Citation Nr: 20036727 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 16-23 424 DATE: May 28, 2020 ORDER Entitlement to service connection for tinea cruris is denied. Entitlement to service connection for onychomycosis is denied. Entitlement to service connection for peripheral neuropathy is denied. REMANDED Entitlement to service connection for rash on legs is remanded. Entitlement to service connection for tinea pedis is remanded. Entitlement to service connection for onychocryptosis is remanded. FINDINGS OF FACT 1. The Veteran’s groin rash, to include intertrigo and tinea cruris, did not have its onset in service, and is not otherwise related to service, to include exposure to herbicides. 2. The Veteran’s groin rash, to include intertrigo and tinea cruris, is not aggravated or worsened by service-connected pes planus. 3. The Veteran’s onychomycosis did not have its onset in service and is not otherwise related to service, to include exposure to herbicides. 4. The Veteran’s onychomycosis is not aggravated or worsened by service-connected pes planus. 5. The Veteran’s peripheral neuropathy is not shown to have had its onset within one year of his last exposure to herbicidal agents, nor is it otherwise related to his service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinea cruris have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(d). 2. The criteria for entitlement to service connection for onychomycosis have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(d). 3. The criteria for entitlement to service connection for early-onset peripheral neuropathy, to include as due to exposure to herbicidal agents, have not been met. 38 U.S.C. §§ 1110, 1116, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army on active duty from January 1967 to January 1969. In a November 2019 rating decision, the Agency of Original Jurisdiction (AOJ) granted the Veteran’s service connection claim for pes planus and awarded him a 50 percent rating evaluation. Additionally, a February 2020 rating decision granted the Veteran’s service connection claims for tinnitus and bilateral hearing loss. This is considered a full grant of the benefits sought on appeal as to those issues. The only remaining claims on appeal are listed above. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The law also provides a disability may be service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. Additionally, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam (or certain areas of Thailand) during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that such veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The enumerated diseases which are deemed to be associated with herbicide exposure are AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type 2 diabetes; Hodgkin’s disease; ischemic heart disease; 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); and certain soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). Id. 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 v. Derwinski, 1 Vet. App. 49 (1990). 1. Service Connection for Tinea Cruris/Intertrigo The Veteran contends the rash in his groin area is a result of exposure to herbicides while serving in the Republic of Vietnam. The Veteran’s DD-214 reflects service in the Republic of Vietnam and therefore, exposure to herbicides is presumed. The Veteran has also asserted that his tinea cruris is secondary to his service-connected pes planus. The Veteran’s service treatment records (STRs) are silent for any complaints, treatment or diagnosis of a skin condition of the groin. Specifically, his separation examination is silent for any skin or lymphatic abnormalities. Most recently, in a November 2019 VA skin examination, the Veteran was diagnosed with intertrigo of the groin. Although the law presumes that the Veteran was exposed to herbicide agents during his service in the Republic of Vietnam, the Veteran’s current intertrigo, nor his previously diagnosed tinea cruris, are not chronic diseases under 38 C.F.R. § 3.309(a) or presumptive diseases associated with exposure to herbicide agents under 38 C.F.R. §§ 3.307(a)(6), 3.309(e). However, VA must still consider the claim on a direct service-connection basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran’s VA treatment records show he was first diagnosed with tinea cruris in 1985. In July 2003, the Veteran had a VA general examination and the VA examiner noted darkened hyperpigmentation, peeling and redness in the groin area, consistent with tinea cruris. In a November 2019 VA skin examination and the examiner diagnosed the Veteran with intertrigo. The VA examiner opined, however that the Veteran’s intertrigo was less likely than not caused or aggravated by his service-connected pes planus, and less likely than not related to herbicide exposure in service. The VA examiner reasoned that intertrigo is an inflammatory condition of the skin fold which is caused or aggravated by “heat, moisture, maceration, friction, and lack of air circulation and worsened by infection.” The examiner also noted the condition does not bear any relationship to pes planus. The examiner added that intertrigo is a condition caused by fungal infection and is not due to exposure to herbicides. The Veteran is competent to report having a rash in his groin area because a skin rash is capable of lay observation; however, he is not competent to provide opinions as to more complex medical questions, such as whether herbicide exposure or pes planus caused or aggravated the rash. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Further, the Veteran has submitted several VA medical treatment records, but these documents do not discuss potential nexus or causative theories for the origin of the Veteran’s skin condition of the groin, which severely limits their probative value on the element of nexus. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The evidence is against a finding that the Veteran’s intertrigo or tinea cruris was caused by service, to include exposure to herbicides or secondary to pes planus. He had no complaints, treatment, or diagnosis of skin condition near or on the groin upon separation from service and no condition was diagnosed until 1985. This is more than twenty years after separation. Although not dispositive, a lengthy period without complaint or treatment is considered evidence that there has not been a continuity of symptomatology and weighs heavily against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In addition, the November 2019 VA examiner has opined that the Veteran’s intertrigo is not caused by exposure to herbicides, nor is it caused or aggravated by his service-connected pes planus. There is no competent opinion to the contrary. For these reasons, service connection for a rash in the groin area, to include tinea cruris and/or intertrigo is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Service Connection for Onychomycosis The Veteran asserts that his onychomycosis is caused by active service, to include exposure to herbicides and being secondary to his service-connected pes planus. He was diagnosed with onychomycosis of the right big toe as recently as 2019. The Veteran’s exposure to herbicides is conceded. His STRs are silent for any complaints, treatment or diagnosis of onychomycosis. His separation examination reflects a normal feet and skin evaluation. Although the law presumes that the Veteran was exposed to herbicide agents during his service in the Republic of Vietnam, the Veteran’s onychomycosis, is not a chronic disease under 38 C.F.R. § 3.309(a) or a presumptive disease associated with exposure to herbicide agents under 38 C.F.R. §§ 3.307(a)(6), 3.309(e). However, VA must still consider the claim on a direct service-connection basis. See Combee. In September 1987, the Veteran’s VA treatment records note a discolored area on one of the Veteran’s toes. He denied any injury to his toe at the time. His medical records first show a diagnosis for onychomycosis in July 2011. In November 2019, the Veteran was afforded a VA skin examination in which the examiner confirmed a diagnosis of onychomycosis of the right big toe. The examiner opined that onychomycosis is caused by fungal infection, primarily dermatophytes and the condition does not bear any relationship to pes planus, nor is it caused by herbicide exposure. The examiner also noted the that as onychomycosis is a fungal infection, it is not aggravated by pes planus. The Board acknowledges the Veteran is competent to report the symptoms of a fungal infection of the toenail as it is capable of lay observation, however he is not competent to provide opinions as to more complex medical questions, such as whether herbicide exposure or pes planus caused the infection. Additionally, the Veteran has provided several VA treatment records, however the records do not discuss potential nexus or causative theories as to the origin of the Veteran’s onychomycosis. The evidence is against a finding that the Veteran’s onychomycosis is caused by active service, to include exposure to herbicides or secondary to pes planus. The Veteran had no complaints, treatment, or diagnosis of onychomycosis upon separation from service and no symptoms were reported until 1987 with no diagnosis until 2011. Although not dispositive, a lengthy period without complaint or treatment is considered evidence that there has not been a continuity of symptomatology and weighs heavily against the claim. In addition, the November 2019 VA examiner opined that the Veteran’s onychomycosis is not caused by exposure to herbicides, nor is it caused or aggravated by his service-connected pes planus. There is no competent opinion to the contrary. For these reasons, service connection for onychomycosis is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application. 3. Entitlement to Service Connection for Peripheral Neuropathy The Veteran contends that his peripheral neuropathy is caused by his exposure to herbicides during service. The record shows that the Veteran had service in Vietnam and is; therefore, presumed to have been exposed to herbicidal agents such as Agent Orange. The law provides for service connection on a presumptive basis for specific disabilities which have been shown to be linked to such exposure. One of the listed conditions for presumed service connection is “acute and subacute peripheral neuropathy.” 38 C.F.R. § 3.309. The Board notes that 38 C.F.R. § 3.309(e) previously listed “acute and subacute peripheral neuropathy” as an enumerated disease and stated that this meant transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. Effective September 6, 2013, VA amended its adjudication regulations concerning presumptive service connection for disabilities associated with exposure to certain herbicide agents. See 78 Fed. Reg. 54,763, Disease Associated with Exposure to Certain Herbicide Agents: Peripheral Neuropathy. The amendments implement a decision by the Secretary to clarify and expand the terminology regarding the presumption of service connection for peripheral neuropathy associated with exposure to certain herbicide agents and to ensure compliance with court orders from the class action litigation of Nehmer v. U.S. Department of Veterans Affairs, No. CV-86-6160 TEH (N.D. Cal. May 17, 1991). In the National Academy of Sciences’ (NAS) report Veterans and Agent Orange: Update 2010, NAS concluded that early onset peripheral neuropathy associated with herbicide exposure is not necessarily a transient condition. The NAS also reaffirmed the conclusion in its prior reports that data did not suggest that exposure to herbicides led to the development of delayed-onset chronic peripheral neuropathy. Therefore, VA amended §§ 3.307(a)(6)(ii) and 3.309(e) by replacing the term “acute and subacute peripheral neuropathy” with the term “early-onset peripheral neuropathy.” VA also removed Note 2 to § 3.309(e), that stated that, in order for the presumption to apply, the neuropathy be transient and appear within weeks or months of exposure to an herbicide agent and resolve within two years of the date of onset. Under the amendments, early-onset peripheral neuropathy still must become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection, but it no longer needs to be transient. These amendments apply to claims received by VA on or after September 6, 2013, and to claims pending before VA on that date. Notwithstanding the foregoing, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has determined that the Veteran’s Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542 , § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee, supra. The rationale employed in Combee also applies to claims based on exposure to Agent Orange. Brock v. Brown, 10 Vet. App. 155, 160 (1997). The Veteran’s STRs are silent for any complaints, treatments or diagnosis relating to peripheral neuropathy. A July 2003 VA general examination showed the Veteran’s complained of numbness and tingling in the left upper extremity. The examiner noted this was most likely due to his degenerative disc disease of the cervical spine for which he is not service connected. In August 2005, the Veteran’s VA treatment provider noted the results of a neurological examination which showed the Veteran had diminished pinprick and temperature sensation up to the mid tibia region. The VA provider also noted the Veteran had mild elevation of vibration threshold and his reflexes were brisk which is consistent with his history of B12 deficiency. The Veteran had a VA peripheral nerves examination in October 2019, which confirmed the diagnosis of bilateral peripheral neuropathy. The Veteran reported to the examiner that he fell during boot camp training in 1967 causing an injury to his back. He states he was given muscle relaxers and a back support. He further states that shortly thereafter he began to experience tingling in his legs. The VA examiner opined that the Veteran’s peripheral neuropathy is less likely than not related to herbicide exposure during service and that the Veteran’s VA medical treatment records indicate his neuropathy is caused by a vitamin B12 deficiency, not exposure to herbicides. The VA examiner also noted the Veteran’s STRs show no evidence of B12 deficiency during service. After reviewing all of the evidence of record, the Board finds that service connection for peripheral neuropathy is not warranted. With respect to the exposure presumption, the criteria have not been met. Based on the evidence of record, the Veteran did not manifest symptoms of peripheral neuropathy in service or within one year of service separation, and there is no evidence to support his assertion of such symptoms within that time period. The Board acknowledges the assertions by the Veteran and his representative of the onset of symptoms in service, but notes the STRs and VA medical records are silent for symptoms of peripheral neuropathy until the late-1990s/early-2000s, nearly thirty years after separation. The Veteran has not pointed to treatment records or reports dated during service or in his first post-service year showing peripheral neuropathy symptoms of a level that would warrant a 10 percent rating. Moreover, his contention of the onset of symptoms in service and continuously since service year lack credibility. The Veteran filed for service connection for peripheral neuropathy multiple times since 1997—often changing his theory of contention. Prior to his 1997 claim, he had filed numerous claims for compensation related to other disabilities, indicating familiarity with the claims process and ability to file a claim for service connection. Prior to 1996/1997, he did not claim service connection for peripheral neuropathy. Any of these facts, taken alone, would not be enough to question the Veteran’s credibility as to his reports of continuity of symptomatology of his peripheral neuropathy. However, these facts if taken together do no support the Veteran’s current contention of continuous peripheral neuropathy symptoms since service. The Veteran is certainly competent to report numbness and tingling in his limbs. He is not; however, competent to diagnose these symptoms as peripheral neuropathy decades following service. Further, the VA examiners have specifically found that his peripheral neuropathy is due to nonservice connected causes. As the Veteran’s statements as to the onset of peripheral neuropathy are not credible, they are afforded no probative weight. Therefore, the VA opinions of record are afforded significant probative weight on the issue of nexus. These opinions were provided following examination of the Veteran, review of the file, and included a detailed rationale for the opinions reached. The Board also notes the provision of Combee that allows for the Veteran to provide other evidence linking the claimed disability to herbicide exposure. The Veteran has not provided any other evidence which would satisfy the requirements of Combee. In addition, the Veteran has not provided any competent evidence linking any current diagnosis of peripheral neuropathy to his military service. As noted previously, a lengthy period without complaint or treatment is considered evidence that there has not been a continuity of symptomatology and weighs heavily against the claim. As the requirements for service connection have not been met either directly or presumptively, the claim must be denied. REASONS FOR REMAND 1. Service Connection for Rash on Legs The Veteran is seeking service connection for a rash on his legs due to herbicide exposure or as secondary to his service-connected pes planus. The Veteran contends his symptoms for this condition had their onset in service. In a March 2018 prior Board decision, the claim was remanded to obtain a VA examination. The Veteran was afforded a VA skin examination in November 2019 and the results of the examination make it unclear as to whether the Veteran has a rash condition of the legs. In addition to leg rash, the Veteran is claiming service connection for tinea pedis, which is a fungal infection of the feet. This skin condition was also remanded for a VA examination. The November 2019 VA skin examiner opined that the Veteran’s “claimed” leg rash is not “proximately due to” or “the result of” the Veteran’s service-connected pes planus. The November 2019 VA skin examiner only diagnosed tinea pedis, intertrigo of the groin and onychomycosis of the right big toe. Although no additional rashes or infections of the leg were diagnosed, the VA examiner opined that that the Veteran’s claimed leg rash was not caused by pes planus. It is not clear from the examination report whether the VA examiner was referring to the Veteran own assertion that he had a leg rash, or whether the Veteran actually had a leg rash. It is also possible the VA examiner presumed the Veteran’s diagnosed tinea pedis and rash of the legs were the same skin condition. No location or description of a leg rash was provided, outside of the descriptions given for the diagnosed conditions. This ambiguity leaves a question as to whether the Veteran has a currently diagnosed skin condition of the legs, to exclude tinea pedis. Additionally, the Courts have observed that when VA is deciding such a case on the basis of “aggravation,” language “not due to,” “not caused by,” or “not related to” a service-connected disability is insufficient. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Instead, the opinion must be responsive to the question of whether or not a service-connected disorder worsened a disorder for which the Veteran is seeking service connection. The November 2019 VA examiner also failed to specifically address whether the Veteran’s pes planus aggravated any existing rash condition of the legs. A remand is necessary to obtain an addendum medical opinion to clarify whether the Veteran has a skin condition of the legs and whether that condition is aggravated by his service-connected pes planus.   2. Service Connection for Tinea Pedis The Veteran is also seeking service connection for tinea pedis due to herbicide exposure and secondary to pes planus. A prior Board decision remanded the Veteran’s claim in March 2018 to obtain a VA skin examination to determine the origin and nature of the tinea pedis. The Veteran had the VA skin examination in November 2019 and the VA examiner confirmed a diagnosis of tinea pedis. Furthermore, the examiner opined that the Veteran’s tinea pedis is not caused by herbicide exposure and is also not secondary to the service-connected pes planus. Specifically, the examiner opined that tinea pedis is not “caused by” and “bears no relationship to” pes planus, however the examiner did not opine as to whether the Veteran’s pes planus aggravates his tinea pedis. As noted above, an opinion on aggravation must be responsive to the question of whether or not a service-connected disorder worsened a disorder for which the Veteran is seeking service connection. The fact that the two conditions are unrelated only addresses the causal prong of the criteria and does not address aggravation. As a result, a remand is necessary to obtain an addendum medical opinion as to whether the Veteran’s tinea pedis is secondary to pes planus. 3. Service Connection for Onychocryptosis The Veteran is seeking service connection for onychocryptosis. In March 2018 the Board remanded this claim for a VA examination to determine the origin of the condition. The November 2019 VA skin examination noted there was no evidence of onychocryptosis found during the exam. As a result, the examiner failed to provide an opinion as to the etiology of the condition. The Veteran’s VA treatment records first note a diagnosis of onychocryptosis in 2011. He was also treated for an inflamed ingrown toenail in November 2013 as well as an ingrown and mycotic nail in December 2013. VA treatment records show the Veteran continued to be treated for onychocryptosis in 2014 to as recently as October 2019. The November 2019 VA examiner specifically noted the Veteran does not have any previously resolved skin conditions that no longer require treatment. The record supports this finding. Although the Veteran was not experiencing an ingrown toenail at the time of the November 2019 VA examination, a review of his VA medical treatment records show he suffers from and continues to receive regular treatment for onychocryptosis, indicating the condition has not resolved. Therefore, a remand is necessary in order to obtain an addendum medical opinion on the etiology of the Veteran’s onychocryptosis. (This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) The matters are REMANDED for the following action: 1. Obtain any and all relevant up to date VA treatment and/or (with the proper authorization from the Veteran) private treatment records and associate them with the claims file. 2. Then, obtain an addendum VA medical opinion from an appropriate medical professional. The examiner shall provide an opinion as to the following: (a.) Outside of tinea pedis, determine and diagnose whether the Veteran has a rash of the lower extremities. (b.) If so, determine whether it is at least as likely as not (50 percent or greater probability) the Veteran’s diagnosed lower extremity rash is aggravated by the Veteran’s service-connected pes planus, to include any incremental increase or non-permanent aggravation of the condition. Any increase in disability should be described in terms of diagnosis, severity, and duration. If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of rash of the legs, by the service-connected disability. (c.) Determine whether it is at least as likely as not the Veteran’s tinea pedis is aggravated by his service-connected pes planus, to include any incremental increase or non-permanent aggravation of the condition. Any increase in disability should be described in terms of diagnosis, severity, and duration. If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of tinea pedis, by the service-connected disability. (d.) Determine whether it is at least as likely as not the Veteran’s onychocryptosis is aggravated by the Veteran’s service-connected pes planus, to include any incremental increase or non-permanent aggravation of the condition. Any increase in disability should be described in terms of diagnosis, severity, and duration. If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of onychocryptosis, by the service-connected disability. The examiner should be aware that if the provided opinion does not discuss aggravation, the opinion will be deemed inadequate. The examiner is asked to include a complete rationale with all opinions and conclusions provided. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.N. Shannon 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.