Citation Nr: 1331480	
Decision Date: 09/30/13    Archive Date: 10/02/13

DOCKET NO.  12-16 446	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to service connection for bilateral foot fungus, to include onychomycosis. 


REPRESENTATION

Veteran represented by:	Colorado Division of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

T. Blake, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1950 to July 1953, to include a tour in Korea.  He is the recipient of the Combat Medical Badge.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver Colorado.

In August 2013, the Veteran testified at a Board hearing held before the undersigned Veterans Law Judge in Denver, Colorado.  A copy of the transcript is of record on the "Virtual VA" system.  

The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  The Veteran's lay statements that he experienced a foot fungus during service are consistent with the circumstances of his combat service in Korea.  

2.  The Veteran's lay statements that the foot fungus continued after service to the present day are credible. 



CONCLUSION OF LAW

Given the benefit of the doubt to the Veteran, bilateral foot fungus was incurred in service.  38 U.S.C.A. §§ 1110, 1131, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and 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).  VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.

Given the fully favorable decision discussed below for the issue on appeal, the Board finds that any issue with regard to the timing or content of the VCAA notice provided to the Veteran is moot or represents harmless error.  As to additional notice regarding the rating percentage and effective date to be assigned, the RO will address these matters in effectuating the award.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).


Service Connection Laws and Regulations

Under 38 C.F.R. § 3.303(a), service connection means that the facts, as shown by the evidence, establishes that a particular injury or disease was incurred coincident with service.  It may be granting by affirmatively showing inception or aggravation during service.  Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  

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) (2013).

In the case of any veteran who engaged in combat with the enemy in active service and during a period of war, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran.  Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary.  38 U.S.C.A. § 1154(b) (West 2002).  

Section 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to the current disorder.  See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996).  Section 1154(b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service.  A veteran must still establish his claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events.  See Gregory v. Brown, 8 Vet. App. 563, 567 (1996); see also Kessel v. West, 13 Vet. App. 9, 17-19 (1999).

The specific dates encompassing the "periods of war" are set by statute, to include the Korean conflict beginning on June 27, 1950, and ending on January 31, 1955.  38 U.S.C.A. § 101(9) (West 2002); 38 C.F.R. § 3.3(i) (2013).  

Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal.

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Analysis of Service Connection 

Throughout the pendency of the appeal, the Veteran contends that service connection is warranted for his bilateral foot fungus, to include onychomycosis, as it is the same skin disorder he was treated for during his military service in Korea.

At the outset, the Board notes that the evidence of record establishes the Veteran has a current bilateral foot fungus disability as treatment records show a diagnosis of bilateral foot onychomycosis.  

On a January 2011 Application for Compensation and/or Pension Benefits, via a VA Form 21-526, the Veteran noted receiving treatment for bilateral foot fungus during service in Korea in 1952.  Most recently, at the August 2013 Board hearing, he explained how, during service in Korea, the boots he wore and the absence of adequate hygiene contributed to his current bilateral foot fungus.  He was initially issued leather boots, which would freeze the feet and toes, then approximately one month later was issued rubber insulated boots to wear for the next 11 and a half months.  The Veteran was instructed not to remove the boots at night, in the event of combat activity; however, during the day, he was able to air out and wash his feet and socks.  He believes the fungus started while in service when the area of skin around his toes began to crack, itch, and bleed and his toenails changed colors.  During service, the Veteran treated this condition with a purple, antiseptic, solution and continued to seek treatment shortly after separation from service.

Review of the evidentiary record indicates the Veteran's service treatment records are unavailable for review, as noted in an August 2011 memorandum from the RO.  Nevertheless, the Board finds the Veteran is competent to report symptoms and treatment that is within his personal knowledge.  See Layno v. Brown, 6 Vet. App. 465 (1994).  The Veteran has made credible assertions that he received treatment in the field for the skin disability and this type of treatment is consistent with the circumstances of his service.  As a result, the Board will resolve all reasonable doubt in the Veteran's favor and find that he did have complaints and receive treatment for a skin disability of his feet during service, which is consistent with the places, types, and circumstances of his military service in the field during combat.  See 38 U.S.C.A. § 1154(b). 

It is therefore conceded that the Veteran had symptomatology and was treated for a skin disability on his feet during active military service and he currently has bilateral foot fungus, to include onychomycosis.  The question for consideration is whether the Veteran's current bilateral foot fungus disability is causally related to such in-service treatment. 

When, after full review of the record and careful consideration of all procurable and assembled data a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the Veteran. Reasonable doubt exists because the approximate balance of positive and negative evidence, either qualitatively and quantitatively, does not satisfactorily prove or disprove the claim. It is substantial doubt and one within the range of possibility as distinguished from pure speculation or remote possibility. 38 C.F.R. § 5107(b) (2013); Gilbert, 1 Vet. App. at 53-56. 

There is no medical opinion of record.  However, the Veteran testified that he continued to experience bilateral foot fungus post-service.  The Veteran currently has a bilateral foot onychomycosis, and he has made credible statements of constant symptoms associated with this claimed disorder.  There is nothing of record to refute the Veteran's testimony on this point, and the undersigned found his testimony to be credible during his hearing.  

Given the facts of this case, and with resolution of all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for bilateral foot fungus, to include onychomycosis. 


ORDER

Service connection for bilateral foot fungus, to include onychomycosis, is granted. 



____________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs