Citation Nr: 21006447 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 08-14 038 DATE: February 4, 2021 ORDER Entitlement to service connection for a skin disorder, diagnosed as fungal infection, is granted. FINDINGS OF FACT The most probative evidence shows that the Veteran’s fungal infection began during service. CONCLUSION OF LAW The criteria for entitlement to service connection for a skin disorder, diagnosed as fungal infection, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 2001 to August 2001, from November 2001 to February 2002, and from December 2003 to March 2005. He served in Iraq from February 2004 to February 2005 in support of Operation Iraqi Freedom and is the recipient of the Combat Action Badge. This matter comes to the Board of Veterans’ Appeals (Board) on an appeal from a June 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, the Agency of Original Jurisdiction (AOJ). In the rating decision, the AOJ denied service connection for body fungus. The Veteran appealed this determination and the present appeal ensued. This issue was previously before the Board in March 2012 at which time it was remanded for further development of the record. This issue was again before the Board in December 2018 at which time it was remanded for further development. The Board's remand directives and the subsequent actions by the AOJ will be discussed below. Service Connection In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 1. Entitlement to service connection for a skin disorder, diagnosed as fungal infection Analysis Service treatment records are negative for a diagnosis of or treatment of a fungal infection. In December 2005 the Veteran sought treatment at a VAMC after receiving private treatment for a fungal infection. During a 2006 VA examination for PTSD, he reported having some sort of fungal exposure during service. In a January 2007 treatment note the Veteran indicated that he believes he came home from Iraq with “fungus in his blood;” the Veteran’s wife stated that he was found to have H. pylori. The Veteran submitted medical records from the Social Security Administration (SSA) in November 2014. Speaking about his service in Iraq, the Veteran stated “I caught some kind of fungus over there and can’t get rid of it.” Medical treatment records submitted to the SSA dated April 2006 show complaints of “fungus in stomach and on feet.” Records from March 2007 indicate treatment with anti-fungal medication for foot fungus. In addition, during a hearing before a Decision Review Officer in June 2010, the Veteran reported having athlete’s foot during service in Iraq. He stated that he was given a salve for treatment but it never went away. He testified that he had continued problems with it and that if he doesn’t use the medication, it comes right back. He also reported fungus under the toenails. In a March 2012 decision, the Board remanded the Veteran’s claim for further development, including obtaining private treatment records. In a December 2018 Board decision, the Board again remanded the Veteran’s claim. Although finding that the AOJ substantially complied with the March 2012 Remand directive by attempting to “obtain any private treatment records related to the Veteran’s claim of a disability caused by fungus exposure,” the Board observed that VA did not request the specific private treatment records identified by the Veteran. The Veteran contended that he had a skin disorder, claimed as a fungus on his body, which he “picked up in Iraq.” His service personnel records indicate he served in Iraq and Kuwait from February 2004 to February 2005. During an initial VA primary care visit in September 2005, the Veteran reported that Dr. B. had prescribed Sporanox for a fungal infection on his left foot and groin. Similarly, in July 2006, the Veteran indicated that Dr. B. had treated him for a rash on his feet in March 2005. The Board found that outstanding treatment records from Dr. B. were pertinent to the claim on appeal and could help to establish a continuity of fungal skin problems since military service. Thus, the Board directed the AOJ to attempt to obtain those records and ongoing VA treatment records. The Veteran did not respond to VA’s request in October 2019 to submit a VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs or VA’s request to submit a General Release to allow VA to obtain information on his behalf. Subsequent to a February 2020 VA examination that will be discussed below, and after issuance of a September 2020 Supplemental Statement of the Case, the Veteran submitted a statement that there was no additional evidence to submit, and also elected to waive the 30-day wait period. The Veteran was afforded a VA examination in February 2020. The examiner opined that the Veteran’s fungal infection was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner noted that the Veteran reported that after he returned from Iraq, he continued to have eruptions on the legs and groin. He has tried several medications and had a dermatology consult in June 2014 without a definitive diagnosis. He described the rash as hard white papules that eventually itch and scale off located on bilateral lower legs and in the groin. He described this as a "body fungal infection" but no diagnosis or treatment for the condition was found. However, the examiner noted a current skin condition, onychomycosis of the left great toe. The examiner described this as a “fungal infection under left great toe” with a date of onset in 2004. The Veteran reported that he developed a fungal infection while serving in Iraq. He stated that he continued to have a discoloration and rash until he saw a new provider in 2018 and was treated with a new medication; the issue resolved in 2018. Although the examiner stated that the Veteran had no current diagnosis of a skin disorder, he noted the fungal infection of the left great toe, diagnosed as onychomycosis. Although the examiner found this disorder had resolved, the requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." McClain v. Nicholson, 21 Vet. App. 319 (2007). Thus, the first element of service connection has been established. The examiner also noted that the Veteran’s fungal infection of his left great toe had its onset in 2004 during service, therefore the second element required to establish service connection, an in-service diagnosis, event, or illness, has been met. The final element required to establish service connection is a nexus between the Veteran’s fungal infection and active service. First, the Board finds that the February 2020 VA examination and opinion are inadequate. The opinion was internally inconsistent as the examiner diagnosed the Veteran with a fungal infection but also based his opinion on a finding of no diagnosis and a lack of service treatment records indicating a diagnosis. Barr v. Nicholson, 21 Vet. App. 303 (2007). In addition, the examiner gave no consideration to the Veteran’s lay statements as to the onset of his fungal infection, and did not take into account the circumstances of his service in Iraq. Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F. 3d 1372 (2007). The VA examination is thus entitled to low probative value. As to other evidence of in-service onset of a fungal infection, the Board notes that a March 2015 Skin Diseases Disability Benefits Questionnaire indicated that the Veteran had a diagnosis of onychomycosis in 2004. The Veteran reported that he developed left foot toenail discoloration with thickness since 2004 while he was serving in Iraq. He mentioned that his PCP tried all kinds of medication but it did not help. The examiner noted constant/near constant use of topical medication including OTC antifungal lotion and cream. The examiner noted that the Veteran’s left foot toenails are blackish in color, thick and brittle. The examiner appeared to disagree with the Veteran’s assertion that he had “fungus in his blood,” and formed a negative nexus opinion on that basis. The examiner took issue with the VA Form 21-2507, stating he did not see any relation between the fungal infection and H. pylori. Nonetheless, he confirmed the diagnosis of a fungal infection and accepted that it began during service. In addition, the Veteran has submitted several statements to describe his symptoms of a fungal infection that began during service and continued until the present. These statements are consistent with the circumstances of his service and the Veteran has consistently described his symptoms from the time he filed his claim and over the course of the following 13 years. The Board finds no reason to question the credibility of the Veteran’s statements and a fungal infection is easily discernible by lay persons. Layno v. Brown, 6 Vet. App. 465 (1994). Medical treatment records confirm complaints of a fungal infection on the Veteran’s feet and pertinent treatment. The Veteran’s wife also submitted a statement relating that the Veteran experienced a fungal infection in March 2005 for which he sought treatment at a VAMC. The Veteran has made competent and credible statements as to the onset of a fungal infection during service in Iraq, consistently describing his symptoms. The Board finds these statements are entitled to high probative value. These statements are not contradicted by any evidence of record, and in fact are supported by the circumstances of the Veteran’s service in Iraq and medical documentation of treatment for a fungal infection that began shortly after he returned from Iraq and continued thereafter. The evidence is at least in equipoise as to whether the Veteran’s fungal infection was caused by or incurred in service. When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). Service connection for a skin disorder, diagnosed as fungal infection, is therefore warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debra B. McLoughlin, 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.