Citation Nr: 20007922 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 17-28 640 DATE: January 30, 2020 ORDER New and material evidence has not been received to reopen the service connection claim for skin fungus of the bilateral hands and the claim is denied. Entitlement to service connection for fungus in blood stream is denied. Entitlement to service connection for fungus of the back is denied. REMANDED Entitlement to an increased rating higher than 30 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to an increased rating higher than 0 percent for onychomycosis and foot fungus is remanded. Entitlement to an increased rating higher than 0 percent for pityriasis foreign folliculitis and lichen simplex chronicus on the head is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s service connection claim for skin fungus of the bilateral hands was denied in a June 2011 rating decision. The Veteran did not appeal this decision, nor has he asserted clear and unmistakable error in this decision. 2. The evidence received since the June 2011 rating decision is duplicative or cumulative of evidence previously of record and does not raise a reasonable possibility of substantiating the claim. 3. The preponderance of the evidence of record is against finding that the Veteran has had a fungal infection of the blood at any time during or approximate to the pendency of the claim. 4. The Veteran’s back fungus is not secondary to service-connected onychomycosis and foot fungus or pityriasis foreign folliculitis and lichen simplex chronicus on the head; and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The June 2011 rating decision denying service connection for skin fungus of the bilateral hands is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 3.104, 20.1103. 2. Since the June 2011 rating decision, new and material evidence has not been received with respect to the Veteran’s claim of entitlement to service connection for skin fungus of the bilateral hands, and the claim is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for fungus in the blood stream are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for fungus of the back due to service or service-connected onychomycosis and foot fungus or pityriasis foreign folliculitis and lichen simplex chronicus on the head are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1965 to June 1968. The Veteran requested a Board of Veterans’ Appeals (Board) hearing; but cancelled this request in July 2019. Service Connection 1. New and material evidence to reopen the service connection claim for skin fungus of the bilateral hands Prior to addressing the merits of the Veteran’s service connection claim for skin fungus of the bilateral hands, the issue of whether new and material evidence has been received to reopen the claim must be addressed, as the service connection claim has been previously denied in a June 2011 rating decision. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. §§ 5108, 7103, 7104, 7105; 38 C.F.R. §§ 3.156, 20.1100. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 sustaining the claim. 38 C.F.R. § 3.156(a). New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof. See Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. The only exception would be where evidence presented is inherently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran originally filed service connection for skin fungus of the bilateral hands in October 2010. He essentially contended that the service-connected fungus condition on his head and feet, specifically, Pityrosporum folliculitis of the head and onychomycosis of the feet, had spread to his hands. See November 2010 statement. Evidence considered at that time includes a March 2003 private treatment record noting the Veteran had a fungal infection in the nailbeds of both hands. The Veteran stated that he had a fungus on his feet that spread to his hands. A September 2003 private treatment record notes that the Veteran had a pruritic rash on the right hand and feet. He was found to have onychomycosis of the nails of the right hand and both feet. The Veteran underwent a VA examination in June 2011, which noted that the Veteran had a few papules with excoriation present over the lateral aspect of the arms bilaterally. The examiner found that the findings were not consistent with onychomycosis or Pityrosporum folliculitis. The examiner noted that onychomycosis and Pityrosporum folliculitis were caused by different organisms; one was caused by tinea, which was more fungal; and the other one was caused by Pityrosporum, which was more of a yeast. The examiner determined that there were no physical findings consistent with a fungal infection. The examiner noted that the underlying cause of the pruritis could not be determined but it was not related to a fungal infection of the skin, tinea pedis, onychomycosis, or Pityrosporum folliculitis. In a June 2011 rating decision, the RO denied service connection for bilateral hand fungus, finding that the medical evidence of record did not show that his skin fungus of the bilateral hands was related to service-connected Pityrosporum folliculitis and lichen simplex chronicus of the head, or service-connected onychomycosis; nor was there any evidence of this disability during military service. The Veteran submitted a notice of disagreement in July 2011; but after a statement of the case was issued in April 2013, he did not submit a timely VA-Form 9 substantive appeal. As the Veteran did not appeal the June 2011 decision, nor has he asserted clear and unmistakable error in this decision, it is final. In April 2016, the Veteran submitted a petition to reopen service connection for fungus of the hands. Evidence considered since the last final RO decision in June 2011 includes a May 2012 VA treatment record, which shows a diagnosis of xerosis and hyperkeratosis of the hands. The May 2012 VA examiner found that the mild xerosis of the hands, which led to hyperkeratosis of the hands, increased with age. The examiner determined that it was in no way related to the previous fungal/yeast infections the Veteran had experienced. An October 2014 VA examination addressing the Veteran’s onychomycosis confirmed that the Veteran’s skin condition did not affect any exposed body area, including the hands. New and material evidence has not been received since the June 2011 rating decision. A VA medical opinion that the Veteran’s skin condition on the hands was not related to his service-connected fungal/ yeast infections was previously considered by agency decisionmakers. The May 2012 and October 2014 negative VA medical opinions are cumulative. While this evidence relates to an unestablished fact necessary to substantiate the Veteran’s claim, it does not raise a reasonable possibility of substantiating the claim, as the evidence confirms that his skin condition on the hands is not related to his service-connected skin disabilities. Also, none of the evidence since June 2011 relates the Veteran’s current skin disorder of the hands to his military service. 38 C.F.R. § 3.303. Accordingly, the Veteran’s service connection claim for skin fungus of the bilateral hands is not considered reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). 2. Entitlement to service connection for fungus in blood stream The Veteran contends that he has fungus in his blood stream. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of fungus in the blood stream and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Medical evidence in the file including the service treatment records and post-service medical records dated from 2002 to 2016 has been reviewed. None of the medical records during the pendency of the claim or recent to the filing of the claim show any findings of fungus in the blood stream. While the Veteran believes he has a current diagnosis of fungus in the blood stream, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. 3. Entitlement to service connection for fungus of the back The Veteran seeks service connection for a fungus of the back. On an August 2016 statement, he indicated that the fungus on his feet had spread to the rest of his body. Thus, it appears that he is essentially arguing that the fungus on his back is related to his service-connected onychomycosis and foot fungus or pityriasis foreign folliculitis and lichen simplex chronicus on the head. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board’s adjudication will consider only entitlement to secondary service connection. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of or was aggravated beyond its natural progress by a service-connected disability. The Board concludes that, while the Veteran has a current skin disability of the back, the preponderance of the evidence is against finding that the Veteran’s skin disorder is proximately due to or the result of or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). A June 2003 private treatment record notes a rash on the back. An October 2008 VA treatment record shows hyperpigmented areas on the back. A May 2012 VA examiner found that the Veteran had a diagnosis of tinea versicolor of the back that was not related to his current service-connected onychomycosis and foot fungus or pityriasis foreign folliculitis and lichen simplex chronicus on the head. The examiner further noted that no tinea versicolor of the back was shown on present examination. The Veteran believes his skin disorder of the back is proximately due to or the result of a service-connected disability. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the May 2012 VA medical opinion, and this claim must be denied. REASONS FOR REMAND 1. Entitlement to an increased rating higher than 30 percent for posttraumatic stress disorder (PTSD) 2. Entitlement to an increased rating higher than 0 percent for onychomycosis and foot fungus 3. Entitlement to an increased rating higher than 0 percent for pityriasis foreign folliculitis and lichen simplex chronicus on the head In an August 2019 statement, the Veteran’s representative asserted that the Veteran’s PTSD, onychomycosis and foot fungus, and pityriasis foreign folliculitis and lichen simplex chronicus on the head have increased in increased in severity since the Veteran was last examined by VA. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of the PTSD, onychomycosis and foot fungus, and pityriasis foreign folliculitis and lichen simplex chronicus on the head. 4. Entitlement to a total disability based on individual unemployability due to service-connected disabilities Because a decision on the issues of increased rating for PTSD, onychomycosis and foot fungus, and pityriasis foreign folliculitis and lichen simplex chronicus on the head could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claims for issue of entitlement to a TDIU is required. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from March 2016 to present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected PTSD alone. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected onychomycosis and foot fungus, and pityriasis foreign folliculitis and lichen simplex chronicus on the head. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. (Continued on the next page)   4. The examiners should provide a complete rationale for any expressed opinions. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah B. Richmond The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.