Citation Nr: 1612206 Decision Date: 03/25/16 Archive Date: 03/29/16 DOCKET NO. 09-43 907 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a skin disorder, to include tinea versicolor and tinea pedis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant, his wife, and his daughter. ATTORNEY FOR THE BOARD T.Ojo, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1970 to January 1972 and from September 1973 to March 1975, which included service in Vietnam. His awards and decorations include the Purple Heart, Combat Infantryman Badge, Republic of Vietnam Campaign Medal and the Marksman (Rifle M-16). This matter comes before the Board of Veterans' Appeals (BVA) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In August 2011, the Veteran testified at a videoconference hearing at the RO. A transcript of the hearing is associated with the claims file. The Veterans Law Judge who conducted the August 2011 Board hearing is no longer employed by the Board. As such, the Veteran was informed in a February 2016 letter that he could be afforded a new hearing under 38 U.S.C.A. § 20.717. The Veteran has not requested a new hearing. FINDING OF FACT The Veteran's skin disorder, diagnosed as tinea versicolor and tinea pedis, had its onset during combat service in Vietnam. CONCLUSION OF LAW The requirements for establishing service connection for a skin disorder have been met. 38 U.S.C.A. §§ 1110, 1131, 1116, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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, 3.326(a) (2015). Given the Board's favorable decision in granting service connection for a skin disorder, the Board finds that all notification and development actions needed to fairly adjudicate the appeal have been accomplished. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also may 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). Establishing service connection generally requires (1) medical evidence of a presently existing disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)); Hickson v. West, 12 Vet. App. 247, 253 (1999). Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for active military service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment. 38 U.S.C.A. § 1111. On examination for enlistment, the summary of defects and diagnosis noted tinea versicolor. Since tinea versicolor was noted and recorded during his enlistment examination, he is not entitled to the presumption of soundness as to that skin disorder. The presumption of soundness attaches only where there has been an induction examination during which the disorder about which the Veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). If, as here, a pre-existing disorder is noted upon entry into the military service, a Veteran cannot bring a claim for service connection for that disorder, but may instead bring a claim for service-connected aggravation of that disorder. Intermittent or temporary flare-ups during military service of a pre-existing injury or disease do not constitute aggravation; rather, the underlying disorder, as contrasted with symptoms, must have worsened. See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Accordingly, "a lasting worsening of the condition," that is, a worsening that existed not only at the time of the military separation but one that still currently exists - is required. The presumption of aggravation applies where there was a worsening of the disorder during the Veteran's active military service, regardless of whether the degree of worsening was enough to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991). In the case of a Veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions, or hardships of such service, even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b) (West 2014); 38 C.F.R. § 3.304(d) (2015). A combat veteran may invoke the section 1154(b) presumption to show both that an event that allegedly caused disability occurred in service and that the claimed disability itself was incurred in service. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). The Veteran alleges that his skin disorder began and was aggravated in service after he was hit in the chest with a grenade. He stated in his August 2011 Board hearing that after that injury he developed a rash that covered about 90 percent of his body. See August 2011 Board Hearing Transcript. On the Veteran's October 1969 entrance examination, tinea versicolor was noted. The Veteran was treated for a rash, diagnosed as tinea cruris and pruritus of the groin, in April and August of 1971. The Veteran was diagnosed with and treated for tinea versicolor on his chest and back in April 1974. In July 1974, he complained of a rash all over his body; upon examination, tinea versicolor was noted on his chest and back. Post-service VA treatment records reflect treatment and diagnoses for tinea pedis in April 1998, tinea pedis and xerosis in May 2005, and tinea cruris and tinea pedis in June 2005. The Veteran served in combat. His DD-214 reflects he was awarded, among numerous other medals and badges, the Purple Heart, a Combat Infantryman Badge and confirms he served in the Republic of Vietnam. He reports having skin problems in Vietnam, which the evidence of record supports. As such, VA must presume the occurrence of the in-service injury. The Board finds that the Veteran is both competent to report that he observed a skin abnormality, such as a rash, during and since serving in combat in Vietnam. The Board also finds his account of having a skin disorder since that time credible. The Veteran was afforded a VA skin examination in April 1999. At the time of examination, the Veteran presented with a history of constant pruritic rash since the early 1970s. The VA examiner diagnosed seborrheic dermatitis and tinea versicolor, but stated that neither condition was service-connected, and that both were common in the normal population. However, the examiner provided no rationale for this opinion, and did not address the Veteran's service treatment records related to his skin problems or his contentions that his skin problems began in the early 1970s. The Board found this exam inadequate and requested a new examination, which was obtained in December 2012. The December 2012 examiner noted that the Veteran had a diagnosis of tinea versicolor and tinea pedis. With regard to tinea versicolor, the examiner reported that it was noted on the Veteran's October 1969 entrance examination, however the entrance exam did not specify where or how big the tinea versicolor was. The examiner reported, after a review of the Veteran, that he had an area of slight discoloration on the anterior center of his chest, which he noted was not flaking. The examiner also reported that the Veteran had only mild symptoms. The examiner opined that because the Veteran's condition was mild and covered a relatively small area, it was his medical opinion that the condition was not aggravated beyond its natural progression while in the military. He noted that the Veteran had not been treated for this condition, and if he had been, the condition would most likely improve or resolve. With regard to the Veteran's tinea pedis, also known as athlete's foot, the December 2012 examiner reported that the Veteran stated that he has had the condition since Vietnam. The examiner noted that it was not listed on the entrance examination or the Veteran's February 1975 discharge examination. The examiner reported that athlete's foot is a condition where reinfection with another fungal element is common, and that it is also common to have frequent infections particularly in hot and humid climates such as Vietnam and Texas. The examiner opined that the Veteran was diagnosed with athlete's foot in 1998 and still had its signs and symptoms. However, without confirmation of the condition in service or a nexus, it was his opinion that the Veteran's athlete's foot was not caused by or incurred in military service. However, the Board finds that the December 2012 examiner did not give due consideration to the Veteran's competent and credible account of the onset of symptoms in service and their intermittent recurrence thereafter. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The VA examiner provided no reason for rejecting the Veteran's lay history, especially in light of his skin diagnoses in-service. Therefore, the Board finds that this opinion is not probative. Moreover, lay evidence may be sufficient, standing alone, to establish a nexus between a current disability that is manifested by recurrent symptoms, which have persisted since active service. The Board further finds that the Veteran's competent and credible lay evidence is sufficient to establish a nexus between his active service and current skin disorders. In light of the foregoing, the Board finds that the evidence is not sufficient to rebut the presumption that the Veteran's skin disorder, diagnosed as tinea versicolor and tinea pedis manifested during his combat service. See Reeves. In light of his in-service, combat-related trauma and the credible and competent history of a skin disorder in and since service, the Board finds that service connection for a skin disorder, diagnosed as tinea pedis and tinea versicolor is warranted. 38 U.S.C.A. §§ 1154(a), 5107(b); 38 C.F.R. § 3.102, 3.303(a). ORDER Entitlement to service connection for a skin disorder, to include tinea versicolor and tinea pedis is granted. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs