Citation Nr: 1326802 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 10-10 704 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for toenail fungus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to April 1972, which includes service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In that decision, the RO denied entitlement to service connection for a fungus condition of the toenails. The Veteran testified before the undersigned at a February 2013 videoconference hearing. A transcript of that hearing has been associated with his claims folder. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this file have been reviewed and considered as part of this appeal. FINDING OF FACT Toenail fungus did not have its clinical onset in service, is not the result of herbicide exposure in service, and is not otherwise related to active duty. CONCLUSION OF LAW Toenail fungus was not incurred or aggravated in service and it may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1113(b), 1116, 1154(b), 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a pre-adjudication letter dated in December 2007, the RO notified the Veteran of the evidence needed to substantiate his claim of service connection for toenail fungus. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist him in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The claimant's Veteran status has been substantiated. He was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claim, in the December 2007 letter. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) (2012) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). At the Veteran's February 2013 hearing, the undersigned identified the issue on appeal, asked the Veteran about the symptoms and history of his toenail fungus as well as the treatment received for the disability, and informed him of the evidence necessary to substantiate a claim of service connection. Further, the Veteran provided testimony as to the symptoms and history of his toenail fungus and the treatment provided for the disability. Thus, he has demonstrated actual knowledge of the ability to identify and submit additional relevant evidence. The duties imposed by Bryant were thereby met. VA obtained the Veteran's service treatment records and all of the identified relevant post-service VA treatment records. In November 2007, the Veteran submitted a signed and completed "Authorization and Consent to Release Information" form (VA Form 21-4142) for records pertaining to treatment for his toenail fungus from Dr. Herman dated from 1985 to 1995. In December 2007, the agency of original jurisdiction (AOJ) sent a letter to Dr. Herman and requested copies of all available relevant treatment records dated from January 1985 through December 1995. Dr. Herman subsequently responded that he did not have any available records pertaining to treatment of the Veteran during the above specified dates. The Veteran was notified of the efforts that had been undertaken to obtain treatment records from Dr. Herman by way of a February 2008 letter. He was also notified in the letter that no identified treatment records were available from that treatment provider, that he had until December 12, 2008 to submit additional relevant evidence, and that unless additional evidence was received by that date, VA would decide his claim as soon as all attempts to obtain any identified evidence were completed. Also, he was informed to submit any records from Dr. Herman that were in his possession. During the February 2013 hearing the Veteran reported that he had attempted to obtain records from Dr. Herman, but that such records were not retained beyond 5 years and that there were no available records from that physician. Thus, the Board finds that any further efforts to obtain treatment records from Dr. Herman would be futile. 38 C.F.R. § 3.159(c)(2). VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83. There must, however, be sufficient evidence of such a relationship to trigger VA's duty to provide an examination or obtain a medical opinion. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). The Veteran was not afforded a VA examination for toenail fungus and an opinion as to the etiology of the disability was not otherwise obtained. As discussed below, there is no competent evidence that the current toenail fungus may be related to a disease or injury in service. The Veteran has not reported, and the evidence does not reflect, a continuity of symptomatology and there is no other competent medical or lay evidence that the Veteran's current toenail fungus may be related to service. Thus, a VA examination or opinion is not necessary. See McLendon, 20 Vet. App. at 83. Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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 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 for certain chronic disabilities listed in 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See 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. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a) (2012). In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (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 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran, who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicides. 38 C.F.R. §§ 3.307, 3.309. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected even though there is no record of such disease during service: chloracne or other acneform disease consistent with chloracne, Type 2 diabetes, Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Notwithstanding the foregoing presumption, a claimant is not precluded from establishing service connection with proof of direct causation. 38 U.S.C.A. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, an August 2008 VA primary care treatment note includes a diagnosis of "onychom[yc]osis." Thus, current toenail fungus has been demonstrated. The Veteran contends that his current toenail fungus is related to his exposure to wet and humid weather conditions while serving in Vietnam. As a result of such weather, he often had to wear moist socks and shoes. In the alternative, he claims that the toenail fungus is the result of herbicide exposure in service. As the Veteran served in Vietnam, he is presumed to have been exposed to herbicides, including Agent Orange. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307. However, his current toenail fungus is not a condition listed in 38 C.F.R. § 3.309(e). Presumptive service connection on the basis of his presumed exposure to herbicides is, therefore, not warranted. 38 C.F.R. § 3.309(e); see also 68 Fed. Reg. 27,630-41 (May 20, 2003) (stating that the Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted). There is nothing in the record suggesting a direct relationship between herbicide exposure and toenail fungus. During an October 2005 VA mental health evaluation, the Veteran reported that he was exposed to incoming enemy fire during his service in Vietnam. Thus, the evidence reflects that he may have been engaged in combat while in service. In-service exposure to wet and humid weather conditions, such as those described by the Veteran, could be consistent with the circumstances of his service. Where a veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection where such evidence is consistent with the circumstances, conditions, or hardships, of service. 38 U.S.C.A. § 1154(b). Section 1154(b) sets forth a three step sequential analysis that must be undertaken when a combat veteran seeks benefits under the method of proof provided by the statute. First, it must be determined whether the veteran has proffered "satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease." Second, it must be determined whether the proffered evidence is "consistent with the circumstances, conditions, or hardships of such service." Finally, if the first two requirements are met, VA shall accept the veteran's evidence as "sufficient proof of service connection," even if no official record of such incurrence exists. In such a case, a factual presumption arises that the alleged injury or disease is service-connected. Collette v. Brown, 82 F.3d 389, 393 (Fed. Cir. 1996); 38 C.F.R. § 3.304. The presumptions of 38 U.S.C.A. § 1154(b) do not extend to the nexus element of a claim of service connection. Wade v. West, 11 Vet. App. 302 (1998); Turpen v. Gober, 10 Vet. App. 536 (1997). Assuming that the Veteran's feet were exposed to wet and humid conditions in service and assuming without deciding that the Veteran engaged in combat during service, the claim must nevertheless be denied, as explained below. The Veteran testified that his toenail fungus began about two months following his separation from service; on his application for compensation in 2007, he estimated that it began more than two years after service discharge. He has not reported, and the evidence does not otherwise indicate, a continuity of symptomatology with regard to his toenail fungus. There is no evidence of any complaints of or treatment for toenail fungus in his service treatment records and his March 1972 separation examination was normal. The objective evidence otherwise indicates that the Veteran's current toenail fungus did not manifest until after service. The first post-service clinical evidence of toenail fungus is an October 2005 VA physical examination report which indicates that examination of the skin revealed mild onychomycosis involving both great toenails. Moreover, the earliest reported onset of toenail fungus is reflected in the Veteran's testimony during the February 2013 hearing, during which he reported that his toenail fungus began approximately 2 months following his separation from service There is no lay or clinical evidence of any earlier toenail fungus following service. Thus, neither the clinical record nor the Veteran's own statements establish a continuity of symptomatology in this case, precluding an award of service connection on this basis. Nevertheless, even if there was evidence of a continuity of symptomatology, an award of service connection on this basis would nonetheless be precluded because the Veteran's current toenail fungus is not among the chronic conditions listed in 38 C.F.R. § 3.309(a). Service connection on the basis of a continuity of symptomatology may only be granted if a claimed disability is among this list of chronic conditions. See Walker, 708 F.3d at 1338. The Veteran has expressed his belief that his current toenail fungus is related to exposure to wet and humid weather conditions in service and/or herbicide exposure in service. However, as a lay person, he can only comment as to symptoms and immediately-observable relationships. He lacks the expertise in this case, not involving such an immediately observable cause-and-effect relationship, to conclude that his current toenail fungus is related to any specific injury in service, including exposure to wet and humid weather conditions and herbicide exposure. Rather, it would require medical expertise to evaluate the disability, consider all the potential causes, and determine that one was a more likely cause than another. Hence, the Veteran's opinion on this question is not competent evidence. 38 C.F.R. § 3.159(a)(1), (2) (2012). There is no other evidence of a relationship between the Veteran's current toenail fungus and service, and neither the Veteran nor his representative have alluded to the existence of any such evidence. Thus, the preponderance of the evidence is against a finding that the Veteran's current toenail fungus is related to service or manifested in service. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim. The benefit-of-the-doubt doctrine is therefore not for application in this case and the claim of service connection for toenail fungus must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. ORDER Entitlement to service connection for toenail fungus is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs