Citation Nr: 1321622 Decision Date: 07/05/13 Archive Date: 07/12/13 DOCKET NO. 06-03 118 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a skin condition of the feet. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to October 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in February 2009. A transcript of the hearing is associated with the Veteran's claims folder. The matter was remanded in May 2009 and September 2012 for further development. During the May 2009 remand, the issue of entitlement to service connection for erectile dysfunction, as secondary to type 2 diabetes mellitus, was noted to have been raised by the record. As the issue had not been adjudicated by the Agency of Original Jurisdiction (AOJ), it was referred to the AOJ for appropriate action. It is unclear whether or not the AOJ addressed this issue. Consequently, it is referred once again for appropriate action. Likewise, the May 2009 Board noted that the RO continued to rate the Veteran's peripheral neuropathy of the left leg together with his type 2 diabetes. The Board noted that the May 2009 remand instructed the RO to rate complications of diabetes separately. The RO was instructed to adjudicate the issue of entitlement to a separate compensable rating for the Veteran's left leg peripheral neuropathy. It is also unclear whether or not this issue was addressed. The RO is instructed once again to adjudicate the issue of entitlement to a separate compensable rating for the Veteran's left leg peripheral neuropathy. Finally, a review of the Virtual VA electronic records storage system reveals additional VA clinic records dated to February 2013 which are not associated with the paper claims folder. The AOJ has considered these records in the February 2013 supplemental statement of the case (SSOC). FINDING OF FACT The Veteran's in-service treatment for Athletes' feet resolved without sequelae, and his currently diagnosed chronic venous stasis dermatitis is not shown to have been manifested during active service or causally related to an event during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a skin condition of the feet have not been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the 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. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). With respect to the issue, the Veteran was sent a letter in July 2004 that addressed all the notice elements and was sent prior to the initial November 2004 rating decision. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, an April 2006 letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. The Board recognizes that the April 2006 VCAA notice was provided after the initial decision. However, the deficiency in the timing of this notice was remedied by readjudication of the issue on appeal in subsequent SSOCs, to include the most recent February 2013 SSOC. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains all of the Veteran's available pertinent treatment records and VA examinations. Further, as noted, the Virtual VA paperless claims processing system includes additional VA treatment records dated to February 2013, which were considered by the RO in the February 2013 SSOC. Moreover, his statements in support of the claim, as well as his hearing testimony, are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. Pursuant to the May 2009 remand, the Veteran was afforded a VA examination in March 2010; and pursuant to the September 2012 remand, in November 2012. As the most recent November 2012 examination was conducted by a competent clinician who considered the Veteran's claims file and medical history in the report and provided an etiological opinion with rationale, the Board finds that the examination and opinion is adequate to adjudicate the Veteran's claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) (2012) requires that any Veterans Law Judge who chairs a hearing fulfill two duties to comply with the VCAA. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant, 23 Vet. App. at 488. Here, during the February 2009 Board hearing, the undersigned Veterans Law Judge adequately explained the claim on appeal and suggested evidence that may support the claim, including evidence that the Veteran might submit that may have been overlooked. The Board accordingly concludes that the notice requirements under Bryant were effectively satisfied. To the extent any such notice may have been inadequate, this was effectively cured both by actual knowledge as evidence by statements and questions of the Veteran's authorized representative at the hearing, as well as by the Board providing such explanation of issues and suggesting submission of evidence in the May 2009 remand the Board issued to develop the claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Finally, the Board finds that there was substantial compliance with the most recent September 2012 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). II. Service Connection The Veteran seeks to establish his entitlement to service connection for a skin condition of the feet. He indicates that his current lower extremity disability is the same condition of the Athletes' foot treated in service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active peacetime service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. 38 U.S.C.A. §§ 1112, 1113, 38 C.F.R. § 3.309(a). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. However, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus.") Athletes foot and chronic stasis venous dermatitis are not listed among the chronic diseases under 38 C.F.R. § 3.309(a). Initially, the Board notes that all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran has asserted that service connection is warranted for a skin condition of his feet because he was treated for a rash on his feet during service and he continues to receive treatment for a skin condition today. The Veteran's service treatment records show that, in October 1969, he sought treatment for a rash on his feet. There are no additional or subsequent complaints or treatment for skin problems. In fact, the Veteran's October 1970 separation examination report reflects that the Veteran's skin was normal on clinical evaluation and that he offered no complaints with regards to any skin diseases. Post-service private treatment records include a January 2002 emergency department record from Macon Northside Hospital that documents treatment for bleeding from the left leg-to which a diagnosis of ruptured varicose vein was attributed; and a May 2005 treatment record from the Veteran's private podiatrist, Dr. K. M. that documents an open wound of the left leg. Post-service VA treatment records dated from March 2003 to February 2013 include an April 2003 treatment record that documents treatment for thickened toenails; a May 2004 VA psychiatric treatment record that documents chronic tinea pedis under Axis III diagnosis; several entries that note tinea pedis (see page 119 (January 2012), 208 (July 2011), 245 (March 2011), 444 (May 2010 VA examination report), and 446 (May 2010 VA examination report) in Virtual VA); and several entries that also note treatment for left leg ulcer. An August 2009 VA podiatry record documents treatment for severe edema to both lower extremities, particularly the left leg; as well as thickened toenails. On May 2010 VA skin examination; the Veteran reported he experienced "jungle rot" during his tour in Vietnam. He reported that he currently experiences constant itching that is treated by clotrimazole cream. Physical examination revealed exophitic, scaling, and crusting lesions predominately on the heels of bilateral feet that also cover both plantar surfaces. It was noted that less than 5 percent of the Veteran's total body area was affected. Tinea Pedis was diagnosed. The examiner indicated that the Veteran's claims file had been reviewed. The examiner opined that the tinea pedis was less likely as not caused by or a result of the Veteran's active duty service as there were no reports of foot rash or lesions noted during active duty. He stated that the current clinical presentation associated with the Veteran's lower extremities was inconsistent with the in-service symptoms described in the service treatment records. The Board noted that the May 2010 VA examination was inadequate for rating purposes and the Veteran was afforded another examination. On November 2012 VA skin examination; the Veteran reported that he had a rash to his feet while on active duty. He indicated that his current treatment consists of several ointments that are applied to his skin lesions daily. Physical examination revealed dermatitis to at least 5 percent of the total body area. The examiner diagnosed chronic venous stasis dermatitis to the bilateral lower extremities (legs and feet). The examiner noted that there was no evidence of tinea pedis or Athletes' feet. He noted that a skin condition was corroborated as having occurred during service with a noted diagnosis of Athletes' feet. The examiner noted that the Veteran was treated in-service with foot powder and was informed to change his socks frequently; furthermore there was an abrasion of the right lower leg that was cleansed with hydrogen peroxide, bacitracin ointment, and a dressing change. The examiner noted that the rashes treated in service were inconsistent with the Veteran's current clinical presentation of chronic venous statis of dermatitis of the bilateral lower extremities. On review of the entirety of the record, the Board finds that the probative evidence establishes that the Veteran's in-service treatment for rash of the feet resolved without sequelae, and that his currently diagnosed stasis dermatitis to the bilateral lower extremities is not shown to have been manifested during active service or causally related to an event during active service. Here, the Veteran was clearly treated for bilateral Athletes' foot in 1969. This was a definitive diagnosis based upon his treatment with foot powder and a recommendation to change his socks frequently. Thus, the dispositive issue on appeal concerns whether the Veteran has manifested a chronic Athletes' foot disability that is related to his military service, to include his treatment for such in 1969. The records do not show that during service, the Veteran either had or was treated for chronic venous statis of dermatitis of the bilateral lower extremities. The available evidence includes a formal military separation examination in October 1970 which reflected normal clinical findings for all pertinent bodily systems, and while there are post-service diagnoses of tinea pedis noted, the post-service record does not disclose any specific treatment for Athletes' feet (tinea pedis) prior to May 2010 when the Veteran reported he was currently using clotrimazole cream. Overall, the service and post-service medical records are not consistent with a finding of a chronic tinea pedis disability present since service. The only evidence tending to support a finding that the Veteran manifests a chronic tinea pedis disability is the description of symptomatology by the Veteran himself. Clearly, the Veteran is competent to describe outwardly demonstrated and subjectively experienced symptoms. However, the Veteran is not competent to diagnose his symptoms as tinea pedis, particularly in a case such as this where the record suggests other potential etiologies for his claimed symptoms. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In particular, a VA skin examiner has examined the Veteran and the claims folder contents to arrive at a conclusion that the Veteran's current lower extremity swelling symptoms are attributable to stasis dermatitis. This examiner essentially explained that the Veteran's in-service treatment of Athletes' feet was not related to his current disability as it was inconsistent with the current clinical presentation of chronic venous stasis dermatitis. Overall, the Board finds that the opinion of the November 2012 VA examiner holds significantly greater probative weight than the Veteran's personal opinion and self-diagnosis, as the VA examiner has greater expertise and training than the Veteran in speaking to the physical characteristics and etiology of various skin disorders. In so finding, the Board notes that tinea pedis (Athletes' foot) and stasis dermatitis are not deemed chronic diseases under 38 C.F.R. § 3.309(a), and the provisions of 38 C.F.R. §3.303(b) do not apply here to allow a grant. Nonetheless, the VA examiner has demonstrated an understanding of the Veteran's skin descriptions before and after service and has concluded that the Veteran does not describe a recurrence of chronic tinea pedis since service. The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claims process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). Here, the Board recognizes that the Veteran does manifest a disability involving the lower extremities, but finds that the current disorder of venous stasis dermatitis is a completely separate disease process. This is demonstrated in the most recent VA examination as well as many outpatient treatment notes. Accordingly, the Board finds that the Veteran's single in-service treatment for Athletes' feet resolved without sequelae, and that his currently diagnosed stasis dermatitis is not shown to have been manifested during active service or causally related to an event during active service. Thus, the Veteran's service connection claim for a skin condition of the feet may not be granted. There is no reasonable doubt to be resolved. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a skin condition of the feet is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs