Citation Nr: 1736675	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  12-03 206	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1. Entitlement to service connection for a bilateral foot fungus, claimed as jungle rot.

2. Entitlement to service connection for pseudofolliculitis barbae (PFB).

3. Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	American Red Cross


ATTORNEY FOR THE BOARD

J. Sandler, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1969 to July 1971, with service in Vietnam. 

These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Jackson, Mississippi Department of Veterans Affairs (VA) Regional Office (RO). These matters were remanded in October 2014 and February 2016 by different Veterans Law Judges; the case was subsequently reassigned to the undersigned. 

After the February 2016 Board remand, the Veteran's claim of entitlement to service connection for hypertension was granted in an October 2016 rating decision. Because that decision represents a full grant of the benefit sought, the issue is no longer before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 

The issues of entitlement to service connection for PFB and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required.


FINDING OF FACT

The Veteran's bilateral foot fungal infection is not related to his military service.


CONCLUSION OF LAW

Entitlement to service connection for a bilateral foot fungus is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.102 (2016).



REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

VA's duty to notify was satisfied by a letter dated January 2009. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

The claims file contains the Veteran's service treatment records, service personnel records, and available VA treatment records. Reasonable efforts were made to obtain the Veteran's VA treatment records from 1977 to 1978 and the Veteran was notified of VA's inability to locate such records. Neither the Veteran nor his representative has raised other issues with the duty to assist. See Scott, 789 F.3d at 1381 (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the [V]eteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 

II. Legal Criteria

Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. It 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. To substantiate a claim of service connection there must be evidence of: (1) a present disability; (2) incurrence or aggravation of a disease or injury in service; 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, 1166-67 (Fed. Cir. 2004). 

Lay evidence may be competent evidence to establish that an event or injury occurred during service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). 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, (e.g., a broken leg), (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 (Fed. Cir. 2007). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge.

When there is an approximate balance of positive and negative evidence, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

III. Factual Background

In August 1981, the Veteran originally filed for service connection for "foot trouble." In September 1981, VA denied a claim for callouses on the right foot because no calluses were found on examination.

The Veteran filed a claim for "jungle rot" in December 2008 and reported that his disability began in February 1970. In a statement accompanying his February 2012 substantive appeal, he reported that he worked as a cook seven days a week. He kept his boots on all the time and did not change his socks. The temperature would reach 130 degrees in the shade. He said he experienced pain or itching feet, but he could not go to the aide station for treatment. A medic gave him paint to apply to his feet along with athlete's foot powder.

His service treatment records (STRs) are silent for treatment of a fungal infection, but show treatment for a callous formation on his right heel in August 1970. 

A July 1975 periodic medical examination during the Veteran's Army Reserve service was normal, and the Veteran did not report foot trouble or skin disease during his simultaneous report of medical history.

The Veteran underwent a VA skin examination in January 2015, wherein he reported that he developed jungle rot while in Vietnam but denied any treatment for his condition other than soaking his feet twice a day. He reported that he keeps his feet clean and dry but his toenails are now affected. The examiner diagnosed tinea pedis with an unknown date of onset. The examiner noted that the Veteran's nails of both feet are thick and mildly discolored and that there was mild scaling along the border of the soles of both feet. Finally, the examiner opined that the Veteran's skin condition was less likely as not related to when the Veteran was in service. No rationale was provided.

A February 2016 VA treatment record states "fungus all toe nails hypertrophic[.]" Other VA treatment records are silent for a foot fungal condition.

The Veteran underwent another VA skin examination in February 2017. He reported that he developed a rash on both feet while in Vietnam on border patrol and when he returned from deployment he was treated for jungle rot with a cream. He stated he has had problems with his feet since Vietnam, and treats himself with foot soaks at least once a week. The examiner diagnosed tinea pedis, which he explained is a fungus that can develop in hot moist areas of the body and is prone to developing in hot climates such as the jungles of Vietnam. However, the examiner opined it was less likely than not that the Veteran's condition was incurred in or caused by his military service because his STRs are silent for a fungal infections and no foot callouses were found in 1981. The examiner also noted that the July 1975 medical examination showed no indication of a skin disability. 

IV. Analysis

The fact that the Veteran has a foot fungal condition is not in dispute. However, there is little, if any, medical evidence linking the Veteran's current condition to his military service. 

The Veteran's reports that he had foot pain and itching while in Vietnam and thereafter are competent and credible as related to his symptoms, but he is not competent to provide a causal relationship between his foot symptoms in service and his current diagnosis, which is a complex medical question requiring medical knowledge. See Jandreau, 492 F.3d 1372. As a result, the Board gives the Veteran's statements (about a causal link between his foot problems and his military service) less probative weight than the medical opinions of the January 2015 and February 2017 VA examiners, which take into consideration the Veteran's reports and his medical history.

VA treatment records show a current foot condition, but do not relate the Veteran's condition to his military service; consequently, this evidence supports the finding of a current diagnosis but does not support an award of service connection because it does not establish a causal link between that current diagnosis and military service.

Accordingly, because the preponderance of the evidence is against showing that the Veteran's current bilateral foot fungus is related to his military service, the claim must be denied.

The Board thanks the Veteran for his honorable service and regrets that a more favorable outcome could not be reached.


ORDER

Entitlement to service connection for a bilateral foot fungus is denied.


REMAND

Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete and accurate record upon which to decide the Veteran's claim so that every possible consideration is afforded.


I. PFB

Pursuant to Board remand, the Veteran underwent a VA examination for his PFB in August 2016. The examiner opined that it was less likely than not that the Veteran has "active" PFB "currently." He based his opinion on his examination, which showed no signs of acute or chronic PFB, and because the Veteran's STRs do not demonstrate he had a shaving profile. However, during a January 2015 VA examination, the examiner appears to have diagnosed PFB. A Veteran may be awarded service connection for a disability present at any time during the period on appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Accordingly, a new examination is necessary to resolve the conflict regarding whether the Veteran has had PFB at any time during the appeal period. 

II. Tinnitus

In February 2016, the Board remanded the Veteran's claim of service connection for tinnitus due to an inadequate January 2015 VA examination, wherein the examiner stated only that the Veteran did not report tinnitus. The Board found remand was necessary because the January 2015 examiner did not reconcile the Veteran's previous reports of tinnitus during the appeal period, such as during an October 2009 VA examination.

In August 2016, the Veteran underwent another VA examination with the same examiner. The examiner again only commented that the Veteran did not report tinnitus. Accordingly, the August 2016 is not in compliance with the February 2016 Board remand, and a new examination is necessary. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998).

Accordingly, the case is REMANDED for the following action:

1. The AOJ should obtain copies of VA treatment records from July 2016 to the present. The AOJ should ensure that the complete records of all VA evaluations and treatment the Veteran has are associated with the record.

2. After the above development is completed, the AOJ should arrange for an examination to determine the nature and cause of the Veteran's pseudofolliculitis barbae. The Veteran's claims file (including Board remands) must be reviewed by the examiner in conjunction with the examination. Based on a review of the record and examination of the Veteran, the examiner must opine as to the following:

(a) Does the Veteran currently, or at any time during the course of the appeal, have pseudofolliculitis barbae? THE EXAMINER MUST COMMENT ON WHETHER PSEUDOFOLLICULITIS BARBAE WAS PRESENT AT ANY TIME SINCE DECEMBER 2008. The examiner should consider, and address as necessary, the January 2015 VA examination report. If the examiner can only resort to speculation, an explanation is necessary as to why that is the case.

(b) If the Veteran has had pseudofolliculitis barbae at any time during the appeal period, is it AT LEAST AS LIKELY AS NOT (A 50% OR GREATER PROBABILITY) that the Veteran's pseudofolliculitis barbae was incurred in or related to the Veteran's military service? 

A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.)

3. After the development in the first instruction has been completed, the AOJ should arrange for an examination WITH A DIFFERENT EXAMINER, IF POSSIBLE, to determine the nature and cause of the Veteran's tinnitus. The Veteran's claims file (including Board remands) must be reviewed by the examiner in conjunction with the examination. Based on a review of the record and examination of the Veteran, the examiner must opine as to the following:

(a) Does the Veteran currently, or at any time during the course of the appeal, have tinnitus? THE EXAMINER MUST COMMENT ON WHETHER TINNITUS WAS PRESENT AT ANY TIME SINCE DECEMBER 2008. The examiner should consider, and address as necessary, the Veteran's October 2009 reports of tinnitus. If the examiner can only resort to speculation, an explanation is necessary as to why that is the case.

(b) If the Veteran has had tinnitus at any time during the appeal period, is it AT LEAST AS LIKELY AS NOT (A 50% OR GREATER PROBABILITY) that the Veteran's tinnitus was incurred in or related to the Veteran's military service? The examiner should consider, and address as necessary, the Veteran's reports that he was exposed to loud noises and explosions during service.

A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.)

4. The AOJ should then review the record and re-adjudicate the claims. If they remain denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review.

The Veteran has the right to submit additional evidence and argument on the remanded matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). As a remand, this matter must be handled expeditiously. 38 U.S.C.A. §§ 5109B, 7112 (2014).




_________________________________________________
VICTORIA MOSHIASHWILI 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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