Citation Nr: 1603734 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 13-08 968 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUE Entitlement to service connection for onychomycosis of all toes on the left foot. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from May 1974 to May 1994. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska that denied service connection for onychomycosis of all toes of the left foot. The Veteran testified at a hearing before the undersigned Veterans Law Judge sitting at the RO in May 2013. A transcript of the hearing is associated with the claims file. FINDING OF FACT The Veteran currently has onychomycosis of all toes of the left foot, and competent medical opinions on the question of whether the Veteran's current left foot toenail infection is caused by the trauma and spread to other toes is in relative equipoise. CONCLUSION OF LAW The criteria for service connection for onychomycosis of all toes of the left foot are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). In this case, the Board is granting in full the benefit sought on appeal As the Board is granting the claim for service connection, the claim is substantiated, and there are no further notice and assistance requirements. Wensch v. Principi, 15 Vet App 362, 367-68 (2001). II. Analysis The Veteran served as a U.S. Army infantryman and artilleryman. He retired at the rank of First Sergeant. He did not serve in a combat theater. He contended in a February 2010 claim, a May 2011 statement, and during the May 2013 Board hearing that he experiences a fungal infection of the toenails as a result of a traumatic injury to the toes of the left foot during active service. Service connection may be granted 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(a). Service connection may also be granted for any disease diagnosed after discharge, 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Secondary service connection is permitted based on aggravation; compensation is payable for the degree of aggravation of a non-service-connected disability caused by a service-connected disability and requires the establishment of a baseline level of disability prior to aggravation and a showing that the secondary condition was not due to the natural progression of a disease. Allen v. Brown, 7 Vet. App. 439 (1995). Lay evidence is competent when a condition can be identified by a layperson. See 38 C.F.R. §§ 3.159(a)(1) and (2) (defining competent medical and lay evidence) and 3.307(b) (as to chronicity and continuity of symptoms lay evidence should describe material and relevant facts observed and not merely conclusions based upon opinion). Lay evidence may, in some circumstances, establish a medical diagnosis, causation or etiology, i.e., when a layperson (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) describes symptoms at the time which supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir. 2009) (overruling the broad holdings in Buchanan v. Nicholson, 451 F.3d 1331 (Fed.Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007) that competent medical evidence is required when the determinative issues if either medical etiology or a medical diagnosis); see also King v. Shinseki, 700 F.3d 1399 (Fed.Cir. 2012). The credibility of lay statements may not be refuted solely by the absence of corroborating medical evidence but this is a factor. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay evidence concerning continuity of symptoms after service, if credible, may be competent, regardless of the lack of contemporaneous medical evidence). Other factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). In weighing credibility of lay statements, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary 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). Service treatment records show that the Veteran sought treatment in October 1978 for itchy skin of the left foot for the previous week. A clinician diagnosed athlete's foot and prescribed surface medication. There was no follow-up. In physical examinations in August 1983, March 1993, and October 1993, the Veteran denied any foot trouble, and two examiners noted no foot abnormalities. (The October 1993 examiner did not complete all portions of the report.) In February 1994, the Veteran sought treatment at a battalion aid station for a loss of feeling in his toes. The Veteran reported an injury 18 years earlier when a heavy artillery piece struck his foot. A clinician noted discoloration of the left toe with no evidence of a fracture and normal capillary refill and weight bearing. The clinician referred the Veteran for further examination, but none is noted in the service records. In June 1994, the RO received the Veteran's claim for service connection for a left foot disorder that he described as "toenails falling off." In August 1994, a VA physician noted the Veteran's report of a left foot injury in 1977 when a 200 pound artillery piece fell on his foot, smashing the first toe, an causing an avulsion of the toenail. The Veteran reported that since that injury he experienced a deformed first toenail with intermittent pain over the first, second, and third toes exacerbated by wearing tight shoes and extended walking. On examination, the physician observed an atrophic and deformed great toenail of the left foot that was slightly lifted off the nail bed. All other toe nails were normal, but the second and third toes were tender to palpation. There was a full range of motion, and the Veteran walked without a limp. The physician diagnosed residuals of traumatic avulsion of the left first toenail with a deformed nail. There was no mention of an infection. In November 1994, the RO in Honolulu noted that there was no record of left foot injury in service other than the Veteran's report to a clinician in February 1994, many years after the contended injury. Nevertheless, the RO granted service connection for traumatic avulsion of the left first toenail based on the Veteran's credible statements and the observations and opinion of the August 1994 VA physician. The RO assigned a noncompensable rating, effective June 1, 1994, the day following retirement from active duty. In February 2010, the RO received the Veteran's claim for a toenail fungus infection caused by the traumatic toe injury. The Veteran underwent foot examinations by three VA physicians in June 2010, June 2011, and August 2011. In June 2010, a physician noted the Veteran's report of the left foot trauma from an artillery piece in 1981. The Veteran reported that he had initial pain and swelling, but did not seek medical care. He reported that over the next few years the color, consistency, and sensitivity to pressure of the toenails changed and now affected all toes of both feet. On examination, the physician noted tenderness of all toenails but no abnormal weight bearing. The physician diagnosed bilateral onychomycosis of all toenails and bilateral tinea pedis, and noted that the disorders were "associated with residuals of the traumatic avulsion of the left first toenail" without further explanation. In June 2011, a VA physician did not note a review of the claims file, but accurately summarized the same history of injury. The Veteran reported that prior to military retirement, he began to have pain in the distal tips of all the toes of the left foot when walking and that he also developed a fungal infection of the toenails. Although the symptoms had become more severe since service, he did not use any form of treatment. On examination, the physician noted thick white dystrophic onychomycotic toenails of all toes on both feet. An X-ray of the left foot showed mild degenerative changes and Achilles tendon calcifications which the evaluator found might be related to remote tendinous trauma. The physician diagnosed severe onychomycosis of all toenails of both feet but noted, "I cannot relate the traumatic avulsion of this left first toenail to the current condition of severe onychomycosis." In July 2011, the RO denied a compensable rating for service-connected residuals of the traumatic avulsion of the left first toenail and deferred a decision on separate service connection for onychomycosis. In August 2011, another VA physician noted a review of the claims file including the June 2011 examination report. The Veteran reported that he experienced longstanding toenail fungus infections since 1982 and that the symptoms worsened two to three years after service and became hypertrophic to the point where nails were catching on stockings, spontaneously chipping, and causing pain when wearing shoes or boots. The physician noted the same symptoms, diagnosed the same disease as previous examiners, and included color photographs in his report. The physician noted that nail fungus is related to causes such as trauma to the feet or nails, poor hygiene, skin acidity changes, wet and damp environments, decreased blood circulation, diabetes, immune system dysfunction, and aging. The physician explained that only those toes subject to trauma and nail deformity would be expected to develop fungal infections which do not carry over to other toes. For that reason and because the Veteran reported the spread of infection two to three years after service, the physician found that it was not more likely than not that the current toenail infection was not caused by the single trauma in 1977 or by the athlete's foot outbreak in 1978. In December 2011, the RO denied separate service connection for onychomycosis of the left foot. Notwithstanding the Veteran's report of the onset of a fungal infection in 1982, the RO cited the absence of any confirming service record evidence and the August 2011 VA physician's opinion. The Veteran expressed timely disagreement in November 2012 and submitted reports of foot examination by two private podiatrists. In July 2012, a private podiatrist noted the Veteran's report of the avulsion injury in 1977 and the onset of a fungal infection in service that spread to all other toes. Following an examination that confirmed a continued diagnosis of onychomycosis of all toenails, the podiatrist noted that he disagreed with VA findings. He noted that it is reasonable that a fungal infection of the first toe started as a residual of the traumatic avulsion and could also be caused by microtrauma from poor fitting shoes. Following fungus involvement in one nail, the infection can frequently spread to other nails by cross contamination to the balls of the feet. Although the podiatrist phrased his comments in general terms, the Board finds that in context, he was addressing the Veteran's specific case. In February 2013, another podiatrist noted the Veteran's report that the trauma in service occurred to both the first and second toes. The podiatrist confirmed a current diagnosis of onychomycosis of all toes on both feet and that the disease may begin with an injury to the nail plate and nail bed consistent with his history. The podiatrist noted than once begun in one or two nails, the infective process is likely to spread to other toenails and the surrounding skin causing a tinea pedis-type infection. Although the podiatrist also phrased his comments in general terms, the Board again finds that in context he was addressing the Veteran's specific case. During the May 2013 Board hearing, the Veteran testified that the fungal infection of the left foot first starting during active service after the 1977 traumatic left toenail avulsion. The Board finds that service connection for onychomycosis of all toes of the left foot is warranted either as an included residual or as secondary to the service-connected left first toe traumatic avulsion. The lay and medical evidence including photographs establishes a current fungal infection of all toes of the left foot. Therefore, the first element of service connection has been met. Although the service records do not confirm the Veteran's report to a military clinician in 1994 or to examiners thereafter of an injury in 1977 or later, the Veteran did present with a deformed first toenail to a VA examiner only a few months after retirement. Additionally, VA has established that the traumatic injury occurred and has granted service connection for residuals of that injury. The dispositive issue is whether the current manifested after service, was caused or aggravated by the service-connected residuals of that injury. Although the Veteran sincerely believes that theory of entitlement, he is not competent as a lay person to resolve the issue. There is competent medical evidence both for and against whether the service-connected traumatic avulsion caused the onset of an infection and whether a fungal infection at one site can spread to other toes of the same foot. The June 2010 VA physician noted only that the trauma and infection were "associated." All other VA and private examiners agreed that nail trauma can cause infection at the site of the trauma, but VA examiners found that other causes were present in the Veteran's case and that infections did not spread, while the private podiatrists found that in the Veteran's case, the initial trauma and subsequent microtrauma from walking in poorly fitting footwear caused an infection at the trauma site that did spread over time to other toes. Therefore, as there is an approximately equal balance of evidence for and against causation of an infection by service-connected trauma and spread of onychomycosis to all toes of the left foot, and resolving all doubt in favor of the Veteran, the Board finds that service connection is warranted secondary to service-connected residuals of a left first toe avulsion. Regarding the establishment of a baseline, the medical evidence shows that the Veteran did not have an infection prior to the injury so that there was no baseline level of disability or normal progression of a pre-existing infectious disease. In reaching this decision, the Board has applied the "benefit of the doubt" rule. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for onychomycosis of all toes on the left foot is granted. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs