Citation Nr: 1327322 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 06-31 810 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a skin condition. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active military service from May 1970 to May 1973 and from January to June 1991. He also served with Reserve components at various times; complete records of the Veteran's reserve component service have not been located. This matter arises to the Board of Veterans' Appeals (Board) from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, that in pertinent part denied service connection for a skin condition. In June 2010 and again in March 2013, the Board remanded the case for further development. While on remand, VA's Appeals Management Center granted all other appealed issues and assigned initial ratings and effective dates for newly service-connected disabilities. Where an appealed claim for service connection is granted, a second Notice of Disagreement (NOD) must be timely filed to initiate appellate review of "downstream" issues such as the disability rating or the effective date assigned. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Because no further NOD has been filed with respect to these issues, the Board need not address them. FINDINGS OF FACT 1. The Veteran's available service treatment reports (STRs) are silent for treatment for a skin disorder. 2. The Veteran is a combat veteran who has competently and credibly testified that a skin disorder arose while serving in combat in Vietnam, and has testified to flare-ups of the skin disorder during and following his service in the Persian Gulf. 3. Satisfactory lay evidence of service incurrence of a skin disease has been submitted. 4. A fungal infection involving the groin and feet arising while serving in Vietnam and aggravated during service in the Persian Gulf is consistent with the circumstances, conditions, or hardships of such service, and a factual presumption arises in this case that the Veteran experienced symptoms of a skin disorder during each period of service. 5. Current diagnoses of tinea pedis and tinea cruris have been offered. 6. The evidence as to whether the Veteran's current skin disorder is a manifestation of a skin disorder incurred or aggravated in service is in equipoise. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, tinea pedis and tinea cruris were incurred or aggravated during active military service. 38 U.S.C.A. §§ 1101, 1110, 1154, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As set forth at 38 U.S.C.A. §§ 5103A, 5107, 5126 (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), and 3.159 (2012), VA must notify claimants of certain procedural aspects of their claims and must assist claimants in obtaining evidence that might substantiate their claims. Because the Board is granting the benefit sought by the claimant, further discussion of the actions taken by VA to meet its duties to notify and assist the Veteran is not required. Service Connection Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service (wartime or peacetime). 38 U.S.C.A. §§ 1110; 1131 (West 2002), 38 C.F.R. § 3.303(a) (2012). Service connection requires competent evidence showing: (1) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; (2) medical evidence of current disability; and (3) medical evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). In Caluza, the Court also stressed that § 3.102 states, "The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident arose under combat, or similarly stressful conditions [emphasis added], and is consistent with the probable results of such known hardships." Caluza, 7 Vet. App. at 509. Each disabling condition shown by service medical records, or for which the Veteran seeks service connection, must be considered on the basis of the places, types, and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). "Direct" service connection may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Federal Circuit has stressed that "special considerations attend the cases of combat veterans." Jensen v. Brown, 19 F.3d 1413, 1416 (Fed. Cir. 1994). Nevertheless, section 1154(b) does not serve to show nexus, i.e., a causal relationship between an in-service disease or injury and a subsequently diagnosed disability. Davidson v. Shinseki, 581 F.3d 1313, 1315 (Fed. Cir. 2009) ("[Section] 1154(b) could be used only to show that [veteran] incurred or aggravated a disease during service."); Boyer v. West, 11 Vet. App. 477, 478 (1998) (explaining that "section 1154(b) does not relieve the appellant of his obligation to submit competent medical evidence of a nexus between his present hearing loss and his military service" and that lay testimony "cannot provide such medical evidence because lay persons are not competent to offer medical opinions"), aff'd, 210 F.3d 1351 (Fed.Cir.2000). Once the evidence has been assembled, the Board assesses the credibility and weight to be given to the evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that a Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. 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. Facts and analysis In November 2005, the Veteran reported that his skin outbreaks come and go. He submitted an April 2005 private medical report that notes treatment for a fungus infection of the feet. A June 2006 VA out-patient treatment report mentions that tinea pedis had caused a secondary bacterial-based pseudomonas skin outbreak. In February 2008, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge that his feet stayed damp during his entire year in Vietnam and it was there that they became infected. He testified that he was treated by a medic one time in Vietnam and that the medic confirmed that the humid climate would cause this condition. He testified that that "jock itch" also arose in Vietnam and has recurred ever since then. He testified that his VA physician at Hot Springs VA Medical Center has related this to active service. A June 2010 VA podiatry compensation examination report reflects that tinea cruris and tinea pedis were present, but no etiology was supplied. A June 2011 VA addendum report mentions that the claims files and a copy of the remand were reviewed. The examining physician could find no evidence of treatment for a skin condition in the STRs. For that reason, the physician dissociated the skin disorder from active military service. In November 2011, a VA physician dissociated tinea pedis and tinea cruris from exposure to herbicide agents during active service on the basis that medical literature does not support such an association. In March 2013, however, the Board remanded the case, requesting that the November 2011 examining physician address the likelihood that tinea first arose during active service. The physician was asked to assume that the Veteran did observe a skin disorder during active service. In April 2013, the November 2011 examining VA physician reviewed the medical history and then found it unlikely that the present condition is related to active military service. The three reasons for this conclusion were: (1) there is no objective medical evidence of treatment in the STRs; (2) this condition is commonly found in the normal population; and, (3) it is very common for this disorder to have flare-ups. The above recitation includes all medical and lay evidence of record relevant to the service connection claim. The Board must now address the competency, credibility, and probative value of this evidence. 38 U.S.C.A. § 7104(d)(1) (West 2002); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The medical opinions of record are unfavorable to the claim, but those medical opinions are based on the absence of in-service evidence that the Veteran was treated for a skin disorder. However, there is no dispute that the Veteran served under combat conditions during each period of service, and the Federal Circuit has held that absence of a record of treatment in service of the disease for which a Veteran is seeking service connection cannot be the sole basis for a finding that there is no causal connection between a combat Veteran's service and a current disability. See, e.g., Dambach v. Gober, 223 F.3d 1376, 1380 (Fed. Cir. 2000); Jensen v. Brown, 19 F.3d 1413 (Fed. Cir. 1994). The Veteran submitted a signed, written statement of a service comrade who recalled the Veteran's skin-related complaints while they served together in Vietnam. The examiners who provided unfavorable opinions stated specifically that the finding that it was unlikely that a current skin disorder was related to the Veteran's service was based on the fact that there was no objective medical evidence that the Veteran was treated for a skin disorder during either period of service. The Board specifically requested that the examiner assume that the claimed skin disorder arose during active service. Nevertheless, in March 2013, the provider based the unfavorable opinion on the lack of objective medical evidence during active service. As a matter of law, the Board cannot rely on the medical opinions, since the examiners applied a principle in reaching the medical conclusion that the Board is precluded from applying. This, the medical opinions must be considered of little value or persuasive weight against the claim. The second reason for offering a negative opinion carries little, if any persuasive value on the negative side, but rather, it argues for service connection. The November 2011 examining physician noted that this skin condition is common in the population. This rationale argues for service connection, because the fact that tinea commonly arises in the population connotes that it also commonly arises among those performing military service. Recognizing that this Veteran was serving in a tropical climate at the time where, under combat conditions, proper foot hygiene would be difficult, the fact that tinea is a common infection argues for service connection under the circumstances of this case. In particular, records of the Veteran's reserve service after 1991 are not complete, nor are complete records available which would disclose the Veteran's post-service treatment after his 1991 service discharge. The medical opinion is, in fact, consistent with the Veteran's statements that a skin disorder present at the time of service in 1991 flared up during that service and has remained chronic, although intermittent, since that service. The medical opinion rests, in part, on the absence of clinical records showing treatment for tinea prior to 2001, some 10 years after the Veteran's 1991 service discharge. However, the Veteran has reported use of over-the-counter remedies, and it is common knowledge that over-the-counter remedies for tinea are available and widely used. The Board finds no specific indicator that the Veteran's statements with respect to self-treatment of a skin disorder diagnosed as tinea is not credible. Finally, the November 2011 examining physician noted that this skin condition is intermittent in severity. The Board finds that this medical statement is not unfavorable to the Veteran's claim. A finding of an intermittent or fluctuating skin condition does not argue for or against service connection. Although the Board may not second-guess a medical expert based upon its own opinion, it cannot blindly accept the opinion of a physician whose opinion is not clear enough for a lay adjudicator to understand. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The evidence as to a nexus between a skin disorder incurred in service and a current skin disorder is essentially in equipoise. There is no evidence which clearly and unmistakably rebuts the presumption that a skin disorder which pre-existed the Veteran's second period of service was aggravated therein, if the Veteran's testimony that he had a skin disorder when he entered the second period of active service is accepted as credible. The Board finds no specific indicator that the Veteran's statements that a skin disorder were present when he entered his second period of service, and that the skin disorder were aggravated during that service, are not credible. Resolving reasonable doubt as to incurrence or aggravation of a skin disorder in the Veteran's favor, the criteria for service connection for a skin disorder, diagnosed as tinea pedis and tinea cruris, are met. ORDER Service connection for tinea pedis and tinea cruris is granted. ____________________________________________ Tresa M. Schlecht Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs