Citation Nr: 1804698 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 09-49 321 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for tinea pedis and cruris, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Y. Lee, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the United States Marine Corps from December 1989 to December 1993, including service in Southwest Asia. The Veteran had additional service in the Army National Guard. The Board recognizes that the Veteran received the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which denied entitlement to service connection for tinea pedia and cruris. The Board remanded this issue in October 2012 and June 2017, for further evidentiary development. A review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that prior to his current representation, the Veteran was represented by Veterans of Foreign Wars of the United States (VFW). VA received a signed VA Form 21-22 in March 2014, changing representation from VFW to the Oregon Department of Veterans' Affairs. FINDING OF FACT The Veteran does not have a current tinea pedis and cruris condition that manifested during, or as a result of, active military service, and it is not due to an undiagnosed illness related to service. (CONTINUED ON NEXT PAGE) CONCLUSION OF LAW The criteria for service connection for tinea pedis and cruris condition have not been met. 38 U.S.C. §§ 1101, 1110, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Procedural Duties VA has completed the necessary steps in order to meet its duties to notify and assist under the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran has not raised any procedural arguments regarding the notice or assistance provided. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA sent VCAA letters to the Veteran, he was afforded multiple VA examinations, and his in-service and post-service medical records were obtained. The examinations and opinions, taken together, are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not identified any additional outstanding evidence which could be obtained to substantiate his claim, and the Board is unaware of any such evidence. Therefore, the Board finds that the duties to notify and assist have been met. II. Service Connection The Veteran contends that he is entitled to service connection for tinea pedis and cruris. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran does not suffer from a skin disorder that manifested during, or as a result of, active military service, to include as due to an undiagnosed illness. As such, the claim of entitlement to service connection for this disability is not warranted. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if preexisting such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2017). In general, service connection requires 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). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board must assess the credibility and weight of all of the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 49. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzalez 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) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as arthritis, 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 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, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307, and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The use of continuity of symptomatology to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 U.S.C. § 1117(a)(1), compensation is warranted for a Persian Gulf Veteran who exhibits objective indications of a "qualifying chronic disability" that became manifest during service on active duty in the Armed Forces in the Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. Effective October 16, 2012, VA extended the presumptive period in 38 C.F.R. § 3.317(a)(1)(i) through December 31, 2016 (for qualifying chronic disabilities that become manifest to a degree of 10 percent or more after active duty in the Southwest Asia Theater of operations). See 77 Fed. Reg. 63225 (2012). Furthermore, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a), (b). Because the Veteran served in the Southwest Asia Theater of Operations during his active service, he is a Persian Gulf Veteran within the meaning of the applicable statute and regulation. The Board notes that Congress revised 38 U.S.C. § 1117, effective March 1, 2002. In the revised statute, the term "chronic disability" was changed to "qualifying chronic disability," and the definition of "qualifying chronic disability" was expanded to include (a) undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. Effective June 10, 2003, VA promulgated revised regulations to, in part, implement these statutory changes. See 38 C.F.R. § 3.317(a)(2). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to: (1) fatigue, (2) unexplained rashes or other dermatological signs or symptoms, (3) headache, (4) muscle pain, (5) joint pain, (6) neurological signs and symptoms, (7) neuropsychological signs or symptoms, (8) signs or symptoms involving the upper or lower respiratory system, (9) sleep disturbances, (10) gastrointestinal signs or symptoms, (11) cardiovascular signs or symptoms, (12) abnormal weight loss, and (13) menstrual disorders. 38 C.F.R. § 3.317(b). Lay evidence is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature." Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be 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 v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue."). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). When there is an approximate balance of positive and negative evidence regarding any issue that is material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's service treatment records are devoid of any diagnosis of tinea pedis and cruris or complaints related to this condition during active military service. During his January 1989 entrance examination, the Veteran stated that he was in good health, and an evaluation of the skin was deemed to be normal. The Veteran's October 1993 release from active duty examination report shows that an evaluation of the skin was deemed to be normal as well. As such, the service treatment records fail to demonstrate that the Veteran suffered from a chronic disability of the skin at the time of his separation from active duty. Likewise, post-service treatment records fail to reflect that the Veteran suffered from a skin disorder, or chronic symptomatology, within one year of his separation from active duty. During his March 1994 entrance examination for the National Guard, the Veteran stated that he was in good health, and an evaluation of the skin was deemed to be normal. A December 1998 VA treatment record indicates that the Veteran's skin was deemed as normal on examination. In a subsequent VA treatment record dated February 1999, the examiner diagnosed the Veteran with dermatophytosis of the right foot; however, on VA examination in February 2015, the examiner noted that the Veteran was diagnosed with dermatitis in 1994. As will be further discussed below, the February 2015 VA examiner does not suggest any relationship between the Veteran's skin condition and military service. Furthermore, the record does not suggest that the Veteran's symptoms relating to a skin disorder had been chronic since within one year of separation from active duty. On VA examination in February 2015, the Veteran reported that shortly after his service in the Persian Gulf War, he developed a skin condition that manifested as small fluid-filled blisters that pop and leave a small open wound. He indicated that he cleaned them with soap and water, then applied an anti-bacterial ointment to them. The examiner noted that the Veteran was diagnosed with dermatitis in 1994, and determined that this condition was less likely than not due to or a result of an injury or disease incurred in service. The examiner noted that there is no mention of this skin condition in the Veteran's service treatment records, which were reviewed in detail, and that the Veteran did not mention any skin complaints to his private care provider or his first visit to Roseburg VA Medical Center (VAMC) in June 2010, seven years after his military discharge. In September 2016, a VA examiner provided an addendum opinion to the February 2015 VA examination report. The September 2016 VA examiner opined that it was less likely as not that the Veteran's dermatitis is considered a medically unexplained chronic multisymptom illness. The examiner noted that a December 2015 VA treatment record documented the Veteran's skin condition as "contact dermatitis" and posited the current etiology as being exposure to "new soap". The examiner further noted that contact dermatitis is a local reaction to topical skin irritants. The dermatologic reaction to irritants occurs temporally proximate to exposure to skin irritants, and would not be expected to have onset at a date distant from the exposure event. The examiner indicated that no skin condition, including contact dermatitis, of such a nature has been documented in the Veteran's medical records that can be attributed to environmental exposures in Southwest Asia. An October 2016 VA examiner provided further clarification to the February 2015 VA examination report. The October 2016 VA examiner noted that the February 2015 VA examiner apparently inadvertently chose the incorrect answer when saying that there were not any additional signs and/or symptoms that may represent undiagnosed illness. The examiner found that the dermatitis currently diagnosed was an "unspecified" diagnosis because the symptoms do not readily conform to the diagnostic criteria for the typical skin conditions (psoriasis, eczema, contact dermatitis) and would be considered a chronic multisymptom illness. The examiner further noted that the fact that the Veteran has not had this documented in his medical records in or out of the service is understandable. Minor skin conditions are usually treated initially with over the counter medications by most people. It is not unusual for veterans or patients in other practices not to mention skin conditions that are not causing severe symptoms or that respond, even a little, to over the counter remedies. Dermatophytosis and tinea pedis are diagnosable conditions with known etiologies. Thus, the examiner opined that it is less likely than not that the Veteran's dermatophytosis or tinea pedis are due to any chemical or other environmental exposures in the service. In response to the June 2017 Board remand, an additional VA addendum opinion was obtained in July 2017, specifically for a rationale to the opinion provided by the October 2016 VA examiner, as well as a medical opinion with regard to whether the Veteran's dermatitis is a chronic multisymptom illness. Consistent with the October 2016 VA opinion, the July 2017 VA examiner opined that the Veteran's dermatophytosis, tinea pedis, or tinea cruris were not incurred during, or caused or aggravated by the Veteran's service. The examiner noted that the Veteran's medical records do not document any skin diseases while in service. The Veteran's entrance and separation examinations both show that an evaluation of the skin was deemed as normal. The examiner further noted that the first medical documentation of a skin disease appears in 1999, where the examiner noted "dermatophytosis of foot, treated". In addition, the July 2017 VA examiner opined that the Veteran's dermatitis was not incurred in, or caused or aggravated by his service. Again, the examiner noted that the Veteran's medical records do not document any skin diseases while in service, and the first medical documentation of a skin disease appears in 1999. The examiner further noted that the Veteran's dermatitis is a diagnosable condition, and that it is not an unexplained skin condition due to an undiagnosed illness or a medically unexplained multisymptom illness. As noted by the September 2016 VA examiner, the July 2017 VA examiner reiterated that the December 2015 VA treatment record indicated that the Veteran's contact dermatitis was a result of exposure to new soap. As previously indicated, the December 2015 examiner further noted that contact dermatitis is a local reaction to topical skin irritants. The dermatologic reaction to irritants occurs temporally proximate to exposure to skin irritants, and would not be expected to have onset at a date distant from the exposure event. The examiner indicated that no skin condition, including contact dermatitis, of such a nature has been documented that can be attributed to environment exposures in Southwest Asia. The Board finds that due to (1) the service treatment records being devoid of symptoms related to a skin disorder or chronic symptomatology during the Veteran's active service, and (2) the VA opinions proffered in February 2015, September 2016, October 2016, and July 2017, the Veteran's skin condition was not manifested during, or the result of active military service, to include his service in Southwest Asia during the Persian Gulf War. In addition, there is no medical evidence of record to indicate that any claimed skin disorder experienced by the Veteran is due to an undiagnosed illness. While the Veteran believes that his current skin condition is related to service in the Persian Gulf War, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion with regard to this condition. See 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). In this regard, the diagnosis or etiology of his claimed disability is a matter that is not capable of lay observation, and requires medical expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his claimed disability is not competent medical evidence. Moreover, whether the injuries incurred in service are in any way related to his current disability is also a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the Veteran's own opinion regarding the etiology of his current skin disorder is not competent medical evidence. The Board finds the opinion of the medical physicians of record to be significantly more probative than the Veteran's lay assertions. For the foregoing reasons, the preponderance of the evidence is against the claim. The benefit-of the-doubt doctrine is therefore not for application, and the Veteran's claim of entitlement to service connection for tinea pedis and cruris must be denied. See 38. U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Entitlement to service connection for tinea pedis and cruris, to include as due to an undiagnosed illness, is denied. ____________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs