaining of jungle rot which had been present on his feet for one year. He had pain when walking but no itching. The examiner observed that the Veteran denied the need for any chronic antifungal medication and reported that he only used lotion on his feet. The examiner also noted that, in May 2006, the Veteran denied any chronic medical problems. The examiner observed that podiatry office notes dated in May 2006, June 2006, July 2006 (X3), August 2006, October 2006, and November 2006 make no mention of the presence of either tinea pedis or foot fungus. The examiner also noted that there were no fungal elements noted at the time of the May 2010 VA examination. Based on these reports, the examiner found that the Veteran's foot fungus, tinea pedis, was less likely than not aggravated beyond its natural progression by the Veteran's active duty service. Analysis Initially, the Board notes that the RO granted service connection for pes planus in November 2012. The only foot disorder this decision pertains to is foot fungus. The Board finds that service connection is not warranted for foot fungus as the preponderance of the competent, probative evidence demonstrates that a chronic foot fungus disorder was not incurred in or aggravated by the Veteran's active duty service. The evidence which supports the Veteran's claim consists of the Veteran's allegations, his spouse's statement and a buddy statement, all of which indicate the Veteran had foot fungus while on active duty. The Veteran and his spouse have further opined that the Veteran has post-service foot fungus due to active duty. Significantly, all of these witnesses are lay persons without medical training, and therefore, their statements and observations about, for example, a rash on the skin in general constitute competent evidence as to some kind of skin disorder. However, the Board concludes that there statements are not competent as to the specific diagnosis or type of skin disorder that was present, i.e., a "fungus" or some other type of skin disorder. Rather, the Board concludes that whether the skin problem was a fungus or some other type of skin disorder is a medical matter requiring medical evidence for its support. In addition, the Board finds that the etiology of a foot fungus is also a complex medical question about which lay evidence is not competent evidence. In the alternative, even if the Veteran's own statement that the type of skin disorder he observed over the years was a "fungus", which he alleged that he had had continuously from April 1995 to the present, the Board finds the probative value of this statement is undercut by other evidence of record. The examiner who conducted the May 2010 VA examination reviewed the medical evidence and cited to a lack of pertinent findings regarding foot fungus and/or tinea pedis in medical records dated in 2006 and at the time of the 2010 VA examination. The examiner also noted the Veteran denied the need for antifungal medication. The Board finds these statements constitute competent medical evidence indicating that the examiner found the lack of pertinent findings in the medical records weighed against a determination that the Veteran had chronic foot fungus. Furthermore, while the Veteran has alleged he had chronic foot fungus, the Board's review of the claims file demonstrates that, other than allegations of the presence of the disorder, no specific symptomatology was reported by the Veteran. The Board's interpretation of the May 2010 VA examination report is that a chronic foot fungus disorder should be documented in medical records created after the Veteran's discharge if, in fact, the foot fungus was chronic. The Board finds this competent medical evidence is more probative of the question of whether the Veteran has a chronic foot fungus from discharge to the present that is the Veteran's assertion of the presence of the disorder along with that of his spouse. The Veteran's feet were extensively examined in 2006 and none of the examinations resulted in a finding of foot fungus. Furthermore, these records are devoid of any indication that the Veteran reported at that time the presence of chronic foot fungus. The Board finds it reasonable to believe that if, in fact, the Veteran had chronic foot fungus from 1995 to the present, he would have reported this history to the health care professionals who were treating foot problems in 2006 and/or there would have been a finding of the presence of foot fungus in these records. This evidence weighs against a finding of the presence of chronic foot fungus after the Veteran's discharge. Based on the above, the Board finds that there is no competent probative evidence of record which demonstrates that the Veteran has continuous foot fungus post-service which was incurred in or aggravated by his active duty service. The Board finds there is competent probative evidence of record which demonstrates that the Veteran does not have foot fungus which was incurred in or aggravated by his active duty service. The report of the May 2010 VA examination and the addendum include opinions demonstrating that there is no such etiologic link. The examination report was based on a review of all the evidence of record, a physical examination of the Veteran and consideration of the Veteran's self-reported history. A rationale was provided to support the opinion with citations to pertinent evidence (or the lack thereof) in the claims file. As set out above, the Board finds the examiner was correct in discounting the probative value of the Veteran's allegations of continuity of symptomatology of foot fungus. Based on the above, the Board finds the report of the May 2010 VA examination and addendum should be accorded significant probative weight. See, e.g., Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)) and Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (holding that the credibility and weight to be attached to medical opinions are within the province of the Board). In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the competent probative evidence is against the claim of entitlement to service connection for foot fungus, that doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The appeal is denied. ___________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs