Citation Nr: 1815187	
Decision Date: 03/13/18    Archive Date: 03/19/18

DOCKET NO.  10-43 979	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for a right foot disability to include residuals of surgery for an ingrown toenail and a skin disorder, secondary to diabetes mellitus (DM) or due to exposure to herbicides.  

2.  Entitlement to service connection for a left foot disability to include residuals of surgery for an ingrown toenail and a skin disorder, secondary to DM or due to exposure to herbicides. 


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

J. Connolly, Counsel


INTRODUCTION

The Veteran had active service from February 1962 to June 1966 with additional periods of active duty for training (ADT) in the Navy Reserve.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  In May 2012, the Veteran testified at a Board hearing before the undersigned via video conference from the RO.  In April 2014, October 2016, and June 2017 decisions, the Board remanded the issues remaining on appeal.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDINGS OF FACT

1.  The Veteran underwent surgery for ingrown toenails in 1995 which have not been recurrent and there has been no subsequent diagnosis to include a diagnosis of any residuals.

2.  The Veteran has been diagnosed as having recurrent tinea pedis and onychomycosis which are not presumptive disorders for herbicide exposure.  

3.  Tinea pedis and onychomycosis of both feet are attributable to service.


CONCLUSIONS OF LAW

1.  Tinea pedis and onychomycosis of the right foot were incurred in active service.  38 U.S.C. §§ 1101, 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017).

2.  Tinea pedis and onychomycosis of the right foot were incurred in active service.  38 U.S.C. §§ 1101, 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA) 

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 C.F.R. § 3.159.  Here, the Veteran was provided with the relevant notice and information.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim and all appropriate development was undertaken in this case.  The Veteran was also afforded a hearing which was adequate.  38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010).  The Veteran has not alleged any notice or development deficiency during the adjudication of the claims.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  

Service Connection

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306.  Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

VA law and regulations further provide that a chronic, tropical, or prisoner-of-war related disease, or a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309 will be considered to have been incurred in or aggravated by service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service.  No condition other than the ones listed in 38 C.F.R. § 3.309(a) will be considered chronic.  38 U.S.C. §§ 1101, 1112, 1113, 1116; 38 C.F.R. § 3.307(a).

VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met.  38 C.F.R. § 3.309(e).  A Veteran who, during active service, served in the Republic of Vietnam (or in some cases other areas) during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service.  38 C.F.R. § 3.307(a).  The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975.  The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era.  

If a Veteran was exposed to an herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; all chronic B cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); and ischemic heart disease, (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina).  

The lists of diseases that are presumed to be related, or due to, herbicide exposure are updated by the Secretary based on information provided by the National Academy of Sciences (NAS).  The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted.  Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010, 77 Fed. Reg. 47,924 - 47,928 (Aug. 10, 2012).

The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service.  38 C.F.R. § 3.307(a)(6)(ii).

Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

The Veteran asserts that his residuals of right and left foot surgery for ingrown toenails are due to feet problems that began during service due to the boots he was issued.  He contends that his feet problems began with a foot fungus which led to his toenail issues and that he has continued to experience problems with the skin on his feet since service.

The service treatment records (STRs) do not reflect any diagnoses of a skin disorder of the feet.

Post-service, the Veteran underwent toenail surgery on both feet in 1995.  In March 1999, the Veteran was noted to have metatarsalgia of the left foot.  In April 1999, the Veteran was seen for burning feet.

Subsequent records dated in 2001 noted numbness on the bottom of the feet.  Record dated in 2003 show that the Veteran was treated for tinea versicolor, tinea pedis, onychomycosis, and dystrophic toenails.  

In December 2003, the Veteran was afforded a VA examination.  At that time, the Veteran reported that he was diagnosed with tinea versicolor in 1963 when he was in Panama on a ship.  He developed itchy hypo- and hyperpigmented lesions on the neck and the upper parts of both shoulders.  He felt this condition was intermittent, but it had become worse over the years with the rash being more severe.  Physical examination revealed a multitude of hypo- and hyperpigmented lesions noted on the Veteran's neck, upper part of the chest, and the upper back.  The RO granted service connection for tinea versicolor of the neck, chest and back.  See April 2015 and September 2017 rating decisions.

In July 2008, the Veteran was treated for thick toenails.

In June 2014, the Veteran was afforded a VA examination.  He was diagnosed as having seborrheic dermatitis, tinea versicolor, and a rash related to syphilis.  However, the skin disorders being evaluated were not located on the feet.

In October 2016, the Veteran was again examined by VA.  The examiner opined that the Veteran has onychomycosis of the first and fifth right and left toe nail and explained that onychomycosis is an infection of the toenails from fungal pathogens; accepted risk factors are advanced age, swimming, tinea pedis, psoriasis, DM, immunodeficiency, genetic predisposition, and living with family members who have onychomycosis.  The examiner noted that the Veteran had known DM since the 1990s.  The examiner also noted that closed toed shoes or having ones feet exposed to moist or wet environments for a prolonged period is a more a risk factor for tinea pedis.  Although the Veteran's assertion that he wore closed toed boots during service on the USS Rockbridge for prolonged periods in moist environments and that could have been a risk factor for the Veteran developing onychomycosis of the nails, it seemed unusual for that environment to affect only the first and fifth toenails.  The examiner indicated that such an environment would likely have led to tinea pedis, which would more likely have then led to all toenails being affected.  The Veteran's history and treatment records were silent for persistent or recurrent treatment of tinea pedis and he only had isolated toenails being affected.  Although the Veteran stated he had onychomycosis during active duty service, the STRs were silent for similar complaints.  Furthermore, the first documentation of nail abnormalities and ingrown nails were dated from 1995 which was close to thirty years after separation.  The examiner explained that infected toenails can lead to ingrown nails as in this Veteran's case.  However, there was no documented treatment of ingrown toenails since 1995, making it an inactive issue.  Therefore, the examiner opined that it was less likely than not that the Veteran's current right or left toenail fungus and prior treated ingrown toenails were incurred in service or were related to the boots worn during active duty service. 

In June 2017, the Board remanded this case for further evaluation.  The Board noted that the Veteran's representative indicated that the VA examiner, while stating it would be unusual for only certain toes to be affected, did not rule out that only limited toes could be affected.  The representative also indicated that the examiner improperly did not consider the lay evidence of continuous problems since service. The Board also notes that one of the primary reasons for the negative conclusion above was that the inservice environment would more likely have to lead to tinea pedis tinea which the examiner indicated was not shown in this case.  However, a review of the medical evidence reflected that the Veteran had in fact been diagnosed with tinea pedis.  The Board also noted that some conditions, by their inherent nature, wax and wane and accordingly are sometimes active and other times not.  See Ardison v. Brown, 6 Vet. App. 405, 408 (1994).  Thus, while tinea pedis was apparently not present on the last examination, the Veteran has historically received treatment for that skin disorder.  

In July 2017, the skin disability was reassessed.  The examiner concluded that the Veteran's skin disability of the feet was less likely than not incurred in or caused by the claimed in-service injury, event or illness.  The examiner indicated that there was no lay evidence because there were no buddy statements.  She stated that tinea is a ubiquitous fungus and innumerable affected individuals in the Veteran's area of the country have recurrent bouts of tinea pedis and onychomycosis, especially those with DM (notably, DM is a service-connected condition in this case).  Therefore, she stated that it is more likely than not that the Veteran has gotten recurrent fungal infections over the past 40 years.  The examiner acknowledged that wearing moist, non-vented footwear in a hot, jungle environment such as the Veteran experienced put the Veteran at risk for tinea pedis and onychomycosis.  However, tinea pedis "has not been much of an issue over the past 40 years" and, in such a case as this Veteran's, all the toenails would have been affected especially with his DM and peripheral vascular disease.  However, his records never mentioned anything except the 1st and 5th toenails as being thickened and dystrophic.  This Veteran has taken good care of his nails and thickened, dystrophic nails are not disabling or disfiguring.  

At the outset, presumptive service connection is not available under 38 C.F.R. § 3.309(e) for the Veteran's foot disabilities.  Thus, the Veteran is not entitled to this presumption of service connection.  The matter of direct service connection must still be considered.  Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994).

Turning to the question of direct service connection, with regard to ingrown toenails, although service connection may be established for a disability at the time of filing of the claim or during the pendency of that claim, even if the disability has since resolved, the Veteran's ingrown toenails resolved decades ago.  McLain v. Nicholson, 21 Vet. App. 319 (2007).  The Court consistently has held that, under the law, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."  Watson v. Brown, 4 Vet. App. 309, 314 (1993).  This principle has been repeatedly reaffirmed by the United States Court of Appeals for the Federal Circuit, which has stated, "a Veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the Veteran's service and the disability."  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).  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); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998).  Thus, service connection is not warranted for ingrown toenails or residuals thereof.

With regard to tinea pedis and onychomycosis of both feet, the medical opinions did not consider the Veteran's lay report of bouts of skin disability of the feet, diagnosed as tinea pedis and onychomycosis, recurring since service.  Although this matter was requested to be addressed in the most recent VA opinion, the examiner indicated that there was no lay evidence because there were no buddy statements.  The examiner seemed to refute that the Veteran had a skin disability of the feet since service, but then acknowledged that the tinea pedis had not been "much of a problem" since then which is contradictory.  In addition, she basically indicated that DM was also an associated factor.

When a veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which he served, his military records, and all pertinent medical and lay evidence.  See 38 U.S.C. § 1154(a).  In this case, the Veteran has described the circumstances of his service aboard ship.  The VA examiners acknowledged that such conditions could have been a risk factor for the development of his skin disability; however, the VA examiners discounted this risk factor due to the lack of treatment and because only two nails were affected, but did not provide a complete rationale as to why all the nails need be affected at the same time for recurrent onychomycosis and tinea pedis.  Medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a).  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  In this case, the Board finds that the Veteran is competent to report toenail fungus as that can be observed and is credible in his report.  There are negative medical opinions which are incomplete and there is competent and credible lay evidence but no supporting documentation.  The Board finds that the evidence in this case is so evenly balanced so as to allow application of the benefit-of- the-doubt rule as required by law and VA regulations.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  Accordingly, service connection for onychomycosis and tinea pedis of both feet is warranted.

Since direct service connection is being granted, the matter of secondary service connection will not be addressed.


ORDER

Service connection for tinea pedis and onychomycosis of the right foot is granted.

Service connection for tinea pedis and onychomycosis of the left foot is granted.




S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs