Citation Nr: 0722609 Decision Date: 07/24/07 Archive Date: 08/02/07 DOCKET NO. 04-28 770 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a skin disorder of the feet. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL The veteran ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The veteran had verified active duty service from July 1951 to July 1955. His DD Form 214 also shows that he had 2 years, 2 months, and 21 days of service prior to July 1951. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2004 decision by the RO that declined to reopen the veteran's previously denied claim for service connection for a skin disorder of the feet. In October 2005, the Board reopened the claim and remanded it for additional development and adjudication on the merits. On remand, the agency of original jurisdiction denied the claim. The case was returned to the Board in May 2007. FINDINGS OF FACT 1. The veteran had tinea pedis prior to service. 2. No objective findings relative to tinea pedis were recorded on any examination undertaken in connection with the veteran's entry into active service. 3. The proposition that the veteran's tinea pedis did not undergo a chronic or permanent worsening during service, beyond the natural progress of the condition, is debatable. CONCLUSION OF LAW Tinea pedis is presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1111, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran seeks to establish service connection for a skin disorder of the feet. He maintains that the condition was aggravated by service. Under applicable law, service connection may be established on a "direct" basis for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. § 3.303 (2006). Generally, in order to prove service connection, there must be (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Pond v. West, 12 Vet. App. 341, 346 (1999). Every veteran who served in the active military, naval, or air service after December 31, 1946 is taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137 (West 2002). Only those conditions recorded in examination reports can be considered as "noted," 38 C.F.R. § 3.304(b) (2006), and a history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions. Id. § 3.304(b)(1). To rebut the presumption of sound condition for conditions not noted at entrance into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003), 70 Fed. Reg. 23027 (May 4, 2005). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service-the second step necessary to rebut the presumption of soundness-a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153 (West 2002). If the presumption of sound condition is not rebutted, "the veteran's claim is one for service connection." Wagner, 370 F.3d at 1096. That is to say, no deduction will be made for the degree of disability existing at the time of the veteran's entry into service. Id.; 38 C.F.R. § 3.322 (2006). In the present case, the Board finds, as an initial matter, that no skin disorders of the veteran's feet were noted at the time of his examination, acceptance, and enrollment into service. Service entrance examinations in April 1948 (Army) and June 1951 (Air Force) are completely devoid of any mention of such a condition. Consequently, he is entitled to the presumption of soundness. In this regard, the Board finds, first, that there is clear and unmistakable evidence that the veteran had tinea pedis prior to his first period service. The veteran has offered sworn testimony to the effect that he had a preexisting skin condition affecting his feet. The record also contains a lay statement from a childhood acquaintance, dated in January 2004, which states that the veteran "always had bad skin and trouble with his feet" as a child, and that his feet "would crack open and bleed." Based on that information, and a review of the other evidence in the claims file, a VA examiner opined in February 2007 that "[i]t appears very clear that it [tinea pedis] did preexist [the veteran's entry into the military]." That opinion is uncontradicted by other opinion evidence of record. Thus, it appears that tinea pedis was clearly and unmistakably present prior to service. However, the Board can conclude that the presumption of soundness has been rebutted only if there is also clear and unmistakable evidence that the condition was not aggravated by service. See discussion, supra. On this question, the evidence is less than overwhelming. To be sure, some of the evidence suggests that the veteran's tinea pedis may not have undergone a chronic or permanent increase in severity during service beyond the natural progress of the condition. The reports of the veteran's July 1950 and June 1955 service separation examinations, for example, show that, with an exception of a birthmark on his left hip, no significant abnormalities of his skin or feet were identified. An examination in December 1954 was likewise negative for abnormalities of the skin or feet, and the earliest obtainable evidence demonstrating treatment for the condition is dated in October 1994. However, the record also contains evidence to suggest that the veteran's condition may, in fact, have undergone a chronic or permanent worsening during service beyond the normal progression. The available evidence shows that a fungal infection of the feet requiring treatment was apparently identified on at least two separate occasions during service; in November 1952, when Desenex powder was prescribed, and in April 1953, when it was noted that a mild fungus infection was present (referred to as a "dermatophytosis" on subsequent evaluation in May 1953). The veteran has stated that the "dry" skin on his feet became significantly worse after his service in Korea (for example, when he was seen by G. Hustad, M.D., in October 2003), and it is not inconceivable that the veteran's condition, due to its location, may have gone undetected on separation examination. Notably, the VA physician who examined the veteran in February 2007 opined, in effect- after thoroughly reviewing the claims file-that it could not be determined with any degree of medical certainty whether the veteran's condition underwent a chronic or permanent increase in severity during service and, if so, whether any such increase was due to the natural progress of the condition. In light of the foregoing, the Board cannot conclude that the evidence "clearly and unmistakably" (i.e., undebatably) refutes a finding of aggravation. Thus, the presumption of soundness is not rebutted. Accordingly, and because the report of the veteran's most recent VA examination shows that the veteran has tinea pedis presently, and that the condition is at least as likely as not related to the problems noted in service, the Board will grant the claim for service connection. The appeal is allowed. Because the Board is granting this claim, there is no need to engage in any analysis with respect to whether the requirements of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005)), have been satisfied with respect to the question of service connection. That matter is moot. ORDER Service connection is granted for tinea pedis. ____________________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs