Citation Nr: 1802294 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 16-10 327 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a bilateral foot disability. 2. Entitlement to service connection for bilateral tinea unguium, onychomycosis, onychocryptosis, and tinea pedis of the feet. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Counsel INTRODUCTION The Veteran served on active duty from May 1953 to May 1955. These matters come before the Board of Veterans' Appeals (Board) from a June 2014 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Milwaukee, Wisconsin. In that decision, the RO denied the Veteran's application to reopen a claim of service connection for residuals of frostbite of both feet (claimed as cold feet syndrome). In November 2017, the Board granted a motion to advance this appeal on its docket pursuant to 38 C.F.R. § 20.900 (c) (2017). 38 U.S.C. § 7107 (a)(2) (2012). The Veteran testified before the undersigned Veterans Law Judge at a November 2017 videoconference hearing at the RO. A transcript of the hearing has been associated with his file. The Board notes that the agency of original jurisdiction (AOJ) characterized the foot issue on appeal as entitlement to service connection for residuals of frostbite of both feet (claimed as cold feet syndrome) and adjudicated this issue on a de novo basis in a January 2016 statement of the case. Regardless, as explained in more detail below, a claim of service connection for a bilateral foot disability was initially denied by way of a final April 1991 rating decision. Where the claim in question has been finally adjudicated, the statutes make clear that the Board must initially determine whether new and material evidence has been submitted with regard to the claim of service connection for a bilateral foot disability. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Only where the Board concludes that new and material evidence has been received does it have jurisdiction to consider the merits of this claim. Hickson v. West, 11 Vet. App. 374, 377 (1998). Thus, the Board has included the issue of whether new and material evidence has been received to reopen the claim of service connection for a bilateral foot disability, as indicated above on the title page. As a final preliminary matter, the Board points out that the issue of entitlement to service connection for gastroesophageal reflux disease (GERD) was identified as being an issue on appeal during the November 2017 hearing and that the Veteran provided testimony pertaining to this issue during the hearing. Regardless, the Veteran's claim of service connection for a gastrointestinal disability (to include hiatal hernia and GERD) was most recently denied in a January 2011 Board decision and this issue has not thereafter been readjudicated by the AOJ. Hence, the Veteran has raised the issue of whether new and material evidence has been received to reopen a claim of service connection for a gastrointestinal disability (to include GERD) by way of his November 2017 hearing testimony, but the Board does not have jurisdiction over this issue. Therefore, this issue must be referred to the AOJ for appropriate action, to include informing the Veteran that a claim for benefits must be submitted on the application form prescribed by the Secretary of VA and providing such forms. See 38 C.F.R. § 19.9 (b) (2017). See also 38 C.F.R. § 3.150 (a) (2017) (providing for furnishing of appropriate application form upon request for VA benefits); 38 C.F.R. §§ 3.160 and 20.201 (2017) (requiring that claims and notices of disagreement be filed on standard forms). FINDINGS OF FACT 1. The Veteran's claim of service connection for a bilateral foot disability (identified as a schwannoma of the left foot and a bilateral fungal infection of the toenails) was originally denied in an April 1991 rating decision on the basis that the claimed disability was not incurred in service; the Veteran did not appeal this decision within one year of its issuance and new and material evidence was not received within that year. 2. A claim of service connection for frostbite of both feet was denied in a February 2008 rating decision on the basis that there was no medical evidence of any such disability which was incurred in or caused by service; the claim of service connection for a schwannoma of the left foot and a bilateral fungal infection of the toenails (identified as onychomycosis) was also denied in the February 2008 rating decision on the basis that new and material evidence had not been received; the Veteran submitted a timely notice of disagreement in March 2008 and a statement of the case was issued in October 2008, but the Veteran did not file a substantive appeal with respect to the foot issues denied in the February 2008 decision. 3. Evidence received since the February 2008 RO decision includes information that was not previously considered and which relates to an unestablished fact necessary to substantiate the claim of service connection for a bilateral foot disability, the absence of which was the basis of the previous denials. 4. The evidence is at least evenly balanced as to whether the Veteran's current bilateral tinea unguium, onychomycosis, onychocryptosis, and tinea pedis of the feet had their onset in service. CONCLUSIONS OF LAW 1. The RO's April 1991 and February 2008 rating decisions that denied the claim of service connection for a bilateral foot disability are final. 38 U.S.C. § 7105 (d)(3) (2012); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103 (2017). 2. The evidence received since the February 2008 RO decision is new and material and sufficient to reopen the claim of service connection for a bilateral foot disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a). 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral tinea unguium, onychomycosis, onychocryptosis, and tinea pedis of the feet are met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In light of the Board's favorable decision in reopening the claim of service connection for a bilateral foot disability and as the Board is granting the underlying claim, the claim is substantiated and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C. § 5103A (a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). II. Application to Reopen Generally, an RO decision denying a claim which has become final may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (d)(3). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108 (2012). New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). In this case, the RO initially denied the Veteran's claim of service connection for a bilateral foot disability (identified as a schwannoma of the left foot and a bilateral fungal infection of the toenails) by way of an April 1991 rating decision on the basis that the claimed disability was not incurred in service. Specifically, the RO explained that the Veteran was diagnosed as having a schwannoma of the left foot and a bilateral fungal infection of the toenails, but that these disabilities were noted too long after service to be considered related thereto. The Veteran was notified of the RO's April 1991 decision, he did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the April 1991 decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The claim of service connection for a schwannoma of the left foot and a bilateral fungal infection of the toenails was again denied in a February 2008 rating decision on the basis that new and material evidence had not been submitted. The RO also denied a claim of service connection for frostbite of both feet in the February 2008 decision on the basis that there was no medical evidence of any such disability which was incurred in or caused by service. Specifically, the RO explained that although the Veteran reported that he suffered frostbite to his feet during service and that he was placed on profile during service due to his feet and legs, his post-service medical records did not show treatment for or complaints of any disability or residuals relating to frostbite of his feet. The Veteran submitted a timely notice of disagreement with the February 2008 decision in March 2008 and a statement of the case was issued in October 2008. Appellate review is initiated by a notice of disagreement and completed by a substantive appeal filed after a statement of the case has been furnished to an appellant. 38 U.S.C. § 7105(a); 38 C.F.R. § 20.200. A substantive appeal must be filed within 60 days from the date of mailing of a statement of the case, or within the remainder of the one year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 U.S.C. § 7105 (b)(2); 38 C.F.R. § 20.302 (b). The Veteran submitted a substantive appeal (VA Form 9) in December 2008, but he specified that he was only appealing the issue of entitlement to service connection for a gastrointestinal disability (identified as GERD, heartburn, and hiatal hernia). He did not otherwise indicate that he was appealing the claim of service connection for a bilateral foot disability. In the absence of a properly perfected appeal, the RO may close the appeal and the decision becomes final. 38 U.S.C. § 7105 (d)(3); Roy v. Brown, 5 Vet. App. 554, 556 (1993); 38 C.F.R. § 19.32. The RO did so in this case, as evidenced by the fact that it did not certify to the Board the issue of entitlement to service connection for a bilateral foot disability following the October 2008 statement of the case. As neither the Veteran nor his representative submitted any document that could be construed as a timely substantive appeal pertaining to the claim of service connection for a bilateral foot disability following the October 2008 statement of the case, the RO closed the appeal. The RO did not certify the issue of entitlement to service connection for a bilateral foot disability to the Board at that time and no further action was taken by VA to suggest that this issue was on appeal. Thus, the February 2008 rating decision also became final as to the Veteran's claim of service connection for a bilateral foot disability. See 38 U.S.C. § 7105 (d)(3); Fenderson v. West, 12 Vet. App. 119, 128-31 (1999) (discussing the necessity of filing a substantive appeal which comports with governing regulations); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Pertinent new evidence received since the February 2008 denial includes a May 2014 VA physician outpatient note, a June 2014 VA podiatry consultation note, an August 2014 VA podiatry note, a December 2014 VA primary care urgent care note, a February 2015 VA podiatry note, a May 2015 VA physician outpatient note, and the Veteran's testimony during the November 2017 hearing. This additional evidence includes diagnoses of bilateral onychomycosis, onychocryptosis, tinea unguium, and tinea pedis of the feet and reports by the Veteran that he has experienced bilateral foot symptoms (i.e., pain, discomfort, tingling, and burning) ever since service. Hence, the additional evidence pertains to an element of the claim that was previously found to be lacking and raises a reasonable possibility of substantiating the claim by indicating that the Veteran has a bilateral foot disability which may have been incurred in service. The evidence is, therefore, new and material, and the claim of service connection for a bilateral foot disability is reopened. III. Service Connection Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. 38 U.S.C. §§ 1110, 1131; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Service connection may also be granted for a disease first 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, VA treatment records reveal that the Veteran has been diagnosed as having various bilateral foot disabilities. For instance, the May 2014 VA physician outpatient note, June 2014 VA podiatry consultation note, August 2014 VA podiatry note, December 2014 VA primary care urgent care note, February 2015 VA podiatry note, and May 2015 VA physician outpatient note include diagnoses of bilateral onychomycosis, onychocryptosis, tinea unguium, and tinea pedis of the feet. Thus, a current bilateral foot disability has been demonstrated. There is also evidence of bilateral foot symptoms in service and evidence of continuous symptoms in the years since service which indicates that the current bilateral foot disability was incurred in service. The Veteran contends that he began to experience bilateral foot symptoms in service after his feet were exposed to cold weather for a prolonged period. Specifically, he has reported that his feet were exposed to cold weather in service while sleeping outside in a tent at Camp Stewart, Georgia. He experienced numbness and tingling in his feet after waking up in the morning, but did not seek treatment at the time because he was being sent back to Fort Campbell. He subsequently sought treatment at Fort Campbell and was placed on an L3 temporary profile for his feet. The Veteran's service treatment and personnel records are unavailable because they are presumed to have been destroyed in a fire at the National Personnel Records Center in 1973. The Veteran is competent to report in-service cold weather exposure and foot symptoms. See Jandreau, 492 F.3d at 1376-77; Buchanan, 451 F.3d at 1336. Further, he submitted a copy of a letter that he sent to his parents during service which confirms that he was stationed at Camp Stewart, there is nothing to explicitly contradict his reports, and his reports are consistent with the evidence of record and the circumstances of his service. Therefore, the Veteran's reports of in-service cold weather exposure and bilateral foot symptoms are credible and in-service cold weather exposure and bilateral foot symptomatology is conceded. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered on the basis of the places, types, and circumstances of his service, as shown by the evidence). The Veteran's post-service medical records and lay statements indicate that he began to experience bilateral foot symptoms during service and that such symptoms have continued in the years since that time. The earliest post-service clinical evidence of foot problems are treatment records from Edgewater Hospital dated in January 1975 which reflect that the Veteran was treated for a left foot lesion/tumor. He has reported, however, that he initially sought treatment for his feet at VA shortly following his separation from service. These records have been sought, but are unavailable. The Veteran is competent to report continuous foot symptoms in the years since service and there is nothing to explicitly contradict these reports. In light of this evidence, the Board finds that the reports of continuous bilateral foot symptoms in the years since service are credible. In sum, the evidence reflects that the Veteran experienced bilateral foot symptoms following cold weather exposure in service and that there have been continuous symptoms in the years since service. He has also been diagnosed as having current bilateral foot disabilities, to include tinea unguium, onychomycosis, onychocryptosis, and tinea pedis. In light of this evidence, the Board finds that the evidence is at least evenly balanced as to whether the evidence indicates that the current bilateral foot disability had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for the currently diagnosed bilateral tinea unguium, onychomycosis, onychocryptosis, and tinea pedis of the feet is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. See also Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). ORDER The application to reopen the claim of service connection for a bilateral foot disability is granted. Entitlement to service connection for bilateral tinea unguium, onychomycosis, onychocryptosis, and tinea pedis of the feet is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs