BVA9503618 DOCKET NO. 91-15 350 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a fungal infection of the skin for accrued benefits purposes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The veteran and his wife ATTORNEY FOR THE BOARD Suzie St. Vil, Associate Counsel INTRODUCTION The veteran served on active duty from June 1943 to January 1946. He died in June 1992 during the appellate process. The appellant is the widow of the deceased veteran. She has been represented throughout her appeal by the Disabled American Veterans. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from rating decisions of the Seattle, Washington Regional Office (RO). The veteran's claim for entitlement to service connection for a fungal infection of the skin was originally denied by a rating action of December 1988. The notice of disagreement with that determination was received in March 1989. A statement of the case was issued in May 1989. While the veteran did not submit a substantive appeal (VA Form 1-9), he did submit a statement in support of claim (VA Form 21-4138) dated in September 1989, wherein he stated that "nothing had changed" regarding his fungus condition since he filed his notice of disagreement in March 1989. Subsequently, another statement in support of claim was received in June 1990 wherein the veteran again requested service connection for a fungal infection of the skin. By a rating action of August 1990, the RO confirmed its prior denial of the veteran's claim for service connection for a fungal infection of the skin. A notice of disagreement with this determination was received in September 1990. However, a statement of the case was not issued before the case was forwarded and received at the Board in March 1991. In September 1991, the Board remanded the case to the RO for consideration of additional medical evidence and for the issuance of a supplemental statement of the case. A statement of the case was issued in October 1991 which indicated that the veteran's claim was denied on the basis that he did not complete his appeal of the December 1988 rating decision and that the evidence submitted since then did not constitute new and material evidence sufficient to reopen his claim for service connection. The veteran's substantive appeal was received in November 1991. The veteran and his wife appeared and offered testimony at a hearing before a hearing officer at the RO in March 1992. A transcript of the hearing is of record. The hearing officer's decision was entered later in March 1992 confirming the previous denial of the veteran's claim for service connection for a fungal infection of the skin. A supplemental statement of the case was issued in April 1992. The case was received back at the Board in July 1992. In November 1992, the Board again remanded the case to the RO for de novo consideration of the veteran's claim for service connection for a fungal infection of the skin. While the case was still in remand status, the veteran died on June [redacted] 1992. A statement in support of claim was received in March 1993, wherein the veteran's widow, the current appellant, asserted a claim for service connection for a fungal infection of the skin for accrued benefit purposes. The case was received back at the Board in May 1993. In August 1993, the Board once again remanded the case to the RO for further development. Significantly, the RO was directed to conduct a de novo evaluation of the claim for service connection for the purposes of accrued benefits. A rating action of March 1994 denied the appellant's claim for accrued benefits. A supplemental statement of the case was issued in March 1994. The appeal was received back at the Board in September 1994. CONTENTIONS OF APPELLANT ON APPEAL The appellant maintains, in essence, that the RO erred in denying the veteran service connection for a fungal infection of the skin. The appellant asserts that the veteran acquired a skin condition in connection with his period of active duty on Guadacanal during World War II (WWII). It is further maintained that the fungal condition remained chronic and continued to bother the veteran years after his discharge from service. The service representative argues that both the veteran and the appellant provided credible testimony that the veteran indeed developed a skin disorder during service. Therefore, it is argued that the appellant should be accorded the benefit of the doubt, and service connection for a fungal infection of the skin should be awarded for the purpose of accrued benefits. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence is in equipoise, thereby warranting an allowance of the appellant's claim for entitlement to accrued benefits based on the veteran's claim for service connection for a fungal infection of the skin. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claim has been obtained by the RO. 2. The veteran's death certificate reflects that he died in June 1992 at the age of 69 of unrelated causes. 3. A chronic fungal infection of the skin developed during the veteran's wartime service. CONCLUSION OF LAW A fungal infection of the skin was incurred in active military service and, accordingly, payment of benefits on an accrued basis is warranted. 38 U.S.C.A. §§ 1110, 1154, 5107, 5121 (West 1991); 38 C.F.R. §§ 3.304(d), 3.1000 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that we have found that the appellant's claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a); effective on and after September 1, 1989. That is, we find that she has presented a claim which is plausible. Moreover, after careful review of the evidentiary record, we are also satisfied that all relevant facts have been properly developed. Inasmuch as this is a claim for accrued benefits, consideration is limited to the evidence in the file at death. Therefore, no further assistance to the appellant is required to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a). The record indicates that the veteran's service medical records apparently were destroyed in the fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri in 1973. The veteran's original claim for service connection for fungus of both feet and left ankle was received in September 1987. At that time he did not report when the condition began; he denied any treatment in service. In support of his claim, the veteran submitted a medical statement from Timothy L. Melhorn, M.D., dated in August 1987, who reported treating the veteran for tinea corporis involving his left ankle. Dr. Melhorn stated that the veteran had chronic fungal infection in his feet dating back to his time in the tropics in WWII. He opined that the current infection was simply an extension of the infection which he had in service. However, he did not report when he first treated the veteran. Received in August 1987 was a statement from N. Jerry Schlesinger, D.P.M., who indicated that he had been treating the veteran since 1971 for keratosis plantaris of both feet, a genodermatosis which was chronic in nature. Dr. Schlesinger further indicated that the veteran underwent foot surgery in 1975, relating to the problems mentioned above. The doctor further noted that he was currently treating the veteran for a provisional neurodermatitis of the left ankle area. In February 1988, the veteran completed a request for information to reconstruct medical data in view of the absence of service medical records; he reported treatment for his fungal infection in 1944, while on Guadacanal. An attempt to secure these records was reported to be unsuccessful by the National Personnel Records Center. Received in December 1988 were VA outpatient treatment notes showing that the veteran was seen and evaluated in August 1988 for complaints of calluses and bleeding feet. At that time, the veteran also complained of a rash on his left ankle since service. The examiner reported findings of fungus under the nails. Of record is lay statement from the veteran's sister, dated in September 1989, who reported that the veteran contracted foot fungus while stationed in the South Pacific. The veteran's sister indicated that the fungal infection had been a constant problem since service. She also noted that he had been under constant doctors' care for his feet since his discharge from service, and nothing had been found to alleviate or control the condition. Received in December 1990 were private medical records covering the period from October 1970 to March 1989, which show that the veteran was evaluated for multiple disabilities over the years, including skin lesions. In October 1970, the veteran was diagnosed with keratosis plantaris. The records reflect that he had had a fungus infection for years; however an onset in the 1940's was not reported. The records reflect that during the early 1970's the veteran was treated on several occasions for lesions and calluses on his feet as well as hammertoes. In December 1975, the veteran was admitted to a hospital where he underwent foot surgery for bilateral intractable plantar calluses and bilateral dystrophic nail deformity. Treatment in the 1980's was essentially for cardiovascular and peripheral vascular disease. In August 1987 he was treated for a rash on the lateral left ankle, present for 4 months. The impression was neurodermatitis. Duplicates of these records were again received in November 1991. Received in November 1991 were additional private medical records, including medical statements, for the period from February 1951 to July 1991. These records show that the veteran was treated in February 1951 for nephritis. In August 1953, he received treatment for injuries sustained in an automobile accident, including lacerations and abrasions about the face. These treatment records do not refer to a fungal disease or other skin disorder. Among these records was a copy of a hospital report which shows that the veteran was admitted to a hospital in December 1975 for surgery to correct bilateral dystrophic nail deformity and treatment of intractable plantar calluses. In the hospital report it was noted that he had had corns and enlarged toenails of both feet since 1946. In a treatment report from Marie Boudreaux M.D. dated in June 1988, it was indicated that the veteran suffered from carpal tunnel syndrome and other disabilities involving his arm as a result of a stroke. Other treatment records and medical statements in the 1980's and 1990's reflect treatment for various physical disabilities, including renal disease, hypertension and cardiovascular disease. The veteran and his wife appeared and offered testimony at a hearing before a hearing officer at the RO in March 1992. Their testimony is essentially reflected in the contentions section above. In addition, the veteran explained that he spent some time in the jungle while stationed in Guadacanal; he stated that he developed the fungus condition in the early part of his enlistment. The veteran indicated that all he was given for treatment was salve; he was never given a diagnosis nor was he placed on limited duty. The veteran further testified that the fungus became more severe after it was reinjured when he tripped over a pile of logs and got bark in the right leg. The veteran related that, after discharge, he saw a Doctor Coleman who told him to treat the fungus infection himself. He further indicated that he was given an ointment with which he treated the infection himself from 1946 to 1950. The veteran's wife testified that she recalled trimming the corns and the calluses from the veteran's feet, and putting on the salve; she indicated that he had to sleep with socks to protect his feet. The veteran reported that Dr. Schlesinger performed surgery in 1975 whereby the toenails were cut off because they had been infected with fungus. At the hearing, it was noted that the veteran's feet were discolored, swollen and missing toenails. The veteran testified that his feet looked the same as when he was discharged from military service. The veteran also testified that he had attempted to get records from Dr. Coleman, as well as from a Dr. Myers; who treated him in 1949, but that such records were unavailable. During the veteran's lifetime, he claimed entitlement to service connection for a fungal infection of the skin. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110. 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. § 3.304(d). Additionally, upon the death of a veteran, periodic monetary benefits to which he was entitled on the basis of evidence in the file at date of death, and due and unpaid for a period of not more than one year prior to death, may be paid to the living person first listed as follows: (1) his spouse, (2) his children (in equal shares), (3) his dependent parents (in equal shares). 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000(a). Inasmuch as the veteran's service medical records are not available, and the period when he claims that the fungal infection had its onset was during a period of war, the Board has given careful consideration to the provisions of 38 U.S.C.A. § 1154, which provides that despite no official record of incurrence in service, a disease may be found to have been incurred in service on the basis of satisfactory lay or other evidence, if consistent with the circumstances, conditions or hardships of such service. In this regard, the Board notes that the record in this instance is devoid of any clinical documentation of fungal infection of the skin in service. Since the veteran's records were destroyed in fire at the NPRC in 1973, it is entirely conceivable that he may have had a skin infection in service. It is likewise possible that any medical treatment he received was not documented, in light of the exigencies of wartime. The veteran and his wife testified under oath that he had problems with a fungal infection since his discharge from service for which he received clinical attention, in addition to self care. We have given careful consideration to the testimony of the veteran and his spouse, made under oath. That testimony is buttressed by some of the private medical records, which relate a long term history of skin disease to military service. After application of 38 U.S.C.A. § 1154, and weighing the evidence, both positive and negative, the Board finds that the evidentiary record is in equipoise. Granting the benefit of any doubt in this matter to the appellant, the Board finds that a chronic fungal disease developed during the veteran's wartime service, thereby warranting a grant of service connection for accrued benefits purposes. ORDER Service connection for a fungal infection of the skin for accrued benefits purposes established; the appeal is allowed. N. R. ROBIN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.