Citation Nr: 1803016 Decision Date: 01/16/18 Archive Date: 01/29/18 DOCKET NO. 14-10 709A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type 2. 2. Entitlement to service connection for a low back condition (claimed as sore back). 3. Entitlement to service connection for infection of the skin of the feet, to include athlete's foot or onychomycosis (claimed as sores under feet). ATTORNEY FOR THE BOARD R. Dean, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from February 1979 to May 1989. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In the Veteran's April 2014 VA Form 9, Substantive Appeal, he requested to appear at a hearing before the Board. In August 2014 correspondence, he withdrew his hearing request. In January 2016 the Board remanded this appeal for further action. Regarding the claim for a skin disorder of the feet, the United States Court of Appeals for Veterans Claims (Court) addressed the scope of claims generally in regard to what is claimed versus what should be addressed by VA. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons, the Court explained that in determining the scope of a claim, the Board must consider the Veteran's description of the claim, symptoms described, and the information submitted or developed in support of the claim. Clemons, 23 Vet. App. at 5. In light of the Court's decision in Clemons, the Board has recharacterized the claim for athlete's foot to include onychomycosis. This will provide the most favorable review of the Veteran's claims for a skin infection disorder in keeping with the Court's holding in Clemons. FINDINGS OF FACT 1. The evidence of record fails to show a current diagnosis of diabetes mellitus, type 2. 2. The evidence of record fails to demonstrate that the Veteran's claimed low back condition was incurred in service or is etiologically related to service. 3. The Veteran is currently diagnosed with athlete's foot and onychomycosis. 4. The evidence of record fails to demonstrate that the Veteran's infections of the skin of the feet, to include athlete's foot and onychomycosis, were incurred in service or are etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, type 2, have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for a low back disorder (claimed as sore back) have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for service connection for infections of the skin of the feet, to include athlete's foot and onychomycosis (claimed as sores under feet), have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The VA has duties to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). VA's duty to notify was satisfied by the letter sent to the Veteran in March 2012. See 38 U.S.C. § 5103; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records are in the claims file. Regarding post-service treatment records, in a February 2012 VA Form 21-4142, Authorization and Consent to Release Information to VA, and a March 2012 Statement in Support of Claim, the Veteran said that he had received treatment at Saddleback Memorial Hospital in Laguna Hills, Memorial Care Medical Group in Irvine, CA, and at Bristol Park Medical Center. The RO contacted the Veteran by phone about these records in April 2013 and sent him VA Form 21-4142 in a subsequent April 2013 letter. Later that month, the Veteran called the VA in response and said that he was in the process of obtaining his medical records from a private facility and his National Guard unit. The RO again mailed him a VA Form 21-4142 in April 2014, which he did not return to the RO. The facilities identified by the Veteran are private facilities and the VA cannot obtain copies of the treatment records of private care providers without a current VA Form 21-4142. The RO notified the Veteran that he was required to submit the updated forms and it provided copies of the form to the Veteran on two separate occasions, therefore, it satisfied the duty to assist the Veteran to obtain records of his treatment. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran was also afforded a VA examination for his feet in May 2014. The Board finds that the VA examination in this case was adequate as it was performed by a medical professional and it was based on a physical examination of the Veteran and a review of the claims file. Regarding the claims of service connection for diabetes and a back condition, the Veteran was not afforded a VA examination; however, one was not required for these claims. The record does not indicate an association between any symptoms that may be related to diabetes or a low back condition and the Veteran's service. Thus, a VA examination is not required. 38 U.S.C. § 5103A(a)(2); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding substantial compliance with the Board's January 2016 remand, prior to the Board's remand, the case had last been adjudicated in an April 2014 Statement of the Case. The RO added evidence to the claims after that adjudication, to specifically include a May 2014 VA medical examination. In November 2015, the Board contacted the Veteran to determine if he wished to waive his right to have the case remanded to the AOJ for review of the additional evidence. In a November 2015 response, he informed the Board that he wished to have his case remanded to the AOJ for review of the additional evidence. The case was remanded and the AOJ made a new determination in a Supplemental Statement of the Case in June 2016, again denying service connection for the Veteran's claims. Therefore, the AOJ substantially complied with the January 2016 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, the Board will proceed with addressing the merits of this appeal. II. Merits of the Claim The Veteran asserts that he has diabetes mellitus, type 2, a low back condition (claimed as sore back), and infections of the skin, to include athlete's foot and onychomycosis (claimed as sores under feet), as a result of his military service. The Board finds that service connection is not warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a Veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, and diabetes mellitus, as a chronic disease, becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. A. Diabetes mellitus, type 2 The evidence does not support a finding that the Veteran has a diagnosis of diabetes mellitus, type 2. The Veteran's treatment records in the claims file do not discuss diabetes mellitus and the Veteran's claims file does not contain any diagnosis of diabetes mellitus. The Board acknowledges that the Veteran indicated in a February 2012 VA Form 21-4142 that he received treatment at the Bristol Park Medical Center and Saddleback Hospital for high blood sugar and diabetes. He also indicated he was off work for 2 months as a result of diabetes and hypertension in February and March 2011. However, as noted above, the Veteran has not responded to VA's attempts to obtain the necessary authorization for it to obtain these records, and the records that have been associated with the claims file do not show a diagnosis of diabetes mellitus. A current disability is a cornerstone of a service connection claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, without a diagnosis of diabetes mellitus, type 2, service connection cannot be established for that disorder on any basis. See also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board notes for completeness that even if the outstanding private treatment records reflect a diagnosis of diabetes mellitus, the evidence of record does not contain any indication of an in-service event or a relationship between service and diabetes, including that diabetes manifested to a degree of 10 percent within a year of the Veteran's service. The Veteran has not made any contentions regarding why he believes diabetes is related to his service. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim for service connection for diabetes mellitus, type 2, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. Low back condition (claimed as sore back) Similarly, the evidence does not support a finding that the Veteran has a diagnosis of a low back condition. The Veteran's claims file does not include a diagnosis of a low back condition or evidence of a low back condition other than the Veteran's claim, VA Form 21-526, filed in February 2012. Although the Veteran indicated that he received treatment for a sore back at Bristol Park Medical Center, VA has been unable to obtain records of such treatment without further assistance from the Veteran. The Board understands the Veteran's reports of having pain and a sore back, but pain alone, without an underlying diagnosis, is not a disability entitled to service connection. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). A current disability is a cornerstone of a service connection claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, without a diagnosis of a low back condition, service connection cannot be established for that disorder on any basis. See also Shedden, 381 F.3d at 1166-67. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim for service connection for a low back condition, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. C. Infections of the skin of the feet, to include athlete's foot and onychomycosis (claimed as sores under feet) The Long Beach VA Medical Center diagnosed the Veteran with athlete's foot in August 2005. The Veteran was also diagnosed with bilateral onychomycosis during a May 2014 VA examination. The Veteran has shown that he currently has two skin infections of the feet, and the first Shedden element has been satisfied with respect to athlete's foot and onychomycosis. Shedden, 381 F.3d at 1166-67. The Veteran's service treatment records indicate that he was treated for an ingrown toenail several times from January 1981 to October 1983, when it was removed. Service treatment records after October 1983 do not reflect any subsequent problems with the Veteran's feet. There is no mention of athlete's foot or onychomycosis in the service treatment records. The Board finds that the ingrown toenail was an in-service injury to his left foot, satisfying the second element of Shedden. Shedden, 381 F.3d at 1166-67. Regarding ingrown toenails, the Board notes that a July 2014 rating decision specifically denied service connection for ingrown toe nails. The Veteran filed a timely notice of disagreement with the decision; however, he did not submit a substantive appeal in response to the July 2016 statement of the case on the matter. Therefore, the July 2014 rating decision is final. As such, the current Board decision will not further address whether any current disability of ingrown toe nails is related to the Veteran's service, as that question has been finally adjudicated and is not part of the appeal currently before the Board. Thus, the Board's analysis is limited to considering the etiology of athlete's foot and onychomycosis, as these are the only other skin conditions of the feet that have been currently diagnosed. The preponderance of the evidence is against a finding that the Veteran's athlete's foot or his onychomycosis were caused by his military service or his in-service injury, which is the third requirement of Shedden. Shedden, 381 F.3d at 1166-67. The evidence indicating that the Veteran's current disabilities were caused by or incurred during his service consists of the Veteran's statement during the May 2014 VA examination that he has suffered from onychomycosis of all toenails since the 1980s. The Veteran's statements at the time of his service show that he did not have onychomycosis at that time. In January 1986 and July 1989, the Veteran indicated on his medical history forms that he had no foot trouble or any other illness or injury. Additionally, medical examiners did not identify any problems with the Veteran's feet during his physical examinations in January 1986 and July 1989. The Veteran underwent a VA examination of his feet in May 2014. He told the examiner that he had an ingrown toenail beginning in 1980, as a result of wearing military boots. He reported experiencing onychomycosis since the 1980s. The examiner found that the Veteran had disfigured and thickened toenails on both feet. After reviewing the claims file and examining the Veteran, the examiner concluded that the Veteran's current onychomycosis "is not associated with his military service." The record does not show any treatment for athlete's foot until it was diagnosed at the Long Beach VA Medical Center in August 2005 (16 years after separation from service). The first diagnosis of onychomycosis was in the VA examination in May 2014 (25 years after service). The Veteran's statements in his medical history reports in 1986 and 1989, and the statements of the examiners in 1986 and 1989, are competent and credible evidence that the Veteran did not incur athlete's foot or onychomycosis during his service. Additionally, the May 2014 VA examiner specifically opined that onychomycosis was not related to the Veteran's service. The length of time between separation from service and his diagnosis with athlete's foot and onychomycosis also holds some probative value. Overall, the weight of the evidence of record is against finding that either the Veteran's athlete's foot or onychomycosis had its onset in active service, or is otherwise related to his period of active service. Hence, the claim for service connection must be denied. The Board notes that in his January 2014 Notice of Disagreement, his April 2014 Substantive Appeal, and a July 2014 letter, the Veteran argued that he never received a physical examination on his discharge, so the VA cannot prove that his disabilities did not manifest during his service. The Veteran's contention is apparently based on a letter from the RO dated April 19, 2013, in which the RO stated that it did not yet have a copy of the Veteran's separation examination. The separation examination is only one part of the evidence that the VA considers. The VA also considers the Veteran's service treatment records, private medical treatment records, VA treatment records, VA examinations, and the Veteran's statements. As noted above, the file now includes a copy of the Veteran's separation examination report from July 1989, and the report indicates that the Veteran did not have athlete's foot or onychomycosis at that time. In finding that service connection is not warranted, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim for service connection for the Veteran's skin infection of the feet, to include athlete's foot or onychomycosis (claimed as sores under feet), that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App., 49, 53-56 (1990). ORDER Service connection for diabetes mellitus, type 2, is denied. Service connection for a low back condition (claimed as sore back) is denied. Service connection for infections of the skin of the feet, to include athlete's foot and onychomycosis (claimed as sores under feet), is denied. ____________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs