Citation Nr: 20052922 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 16-11 924 DATE: August 10, 2020 ORDER Entitlement to service connection for a fungal infection of the toes is denied. FINDING OF FACT Any current fungal infection of the toes is not shown to be etiologically related to the Veteran's active duty service. CONCLUSION OF LAW Service connection for a fungal infection of the toes is not warranted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from February 1953 to December 1957. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 Department of Veterans Affairs (VA) rating decision (which declined to reopen a claim of service connection for a bilateral fungal toe infection). In October 2017 and February 2020, this matter was remanded for additional development specifically including an alternate source search for pertinent service records. After the development sought failed to produce any additional pertinent records, the Veteran was asked to submit any further evidence or information he may have; he did not respond. By considering the claim on the merits, the February 2020 Board remand implicitly reopened the claim (or addressed it de novo based on receipt of additional service records), and the Board will not disturb that finding, and will not also consider the claim de novo (affording the Veteran the broadest scope of review possible in this matter). Service connection for a fungal infection of the toes is denied. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury; and (3) a nexus between the disease or injury in service and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). A disease first diagnosed after service may be service connected if all the evidence, including pertinent service records, establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Veteran seeks service connection for a fungal infection of the toes on both feet. He asserts that such an infection became manifest while he was serving in Korea, and has persisted since. At the outset, the Board finds that there has been substantial compliance with prior remand instructions (as discussed further below). Service records in the file establish that the Veteran service included service in Korea (from January 1954 to January 1956), where (he alleges) he was initially treated for a fungal foot infection, including on a hospital ship; service at Ft. Bliss (January 1956 to July 1956); and service at Schofield Barracks, Hawaii (August 1956 to December 1957). Records in the file establish (since 1983, but affirmed twenty years later) that the Veteran’s complete service treatment records are unavailable, having likely been destroyed by a fire at the National Personnel Records Center (NPRC) in St. Louis in 1983. Accordingly, VA has a well-established heightened duty to assist the Veteran in obtaining evidence in support of his claim. Including pursuant to the two Board remands, there has now been exhaustive alternate source search development for records pertaining to the Veteran. The development included a search for pertinent morning reports (receiving a response that no entries pertaining to the Veteran were found); a search for pertinent morning/sick reports from the U.S.S. Constellation (where he also reported receiving surgery for an anal fistula), (receiving the response that no entries pertaining to the Veteran were found); and SGO reports (with no pertinent entries other than one of a hospital admission for migraines of undetermined etiology in 1953 found). The Veteran has also alleged that he incurred the foot fungal infection which engaging in combat (which would warrant consideration of his claim under the relaxed evidentiary requirements afforded under 38 U.S.C. § 1154 (b); however, his DD-Form 214 does not show any awards or decorations that connote combat service, and there is nothing in his claims file that otherwise shows or suggests that he served in combat. Following service, the initial mention of a fungal infection of the toes/feet is in a May 1983 Memorandum from his then representative indicating, in pertinent part, that he seeks service connection for such disability. A deferred rating decision that month the matter was being deferred, pending development of pertinent evidence. A VA letter to the Veteran in July 1983 requested him to submit any evidence of treatment for a foot fungal disability from discharge from service to the present. He did not respond to the request, and the claim was deemed abandoned. In a claim received in November 2002, the Veteran again sought service connection for a toe fungus. In support of his claim he submitted 2002 private podiatry records showing a diagnosis of, and treatment for, porokeratosis (a rare, chronic, progressive skin disorder, characterized by atrophic patches surrounded by a hyperkeratotic ridge-like border), with etiology identified as including genetic, exposure to ultraviolet light, and immunosuppressive factors. A fungus infection of the feet was not noted. A final 2003 rating decision denied service connection for a fungal infection of the feet essentially on the bases that such disability was not shown, and that there was no evidence that such disability might be related to service. [It was noted that there was no evidence indicating that the then-diagnosed porokeratosis may be related to service.] In April 2013 the Veteran again filed a claim seeking service connection for a fungus infection of the Feet. VA treatment records (listed as Capri in the claims file) include Podiatry Clinic records, that show, in pertinent part, that the Veteran has diagnoses of, receives treatment for, both porokeratosis and onychomycosis (a fungal infection) of the feet. See e.g., January 2014 podiatry treatment record (continuing to the present). They do not include a medical opinion regarding the etiology of onychomycosis (and in particular contain no opinion indicating that such fungal infection might be related to the Veteran’s service). The Veteran has indicated that he does not receive private podiatry treatment. At the outset of the analysis of this claim, the Board notes that while the record does not include a medical opinion in this matter (addressing the possibility of a nexus between the current onychomycosis and the Veteran’s service, because there is no competent evidence in the record indicating that the current onychomycosis might be related to the Veteran’s service (disease or in jury therein), development for any advisory medical opinion in the matter is not necessary, as even the generally accepted low threshold standard for when development for a medical opinion is necessary is not met. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) (mere conclusory generalized lay statement that service event or illness caused the claimant’s current condition is insufficient to require an examination). In that regard, (while noting that onychomycosis is not listed as a chronic disease in 3.309(a), for which service connection may be established based on continuity) the Board has considered the Veteran’s lay reports that a fungus infection of his toes was first manifested in service and has been continuously present since, i.e., whether they raise a reasonable possibility that a current foot/toe fungus disability may be related to service. Acknowledging that STRs are unavailable, and the consequent heightened duty to assist, the Board notes that there is not evidence of a diagnosis of/treatment for onychomycosis postservice prior to 2014 (some 56+ years following service), and that interim treatment records (significantly including the private podiatry records from 2002, which would have noted such fungal infection, if then found), do not show a notation of onychomycosis. It is not in dispute that the Veteran now, more than 62 years after service, has a bilateral fungus-related toe disorder. It is also not in dispute that he served in Korea (where) he may have been exposed to inclement weather conditions and also in Hawaii, where he may have been exposed to moist sub-tropical weather conditions. However, there is no competent evidence in the record indicating, or suggesting, that his current fungal disease of the toes may be etiologically related to his service, a related disease of injury therein (as none is shown). Regarding the Veteran’s own assertion that his fungal infection of the toes is related to his service, the Board observes that the etiology of a current fungus infection-related disability (whether it may be related to a disease or injury in decades-remote service is a medical question that requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran is a layperson, and does not cite to support clinical data, or medical opinion or treatise evidence. Therefore, his own opinion relating the current foot/toe fungus disability is not probative evidence in the matter. Considering the foregoing, the Board finds that the preponderance of the evidence is against the Veteran’s claim. There is simply no probative evidence that his current fungus disease to the toes (diagnosed as onychomycosis) may be related to a disease or injury in service. Accordingly, the appeal in this matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Fabian Lokenauth, Associate Counsel 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.