Citation Nr: 18146476 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 15-05 554 DATE: October 31, 2018 ORDER The application to reopen a claim of service connection for tinea pedis is granted. Entitlement to service connection for tinea pedis is denied. REMANDED Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for shin splints is remanded. Entitlement to an initial compensable rating for scar, status post right ankle arthroscopy, is remanded. Entitlement to an increased rating for posttraumatic stress disorder (PTSD) in excess of 50 percent prior to April 1, 2016 and in excess of 70 from April 1, 2016, to include temporary total disability ratings, is remanded. FINDINGS OF FACT 1. In June 2005, the RO declined to reopen a claim of service connection for tinea pedis; the Veteran filed a timely Notice of Disagreement (NOD), but did not perfect the appeal. 2. Evidence associated with the claims file since the June 2005 decision relates to an unestablished fact necessary to substantiate the claim for tinea pedis. 3. Tinea pedis is not related to service. CONCLUSIONS OF LAW 1. The June 2005 decision that denied service connection for tinea pedis is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 30.302, 20.1103 (2017). 2. Evidence received since the June 2005 decision that denied a claim for tinea pedis is new and material and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 3. The criteria for entitlement to service connection for tinea pedis have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1995 to May 1998. The DD 214 shows that he was a cannon crewmember and was awarded the parachute badge. The Board has recharacterized the TBI and migraine issues as a single disability, residuals of a TBI, in light of the Veteran’s reported symptoms and contentions. In October 2012, the RO denied service connection for bilateral hearing loss and flat feet. The RO also granted service connection for tinnitus, a back disability, a right ankle disability, and a left ankle disability. In May 2018, the RO granted service connection for flat feet. The Veteran filed a timely NOD with respect to the bilateral hearing loss, tinnitus, right ankle, back, and left ankle issues, but failed to perfect the appeals following a January 2015 SOC. Thus, those issues are not currently on appeal. In May 2013, the RO denied entitlement to TDIU. The Veteran filed a timely NOD. The RO issued a Statement of the Case (SOC) in January 2015, and the Veteran perfected the appeal later that same month. However, in a June 2018 correspondence, prior to the matter being certified to the Board, the Veteran’s attorney withdrew that appeal. See 38 C.F.R. § 20.204 (2017). Additional evidence has been obtained by the RO since it last considered the case in an April 2016 SOC. This evidence is cumulative of evidence already in the claims file with respect to the tinea pedis claim. Thus, neither a waiver nor initial consideration of this evidence by the RO is necessary. The Veteran requested a hearing in January 2015. Subsequently, in a September 2018 correspondence, the Veteran’s attorney indicated that he wished to cancel the scheduled hearing. The hearing request has been withdrawn. See 38 C.F.R. § 20.704 (2017). New and Material Evidence A finally denied claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156 (a), new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 agency of original jurisdiction (AOJ) received additional evidence within one year of the June 2005 rating decision. However, the RO readjudicated the claim with consideration of the above evidence in a February 2008 SOC. This satisfied the RO’s duty to reconsider the matter upon receiving new evidence within one year of the rating decision. See Beraud v. McDonald, 766 F.3d 1402 (Fed. Cir. 2014). 1. Whether new and material evidence has been received to reopen a claim of service connection for tinea pedis In June 2005, the RO denied service connection for tinea pedis (claimed as athlete’s foot) because there was no evidence of a chronic condition during service or a relationship between the currently diagnosed tinea pedis and service. The Veteran filed a timely NOD, but did not perfect the appeal. As such, the June 2005 decision became final. See 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Since the June 2005 decision, new evidence has been received. In a July 2013 correspondence, the Veteran stated that he developed tinea pedis as a result of his participation in field exercises. His lay statement is presumed credible under Justus v. Principi, 3 Vet. App. 510 (1992). The evidence relates to a previously unestablished element of the claim (nexus) and raises a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The evidence is considered both new and material. Thus, this claim is reopened. Service Connection Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases may be presumed to be service connected if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 C.F.R. §§ 3.307, 3.309. Tinea pedis not listed as a “chronic disease” under 38 C.F.R. § 3.309 (a). Therefore, 38 C.F.R. § 3.303 (b) provisions for alternative means of establishing service connection by showing chronicity and continuity of symptomatology do not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 2. Entitlement to service connection for tinea pedis As the RO considered the claim on the merits in the May 2013 rating decision, the Board may consider the reopened claim on the merits as well. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records (STRs) reveal no pertinent complaints, treatments, or diagnoses. The February 1995 enlistment examination reveals normal clinical findings for all systems except the feet (pes planus). There is no separation examination in the STRs. Subsequently, there are no pertinent complaints, treatments, or diagnoses for approximately six years. An October 2004 VA treatment record notes that the Veteran reported suffering from bilateral tinea pedis “for some time” while an August 2005 VA treatment record notes that the Veteran reported tinea pedis of one year’s duration. VA treatment records establish a current diagnosis of tinea pedis thereby establishing the first Shedden element. STRs provide probative and persuasive evidence that there was no injury or disease in service regarding the currently diagnosed tinea pedis. Thus, the second Shedden element is not met. The preponderance of the evidence is against a finding that the Veteran’s currently diagnosed tinea pedis is related to service. The Board notes the conflicting statements from the Veteran regarding the onset of his disability, the absence of documentation of a chronic foot condition in service, and the time gap between the Veteran’s service and the initial post-service treatment for this condition. The Board acknowledges the competent and credible lay statements from the Veteran regarding symptomatology. Nevertheless, to the extent that the Veteran attributes his disability and other symptoms to service, he is not competent to opine on the etiology of a complex medical condition such as tinea pedis, and his statements are therefore afforded no weight. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). REASONS FOR REMAND 3. Entitlement to service connection for residuals of a TBI. The Veteran contends that he sustained a TBI as a result of an in-service parachute accident and that he suffers from migraines as a result. The record establishes that the Veteran was involved in a mid-air collision with another servicemember and, as a result, his parachute only partially opened, causing him to crash to the ground. He is service-connected for various musculoskeletal and psychiatric disabilities that he sustained. The Veteran contends that he also received a concussion. STRs do not contain complaints, findings, or a diagnosis of a loss of consciousness or headaches. Notably, the other servicemember was treated for a concussion. In addition, the Veteran’s statements are consistent with the circumstances of his service. A March 2016 VA PTSD examiner found that the Veteran did not have a diagnosed TBI. However, a February 2016 TBI screening conducted by a VA psychologist appears to be positive. Thus, the Board finds that a VA examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006).   4. Entitlement to an increased rating for PTSD in excess of 50 percent prior to April 1, 2016, and in excess of 70 from April 1, 2016, to include periods of temporary total disability. Subsequent to the April 2016 SOC, additional VA medical records were added to the file that reflect treatment for the Veteran’s PTSD and inpatient hospitalization. This evidence was not submitted by the Veteran, and he has not waived initial review of this evidence by the AOJ. Therefore, the appeal must be remanded for review of this new evidence and the issuance of a Supplemental Statement of the Case (SSOC), if otherwise warranted. See 38 C.F.R. § 20.1304. 5. Entitlement to service connection for hypertension. 6. Entitlement to service connection for shin splints. 7. Entitlement to an initial compensable rating for scar, status post right ankle arthroscopy. In October 2012, the RO denied service connection for shin splints and hypertension and granted service connection for a right ankle scar. In January 2013, the Veteran filed a Notice of Disagreement (NOD). No SOC has yet been issued on the hypertension, shin splints, and right ankle scar appeals and therefore they must be remanded for that purpose. See 38 C.F.R. § 19.9 (c); Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to address the nature and etiology of any traumatic brain injury residuals, to include headaches. The claims file must be made available to and reviewed by the examiner. The examiner should opine as to whether it is at least as likely as not (50 percent of greater probability) that the Veteran has a current diagnosis for residuals of a traumatic brain injury that are related to service. The examiner should specifically discuss the Veteran’s lay report of an in-service loss of consciousness and headaches after a documented parachute accident in February 1998. A complete rationale must be provided for any opinion. 2. Issue an SOC addressing the issues of entitlement to service connection for hypertension and shin splints, and entitlement to an initial compensable rating for a right ankle scar. If an appeal is perfected, this issue should be returned to the Board, if otherwise in order. Otherwise the appeal should be closed by the originating agency. 3. Readjudicate the issue of entitlement to an increased rating for PTSD, to include periods of temporary total disability, to include consideration of the additional evidence obtained since the AOJ last adjudicated this claim in April 2016. If the benefit sought is not granted,   the Veteran and his attorney must be provided with an SSOC and afforded an opportunity to respond before the record is returned to the Board. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.N. Poulson, Counsel