Citation Nr: 21009571 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 18-38 361 DATE: February 22, 2021 ORDER Entitlement to service connection for athlete’s foot (claimed as residuals of frostbite) is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, the Veteran has manifested recurrent athlete’s foot since active service. CONCLUSION OF LAW The criteria for service connection for athlete’s foot (claimed as a residuals of frostbite) are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from April 1967 to March 1969. This matter comes before the Board of Veterans’ Appeals (Board) following a February 2020 Board remand of an appeal from a September 2017 administrative denial of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee (Agency of Original Jurisdiction (AOJ)). The Veteran and his wife testified at a video conference hearing before the undersigned in January 2020. A transcript of the proceeding is of record. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Entitlement to service connection for a foot condition, to include athlete’s foot and residuals of frostbite To establish service connection, the evidence must generally show (1) a present disability, (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). A valid service connection claim requires competent evidence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). However, the presence of a disability at any time during the claim process or relatively close thereto can justify a grant of service connection, even where such disability has become asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Additionally, ”pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability” if it ”reaches the level of a functional impairment of earning capacity,” and the definition of ”disability” includes any condition that results in ”functional impairment of earning capacity.” Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018); Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. The Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc. Id. Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). The Veteran asserts that he has a foot condition that onset during active service. In this regard, during a January 2020 hearing, the Veteran asserted his foot condition has persisted since separation from service. He testified that any time his feet become wet his feet become red, crack, bleed, and his toenails fall off. He also reported that he self-treated his foot condition by soaking his feet in Epson salt, which worked much better than the powder previously provided to him in service. Turning to the first element of service connection, the presence of a disability at any time during the claim process. The Board finds that the evidence of record confirms the Veteran was diagnosed with a foot condition during the pendency of his claim. A 2015 medical record reported that the Veteran was diagnosed with and treated for athlete’s foot. Additionally, the Veteran has consistently complained of cracking and bleeding of his feet, as well as experiencing pain and a burning sensation. Thus, the current disability element for a foot condition, diagnosed as athlete’s foot, is established by the evidence. The Board will accordingly consider whether the Veteran’s athlete’s foot was incurred during or is related to service. The second element of a claim for service connection is medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease. A review of the Veteran’s service treatment records reveal that the Veteran was diagnosed with and treated for athlete’s foot in July 1968. However, the Veteran’s October 1968 separation examination listed his feet as normal. In January 2020, the Veteran testified that during his active service he was treated for athlete’s foot and was that he was given foot powder and told to return to duty. Thus, the Board finds the Veteran’s service treatment records and lay assertions of his in-service athlete’s foot establish the incurrence of an in-service injury. Lastly, having carefully reviewed all evidence of record, the Board finds, for the reasons noted below, that the third requirement for service connection, competent evidence of a nexus between the Veteran’s foot condition, diagnosed as athlete’s foot, and an in-service disease or injury, has been met and there is sufficient basis to award service connection for athlete’s foot. In this regard, throughout the appeal period, including in the January 2020 hearing, the Veteran reported his foot condition, and symptoms thereof, began during service and have continued to this day, as supported by his treatment records. The Board recognizes the Veteran has reported some variation as to the cause/diagnosis of his foot condition, claiming it was due to frostbite and that it is not athlete’s foot. However, the evidence of record reflects the Veteran consistently reported that he continues to experience the same symptoms since service. Such is supported by the January 2020 testimony from the Veteran and his spouse, and the Veteran’s post service treatment records. Specifically, during the January 2020 hearing, the Veteran’s spouse confirmed the symptoms the Veteran experiences noting that they “can’t walk in this area or these areas, because of his feet. If he got them wet . . . his feet would get so bad they would bleed. His skin would come off . . . his toenails too.” Furthermore, the Veteran’s post service treatment records reveal consistent complaints of foot pain, that has persisted since service. See November 2005 to May 2016 Medical Treatment Records. The Veteran and his spouse are competent to testify as to observable symptoms such cracking, bleeding, redness, toenails falling off, and other observable manifestations of such, because these symptoms are capable of lay observation. See Layno, 6 Vet. App. at 470. Furthermore, it may not be determined that lay evidence lacks credibility merely because the evidence is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board notes the gap in treatment records, but the Veteran stated that his skin condition was recurrent in nature which he self-treated by soaking his feet in Epson salt. Therefore, the Board finds there is no reason to doubt the Veteran’s credibility as to his reports of experiencing manifestations of his foot condition since active service. And the Board accepts the Veteran’s competent and credible statements as evidence that he experienced symptoms associated with athlete’s foot that have continued since his first diagnosis in service and accord them significant evidentiary weight. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). After review of the negative nexus opinions provided by the November 2020 VA examination, and subsequent addendum VA opinion, the Board finds them inadequate and gives them no probative weight. The November 2020 VA examination and addendum opinion do not discuss the Veteran’s statements of experiencing cracking, bloody, and painful feet. Additionally, the VA opinions failed to acknowledge the evidence that such symptoms have been recorded since 2005, and the Veteran’s statements, beginning in 2006, that the symptoms have been recurrent since service. The Court has recognized that some conditions, by their inherent nature, wax and wane and accordingly are sometimes active and other times not, including skin conditions. Ardison v. Brown, 6 Vet. App. 405 (1994). While the VA examiner provided a negative nexus opinion, the Board affords all reasonable doubt to the Veteran. The Veteran and his spouse have provided competent lay observations, supported by the Veteran’s treatment records. Therefore, the Board concludes that the evidence is at least in equipoise that the Veteran has experienced athlete’s foot, and symptoms thereof, during and since service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (2007). In consideration of the evidence of record, the Board finds that the Veteran has a foot condition, diagnosed as athlete’s foot, that is likely attributable to his active service. The Veteran has submitted seemingly competent and credible statements and testimony that his in service athlete’s foot and its symptoms have continued after service and continue to cause him pain and discomfort. Thus, given these facts, and when resolving doubt in the Veteran’s favor, the Board concludes that service connection is warranted for a foot condition, diagnosed as athlete’s foot, and the Veteran’s appeal is granted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. §§ 3.102, 3.303(a). T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Patrick C. Brady, Attorney Advisor 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.