Citation Nr: 1340933 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 09-31 182 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a lower back disorder. 2. Entitlement to service connection for a bilateral leg disorder. 3. Entitlement to service connection for dermatophytosis claimed as bilateral foot fungus. REPRESENTATION Appellant represented by: American Legion ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1964 to March 1968. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Indianapolis, Indiana Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran indicated in his August 2009 substantive appeal that he wished to testify at a hearing. VA scheduled a hearing for October 2009 and notified the Veteran in a letter dated September 2009. In a letter dated October 2009, the Veteran notified VA that he wanted to cancel the hearing. Therefore his request for a hearing is considered withdrawn. See 38 C.F.R. § 20.704(e) (2013). The Board notes that while the Veteran's appeal was pending, one of his claims was granted in the field. Specifically, in a March 2013 decision, the RO granted service connection for neuritis claimed as tardy ulnar palsy. The Board further notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals an appellant brief dated October 2013 that is pertinent to this appeal. All other documents are either duplicative of the evidence in the claims file or irrelevant to the issues on appeal. The issue of entitlement to service connection for a bilateral leg disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein have been accomplished. 2. The Veteran's lower back disorder is not causally related to his active duty service and arthritis was not compensably disabling within one year following separation from active duty. 3. The Veteran's current bilateral dermatophytosis is not causally related to his active duty service. CONCLUSIONS OF LAW 1. The Veteran's current back disorder is not related to his active duty service and arthritis is not presumed to be related to his active duty service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). 2. The Veteran's current bilateral dermatophytosis was not incurred in, or related to, his active duty service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. In September 2006, VA notified the Veteran of the information and evidence needed to substantiate his claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The issues were readjudicated in March 2013. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order, except as discussed in the remand. Legal Principles Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after service 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). Arthritis, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Alternatively, a nexus to service may be presumed where there is continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis Lower Back Disorder In an enlistment examination dated May 1964, the Veteran did not report any back problems and the examiner noted a normal spine. An examination dated January 1965 found the Veteran qualified for transfer to sea duty. A service treatment record dated June 1965 shows that the Veteran was involved in a motorcycle accident, suffered some minor abrasions on his head, but was otherwise unremarkable. An August 1965 service treatment record noted that the Veteran would not suffer a permanent disability from the accident and a March 1968 separation examination showed a normal spine. Private treatment records from Grandview Hospital dated October 1994 noted no back pain, muscle weakness, joint pain or gait defects. A private treatment record dated September 2000 did not indicate any back complaints and another September 2000 private medical record noted his back was "benign." A May 2002 VA medical record shows a spine x-ray indicating no compression fracture of malalignment, maintained intervertebral disk spaces, intact posterior elements and pediciles and no acute abnormality. An October 2005 VA medical record shows a spine x-ray indicating mild facet joint hypertrophy in lower lumbar spine, but is otherwise negative. A VA medical record dated June 2006 noted the Veteran's back was within normal limits. In a July 2006 claim, the Veteran recounted an incident in service where he had been doing pushups and a superior hit him in the back with a rifle. In support, the Veteran also submitted three statements from people who witnessed the event. A VA medical record dated October 2006 shows that the Veteran complained of back pain. In a July 2008 notice of disagreement, the Veteran explained that there were no medical records of the in-service incident involving the rifle because he was afraid of reporting it. He also recounted another in-service accident where he fell off of a ladder. A March 2013 VA medical record shows a spine x-ray noting an impression of slight dextroscoliosis, vascular calcifications and degenerative change of posterior elements of L4 to S1. In a March 2013 VA examination, the Veteran stated that after he was hit in the back with the rifle, he did not seek medical treatment and the symptoms resolved. He also reported that his current back condition began around 10 to 15 years ago, noting that he distinctly recalled bending over a sink and his back "catching." The examiner diagnosed the Veteran with lumbar spine osteoarthritis. Assuming that the in-service incidents involving the rifle and the ladder occurred, the examiner opined that it was less likely than not that the Veteran's current back condition was due to his reported incidents in service. She reasoned that the claimed incidents were likely not severe enough to cause a chronic back condition because they did not require medical attention, limitation of duty, and because the separation exam was normal. She further highlighted that there was no evidence of any ongoing back condition since service and the back disability appeared to onset around 2002 to 2007. She noted that the evidence indicated a natural progression of arthritis from a normal lumbar spine in 2002 to minimal arthritis in 2005 to diffuse arthritis in 2010. According to current medical literature, she reasoned, if the Veteran had suffered a substantial injury in 1964 to 1968, the degeneration would be quite apparent by 2002. The examiner concluded that it was more likely than not that the Veteran's back condition was due to natural degeneration of age, occupation and obesity, which the medical literature supports as leading causes of osteoarthritis. First, the Veteran has a current lower back disorder because the March 2013 VA examiner diagnosed him with lumbar spine osteoarthritis. Although service treatment records do not document an in-service injury, the Veteran claims that he suffered two lower back injuries. In the July 2006 claim, the Veteran reported that his superior hit him in the back with a rifle while he was doing pushups, and he submitted three buddy statements supporting the incident. In the July 2008 notice of disagreement, the Veteran also described an incident where he fell off a ladder and hurt his back. Lay persons are competent to report personal knowledge as it comes to them through the senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Thus, the Veteran and the three witnesses are competent to report these events. Although there is no objective evidence of these events, because the statements are not inconsistent with each other or the evidence of record, the Board finds them credible and therefore finds that the Veteran likely suffered in-service back injuries. The Veteran's in-service injuries, however, are not related to his current back disorder. The March 2013 VA examiner opined that it was less likely than not that the Veteran's current back condition was due to his reported incidents in military service. She reasoned that the claimed incidents were likely not severe enough to cause a chronic back condition because they did not require medical attention, limitation of duty, and because the separation examination was normal. She further emphasized that there was no evidence of any ongoing back condition since service and that the onset of the back disability appeared around 2002 to 2007. The evidence showed a natural progression of arthritis from a normal lumbar spine in 2002 to minimal arthritis in 2005 to diffuse arthritis in 2010. According to current medical literature, she reasoned, if the Veteran had suffered a substantial injury in 1964 to 1968, the degeneration would be quite apparent by 2002. The examiner concluded that it was more likely than not that the Veteran's back condition was due to natural degeneration of age, occupation and obesity, which the medical literature supports as leading causes of osteoarthritis. The medical records support the examiner's conclusion. The March 1968 separation examination showed a normal spine; two post-service private treatment records-one from October 1994 and another from September 2000-are negative for back complaints. Moreover, the first medical evidence of a back disorder appears in the October 2005 VA medical record-about 37 years after service. See Maxson v. West, 12 Vet. App. 453, 459 (1999). The Veteran asserts, however, that his current back disorder is related to his in-service injuries. Although the Veteran is competent to report on symptoms he has experienced, he is not competent to diagnose the etiology of his back disorder. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. Moreover, his lay statements regarding the relationship of his back disorder to service are inconsistent. He admitted in the March 2013 VA examination that his lower back symptoms onset about 10 to 15 years before the examination. Because the Veteran's statement that his symptoms onset about 10 to 15 years before 2013 was made for purposes of medical treatment and diagnosis, the Board finds it exceptionally trustworthy. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Moreover, it is consistent with the medical evidence that first shows complaints of lower back pain around October 2005. The Board therefore concludes that the Veteran's lower back disorder onset more than one year after separation from service. 38 C.F.R. §§ 3.307, 3.309. For the same reasons, there is no evidence of continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Thus, the Board finds that the Veteran's current back disorder is not related to his in-service injuries and the claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert, 1 Vet. App. at 49. Dermatophytosis (Foot Fungus) In the May 1964 enlistment exam, the Veteran reported no foot or skin problems and the examiner noted normal skin and feet. In the January 1965 examination, the Veteran was determined qualified for transfer to sea duty. The March 1968 separation examination noted normal feet and skin. A private medical record dated July 1971 noted that the Veteran had a rash but did not indicate where, and a May 1983 private medical record noted that the Veteran had a rash on his feet. A Grandview Hospital medical record dated October 1994 noted that the Veteran's skin was normal and did not have itching, rash, burn, peeling, or scars. A July 2000 private medical record diagnosed the Veteran with athlete's foot and toenail fungus. A private medical record dated September 2000 also noted fungus. An August 2005 private medical record diagnosed the Veteran with chronic ichthyosis. In a July 2006 claim, the Veteran stated that he had been diagnosed with foot fungus while in service. In a July 2008 notice of disagreement, he stated that he was certain that his foot fungus began while on the U.S.S. Steinaker, sometime between July 1965 and March 1968. He recalled going to sick bay and getting foot powder for it. In the notice of disagreement, he also identified a September 1990 private medical record that he claimed showed treatment for foot fungus. In a July 2008 statement, the Veteran's wife stated that she remembered her husband using over the counter foot powder during service from October 1966 to March 1968 and that "throughout the years" he has seen doctors for his foot fungus. A VA medical record dated November 2008 shows the Veteran complaining of foot fungus and a VA medical record dated December 2008 shows a diabetic foot examination noting a normal foot, normal skin and "no reddened/opened areas." The Veteran again complained of nail fungus in a January 2009 VA medical record. A March 2013 VA examiner diagnosed the Veteran with tinea pedis (athlete's foot) with onychomycosis (nail fungus). The examiner considered the Veteran's reported history, conceding that he may have had tinea pedis during service that was treated with foot powder but not recorded. However, she noted that his separation examination indicated normal skin; that there was no evidence of fungal rash adjacent to military service; and that there were records of treatment only in 1983 and 2002 and then continuous treatment after 2004. She noted that the Veteran stated that his chronic ichthyosis vulgaris has been present since about age two. The examiner asserted that ichthyosis is a congenital condition resulting in dry, scaling, cracked skin and is a predisposition to recurrent skin infections. She opined that ichthyosis was "the most likely cause of the Veteran's inability to successfully completely resolve tinea, now also complicated by his diabetes mellitus which also promotes fungal growth and skin susceptibility." She opined that it was less likely than not that Veteran's current tinea pedis with onychomycosis was caused by or incurred by foot rash during service, stating that although he has recurrent infections of tinea, "the tinea he presumably experienced during military service would not be the same infection he is presently experiencing as evidenced by the normal skin exam at separation and known predisposing factors for recurrence." The Veteran has a current disorder because the March 2013 examiner diagnosed him with tinea pedis and onychomycosis. The Veteran and his wife also claim that he had athlete's foot while in service. Lay persons are competent to report personal knowledge as it comes to them through the senses. Layno, 6 Vet. App. at 469. Thus, both the Veteran and his wife are competent to report on symptoms that he experienced and she observed. These statements, however, are inconsistent with the service treatment records that are negative for complaints of foot fungus. Although there is a 1971 post-service private medical record indicating that the Veteran had a rash, it did not indicate where it was located. Thereafter, there is no evidence of a foot problem until the May 1983 private medical record noting a rash on the Veteran's feet. Moreover, although the Veteran stated at the March 2013 VA examination that he has had ichthyosis since age two, entrance and separation examinations both noted normal skin, and the first ichthyosis diagnosis of record appears in August 2005, about 37 years after service. Therefore, the Board finds that the evidence weighs in favor of finding that the Veteran did not incur foot fungus in service. The Veteran's current athlete's foot with nail fungus is also unrelated to service. The March 2013 VA examiner opined that his current foot disorder was less likely than not caused by his in-service foot rash because his separation examination was normal and his chronic congenital ichthyosis and current diabetes are known predisposing factors for recurrence of tinea. The medical records support the examiner's opinion. The March 1968 separation examination noted normal feet and skin and the earliest evidence of a post-service foot rash appears in the May 1983 private medical record-about 15 years after service. The record after 1983, however, is mixed. A Grandview Hospital medical record dated October 1994 noted normal skin and no itching, rash, burn, or peeling; but a July 2000 private medical record diagnosed the Veteran with athlete's foot and toenail fungus. Thus, although it appears that the Veteran has had athlete's foot and foot fungus on and off, it did not begin until many years after service. The Veteran asserts that his in-service athlete's foot caused his current athlete's foot; however, as a lay person he is not competent to diagnose the etiology of his current disorder. Kahana, 24 Vet. App. at 428; see also Jandreau, 492 F.3d at 1376-77. Thus, in light of the March 2013 VA opinion and the negative service treatment records, the Board finds that the Veteran's current tinea pedis was not incurred in, and is unrelated to, his active service. Therefore the claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a lower back disorder is denied. Entitlement to service connection for dermatophytosis claimed as bilateral foot fungus is denied. REMAND The Veteran claims that he has bilateral leg problems that were caused by in-service cellulitis and having to wear tight leggings in boot camp. A November 2006 VA examiner opined that the Veteran's leg problems were most likely due to his current diagnoses of diabetes, hypertension, elevated triglycerides and peripheral neuropathy. In a July 2008 notice of disagreement, however, the Veteran submitted a private medical record from "Dr. G." showing a prescription for quinam in February 1988 and an April 1988 note stating that the quinam was not helping the Veteran's legs. The record also indicated that Dr. G. changed the Veteran's prescription from quinam to trentol. Because quinam and trentol are used to treat leg problems, and because the medical record predates the Veteran's heart attack and diagnosis of diabetes by a number of years, it could substantiate the Veteran's claim. Since the VA examiner did not have these records at the time he formed his opinion, an addendum opinion is required. Additionally, any outstanding medical records relating to the Veteran's leg problems should be obtained. Because the medical record from Dr. G. indicated that the Veteran has been a patient of his since 1971, both Dr. G. and the Veteran should be contacted to determine if there are any other available records relating to the Veteran's leg problems. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names and addresses of other health care providers, if any, who have provided treatment for his bilateral leg disorder. After acquiring this information and obtaining any necessary authorization, the RO/AMC should obtain and associate these records with the claims file. Additionally, request any outstanding records from Dr. G. that might relate to the Veteran's leg disorder. 2. After any additional records are associated with the claims file, refer the Veteran's claims folder to the November 2006 VA examiner or, if that examiner is unavailable, to another suitably qualified VA examiner for a clarifying opinion. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale provided for that conclusion. The Veteran has provided private medical records that indicate treatment for leg problems with quinam and trentol in February 1988 and April 1988. In light of this, and any other relevant evidence, the examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's current bilateral leg disorder manifested in service or is otherwise causally or etiologically related to his military service, including his documented symptomatology therein. The examiner should be aware that at times the Veteran has indicated that his current leg disorder manifests as a circulatory problem and at times that it manifests as cellulitis. When opining on the relationship of his current disorder to service, the examiner should provide an opinion regarding whether either disorder-cellulitis or circulatory problems-is causally related to service. Thus, the examiner should opine whether it is at least as likely as not (i.e. there is a 50 percent or greater probability) that the Veteran's current circulatory problems are related to service. The examiner should also opine whether it is at least as likely as not (i.e. there is a 50 percent or greater probability) that any current cellulitis is related to service. If it is determined that additional examination is needed to enter a response to these matters, such examination should be scheduled. 3. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs