Citation Nr: 21014342 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-00 374A DATE: March 11, 2021 ORDER Entitlement to service connection for a chronic fungal infection of the skin is denied. FINDING OF FACT A chronic fungal infection of the skin is not related to service, to include exposure to contaminated water exposure at Camp Lejeune. CONCLUSION OF LAW The criteria for entitlement to service connection for a chronic fungal infection of the skin are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a veteran (the Veteran) who had active duty service from October 1971 to April 1975. This appeal comes to the Board from a February 2019 Order of the United States Court of Appeals for Veterans Claims (CAVC). The appeal originated from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In July 2016, the Veteran presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law Judge and accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e) (2021). The Veteran was informed of the basis for the RO’s denial of his claims and he was informed of the information and evidence necessary to substantiate each claim. A transcript of the hearing is associated with the claims file. 38 C.F.R. § 3.103 (2021). This matter was previously before the Board, and adjudicated in a decision dated May 2018. In that decision, the Board reconsidered and denied service connection for a chronic fungal infection. The Veteran appealed that decision to the Veterans Court. In an Order dated February 2019, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board’s May 2018 decision in part, and remanded this claim back to the Board for development consistent with the Joint Motion. The parties also agreed that the Board’s denial of service connection for gallstones an upper-gastrointestinal disorder and a urinary tract disorder should not be disturbed. In August 2019, the Board remanded this appeal for additional evidentiary development. In January 2020, the Board again denied the appeal. The Veteran appealed the Board’s decision to the Veterans Court. In an October 2020 Order, pursuant to a Joint Motion, the Veterans Court vacated and remanded the Board’s January 2020 decision. Service Connection—Law and Regulations VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (2018). Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310. For specific enumerated diseases designated as “chronic” there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a) Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the purposes of this section, contaminants in the water supply means the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride, that were in the on-base water-supply systems located at United States Marine Corps Base Camp Lejeune, during the period beginning on August 1, 1953, and ending on December 31, 1987. 38 C.F.R. § 3.307(a)(7)(i). The diseases listed in § 3.309(f) shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(7)(ii). A veteran, or former reservist or member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987, shall be presumed to have been exposed during such service to the contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. The last date on which such a veteran, or former reservist or member of the National Guard, shall be presumed to have been exposed to contaminants in the water supply shall be the last date on which he or she served at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987. For purposes of this section, service at Camp Lejeune means any service within the borders of the entirety of the United States Marine Corps Base Camp Lejeune and Marine Corps Air Station New River, North Carolina, during the period beginning on August 1, 1953, and ending on December 31, 1987, as established by military orders or other official service department records. 38 C.F.R. § 3.307(a)(7)(iii). Exposure described in paragraph (a)(7)(iii) of this section is an injury under 38 U.S.C. § 101(24)(B) and (C). If an individual described in paragraph (a)(7)(iii) of this section develops a disease listed in § 3.309(f), VA will presume that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval, or air service. 38 C.F.R. § 3.307(a)(7)(iv). If a veteran, or former reservist or member of the National Guard, was exposed to contaminants in the water supply at Camp Lejeune during military service and the exposure meets the requirements of § 3.307(a)(7), the following diseases shall be service-connected even though there is no record of such disease during service, subject to the rebuttable presumption provisions of § 3.307(d): (1) Kidney cancer, (2) Liver cancer, (3) Non-Hodgkin’s lymphoma, (4) Adult leukemia, (5) Multiple myeloma, (6) Parkinson’s disease, (7) Aplastic anemia and other myelodysplastic syndromes, (8) Bladder cancer. 38 C.F.R. § 3.309(f). Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr, 21 Vet. App. at 308-09. A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 (‘sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer’); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Service connection for a chronic fungal infection of the skin. Most of the service treatment records have been lost at some point. In these circumstances, when pertinent service records are unavailable through no fault of the Veteran, VA’s duties to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). The Board denied this claim in January 2020. That decision was vacated by Joint Motion in October 2020. The basis for the agreement of the parties to the October 2020 Joint Motion was that the Board did not adequately discuss its heightened duty to assist in its statement of reasons or bases. The parties therefore agreed that remand was warranted for the Board to discuss its heightened duty to consider and discuss the evidence of record, in a new statement of reasons or bases. The Board will address these concerns in detail below. The parties did not stipulate any additional evidentiary development, and the Board finds that no such development is necessary for a fair and informed adjudication of the claim. As noted in the previous decision, while the complete service treatment records are not of record, the February 1985 Board decision, when the service treatment records were still in the claims file, provides a detailed discussion of these records with respect to the claim for a chronic fungal skin infection, which was before the Board at that time. The Board incorporates that decision and its May 2018 and January 2020 decisions by reference. The Board’s discussion is summarized here as noting treatment for skin rashes on several occasions during service. These include what was thought to be athlete’s foot and fungus rash. The service separation examination is of record (Record 12/26/2013). It shows that the Veteran’s skin was clinically normal at service separation. The Veteran’s feet were abnormal, but it was specified that this was due to pre-existing pes planus. This is probative evidence that, at the time of service separation, there was no chronic fungal infection of the skin. The Veteran was discharged from service on April 16, 1975. The Veteran submitted various prescriptions in support of his initial claim. These include prescriptions for corticosteroids dated in June 1976, September 1978, and June and July 1980. A July 29, 1981, Medical Certificate notes that the Veteran was treated for a rash on the left foot. He was also seen the prior year for the same condition and was given medication. On this occasion (July 1981), the Veteran did not wait to be seen for examination (Record 03/20/1987). The report of a February 1982 VA General Medical Examination reveals the Veteran’s report that he had a fungus infection of the left foot since he was in service in 1975. On examination, there was noted an area of desquamating skin on the left ankle measuring 3 inches by 3 inches. The skin was thicker and darker than the surrounding skin. The toes were clear. The diagnosis was a chronic fungus infection on the left foot and ankle (Record 03/11/1982). A May 1, 2013, VA Medicine Outpatient Note reveals the Veteran’s main concern was a skin rash/infection which he felt he had developed while he was serving in the Marines 1971-1975. The Veteran noted that he had served near Camp Lejeune and was concerned about chemical/water contaminant exposure. Examination of the skin revealed a 1-centimeter hyperpigmented lesion with slight pearly quality on the right temple; a small < 0.5 centimeter, lighter color lesion on the left outer ear; a small, scaly lesion along the left chin; multiple hyperpigmented raised lesions on the stomach, chest, and back, consistent with seborrheic keratosis; hyperpigmented circular lesions of ~0.5-1 centimeters in diameter, with distribution around the posterior neck, forearms, and arms; large, several-centimeter circular, dry scaly patches on the left knee, with a hyperpigmented base and irregular borders, with some less-well demarcated scaly patches surrounding it (no similar patches noted on elbows); a bunion on the anterior plantar aspect of the right foot and posterior plantar aspect of the left foot; multiple small scaly patches on the bilateral feet; surgical scars on the right foot; no evidence of tinea pedis; and first toenails on both feet with appearance suggestive of onychomycosis. The examiner diagnosed multiple skin lesions and opined that it was unclear what may have caused the hyperpigmented lesions on his arms (Record 02/10/2016 at 117). An April 18, 2014, Private Clinical Note from N. M., MD, notes complaint of bumps all over the Veteran’s body. He reported that everything started after the Vietnam War in 1971. The diagnosis was scarring and inflammatory dermatitis, suspect discoid lupus erythematosis (Record 06/19/2014 at 13). A May 21, 2014, Private Clinical Note from N. M., MD, reveals complaint of a rash. Diagnoses included scarring process with post-inflammatory hyperpigmentation and Pityrosporum Folliculitis (Record 06/19/2014 at 1). A June 25, 2014, Internal Medicine Note reveals the Veteran was seeking a second opinion on his skin condition. He stated that it was related to lupus. Diagnoses included chronic eczema with lichenification vs. “other?” (Record 01/08/2015). The report of a January 2015 VA Skin Examination reveals the Veteran’s reported history of a chronic rash that started when he was in the Marines in 1971-1975. He noted that it began after “falling into contaminated water.” The area that bothered him the most was on the left knee and left forearm. A skin examination revealed scarred plaques and hyperpigmented macules of face arms legs, and a follicular pustule of the scalp. A punch biopsy revealed that the leading diagnostic considerations were chronic eczematous and/or irritant-allergic contact dermatitis with a superimposed lichen simplex chronicus. Diagnoses included scarring process with post-inflammatory hyperpigmentation of the arms, legs, and face; and, left ankle and knee tinea infection. The examiner found no relationship between the current conditions and the fungal infection noted in service. The rationale was that the Veteran was treated in July 1974 for a fungus rash on the left heel, which resolved with normal findings reported at service separation examination. A chronic fungus infection of the left ankle and foot was not demonstrated until years after separation from service (Record 01/05/2015). The claim was denied by the Board in May 2018, and remanded by the Veterans Court in February 2019. The Board remanded for an additional examination in August 2019. The report of VA examination in September 2019 reveals a diagnosis of Pityrosporum folliculitis. The Veteran reported that the left foot rash began in service and that the right foot rash began 1-3 years ago. The condition was thought to have no impact on the Veteran’s ability to work. The examiner opined that there is no objective medical evidence that this Veteran’s Pityrosporum folliculitis of the feet is causally or etiologically related to the Veteran’s military service, to include exposure to contaminated water at Camp Lejeune, or previous treatment for a keloid in service. The rationale was that keloids and Pityrosporum folliculitis are separate conditions and unrelated to each other; and, that multiple species of the yeast responsible for Pityrosporum folliculitis are present in the normal cutaneous flora. There is no direct or indirect cause and effect relationship between Pityrosporum folliculitis and exposure to contaminated water at Camp Lejeune, and therefore, Pityrosporum folliculitis is not caused by or a result of exposure to contaminated water at Camp Lejeune (Record 09/10/2019). After a review of all of the evidence, the Board finds that the criteria for entitlement to service connection for a chronic fungal infection of the skin have not been met. The Veteran sustained skin rashes during service, which were attributed to a fungus infection. The evidence also substantiates a current diagnosis of Pityrosporum folliculitis. Accordingly, two of the three elements necessary to establish service connection have been substantiated. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167; Saunders, 886 F.3d 1356 (2018) (a veteran seeking compensation under 38 C.F.R. § 3.303(a) must establish three elements). However, a preponderance of the evidence is against a relationship between the fungal infection noted in service, or any other event in service, and the current skin disorder. With reference to presumptive service connection criteria above, the Board finds that Pityrosporum folliculitis is not among the presumptive chronic diseases, nor is it among the diseases presumed to be associated with exposure to contaminated water at Camp Lejeune. The normal clinical examination of the skin at service separation is probative evidence against incurrence of the current skin disability during service. This is further bolstered by the negative nexus opinion in January 2015. It is again supported by the opinion of the VA examiner in September 2019, which argues against a relationship between the current Pityrosporum folliculitis and the fungal infection reported in service. There is no medical opinion that purports to relate the current chronic fungal infection of the skin to service, to include contaminated water at Camp Lejeune. The Board acknowledges the Veteran’s argument in November 2019 that the VA examination in September 2019 was inadequate as the examiner only asked him a few questions and the fungus condition was not properly reviewed. He also questioned the adequacy of the examination at service separation. He requested a new examination. However, despite being informed of the reasons for the denial of his claim at the Board hearing, the Veteran has not obtained a medical opinion linking his skin condition to service. The Board finds that VA’s heightened duty to assist has been satisfied. Veterans are generally entitled to one VA examination and nexus opinion regarding their claims. VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In this case, VA provided multiple examinations to address each alternate theory of etiology raised by the Veteran. These have resulted in evidence weighing decidedly against his claim. In addition, VA ensured that the pertinent facts from the missing service treatment records were included and discussed in its adjudication of the claim. These facts were gleaned from a prior adjudication of the claim, at which time, those records were in the claims file and were reviewed. While this does not substitute for actual presence of the missing records, it is a measure that helps alleviate the lack of pertinent service evidence that would have otherwise resulted. Thus, in providing multiple examinations/opinions, and in obtaining and considering alternate sources of medical information pertinent to service, VA has provided a heightened level of assistance in substantiating the claim, as required under Milostan, 4 Vet. App. at 252; Moore 1 Vet. App. at 406; O’Hare, 1 Vet. App. at 367. The Board acknowledges the Veteran’s statements that he experienced a rash continuously since service. While the Veteran is competent to describe a rash, he is not competent, as a layperson, without known medical training, to determine the nature of the infection and its relationship to the athlete’s foot and fungus rash noted in service. Thus, to the extent his statement is accurate, it is not competent evidence that the current infection is related to service. While there is a normal skin examination at service separation, which undermines his assertion, even to the extent a skin infection might have been overlooked by the examiner, his assertion that such hypothetically overlooked infection is the same infection with which he is currently diagnosed, or is related to the current infection, is not competent evidence of incurrence of the current disorder in service. Relating a current fungal infection of the skin to temporally remote infections in service is not the equivalent of relating a broken bone to a concurrent injury to the same body part (Jandreau, at 1377). Such an opinion requires specialized medical knowledge as to the nature and identity of skin diseases, and is not capable of lay observation. Accordingly, the Veteran’s lay statements are not competent evidence of an etiologic relationship between the fungal infection of the skin treated in service and the current Pityrosporum Folliculitis. The Board also notes that the theory of continuity of symptomatology set out under 38 C.F.R. § 3.303(b) is only applicable to the chronic diseases enumerated under 38 C.F.R. § 3.309(a). See Walker, 708 F.3d 1331. These diseases do not include fungal infections of the skin. Medical opinion evidence has been adduced to address the assertion of a relationship to service, and it is against any such relationship. The November 2019 VA examiner reviewed the entire record, to include the Veteran’s statements made in support of his claim, and the Board’s remand instructions, which detailed the concerns of the parties to the Joint Motion. The examiner was clearly aware of the Veteran’s assertions regarding the ongoing nature of his skin infection. That opinion evidence is based on a review of treatment summary in service, and a comparison between the currently diagnosed Pityrosporum Folliculitis and the condition noted in service. Thus, with respect to the heightened duty to apply the benefit of the doubt, there is no reasonable doubt to be resolved regarding a relationship between the current disorder and the condition noted in service even considering a hypothetically overlooked condition at service separation. Medical evidence has also been adduced to address the Veteran’s contention that his current skin condition is related to contaminated water exposure at Camp Lejeune. This is also against the claim. As the Veteran is also not competent to relate his current condition to contaminated water, his assertion in this regard is also not competent evidence. Thus, there is no reasonable doubt to be resolved, even under the heightened duty to apply the benefit of the doubt. A reasonable doubt must be present even under the heightened duty in this case. The Board has addressed in detail each contention raised in this case, and has provided the Veteran with an in-depth description of its reasons and bases. The Board finds that this discussion adequately satisfies its heightened duty to provide a discussion of reasons and bases, as required under Milostan, 4 Vet. App. at 252; Moore 1 Vet. App. at 406; O’Hare, 1 Vet. App. at 367. The Board has also addressed the evidence favorable to the claim. This includes acknowledging that the infection noted in service may have been overlooked on the otherwise normal clinical examination. In sum, the Board finds that the claimed chronic fungal infection of the skin is not related to service. In light of these findings of fact, the Board concludes that service connection for the claimed chronic fungal infection of the skin is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Cramp 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.