Citation Nr: 1755020 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 03-28 195 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for dermatitis, claimed as a residual of frostbite. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from May 1980 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Petersburg, Florida, which awarded the Veteran separate compensable ratings of 10 percent each for frostbite of the left and right foot. He initiated and perfected an appeal of this determination. This appeal has an extensive procedural history which has been detailed in prior Board decisions and is incorporated by reference herein. In a December 2016 Board action, this issue was remanded for additional development. The required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT Current skin disabilities of the bilateral feet, diagnosed as tinea pedis and dermatitis, were caused by an in-service disease, injury, or event during service. CONCLUSION OF LAW The criteria for the award of service connection for a skin condition of the bilateral feet have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Due to the favorable nature of the Board's decision herein, discussion of VA's duties to notify and assist claimants is not necessary. The Veteran seeks service connection for a skin disability of the feet, claimed as resulting from frostbite of the bilateral feet. He has already been awarded service connection and compensable disability ratings for residuals of frostbite of the left and right foot. Generally, the evaluation of the same disability under multiple diagnostic codes is to be avoided. See 38 C.F.R. § 4.14. Separate service connection awards and disability ratings may, however, be assigned for distinct disabilities resulting from the same injury so long as none of the symptomatology for one condition is "duplicative of or overlapping with the symptomatology" of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran asserts that a skin disability of the feet is also a result of his in-service frostbite of the lower extremities. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Finally, service connection may be awarded for any disability which is proximately due to or the result of, or is otherwise aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In the present case, the service treatment records confirm that during active duty in December 1980, the Veteran experienced cold injuries of both feet following field exercises in Germany. He initially required hospitalization for these injuries, and used crutches for several weeks to aid ambulation. On follow-up in February 1981, he continued to report aching pain of both feet, and he was placed on a limited duty profile. As noted above, service connection for residuals of frostbite of the bilateral feet has been awarded. In support of his claim, the Veteran submitted a March 2014 letter from S.E.R., D.P.M., a private podiatrist who reported examining the Veteran in May 2013. Dr. R. also reviewed the Veteran's history in conjunction with the examination. Dr. R. noted a fungus infection of the fourth interspace of the feet, mycotic toenails and further described the presence of dermatitis along the plantar aspect of both feet. Dr. R. noted the Veteran's history of frostbite of the bilateral feet during service and opined that cold injuries can result in a higher susceptibility to fungal infections in the affected extremities due to a decreased ability to fight opportunistic infections of the feet. Upon review of the record, the Board notes that additional medical evidence suggests against a nexus between the Veteran's current skin disabilities of the bilateral feet and his in-service cold injuries. This appeal was previously remanded in December 2016 for a VA medical opinion to reconcile the various medical opinions of record; however, while the Veteran was afforded a July 2017 VA examination and opinion, the examiner did not directly address the March 2014 private opinion. Significantly, the examiner simply found the veteran did not currently have and never had a skin condition and rather indicated the condition was just dry skin. The examiner further opined that there was a remote history of tinea pedis, thus contradicting his earlier finding that there was never a skin condition, and further indicated this resolved on its own without evidence of recurrence. The examiner provided no rationale for this opinion. Thus, after considering the totality of the record, the Board finds the evidence to be in relative equipoise, and service connection for tinea pedis of the bilateral feet is therefore granted. As discussed above, and noted in detail in prior Court and Board decisions, the record does reflect prior tinea pedis and dermatitis. There is also a competent medical opinion that links it to the frostbite in service. To the extent to which the Veteran has tinea unguium, the Board notes that this was considered in the prior Board decision which found the toenail fungus to be a nail abnormality in order to grant a higher rating under Diagnostic Code 7122. Accordingly, a separate evaluation for the tinea unguium would constitute pyramiding. 38 C.F.R. § 4.14. There is no indication from the record, however, that the symptoms of the tinea pedis or dermatitis overlap with those listed in Diagnostic Code 7122 and thus to the extent that the Veteran has tinea pedis and dermatitis, the Board finds that service connection is warranted. ORDER Service connection for a skin disability of the feet is granted. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs