Citation Nr: 20060481 Decision Date: 09/15/20 Archive Date: 09/15/20 DOCKET NO. 09-04 932 DATE: September 15, 2020 ORDER Entitlement to service connection for a skin disability of the feet, to include as secondary to herbicide agent exposure and/or service-connected diabetes mellitus, type II is denied. FINDING OF FACT The Veteran’s tinea pedis and onychomycosis are not secondary to service-connected diabetes mellitus and are not otherwise related to an in-service injury or disease, including herbicide agent exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for a skin disability of the feet have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1963 to March 1967, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issue on appeal for further development in May 2017, August 2018, and in September 2019, the. There has been substantial compliance with the remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection 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). Service connection may also be granted for certain diseases based on presumed exposure to certain herbicide agents, even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to herbicides during that service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. The presumptive provisions of 38 C.F.R. § 3.307 are specifically limited to enumerated chronic diseases listed in 38 C.F.R. § 3.309 (e). Even if a Veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, VA must also consider whether there is actual exposure to herbicides. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Secondary service connection may be established for a disability that is proximately due to, or the result of, or aggravated by a service-connected disease or injury. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) that the claimed disability was either caused or aggravated by the already service-connected disability. See 38 C.F.R. § 3.310 (a); see also Allen v. Brown, 7 Vet. App. 439 (1995). Entitlement to service connection for a skin disability of the feet, to include as secondary to herbicide agent exposure and/or service-connected diabetes mellitus, type II The Veteran seeks service connection for his skin disability and contends that it is due to herbicide exposure or his service-connected diabetes mellitus type II. As a preliminary matter, service connection on a presumptive basis is not warranted. As the Board previously determined in its August 2013 remand, the Veteran’s exposure to herbicide agents in Vietnam is conceded. While the Veteran is presumed to have been exposed to herbicide agents in service, neither tinea pedis nor onychomycosis are enumerated conditions under 38 C.F.R. § 3.309 (e). Thus, service connection due to herbicide agent exposure is not presumed. Nonetheless, the provisions for presumptive service connection do not preclude a claimant from establishing service connection with proof of actual direct causation, on the basis that in-service exposure to herbicide agents led to the development of the claimed disability after service. Combee. The question for the Board is then whether the Veteran has a current skin disability of the feet that (1) began during service or is at least as likely as not related to an in-service injury, event, or disease to include herbicide agent exposure or (2) was caused or aggravated by his service-connected diabetes mellitus type II. The Board concludes that, while the Veteran has current diagnoses of tinea pedis and onychomycosis, the preponderance of the evidence weighs against finding that either disability began during service or is otherwise related to an in-service injury, event, or disease including herbicide agent exposure. Moreover, the Veteran’s tinea pedis and onychomycosis are not caused or aggravated by his service-connected diabetes mellitus type II. Turning to the evidence of record, the Veteran’s service treatment records (STRs) contain an October 1963 note identifying “possible athlete’s feet” and nothing further. Annual flying examinations from March 1965 and March 1966 do not contain reports of a chronic skin condition involving the feet. In the March 1967 Report of Medical History completed with the Veteran’s discharge examination, the Veteran’s marked “no” for foot trouble and skin diseases. Over 30 years after the Veteran’s separation from service, private treatment records from May 2007 show that he had calluses on the heels of his feet; while VA treatment records from January 2008 indicate that the Veteran had a diagnosis of both tinea pedis and onychomycosis. Over the course of the appeal, the Board has obtained several nexus opinions to determine whether the Veteran’s disabilities are related to service and/or his service-connected diabetes. VA opinions in September 2013, April 2015 and October 2017 were unfavorable, but as the Board noted in past remands, the opinions are inadequate for adjudicative purposes. In August 2018, the Board sought a new nexus opinion. In May 2019, the VA examiner who provided the earlier opinions concluded that the Veteran’s current skin conditions were not related to service, including as a result of herbicide agent exposure. The examiner explained that the Veteran’s tinea pedis was first diagnosed in October 1963 and it was treated with complete resolution. She indicated that at the time of the Veteran’s separation from service, there was no evidence of any skin residuals. There was no evidence of any foot skin problem in the thirty-eighty years following his separation. The examiner continued that, tinea pedis is a skin infection with known, ubiquitous fungal organisms, acquired by means of direct contact of skin (feet) with the causative agents. She noted it is totally curable and although there may be recurrent new infections, there is no chronicity. The examiner noted that the Veteran’s podiatry notes show he was treated for tenia pedis at the time of his diagnosis with diabetes mellitus. The examiner further indicated that based on the current medical knowledge of tinea pedis, it is less likely than not that such originated during service. Rather, the Veteran’s current infection is more likely than not a new infection. Finally, the examiner explained that, being a skin infection with specific causative agents, tinea pedis is not caused by exposure to herbicide agents. She further indicated that she was unable to find medical literature of any causal relationship between herbicides and fungal infections. In the May 2019 opinion, the examiner also opined that neither of the Veteran’s current foot conditions are secondary (caused or aggravated) by his service-connected diabetes. She explained that review of the evidence-based medical literature, does not support a causative effect of diabetes and there is no statistically significant difference in the prevalence of tinea pedis in patients with and without diabetes. Regarding aggravation, she explained there is no medical evidence in the literature for aggravation of the condition in diabetics without any sign of immunodeficiency. The examiner also explained that current medical records show that this Veteran has no signs of immunodeficiency and receives standard of care of his feet. There has been no worsening over time. Furthermore, available curative treatments, topically or orally, would prevent worsening of the condition beyond the natural clinical course by diabetes. In September 2019, the Board remanded the appeal for an addendum opinion. It noted that the examiner only discussed the Veteran’s tinea pedis in the May 2019 report; an opinion addressing onychomycosis was needed as well. In November 2019, an addendum opinion was received. The examiner opined that the Veteran’s onychomycosis was less likely than not incurred in or caused by service, including exposure to herbicide agents. The examiner explained that the Veteran was treated for tinea pedis in October 1963 and the condition resolved as his in-service physicals from March 1965 and the March 1966 separation examination were all silent on any foot, skin, or nail condition. The examiner furthered that no onychomycosis was ever diagnosed in service. She continued that a review of the evidence based medical literature did not support a causative effect of herbicide exposure for the development of onychomycosis. The examiner noted that the Veteran was diagnosed with onychomycosis in 2007, 40 years after his separation from the military and based on the foregoing reason there was no causal nexus to service. The examiner also opined that the Veteran’s onychomycosis was less likely than not proximately due to or the result of his service-connected diabetes mellitus. The examiner’s rationale explained that the Veteran was diagnosed with tinea pedis and onychomycosis in December 2007 and that the diagnosis was established on clinical grounds as no nail biopsy was performed. The examiner described the etiology of onychomycosis as a nail infection acquired through direct contact of the nail with dermatophytes, yeast, or non-dermatophyte molds in the environment or through spread of fungal infection from affected skin (e.g. tinea pedis). The examiner identified risk factors and noted that they did not mean causation, but merely an association. The examiner also opined that the Veteran’s onychomycosis of the feet was not aggravated by his service-connected diabetes mellitus. She again noted the STR’s silence on the issue after his October 1963 treatment. She reported that the Veteran was diagnosed with diabetes mellitus, type II in 2005. She explained that the Veteran was followed by podiatry since 2007 and that “his condition actually improved of the years, per notes.” She furthered that, regardless of an established baseline (as there was none) the Veteran’s condition was not aggravated beyond its natural progression by his service-connected diabetes. In her rationale, the examiner explained that onychomycosis may serve as a reservoir for recurrence of cutaneous fungal infections (e.g. tinea pedis, tinea cruris, tinea corporis) in patients with diabetes or other immunocompromised states. She furthered that onychomycosis may increase the risk of bacterial infections such as cellulitis; however, there was “no evidence in the medical literature that diabetes mellitus aggravates onychomycosis beyond its natural progression.” Taken together, the Board finds the VA examination opinions provided in May 2019 and November 2019 are probative and persuasive as the VA examiner explained the reasons for her conclusions and they were based on an accurate characterization of the evidence. Thus, these opinions are entitled to substantial probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). There are no equally probative medical opinions to the contrary. The available medical evidence does not include findings of a nexus between the Veteran's military service, to include presumed herbicide agent exposure therein, and the current skin disabilities affecting his feet. Thus, service connection is not warranted on a direct basis under 38 C.F.R. § 3.303. The record likewise does not include medical evidence or nexus opinions linking these conditions to his service-connected diabetes mellitus. Thus, service connection is not warranted on a secondary basis under 38 C.F.R. § 3.310. The Board acknowledges the Veteran’s lay assertions in support of his appeal, however, a determination as to whether the current skin disabilities are etiologically related to service, including any remote treatment therein or to presumed herbicide agent exposure, or; is related to service-connected diabetes mellitus are complex medical questions. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4. Thus, the Veteran’s lay statements asserting such a nexus exists are not competent as he is not shown to have medical training or expertise. As the preponderance of evidence is against the claim, there is no reasonable doubt to be resolved. Service connection for a skin disability of the feet, to include as secondary to herbicide agent exposure and/or service-connected diabetes mellitus, type II is denied. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Telamour, 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.