Citation Nr: 1333359 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 07-20 942 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for foot problems (to include tinea pedis). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to July 1969. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This claim was previously before the Board in December 2010 and February 2013 when it was remanded for additional development. FINDINGS OF FACT 1. The second and third toes on the Veteran's right foot were amputated prior to active duty service. 2. The most probative evidence of records indicates that the Veteran's current foot disability, to included tinea pedis and onychomycosis, is not related to the Veteran's active duty service. CONCLUSION OF LAW The criteria for service connection for foot problems (to include tinea pedis) have not been met. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303, 3.304, 3.306 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duty to Notify and Assist 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, and 5126 (West 2002)) redefined VA's duty to assist a claimant 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). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a December 2005 letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, post service treatment records, and VA examination reports. The Board notes that actions requested in the prior remands have been undertaken. Indeed, VA examinations were conducted and medical opinions obtained. The Board notes that attempts were made to retrieve Social Security Administration (SSA) records which returned negative responses. In March 2013 and May 2013, the RO requested the Veteran's records from SSA. In a June 2013 response, SSA indicated that medical records did not exist and further efforts to obtain them would be futile. A June 2013 letter informed the Veteran of the attempt to obtain his SSA records and the RO requested that he send any SSA records in his possession. No response was received. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As discussed above, the Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. Therefore, she was provided with a meaningful opportunity to participate in the claims process. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). A pre-existing disease or injury will be found to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F. 3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). A temporary or intermittent flare-up of a preexisting disease does not constitute aggravation. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991); Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). The Board has reviewed all the evidence in the claims file and Virtual VA paperless file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). III. Analysis The Veteran contends that he suffered from jungle rot in service and/or appears to contend that his right second and third toes were amputated due to jungle rot and that his foot condition was aggravated by service. Service treatment records include a May 1966 entrance examination showing that the Veteran had injured his great toe and his second and third toes on his right foot when a manhole cover fell on his foot in 1959. The Veteran stated that gangrene had set in and that it was necessary to amputate the second and third toes. The May 1966 examiner noted that the amputation stumps had healed nicely and that the Veteran has "done well." It was also noted that there was some pain and awkwardness in the toes when the Veteran ran, but that he was able to walk normally except on extremely long walks. Service treatment records also reveal complaints and treatment for sore feet and athlete's foot. A June 1968 clinical note reflects that the Veteran's feet were sore. A September 1968 treatment record reflects complaints of "bad" athlete's foot. A December 1968 treatment record shows treatment for itching on the Veteran's feet. The Veteran was treated on most occasions with daily hot soaks and was approved to wear special low quarter shoes when experiencing an infection. A clinical notation in December 1968 indicated that the Veteran's feet "look[ed] to be well." The July 1969 separation examination did not reveal tinea pedis. Post-service VA treatment records dated in April 2001 reflect that the Veteran requested shoes because his feet were hurting him. A May 2001 VA treatment record indicates that the special shoes had eased the Veteran's foot pain. A podiatry report dated in May 2001 shows that the Veteran gave a history of chronic long term tinea infection that he claimed he acquired while in service. He also reported that the infection was so severe that at times blisters and cellulitis would form on his feet. The Veteran noted that his last episode was about 5 years ago. The Veteran also stated that the acute episodes had not recurred because he had not worn closed shoes for any length of time. A February 2002 VA primary care note shows that the Veteran had athlete's foot on the little toe on his right foot. A March 2005 podiatry note indicates that the Veteran's nails were dry, lusterless and squamous. His right and left great toe nails had a worm-eaten appearance with subfungal debris. It was also noted that all other nails were thickened and elongated. There was a generalized scaly eruption on the soles of both feet, but there was no evidence of ulcerations, keratosis or tinea infection. The examiner diagnosed the Veteran with onychomycosis, chronic tinea pedis and diabetic neuropathy. A September 2005 VA treatment record noted that his feet had scales and some maceration between his toes. A January 2006 VA treatment note indicates an assessment of dermatophytosis of the nails and feet. At a December 2010 VA orthopedic examination, the Veteran reported having pain in his feet, measured at a 5/10, which would increase to a 10/10. The Veteran stated that the modifications to his shoes have helped him significantly, but that he is limited in how much he can walk. He complained of blistering whenever he walked a significant distance. Upon examination, the Veteran's feet revealed evidence of a second and third toe amputation on the right foot, which the examiner noted occurred prior to service. The Veteran's strength was 5/5. The examiner did not find any abnormal callosities on his heels or pads of his feet and no ulcerations were noted. No blisters were found on the Veteran's feet and there was no tenderness to palpation. The Veteran's x-rays did not show any bone or destructive lesions. The orthopedic examiner diagnosed the Veteran with bilateral toenail fungal infection. He noted that from an orthopedic standpoint, the Veteran's bony structures of the feet as well as the soft tissues and tendons of his feet were normal other than the toe amputations which did not occur in service. The examiner further noted that the Veteran had diabetes and was a smoker, and that the combination of those two factors can lead to vascular and neuropathic problems and complications, particularly in the feet. He opined that the Veteran's amputations would not be aggravated or exacerbated by his time in service, as these are lesser toe distal amputations. He noted that if the great toe were amputated, that certainly it would not be unreasonable for his time in the service to have aggravated that, but being they are distal phalanx amputations of the second and third toes on one foot, this should not lead to any further disability caused by his time in service. The examiner also concluded that he did not feel that the Veteran had any orthopedic foot issues that would have been made worse while he was in service. The Veteran was afforded a December 2010 VA skin examination. The examiner noted that the Veteran had been treated for athlete's foot and had complained of itching on the bottom of his feet in service. He noted that the Veteran had also suffered from an ingrown toenail while in service. The examiner reported the Veteran's post-service antifungal treatments and medications for his foot condition. The Veteran stated that if he stays off his feet or wears sandals and uses the medication prescribed by the dermatologist, than he is fairly symptom free. However, if he wears shoes that covers his feet and stops applying the medication, then blisters that are "the size of quarters" form on his feet. Upon examination, the Veteran's right foot revealed onchomycosis of the great toe nail, scaly skin over the proximal great toe and lateral malleolus and a small, erythematous, superficial pressure sore distal on the second toe. The Veteran's left foot revealed onchomycosis of the great, second and little toenails. Scaly skin on the plantar surface was found and small, pink, superficial pressure sore distals on the second toe were found. There were no blisters found. There was a less than 1 centimeter in diameter area of slightly hyperkeratotic skin on the lateral, plantar surface found on the foot where the Veteran reports that he had a blister. The examiner diagnosed the Veteran with onchomycosis of 4 out of 8 toenails. The examiner opined that it was less likely than not that this diagnosis was the same infection that he received in service. The examiner's rationale was that toenail fungus or onchomycosis is common and can be caused by a number of fungi. The examiner noted that it is the same group of fungi that can cause athlete's feet. Both the skin and nail infections can frequently be cured for some time and then the patient can become infected from another source. It was noted that dermatophytes (fungi) are ubiquitous. The examiner further noted the Veteran's statement that there was a 5-year hiatus without any episodes of tinea on his feet. The examiner indicated that this fungus does not have a "carrier state" in which the infection is present but quiescent. The examiner also noted that having athlete's foot and onychomycosis that has healed does not render the patient more susceptible to the fungi the next time he is exposed. He simply was exposed to this fungus from another source and became infected again. In a March 2012 addendum, it was noted that the Veteran's claims file was reviewed by both the December 2010 VA examiners. Based on a review of the entire record, the Board finds that the most probative evidence is against the claim. While in service, the Veteran was treated for sore feet and for bilateral athlete's foot. The Veteran currently has diagnosis of onychomycosis and tinea pedis, both fungal infections. Thus, the question in this case is whether the current disorders are related to his military service. Post-service treatment records show that the Veteran has been treated for tinea pedis after his separation from service. The December 2010 VA skin examiner reviewed the claims folder and noted treatment for athlete's foot in April 1988. Also noted was the antifungal cream and antibiotics the Veteran is taking for his condition. However, the examiner concluded that the Veteran's current fungal infection was not related to the Veteran's in-service treatment of athlete's foot. The examiner explained in detail why the athlete's foot condition the Veteran suffered in service is not the same fungal infection in which the Veteran suffers from currently. The examiner concluded that the Veteran has been exposed to this fungus from another post-service source and has become infected again. The Board finds that the opinions of the December 2010 VA examiners are highly probative. These examiners reviewed the claims file, examined the Veteran, specifically noted the in-service complaints and findings, and provided a detailed rationale for the opinions provided. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion. Clearly, the Veteran is competent to describe outwardly demonstrated and subjectively experienced symptoms. However, the Veteran has not shown that he has the medical expertise to diagnose his foot complaints or to determine the etiology of his current condition. 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 any event, the Board finds the opinions of the VA examining physicians are significantly more probative than the Veteran's lay assertions. The Board also notes that the evidence of record clearly establishes amputation of the Veteran's second and third toes on his right foot pre-existed his military service. Specifically, these amputations were noted on the May 1966 entrance examination. As such, the Board finds the Veteran's statement suggesting that his second and third toe amputation on this right foot was due to his military is inherently false. As the toe amputations existed prior to service, the Veteran may only bring a claim for aggravation for the toe amputations. Here, the December 2010 VA examiner reviewed the Veteran's claims file and noted the Veteran's second and third toe amputation. The examiner found that the Veteran's bony structure of his feet as well as the soft tissues and tendons on his feet were normal, besides the second and third toe amputation. The examiner opined that the Veteran's preexisting foot condition was not aggravated or exacerbated by active duty service. He also stated that the Veteran does not have any orthopedic foot issues that were made worse by the Veteran's time in service. In the absence of a current orthopedic foot disability that is related to service, service connection cannot be established on a direct or aggravation basis. As noted above, in order to prevail on the issue of service connection there must be competent evidence of in-service incurrence or aggravation of a disease or injury and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999) (emphasis added). Thus, in the absence of a current orthopedic foot disability related to the pre-existing amputation and/or service, there is no basis to establish service connection. Accordingly, the Board finds that the preponderance of the evidence is against a finding that Veteran's currently diagnosed foot disabilities, including amputation, tinea and onychomycosis, were incurred in and/or aggravated by service. Therefore, service connection is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for foot problems (to include toe amputations, tinea pedis and onychomycosis) is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs