Citation Nr: 0322880 Decision Date: 09/05/03 Archive Date: 09/11/03 DOCKET NO. 02-03 861 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for a skin disability, to include a fungal infection of the feet. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jason R. Davitian, Counsel INTRODUCTION The veteran served on active duty from March 1966 to February 1968. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office in Albuquerque, New Mexico (RO), which, inter alia, denied service connection for a skin condition as a result of exposure to Agent Orange. Consistent with the new duty-to-assist regulations, after reviewing the veteran's case, the Board initiated additional development pursuant to the authority granted by 38 C.F.R. §19.9(a)(2), to include ordering a VA skin examination in January 2003. The Board subsequently received new evidence consisting of a report of a May 2003 VA examination. However, on May 1, 2003, the United States Court of Appeals for the Federal Circuit (Federal Circuit) invalidated 38 C.F.R. § 19.9(a)(2) and (a)(2)(ii). See Disabled American Veterans, et al. v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The Federal Circuit held, in pertinent part, that 38 C.F.R. § 19.9(a)(2) was invalid because in conjunction with 38 C.F.R. § 20.1304, it allowed the Board to consider additional evidence without having to remand the case to the agency of original jurisdiction for initial consideration and without having to obtain the appellant's waiver, which was contrary to 38 U.S.C. § 7104(a). Nevertheless, in light of the favorable decision set forth below regarding this claim, the Board finds that in this case the veteran is not prejudiced by the Board's initial review of the new evidence. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The competent medical evidence indicates that the veteran's fungal infection of the feet began during active service in Vietnam. CONCLUSION OF LAW A fungal infection of the feet was incurred during active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to assist the appellant in the development of facts pertinent to his claim. There has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. First, VA has a duty to notify the appellant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103 (West 2002); 38 C.F.R. § 3.159(b) (2002). Information means non-evidentiary facts, such as the claimant's address and Social Security number or the name and address of a medical care provider who may have evidence pertinent to the claim. See 66 Fed. Reg. 45620, 45,630 (August 29, 2001); 38 C.F.R. § 3.159(a)(5) (2002). Second, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2002). In the present case, the Board has determined the evidence supports the grant of service connection for a fungal infection of the feet. Accordingly, there is no prejudice to the veteran in adjudicating the claim without further discussion of the VCAA. Bernard v. Brown, 4 Vet. App. 384 (1993). Factual Background The veteran continues to assert that he incurred a skin disability, consisting of fungal infections of the feet, while he was in Vietnam, possibly as a result of exposure to Agent Orange. The record before the Board contains service and post-service medical records, which will be addressed as pertinent. Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 (2001) (a discussion of all evidence by the Board is not required when the Board has supported its decision with thorough reasons and bases regarding the relevant evidence). The veteran's Department of Defense Form 214 shows that he served in Vietnam for one year. His service medical records (SMRs) are negative for complaints, symptoms, findings or diagnoses pertaining to the skin. However, the SMRs do not include a report of a separation history or medical examination. The veteran was provided a VA examination in June 1973 for complaints of back pain. The examination report is negative for any complaints, symptoms, findings or diagnoses pertaining to the skin. The report of a September 2001 VA dermatological examination provides that the veteran's claims file was reviewed. The examiner mistakenly observed that the veteran had been service-connected for a foot fungus. The veteran reported that he had been given cream with which to treat thickened toe nails and athlete's foot. On physical examination, the veteran did have a definite infection of all the toenails and some bleeding toes where the nails had been cut. The examiner stated that there were no skin or vascular changes noted. The pertinent diagnosis was onychomycosis of both feet. The claims file contains a May 2003 report by the same VA examiner. The examiner stated that he again had reviewed the veteran's claims file and computerized medical records. The examiner noted that the veteran did serve in Vietnam from August 1967 to August 1968, and had been informed that he did not have an illness, to include fungal infection of the feet, related to Agent Orange exposure. His current illnesses included tinea pedis and onychomycosis because of the fungal infection of his feet and nails. In a discussion, the examiner stated that the veteran was aware that his fungal infections of the feet were not caused by exposure to Agent Orange. He also noted that many veterans that were stationed in Vietnam did have severe fungal infections as a result of their situation in the swamps and jungles with an inadequate opportunity to change and wear clean socks and take care of their feet properly. The record did not contain any documentation that the veteran sought care for his feet while on active duty, although he stated that he has had his infection since 1967 and had treated it with antifungal cream. The examiner said that most of the veterans stationed in the swamps or in less than ideal sanitary conditions in Vietnam did develop athlete's foot and fungal infections of the feet that were difficult to treat and were probably ignored. Many of these continued to have difficulty with fungus infections after returning home. In a conclusion, the examiner stated that the veteran currently had a fungal infection of his feet and toe nails, but no documentation on the clinical record that he was treated for this while on active duty. It was as likely as not that the fungal infections were acquired in Vietnam. The diagnosis was tinea pedis and tinea unguium. Legal Analysis A claimant with active service may be granted service connection for disease or disability either incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. The disease entity for which service connection is sought must be "chronic" as opposed to merely "acute and transitory" in nature. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Where the fact of chronicity in service is not adequately supported then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). 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). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). When there is an approximate balance of positive and negative 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.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3 (2002). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "when the positive and negative evidence relating to a veteran's claim are in 'approximate balance,' thereby creating a 'reasonable doubt' as to the merits of his or her claim, the veteran must prevail." Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). Based on a thorough review of the record, the Board finds that the evidence in support of the claim is at least in equipoise to the evidence against the claim. As a result, service connection is warranted. The Board recognizes that the veteran's service medical records are negative for relevant complaints, symptoms, findings or diagnoses. Similarly, the Board recognizes the long period of time between the veteran's service and the earliest post-service medical evidence of onychomycosis and fungal infection of the feet. However, the service medical records do not include the report of separation medical examination or the separation report of medical history, which renders the absence of relevant findings within them less probative. Further, the May 2003 VA medical opinion clearly states that the veteran's fungal infections of the feet were as likely as not acquired in Vietnam. This opinion is the only competent evidence of record that addresses the question at hand and it was based on an examination of the veteran and a review of the claims file. The examiner also provided a rationale for the supportive opinion. The Board finds that the evidence is at least in equipoise as to whether the veteran's fungal infection of the feet began during active service. Resolving the reasonable doubt raised by this evidence in his favor, the Board finds that service connection for a fungal infection of the feet is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for a fungal infection of the feet is granted. ____________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.