Citation Nr: 1756889 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 12-09 114 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service-connection for a bilateral skin condition of the feet. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Kutrolli, Associate Counsel INTRODUCTION The Appellant is a veteran served honorably in the United States Navy from June 1980 to April 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, denying, among other issues, the claim currently on appeal. FINDING OF FACT The skin condition of the feet was not shown or incurred in service. CONCLUSION OF LAW The criteria for establishing entitlement to service-connection for a skin condition of feet have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). In this case, neither the appellant nor his representative has raised any issues with the duty to notify or duty to assist. When an appellant fails to raise procedural arguments, the Board is not required to search the record and address them. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Service-connection To establish service-connection, the evidence 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. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service-connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Whether the requirements for establishing service-connection are met is based on analysis of all the evidence of record and an assessment of its credibility and probative weight. 38 C.F.R. § 3.303(a); Baldwin v. West, 13 Vet. App. 1 (1999). Ultimately, it is the appellant's burden "to present and support a claim for benefits under laws administered by the Secretary." See 38 U.S.C. § 5107(a). The Board thoroughly reviewed the evidence in this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss in detail each piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000). After reviewing all the evidence, the Board finds that the preponderance of the evidence is against a finding of in-service incurrence a skin condition of the feet. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998) (finding it is the Board's duty to assess the credibility and weight of all the evidence and determine its probative value). As an initial matter, the Board previously erred in remanding this case for another examination and medical opinion. This case was originally remanded in May 2014 based on an erroneous finding that the October 2011 VA examiner did not render an etiological opinion regarding the Veteran's tinea pedis and foot dermatitis. Contrary to the Board's May 2014 finding, the examiner opined: With respect to his dermatitis of his hands and feet, it is my opinion, in the absence of any evidence of treatment for a skin problem while on active duty, that it is not at least as likely as not that this veteran's hand eczema and his foot tinea pedis are service connected. October 2011 VAX, p. 5. Regardless of the Board's prior decision(s), it now holds that the preponderance of the evidence is against a finding of in-service incurrence of a skin condition of the feet. The Veteran claimed he developed a skin disorder on his feet, bilaterally, as a consequence of his active naval service. Specifically, he alleged that footwear issued by the service department, to include "non-breathing" [sic] boots, caused excessive sweating/moisture in the feet and led to the development of rashes and/or fungal infections. The Board does not find his statements to be credible. The Board may consider many factors when assessing the credibility and weight of lay evidence, including statements made during treatment, self-interest or bias, internal consistency, and consistency with other evidence. Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam); Pond v. West, 12 Vet. App. 341, 345 (1999) (explaining that the Board may consider the appellant's self-interest when determining credibility and weight); Madden v. Gober, 125 F.3d 1477, 1480-81 (1997) (noting that the Board is entitled to discount the credibility and weight of evidence in light of its own inherent characteristics and relationship to other items of evidence). The Board may also weigh the absence of contemporaneous medical evidence as a factor, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue); see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). In this case, the Veteran's service treatment records are silent for any complaints or treatment for foot rashes or fungal infections, aside from a vague request for foot powder in September 15, 1982. An isolated request for foot powder is not evidence of a chronic rash or fungal infection. That is particularly true where, as here, the Veteran sought treatment for a multitude of other conditions ranging from rashes in the groin and thigh, to headaches and blocked sinuses, and back pain and sprained ankles, but not a rash or fungal infection on his feet. In this respect, the Veteran's willingness to seek treatment for numerous other medical issues discounts the credibility of his statements that he was also suffering from a chronic fungal infection of the feet. See Buchanan, 451 F.3d at 1336; Pond, 12 Vet. App. at 345; Madden, 125 F.3d at 1480-81; Caluza, 7 Vet. App. at 512. Moreover, from 1982 and 1983, the Veteran was seen on numerous occasions for foot and ankle problems that were diagnosed as plantar fasciitis and ankle sprains, but never complained of rashy or itchy feet. The absence of such complaints is telling of the condition's existence. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (finding statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care); see also AZ v. Shinseki, 731 F.3d 1303, 1311 (Fed. Cir. 2013) (quoting Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) ("[T]he definition of evidence encompasses 'negative evidence' which tends to disprove the existence of an alleged fact..."). Here, the absence of a complaint for a foot fungal infection or itchy or rashy feet for three years, during which time the Veteran was examined for unrelated foot and ankle problems, gives rise to a legitimate negative inference that he did not experience such during that period. In addition, the Veteran's contention is inconsistent with his separation report of medical history in which he expressly denied having any skin conditions, but endorsed other ailments including ankle pain and sprains, chronic cough, high blood pressure, trouble sleeping, and hernias. His denial of any foot related skin conditions at separation is more probative than his recent contentions made within the context of an application for benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (finding contemporaneous evidence was more probative than history reported by claimant); see also Caluza, 7 Vet. App. at 512 (holding that the Board may consider self-interest or bias when assessing the credibility and weight of evidence). The Board acknowledges the Veteran's contention that he has a skin condition of the feet that is related to service; however, the record does not contain any evidence or information to demonstrate that the Veteran has the necessary knowledge, training and expertise to render an opinion as to its etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Moreover, as previously discussed, the Board does not find the Veteran's assertions to be credible. For these reasons, the preponderance of the evidence is against the claim; thus, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Accordingly, the claim must be denied. ORDER Entitlement to service-connection for a skin condition of the feet is denied. ____________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs