Citation Nr: 1800511 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 13-26 217 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for degenerative disc disease of the low back. 2. Entitlement to service connection for a skin disorder of the left lower extremity, to include trench feet and jungle rot. 3. Entitlement to service connection for a skin disorder of the right lower extremities, to include trench feet and jungle rot. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran; M. C. ATTORNEY FOR THE BOARD Steven D. Najarian, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1946 to November 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran and his daughter testified at an October 2017 Board hearing held at the St. Petersburg, Florida RO before the undersigned veterans law judge (VLJ). A transcript of the hearing is of record. In July 2010, the Veteran filed a service-connection claim for the disabilities of jungle rot and trench feet of the bilateral lower extremities. Service connection was denied as to both issues by a rating decision of January 2011, which the Veteran appealed. See notice of disagreement of February 2011; VA Form 9 of September 2013. Entitlement to service connection for jungle rot and for trench feet were certified to the Board as separate issues. See VA Form 8 of September 2013. The Veteran agreed at the October 2017 Board hearing that his claimed symptoms of jungle rot and trench feet amount to one claim for a dermatological disorder related to service. See transcript of October 2017 Board hearing. Consistent with Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has broadly characterized the Veteran's claim as one seeking service connection for a dermatological disorder of the bilateral lower extremities, to include trench feet and jungle rot. In November 2017, the Veteran submitted additional medical evidence and a waiver of initial review of that evidence by the RO. The evidence is accepted into the record. As the Veteran's substantive appeal was filed after February 2, 2013, a waiver of initial review by the regional office of additional evidence submitted by the Veteran would be presumed unless the Veteran stated otherwise in writing. See 38 U.S.C. § 7105(e) (2012). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. In October 2017, prior to the promulgation of a decision in the appeal, the Veteran stated on the record at a Board hearing that he wished to withdraw his appeal as to the issue of entitlement to service connection for degenerative disc disease of the low back. 2. The Veteran's eczematous dermatitis of the left lower extremity had its onset during service. 3. The Veteran's eczematous dermatitis of the right lower extremity had its onset during service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal as to entitlement to service connection for degenerative disc disease of the low back have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. Eczematous dermatitis of the left lower extremity was incurred in service. 38 U.S.C. §§ 1110, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 3.303 (2017). 3. Eczematous dermatitis of the right lower extremity was incurred in service. 38 U.S.C. §§ 1110, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection will be granted for a current disability that resulted from an injury or disease incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Generally, service connection requires: (1) a present disability; (2) an 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. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2017). For a veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, if the chronic disease is shown as such during service or within one year of discharge from service. See 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.303(b), 3.307, 3.309 (2017). When the fact of chronicity in service is not adequately supported, a continuity of symptomatology since service is an alternative means of establishing service connection. See 38 C.F.R. § 3.303(b) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The claimant bears the evidentiary burden of establishing all elements of a service connection claim, including the nexus requirement. See 38 U.S.C. § 5107(a) (2012); Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. See 38 U.S.C. § 1154(a) (2012). The Board must give a claimant the benefit of the doubt as to any issue material to the determination of a matter when there is an approximate balance of positive and negative evidence. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). For a claim to be denied on the merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Low Back Disability At the Board hearing of October 2017, the Veteran stated that he wished to withdraw the issue of entitlement to service connection for degenerative disc disease of the low back. See transcript of October 2017 Board hearing. The Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. See 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any issue involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or an authorized representative. A withdrawal is effective upon receipt, and the withdrawal of an appeal on the record at a hearing need not be in writing. See 38 C.F.R. § 20.204 (2017). Because the Veteran has withdrawn his appeal as to entitlement to service connection for degenerative disc disease of the low back, there remain no allegations of errors of fact or law for appellate consideration. The Board does not have jurisdiction to review the appeal, and it will be dismissed. Dermatological Disorder of the Bilateral Lower Extremities The Veteran seeks service connection for jungle rot and trench foot of the bilateral lower extremities, which he maintains had their onset during service in the Philippines in 1946, when he lived in a mud-floor hut. The Veteran alleges recurrent skin symptoms dating from service to the present. See Veteran's claim of July 2010; Veteran's statement of October 2010; transcript of October 2017 Board hearing. The Veteran has eczematous dermatitis of the bilateral lower extremities, including the feet. See November 2010 VA examination report. Service treatment records of November 1946 and January 1947 reflect diagnoses of dermatitis of the legs and dermatitis infectiosa eczematoides of the bilateral legs, respectively. An October 2012 positive nexus opinion of Dr. H. G. is of record. The doctor concluded on the basis of his treatment of the Veteran and a review of the service treatment records that the Veteran's chronic leg eczematoid dermatitis is most likely related to an in-service event or onset. There is no negative nexus opinion of record. The November 2010 VA examiner did not provide a nexus opinion on the basis that doing so would require resort to mere speculation. While the examiner noted the in-service diagnosis of dermatitis infectiosa and eczematoides of the lower extremities and further considered the Veteran's current skin disorder to be consistent with an eczematous condition, the examiner declined to give a nexus opinion in the absence of "documentation to support a chronic skin condition." Generally, a medical opinion is not probative if an examiner concludes that a diagnosis or etiology opinion is not possible without resort to speculation, unless the record is complete and the inability to render a requested opinion is adequately explained. See Jones v. Shinseki, 23 Vet. App. 382, 389-91 (2010). Here the Board does not consider the VA examiner's explanation to be adequate, because no medical or other basis was given for doubting the Veteran's reported history of recurrent skin symptoms of the lower extremities from the time of the in-service diagnosis of dermatitis to the present. The Veteran is competent to report his experienced symptoms (see Layno v. Brown, 6 Vet. App. 465, 470 (1994)), and the Board finds the Veteran to be credible in his reported history. The Veteran's treating physician has provided an adequate nexus opinion that links the Veteran's current bilateral skin disability to an in-service injury. There is no probative evidence of record that disassociates the Veteran's current symptoms from service. Accordingly, service connection is warranted. ORDER The appeal as to entitlement to service connection for degenerative disc disease of the low back is dismissed. Entitlement to service connection for eczematous dermatitis of the left lower extremity is granted. Entitlement to service connection for eczematous dermatitis of the right lower extremity is granted. ____________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs