Citation Nr: A25035300 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240822-465713 DATE: April 16, 2025 ORDER Service connection for bilateral foot dermatophytosis is granted. FINDING OF FACT The currently diagnosed bilateral foot dermatophytosis first manifested during active service while the Veteran was deployed to the Southwest Asia Theater of Operations during the Persian Gulf War. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for direct service connection for bilateral foot dermatophytosis have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from September 1990 to August 1991. The Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA), creates a new framework of review for appellants disagreeing with the Agency of Original Jurisdiction's (AOJ) decision on a claim. Following an August 2024 Department of Veterans Affairs (VA) Regional Office (RO) rating decision again denying service connection for bilateral foot dermatophytosis, the Veteran submitted an August 2024 VA Form 10182, Notice of Disagreement (NOD), appealing the decision. The NOD requested direct review by the Board of Veterans' Appeals (Board). Direct review is the appeal option to the Board in which a Board decision is issued based on evidence of record at the time of the prior decision. The Board cannot hold a hearing or accept into the record additional evidence in its direct review. The Board is cognizant that in Williams v. McDonough, 37 Vet. App. 305 (2024), the United States Court of Appeals for Veterans Claims (Court) held that, generally, the Board should not decide an appeal before the deadline for requesting an AMA docket switch has elapsed. In the instant decision the Board grants service connection for bilateral foot dermatophytosis, which is a complete grant as to the sole issue on appeal; therefore, there is no prejudice to the Veteran in the Board proceeding with the instant matter at this time. Service Connection for Bilateral Foot Dermatophytosis is Granted. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. When all the evidence is assembled, the Department of Veterans Affairs (VA) is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether persuasive weight of the evidence is against a claim, in which case, the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). The Veteran appeals for service connection for bilateral foot dermatophytosis. At the outset the Board notes that the AOJ, in the August 2024 rating decision, made favorable findings that there is a current diagnosis of bilateral foot dermatophytosis, that the Veteran had active service in the Southwest Asia Theater of Operations during the Persian Gulf War, and that the Veteran participated in toxic exposure risk activities (TERA) during service. Under the AMA the Board is bound by such favorable findings. 38 C.F.R. §§ 3.104(c), 20.801. There is evidence for and against a finding of in-service skin disorder symptoms. Service treatment records are negative for diagnosis of, or treatment for, a skin disorder during service. Per a lay statement by the Veteran in July 2011, during deployment to the Southwest Asia Theater of Operations rashes and scaling began developing on the feet. The Veteran conveyed not having experienced such rashes before, even when competing as a three-sport athlete prior to service. A VA skin examination was performed in February 2017. At that time the Veteran recalled experiencing foot-related skin symptoms during service, which were treated with a topical cream. The Veteran also alleged receiving private treatment for the skin disability at a provider in Mississippi in the past, although medical records from this provider were unavailable. In April 2024, the Veteran filed a claim to reopen service connection for bilateral foot dermatophytosis. At that time the Veteran submitted two lay statements and a private examination and opinion report. Per the Veteran's April 2024 lay statement, the Veteran conveyed that during deployment to the Southwest Asia Theater of Operations the feet and toes began to manifest as scaling, cracking, itching, and toenail fungus. The Veteran denied ever having experienced such symptoms prior to deployment. While the Veteran acknowledged that the service treatment records were negative for in-service treatment for a skin disorder of the foot, he explained that he did not report the symptoms to sick call for fear of being accused of malingering or pretending in an effort to avoid duty. The Veteran also conveyed taking over the counter medications to treat the feet for many years following discharge from service. In a lay statement from the Veteran's spouse in April 2024, the Veteran and spouse had been married since February 1992, but had been dating since 1984, years prior to the Veteran's active service. The spouse conveyed with "absolute certainty" that the Veteran did not have foot-related skin problems prior to active service in the Southwest Asia Theater of Operations, and that, since returning from deployment, the Veteran has continuously experienced skin problems of the feet. Along with the lay statements, VA also received the report from a February 2024 private skin diseases disability benefits questionnaire (DBQ). In the August 2024 rating decision again denying service connection, the AOJ acknowledged that this DBQ was complete and that all required information was included; however, the AOJ refused to consider the private DBQ because the in-person examination was reported to have been performed 300 miles from the Veteran's home address, which the AOJ found to be an "unreasonable distance" for such an examination. While the Board agrees this is a long distance to travel for an examination, review of the DBQ reflects that the examination took place in Mississippi. As discussed above, per the report from the February 2017 VA skin examination, the Veteran had previously received treatment for the skin symptoms at a provider in Mississippi. As such, the Board does not find it unreasonable that the Veteran would return to Mississippi to obtain a private skin examination and opinion. Per the DBQ, the private examiner reviewed the relevant evidence of record, to include the Veteran's service records and post-service medical records, and performed a physical examination of the Veteran. At the conclusion of the examination the private examiner opined that it was more likely than not that the Veteran's bilateral foot dermatophytosis was related to active service in the Southwest Asia Theater of Operations during the Persian Gulf War. In rendering this opinion, the private examiner explained that veterans often experience prolonged periods of physical activity, often in humid or damp environments such as training grounds or deployment areas, which create ideal conditions for the growth and spread of the fungi responsible for tinea pedis (a type of dermatophytosis). Further, shared living spaces, such as barracks or communal showers, increase the likelihood of exposure to this fungus. The Board notes that various negative VA direct service connection opinions were received during the course of this appeal; however, as such opinions do not appear to consider the April 2024 lay statement from the Veteran's spouse regarding no symptoms prior to service and continuous symptoms since service, the opinions appear are of minimal probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value). Even assuming that such opinions are adequate, the Board does not find that such opinions persuasively outweigh the findings of the private examiner in the February 2024 DBQ, particularly when considering the supporting lay evidence. Having reviewed the evidence of record, lay and medical, the Board finds the evidence at least in relative equipoise on the question of whether the currently diagnosed bilateral foot dermatophytosis first manifested during active service while the Veteran was deployed to the Southwest Asia Theater of Operations during the Persian Gulf War. As such, resolving reasonable doubt in favor of the Veteran, the Board finds the criteria for direct service connection for bilateral foot dermatophytosis have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch, 21 F.4th at 781-82. As service connection is being granted on a direct basis, there is no need to discuss entitlement to service connection on a presumptive or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide regarding service connection for bilateral foot dermatophytosis. See 38 U.S.C. § 7104. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.