Citation Nr: 1328206 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 04-33 957 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for tinea pedis. 2. Entitlement to service connection for skin and nail disabilities, other than tinea pedis, including as a result of exposure to herbicides and chemicals. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Heneks, Counsel INTRODUCTION The Veteran served on active duty from December 1971 to January 1975. These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the benefits sought on appeal. In November 2010, the Veteran presented testimony at a personal hearing conducted in Montgomery before the undersigned who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002) and who is rendering the determination in this case. A transcript of this personal hearing is in the Veteran's claims folder. The appeal was remanded for additional development in February 2006, May 2007, January 2009, June 2010, March 2011, and October 2012. Most recently, the Board remanded for the VA examiner to review the Veteran's service treatment records, which was done as reflected in an October 2012 VA examination addendum. Accordingly, the Board finds that VA has substantially complied with the Board's remands with regard to this appeal. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). The record reflects that after the most recent February 2013 supplemental statement of the case (SSOC) was issued, a January 2013 VA treatment record was associated with the Veteran's Virtual VA claims file reflecting that he was hospitalized following a heart attack. By a February 2013 statement, his accredited representative related that he was waiving the right to have this additional evidence reviewed by the agency of original jurisdiction in accord with 38 C.F.R. § 20.1304. FINDINGS OF FACT 1. Tinea pedis has been shown to be causally or etiologically related to the Veteran's military service. 2. Skin and nail disabilities, other than tinea pedis, to include tinea manuum, onychomycosis, and atopic dermatitis have not been shown to be causally or etiologically related to the Veteran's military service. CONCLUSIONS OF LAW 1. Tinea pedis was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. Skin and nail disabilities, other than tinea pedis, to include tinea manuum, onychomycosis, and atopic dermatitis were not incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his/her representative, if applicable, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Further, in Dingess v. Nicholson, the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his/her claim. 19 Vet. App. 473 (2006); see also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. The Board finds that the VCAA duty to notify was satisfied by a letter sent to the Veteran in November 2002. The letter addressed all of the notice elements and was sent prior to the initial unfavorable decision by the AOJ in September 2003. In a March 2006 letter, the Veteran was provided with notice that addresses the relevant rating criteria and effective date provisions. Although the March 2006 notice was provided after the additional adjudication of the Veteran's claims, the claims were subsequently readjudicated in a February 2013 SSOC. Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). Therefore, the Board finds that VA has fulfilled its duty to notify under the VCAA. VA has also satisfied its duty to assist the Veteran. All available service treatment records, service personnel records, as well as all identified VA and private medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claims. Although private treatment records from a state department of corrections (DOC) were obtained in January 2003, VA asked the Veteran to submit a release to obtain any additional records from that facility in March 2011, as the Veteran subsequently testified he was incarcerated after January 2003. Despite sending follow up letters in July 2011, December 2011, and February 2012 asking the Veteran to submit a release for VA to obtain any additional DOC records, the Veteran did not submit an additional release. The Veteran was specifically informed in the February 2012 letter that it was his responsibility to see that VA receives any private treatment records. Accordingly, because the Veteran was provided a reasonable opportunity to submit a release and did not do so, the Board finds that there is no further duty to assist the Veteran in obtaining any outstanding DOC records. 38 C.F.R. § 3.159(c)(1)(i), (ii). Additionally, an April 2013 Social Security Administration (SSA) inquiry reflected that the Veteran had a denied claim. Although SSA records have not been obtained, the Board notes that such records would not be relevant to the claims for a skin or nail disability, as the Veteran has not alleged that he is unable to work due to such. Rather, a review of the record reflects that the Veteran does not work due to a combination of other factors, including non-service-connected disabilities and periods of incarceration. Accordingly, SSA records would not have a reasonable possibility of substantiating his claims and therefore it is not necessary to obtain them. Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010). With regard to the Veteran's contention that he was exposed to herbicides and other chemicals onboard the USS Independence, the Veteran has not contended, and as reflected in a December 2002 response from the National Personnel Records Center, there is no evidence in the Veteran's file that he served in the Republic of Vietnam. Similarly, there is no evidence suggesting that any planes that landed on the USS Independence carried herbicides. Following his hearing, the Board remanded the claim in March 2011 to attempt to obtain information about any hazardous chemicals that the Veteran might have been exposed to on the USS Independence. A February 2012 response from the Naval History and Heritage Command reflected that any records of hazardous materials that may have been aboard the USS Independence were designated for destruction after a two year retention period. A March 2012 formal finding of unavailability of service treatment records reflected VA's efforts to obtain these records and that the Veteran was informed such records were not available. 38 C.F.R. § 3.159(c)(2), (e). Accordingly, the duty to assist with regard to obtaining any records of chemicals on the USS Independence has been met. At his hearing, the undersigned explained the issues on appeal including what the evidence needed to show to substantiate his claims and specifically what evidence was missing from the record. Hearing Transcript pp. 21-22. Further, the undersigned suggested that it would be very beneficial to his claims if he were to submit a medical statement stating that his current skin problems were due to his service, the missing evidence needed to substantiate his claims. Hearing Transcript p. 22. Therefore, the undersigned satisfied all hearing officer duties, as directed by 38 C.F.R. § 3.103(c). Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010); see also Procopio v. Shinseki, 26 Vet. App. 76, 80 (2012). VA examinations with respect to the claims were obtained in March 2009 and April 2011, with an addendum obtained in October 2012. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA opinions obtained in this case are adequate, as they are predicated on a reading of the service and post-service medical records in the Veteran's claims file. The examiners considered all of the pertinent evidence of record, to include the Veteran's service and post-service records and the statements of the Veteran, and provide a complete rationale for the opinions stated, relying on and citing to the records reviewed. Although neither VA examiner specifically addressed whether the Veteran had a current skin or nail disorder that was related to in-service chemical exposure, there is no probative evidence of record indicating that any possible chemical exposure caused such a disability. Although the Veteran is competent to report that he was exposed to cleaning products while onboard the USS Independence, he is not competent to report that such exposure caused a skin or nail disorder. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (finding no prejudicial error in Board's statement of reasons or bases regarding why a medical opinion was not warranted because there was no reasonable possibility that such an opinion could substantiate the Veteran's claim because there was no evidence, other than his own lay assertion, that "'reflect[ed] that he suffered an event, injury[,] or disease in service' that may be associated with [his] symptoms"); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a veteran's conclusory generalized statement that a service illness caused his present medical problems was not enough to entitle him to a VA medical examination since all veterans could make such a statement, and such a theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require VA to provide such examinations as a matter of course in virtually every disability case). Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). VA has also assisted the Veteran and his representative throughout the course of this appeal by providing them with a July 2004 statement of the case and February 2008, October 2009, April 2012, and February 2013 SSOCs, which informed them of the laws and regulations relevant to his claims. For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. LAW AND ANALYSIS 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, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 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). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that 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). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). In considering all of the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for tinea pedis but not for any additional skin or nail disability. In his January 2002 claim, the Veteran contended that he came into contact with Agent Orange and other chemicals after planes that carried Agent Orange to Vietnam landed on the aircraft carrier where he was stationed. During his hearing, he testified that he experienced a burning sensation, itching, and that his hands and feet split from chemical exposure after cleaning decks. Hearing Transcript p. 4. He added that "a great while later," his nails started bleeding. Hearing Transcript p. 5. The Veteran's service treatment records reflect that he had in-service findings of athlete's foot, rashes, tinea versicolor, urticaria, and contact dermatitis. In January 1972, he was treated for a rash around his groin area. In May 1973, the Veteran complained of athlete's foot. A few weeks later, a May 1973 replacement of record report of medical examination stated that the Veteran's skin was clinically normal. On the accompanying report of medical history, the Veteran marked "no" when asked if had ever had or now had a skin disease. In July 1973, the Veteran reported a rash on his abdomen. A July 1973 record showed that the Veteran complained of a skin problem described as a pruritic macular rash on his legs and trunk which was excoriated and hypertrophic. There was also a patch of tinea versicolor on his back but his chief complaint was of eruption in other areas. The diagnoses were urticaria, contact dermatitis, rule out lues, and rule out fungus. In October 1973 while stationed on the USS Independence, the Veteran complained of a rash on his legs that he described as persistent with irritation. A black light examination showed possible tinea versicolor. In January 1974, the Veteran stated that he had athletes' feet and that his skin had broken out with blisters. It is unclear from his December 1974 report of medical examination if his skin was evaluated upon separation from service. A November 2010 statement from the Veteran's family stated that after he came home from the military "his hands and feet [were]splitting with blood under his fingernails and toenails," he had "rashes and werps break out all over him with fluids oozing out of them," and "his hands and feet started losing their pigmentation." Despite the Veteran's family's recollections, a May 1975 VA examination reflected that his skin was normal with no lesions. The Board observes that the Veteran was given a comprehensive evaluation in 1975, wherein his entire body was examined to include his abdomen, back, legs, hands, feet, and nails; all areas where he reported having a skin or nail disability. Further, private treatment records dated in 1974 and 1975 and from 1989 to 2002 did not contain any skin related findings or complaints. The Board concludes that the May 1975 VA examination containing objective evidence of no skin or nail disability shortly after the Veteran's separation from service outweighs his family's recollections made 35 years after his separation from service of the Veteran having a skin and nail disability. See Curry v. Brown, 7 Vet. App. 59 (1994) (contemporaneous evidence can have greater probative value than inconsistent testimony provided by the claimant at a later date). In fact, the first post-service skin related findings were in a VA record dated in 2002. In November 2002, the Veteran underwent a comprehensive medical examination wherein several medical complaints were evaluated. Notably, his skin was found to be anicteric, and he had no rashes or bruises on physical examination. He did not complain of any skin related problems either. Importantly, the first post-service medical documentation of a skin related finding was in February 2004 when the Veteran presented with itchy, dry skin that had occurred over the past month. He also had a rash on the back of his legs and arms and cracked skin "on finger." The Veteran reported that he had this in the past but never did anything about it at VA. Physical examination revealed a macular/popular rash behind his legs with surrounding erythema, dry skin on his hands but no rash, dry skin on the back of his arms and shoulders, dry skin extending to his thighs, and no evidence of scabies between his fingers or in his genitourinary region. The assessment was probable atopic dermatitis with flare. A December 2004 VA record noted that the palmar surface of the Veteran's right hand had scaling skin and all fingernails were chronic dystrophic, consistent with fungal disease. In May 2005, he was observed to have dystrophic, degenerative nails on his left hand with persistent scaling on the palmar surface of his hand. In January 2006, the Veteran reported a 20 year history of scaling on the soles of both feet and on his left hand. Physical examination showed scaling in a moccasin distribution on the soles of both his feet and scaling on the palm of the left hand. The assessments were tinea pedis and mannum and onychomycosis. Thus, during the pendency of his appeal, the Veteran had post-service findings of probable atopic dermatitis with flare, tinea pedis, tinea manuum, and onychomycosis. The Veteran underwent a VA examination in March 2009. The Veteran reported that he started to have a skin rash and toenail issues while in the service around 1972. Physical examination reflected thickened left hand fingernails and bilateral toenails with scaling and splitting. He had some thickened white scaling without any erythema, warmth, or scaling on the soles of his feet. The diagnoses were tinea pedis, tinea manuum, and onychomycosis. The examiner concluded after reviewing the claims file and examination findings that the Veteran's current skin and nail conditions were less likely as not caused by or a result of his in-service skin conditions. The Veteran had a second VA examination in April 2011. The examiner observed that the Veteran had been troubled by scaling nails and dry skin for some years that had been fairly constant but the exact onset was not clear. The Veteran stated that he had skin lesions intermittently, which were not currently present. He described getting little white spots around his body which itch and weep. Upon examination, the all fingernails of his left hand were thickened and dystrophic with peeling of the upper surface of the nail with obvious fungal involvement. His hands were dry with some scaling on the joint lines of his hand. His feet had dry flaking skin between all toenails, which were all thickened and dystrophic with yellowing. The diagnoses were onychomycosis of the left fingernails and all toes; and tinea pedis of all toes. As the examiner did not have the benefit of the review of the Veteran's service treatment records, an addendum was obtained in October 2012. After reviewing the claims file to include the service treatment records, the same examiner opined that the Veteran's claimed conditions were less likely than not incurred in or caused by his service. Although the examiners determined that it was less likely as not that the Veteran's tinea pedis was related to his military service, the Board is resolving reasonable doubt in favor of the Veteran and granting service connection. The March 2009 examiner reasoned that the Veteran had only one occurrence of tinea pedis (athlete's foot) in service in January 1974; that the tinea pedis he had in-service was a onetime event that resolved; and that the chronic condition that he has currently did not begin until 2005. However, the Board observes that the Veteran had two documented findings of tinea pedis during service, in March 1973 and January 1974, which weighs against the examiner's conclusion that the Veteran's in-service tinea pedis was a onetime event that resolved. Despite the gap between 1974 and the first post-service diagnosis of tinea pedis in 2006, the Veteran did report a history of intermittent scaling on the soles of both feet, which he is competent to report, although not diagnosis such as tinea pedis. Therefore, the Board will resolve reasonable doubt in favor of the Veteran and grant service connection for tinea pedis. The Board finds the examiners' opinions to be highly probative with regard to the claim for service connection for a nail condition, specifically his post-service diagnosis of onychomycosis. Both examiners reasoned that the Veteran did not have any documented nail conditions during service, only skin conditions, and although there were VA records dated in 2002, it was not until 2005 that a nail condition was documented. This findings is consistent with the Board's review of the evidence of record, noting no findings of onychomycosis until January 2006. Thus, the most probative evidence suggests that the Veteran's onychomycosis did not develop until many years after his separation from service. The Board also finds the examiners' opinions that the Veteran's post-service diagnoses of tinea manuum were less likely than not related to his military service probative. The examiners noted that the Veteran's other in-service skin conditions (rashes, tinea versicolor, urticaria, and contact dermatitis) were not tinea manuum, were not present at the time of his post-service VA examinations, and are completely unrelated to his current condition. This conclusion is consistent with the Veteran's report that his in-service symptoms were itching, scaling, and redness for which he was given creams that would resolve the rashes. Based on the Veteran's own self report, his in-service rashes were intermittent, since service his rashes would come and go, and it was not until later that the rashes became a chronic issue. Thus, the evidence supports the conclusion that the Veteran's in-service skin diagnoses, other than tinea pedis, were unrelated to his current post-service diagnoses of tinea manuum, and although not specifically addressed by the examiners, atopic dermatitis, as they are not the same diagnoses. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (noting that the current disability requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim). In conclusion, the Board has resolved reasonable doubt and granted the claim for tinea pedis. However, the most persuasive evidence does not support service connection for his post-service diagnoses of tinea manuum, onychomycosis, or atopic dermatitis. As such, service connection must be denied for these disabilities. 38 C.F.R. § 3.303. ORDER Entitlement to service connection for tinea pedis is granted. Entitlement to service connection for skin and nail disabilities, other than tinea pedis, including tinea manuum, onychomycosis, and atopic dermatitis, is denied. ____________________________________________ K. A. KENNERLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs