Citation Nr: A21019505 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 200203-64798 DATE: December 7, 2021 ORDER New and relevant evidence having been received, the claim for entitlement to service connection for athlete's foot is reopened. Entitlement to service connection for athlete's foot is granted. FINDINGS OF FACT 1. A March 1991 rating decision that denied service connection for athlete's foot was not appealed and the decision became final. 2. New and relevant evidence has been received with respect to service connection for athlete's foot. 3. The Veteran's athlete's foot originated during military service and has been continuous since that time. CONCLUSIONS OF LAW 1. The criteria to readjudicate the claim of service connection for athlete's foot have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 156 (a), 20.1103. 2. The criteria for service connection for athlete's foot have been met. 38U.S.C. §§1110, 1116, 5107; 38C.F.R. §§3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1964 to December 1990. The rating decision on appeal was issued in December 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the February 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). New and relevant evidence Generally, the claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. §§ 7104 (b), 7105 (b) and (c); 38 C.F.R. §§ 3.160 (d), 20.200, 20.201, 20.202, 20.302 (a). However, if new and relevant evidence is presented or secured with respect to a claim, which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. The Board must consider the provisions of the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in provisions of Title 38 of the United States Code (38 U.S.C.)), 131 Stat. 1105, also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans to seek review on their claim when they are dissatisfied with VA's decision. Under the revised law, a previously denied and final claim may be reopened on VA's receipt of "new and relevant evidence." "New" evidence is that which was not previously of record. However, "relevant" evidence "tends to prove or disprove a matter in issue" and is a lower standard for reopening claims. 131 Stat. 1105, 1109. The Veteran originally filed a claim for entitlement to service connection for athlete's foot in January 1991. In March 1991, the AOJ denied entitlement to service connection for athlete's foot claiming that the Veteran's athlete's foot during military service had resolved and that there was no indication in his retirement examination that he had any symptoms. The Veteran did not appeal this decision and there was no new and relevant evidence submitted within a year of the rating decision. Thus, the March 1991 rating decision was final. See 38 U.S.C. § 7104; 38 C.F.R. § 3.104 (a). In August 2019, the Veteran submitted a claim to reopen the previously denied claim. In support of the claim, the Veteran also submitted private medical treatment records and a disabilities benefit questionnaire regarding his athlete's foot. Moreover, the Veteran and his wife testified during the July 2021 Board hearing and reported that the Veteran had athlete's foot problems during military service and since separating from service. In consideration of the above, the Board finds that the standard for new and relevant evidence has been met. As such, the Board grants the request to reopen the claim. Service Connection 1. Entitlement to service connection for athlete's foot Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. See 38 C.F.R. § 3.303 (a); see also Jandreau v. Nicholson, supra; and Buchanan v. Nicholson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b).). The Veteran contends that his current athlete's foot and toenail problems were caused during his time in military service. The Veteran has been diagnosed with athlete's foot in the October 2019 DBQ and from his private clinicians. During the July 2021 Board hearing, the Veteran explained that since he was a surveyor, he would work outside a lot and his feet, socks, and boots would get very wet. He did not have the time to let them dry and would have to wear them again the next day. He furthered that he would get athlete's foot flare ups and would seek medical attention for it, but would get topical ointments that would treat it for a while, but that it would never go away. He also explained that due to his military occupational specialty he was in remote places with no doctors, so he would go to the drugstore and get over the counter ointments to treat his foot problems. The Veteran was married to his wife while he was in military service and since separating. She testified that she noticed that the Veteran had foot problems while he was in military service and that they continued even after he separated from service. The Board finds that the Veteran and his wife are competent to report when the Veteran experienced athlete's foot and that the symptoms have continued since service. Heuer v. Brown, 7 Vet. App. 379 (1995). Moreover, the Board finds the Veteran to be credible. Moreover, there is no evidence contrary to the Veteran's claim. The Veteran even explained that he probably did not have any notation in his service treatment records regarding his athlete's foot problems since he would go to a drugstore to obtain ointments for it since he used to be in remote areas without doctors. Importantly, the Board notes that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson,492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to identify athlete's foot and its continuity since service, and his statements have been found credible. (Continued on the next page) Accordingly, the Board finds that the most probative evidence as to whether the Veteran's athlete's foot had its onset in service is in favor of the claim. Thus, entitlement to service connection for athlete's foot is granted. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Imam, 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.