Citation Nr: 1736580	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  12-11 367	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for residuals of surgery on right cheek.  

2.  Entitlement to service connection for foot fungus of the bilateral feet, also claimed as toenail fungus.  


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse




ATTORNEY FOR THE BOARD

E. Miller, Associate Counsel


INTRODUCTION

The Veteran has active service from September 1950 to April 1952.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  

The Veteran had a hearing before the undersigned Veterans Law Judge (VLJ) in September 2015 at the St. Petersburg RO.  A transcript of that proceeding has been associated with the claims file.  

In November 2015, the Board remanded this matter to the RO for further development.  It has now been returned to the Board for appellate review.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  Resolving doubt in the Veteran's favor, the Veteran's in-service sebaceous cyst surgery resulted in a scar tissue at the right nasolabial fold.  

2.  Neither the Veteran's foot fungus, nor toenail fungus, were present at separation from active service, or for many years thereafter, and are not related to service.  


CONCLUSIONS OF LAW

1.  Scar tissue at the right nasolabial fold is a residual of the Veteran's in-service right cheek surgery.  38 U.S.C.A. §§ 1110, 1111, 1131, 1132, 5103(a), 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2016).  

2.  Neither bilateral foot fungus nor bilateral toe fungus was incurred in service, and may not be presumed related to service.  38 U.S.C.A. §§ 1110, 1111, 1131, 1132, 5103(a), 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2016).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

In this case, there is no indication in this record of a failure to notify.  See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015).  

Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities.  38 U.S.C.A. § 5103A(c)(2).  All records pertaining to the conditions at issue are presumptively relevant.  See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010).  In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information.  Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159 (c)(3)).  

In this case, the record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the claims.  Pertinent medical evidence associated with the claims files consists of service, private, and VA treatment records.  In this regard, few service treatment records (STRs) are of record.  The evidence of record shows that the RO requested the Veteran's STRs, and some are of record, but in an April 2017 letter, the RO informed the Veteran that the Records Management Center determined that the remainder of the STRs was missing.  

Moreover, the Board observes that the Veteran's claims are ultimately being denied based on the lack of a medical nexus between his service and his current disabilities, or lack of a current diagnosis, not solely on a lack of evidence of in-service disabilities of his feet and right cheek.  Hence, the lack of a complete copy of his STRs is not prejudicial in the instant case.  The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule.  O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  The Board's analysis has been undertaken with this heightened duty in mind.  The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran.  Russo v. Brown, 9 Vet. App. 46 (1996).  

VA medical examinations and opinions were obtained in this case to address the etiology of the Veteran's claimed residuals of right cheek surgery, and bilateral foot fungus, claimed also as bilateral toenail fungus.  In sum, the Board finds that the examination reports and opinions, as a whole, show that the examining physicians considered the evidence of record and the reported history of the Veteran, conducted thorough examinations, noting all findings necessary for proper adjudication of the matters, and explained the rationale for the opinions offered.  Hence, the Board finds that the VA examinations and medical opinions obtained in this case are adequate.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes).  

Under the circumstances, the Board finds that there has been substantial compliance with its remand request that the RO document its efforts to obtain the Veteran's missing STRs, as well as to obtain VA examinations for the Veteran.  See Dyment v. West, 13 Vet. App. 141 (1999) (a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there is substantial compliance with the Board's remand instructions); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided).  

Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159.  

II.  Service Connection 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 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.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). 

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  See Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  38 C.F.R. § 3.102.

	
      
a.  Residuals of surgery on right cheek 

When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for residuals of surgery on the right cheek is not warranted.  

With respect to the criteria of a current diagnosis of residuals of surgery on the right cheek, the threshold consideration for any service connection claim is the existence of a current disability.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303; Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

The Veteran's STRs show that he underwent a procedure to remove a cyst from his right cheek in 1951.  Also in 1951, the STRs show that the Veteran was diagnosed with cellulitis which was treated with antibiotics.  Upon separation, the Veteran's examination report notes "cyst removed from right cheek in dispensary in September 1951, no sequelae."  There is no other notation regarding abnormality of the skin on the right cheek in the Veteran's separation examination.  

Both the July 2016 and August 2016 VA examinations note no benign or malignant skin neoplasms, and no scarring or disfigurement of the head, face, or neck, caused by a skin condition.  The July 2016 VA examiner noted no visible surgical scar and no lesions consistent with active epidermal cyst.  The examiner noted a hard area felt under the skin near the Veteran's nose, which the examiner noted could be scar tissue or something else, but was unable to say with certainty as the records did not indicate the exact location of the Veteran's removed cyst.  

After careful review of the evidence, the Board finds that the evidence for, and the evidence against, the claim for service connection for residuals of right cheek surgery is in relative equipoise.  While the Veteran has no visible scarring as a result of his in-service cheek surgery, the objective evidence show that he has a small area of scarring at the nasolabial fold.  The July 2016 examiner was unable to provide an opinion as to the relationship of the area of scarring and the Veteran as the service treatment records do no document the precise location of the cyst.  Without such records, the examiner essentially notes that an opinion on the matter could not be provided.  Given the location of the scarring (the right nasolabial fold) and given that the examiner did not rule out a relationship between the scarring and the Veteran's in-service surgery, the Board will resolve doubt in the Veteran's favor and conclude that a grant of service connection for the Veteran's nasolabial scarring is warranted.   

      b.  Bilateral foot fungus, claimed as toenail fungus

When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for bilateral foot fungus, also claimed as toenail fungus, is not warranted.  

The Veteran's STRs are silent as to any foot or toenail fungus condition, either tinea pedis, or onychomycosis.  The Veteran's separation examination in 1952 also is silent as to any skin conditions relating to the feet.  

Post-service treatment records show diagnosis and treatment for foot fungus in March 1991 at a private doctor.  An October 1993 private treatment record shows toenail fungus and notes that the Veteran had previously been taking a medication called griseofulvin; despite treatment, "the infection returned."  

In the July and August 2016 VA examinations for skin disorders both examiners concluded that the Veteran's toenail or foot fungus was less likely than not incurred in service.  The July 2016 VA examiner stated the Veteran had tinea pedis with onychomycosis.  The August 2016 examiner concluded that the Veteran did not have tinea pedis, or foot fungus, on either foot, but did have onychomycosis, or toenail fungus.  The examiners each noted lack of medical evidence of foot fungus within close proximity of the Veteran's separation from service and a normal separation examination.  The August 2016 examiner noted the Veteran's wife stated treatments for foot fungus had been ongoing since the 1960s, but the examiner remarked that this would still be several years after the Veteran's separation from active service.  Both examiners noted that the Veteran had not been using a topical medication for his foot or toenail fungus in at least 12 months.  

In reaching the above conclusion, the Board has not overlooked the Veteran's, and his wife's, statements.  Lay evidence may be competent on a variety of matters concerning the nature and cause of disability.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  Generally, veterans and lay persons are competent to report symptoms related to disease, but not to diagnose them, or to determine an etiology.  Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011).  The Veteran stated at the November 2015 hearing that he got foot fungus during his time in service and described his symptoms.  The Veteran surmised that sharing shower areas with other service members was the cause of his feet itching.  He also testified that he was treated at the infirmary and given a salve for his feet.  The STRs do not show any record to substantiate this statement.  The Veteran's wife testified that the Veteran had been dealing with foot fungus since she had known him, i.e. since the 1960s.  As mentioned earlier, it appears that the Veteran's STRs are incomplete, thus a heightened duty to obtain other forms of evidence, such as lay testimony is incumbent upon the VA.  Layno v. Brown, 6 Vet. App. 465 (1994).  The Veteran has credibly provided such evidence in the form of hearing testimony from himself and his spouse, as well as his own written statements.  The Veteran and his wife are both competent to describe the symptoms and history related to the Veteran's foot fungus.  The VA examiner in August 2016 noted the absence of skin or nail abnormalities noted on the Veteran's separation examination and remarked that if there had been a condition, it had resolved by time of the Veteran's separation from active service.  

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the claim for bilateral foot fungus, claimed as toenail fungus, or residuals of right cheek surgery, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).



ORDER

Entitlement to service connection scarring at the right nasolabial fold is granted, subject to the laws and regulations governing the payment of VA disability compensation.  

Entitlement to service connection for foot fungus of the bilateral feet, also claimed as toenail fungus is denied.  




____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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