Citation Nr: 1801007 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 12-28 395 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for bilateral foot conditions, claimed as hammer toe, Haglund's deformity, right foot middle toe joint removal, and right foot Digiti Quinti Varus (overlapping fifth toe deformity). 2. Entitlement to service connection for bilateral foot fungal infection. 3. Entitlement to service connection for skin condition, claimed as due to Agent Orange exposure. 4. Entitlement to service connection for depressive disorder, claimed as posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Nelson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1970 to July 1973. He was awarded the Combat Infantryman's Badge for his service in Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran attended a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in August 2016. A transcript of that hearing has been prepared and is associated with the file. The record before the Board consists solely of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). The issues of a skin condition due to Agent Orange exposure, and depressive disorder, claimed as PTSD, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's bilateral foot conditions are related to his military service. 2. The Veteran's bilateral foot fungus is related to his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral foot conditions have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for service connection for bilateral foot fungus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103A (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (2012); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). When the condition noted during service is not shown to be chronic, then a continuity of symptoms after service must be shown to establish service connection under § 3.303(b); Walker v. Shinseki. 708 F.3d 1331 (Fed. Cir. 2012) (observing that a continuity of symptoms after service is a relaxed evidentiary showing that itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during a] presumptive period"). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 104 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, as well as the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Right Foot and Left Foot Conditions As an initial matter, the Board notes that the Veteran has a current diagnosis of bilateral hammer toe syndrome, with associated calluses; bilateral Haglund's deformity; a partial third digit amputation on his right foot middle toe and right foot overlapping fifth toe deformity. Therefore, the first element of service connection has been met. Turning to the requirement for an in-service event or injury, the Veteran testified that while he was an Infantry soldier in combat in Vietnam, he participated in repeated patrols that involved walking through water, while wearing boots that were too small for him. As such, he suffered a left heel injury that became infected. He testified that his left heel had to be repeatedly drained. He testified that he had such a bad infection in the toes on his right foot that a portion of his third toe had to be amputated. He also testified that the boots caused his toes to become deformed. He stated that he was sent to the rear, and out of combat, because his feet were so problematic. In addition to the Veteran's testimony before the undersigned VLJ, the Board notes that the Veteran has consistently given the same accounts for his foot conditions to his various medical health providers since his time in service. The Board finds the Veteran's testimony competent and credible, as he could observe these conditions. Accordingly, the Board finds the second element of service connection has been met. Therefore, as the requirements of continuous symptomology under 38 C.F.R. § 3.303(b) have been met, entitlement to service connection has been established. The record supports the current diagnoses of bilateral foot conditions. The Veteran's credible testimony establishes these conditions began in service, and there is credible evidence of post-service symptomatology consistent with the diagnosed foot conditions. Accordingly, service connection for bilateral foot conditions is warranted. Bilateral Foot Fungus Regarding the Veteran's bilateral foot fungus, the Board notes that the Veteran has a current diagnosis of bilateral toenail fungus on all five toes and bilateral foot fungus. Therefore, the first element of service connection has been met. Regarding the second element of service connection, the Veteran testified that he had foot fungus in Vietnam as a result of his wet feet from walking through water on repeated patrols. His treatment records contain consistent complaints of foot fungus and treatment since his time in service. The Board notes that bilateral foot fungus has symptoms which are capable of lay observation and diagnosis. The Veteran has presented competent and credible lay evidence that he experienced foot fungus in service and continues to suffer from such. Accordingly, the second element of service connection has been met. Therefore, as the requirements of continuous symptomology under 38 C.F.R. § 3.303(b) have been met, entitlement to service connection has been established. The record supports the current diagnoses of bilateral foot fungus. The Veteran's credible testimony establishes these conditions began in service, and there is credible evidence of post-service symptomatology consistent with the diagnosed foot fungus. As such, service connection for bilateral foot fungus is warranted. VA regulations provide that a claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). In this case, the Board will resolve all doubt in the Veteran's favor, and in so doing service connection for bilateral foot conditions and bilateral foot fungus are granted. ORDER Service connection for bilateral foot conditions is granted. Service connection for bilateral foot fungus is granted. REMAND The Veteran asserts that his skin rashes and skin disorders are as a result of his exposure to Agent Orange herbicide agent while he served in Vietnam. The Board notes that the Veteran's exposure to herbicide agents is conceded, due to his verified service as an Infantryman in Vietnam. The Board also notes that to date, the Veteran has not been afforded a VA examination to determine a diagnosis and etiology of his claimed skin condition. Pursuant to McClendon v. Nicholson, 20 Vet. App. 79 (2006), an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an in- service event, injury or disease, or that a disease, manifested in accordance with presumptive service connection regulations, occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. Here, the Board finds that the McClendon standards are met and a remand is necessary to afford the Veteran a VA examination and obtain a medical opinion regarding his claimed skin condition. The Veteran asserts that he has PTSD as a result of his time in combat in Vietnam. The Board notes that the Veteran has been diagnosed with depressive disorder in a September 2010 VA examination and anxiety disorder in a November 2008 VA examination. Other psychiatric records relate the Veteran's hospitalizations for detoxification regarding heroin use. The Veteran has repeatedly stated to his medical providers, as well as in his hearing, that the heroin use began in Vietnam as a way to cope with combat. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate VA examiner to determine the nature and etiology of his skin condition. The claims file must be made available to the examiner for review. Please note that as a result of the Veteran's service in Vietnam, exposure to herbicide agents is conceded. The examiner is asked to provide an opinion as to the Veteran's skin condition diagnosis(es), if any. For any skin diagnosis, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the condition was manifested during service, or is caused by, or the result of any injury, illness, or incident that occurred during service, to include exposure to Agent Orange/herbicide agents. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should cite to the medical and lay evidence of record, and discuss the particulars of this Veteran's medical history. 2. Schedule the Veteran for an examination by an appropriate VA examiner to determine the nature and etiology of his psychiatric disabilities. The claims file must be made available to the examiner for review. The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any current psychiatric disability (other than primary substance abuse) had its onset during, or is related to, active service. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should cite to the medical and lay evidence of record, and discuss the particulars of this Veteran's medical history. 3. Finally, readjudicate the issues remaining on appeal. If any of the benefit sought remains denied, issue a supplemental statement of the case to the Veteran and his representative, with adequate time to respond. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs