BVA9501276 DOCKET NO. 93-00 527 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been submitted to reopen the veteran's claim for service connection for bilateral pes planus. 2. Entitlement to service connection for a skin disorder of the feet including dermatophytosis, calluses, bunions and plantar warts. 3. Entitlement to service connection for a bilateral ankle disorder. 4. Entitlement to service connection for a circulatory disorder with associated ulcerations characterized as venous stasis with stasis dermatitis. REPRESENTATION Appellant represented by: Marine Corps League ATTORNEY FOR THE BOARD A. D. Jackson, Associate Counsel INTRODUCTION The veteran served on active duty from August 1952 to August 1954. This matter came before the Board of Veterans' Appeals (Board) on appeal from rating decisions from the Detroit, Michigan, Regional Office (RO). A rating decision dated in March 1992 found that the veteran had not submitted new and material evidence to reopen his claim for service connection for bilateral pes planus and denied benefits. The rating decision also denied service connection for "broken arches and ankles," as well as "ulcers, stasis dermatitis; vascular disease." In October 1993, this case was remanded by the Board for further development. In 1994 service connection for a skin disorder of the feet was denied by the RO. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends service connection for bilateral pes planus is warranted. It is argued that evidence submitted is new and material evidence sufficient to reopen the veteran's claim and also grant service connection. Specifically, the veteran contends that he aggravated his flat feet during service. He maintains that he entered active military service with pes planus; however, during service there was an increase in pathology that has resulted in residual pain which has persisted through post service years. The veteran further asserts on appeal that "broken down arches and ankles" have caused venous stasis with accompanying ulcerations of the ankles and legs. He further claims that he currently suffers from plantar warts, callous and bunions of the feet which are a result of military service. As such, he should be granted service connection for these disabilities. 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 submitted since the October 1955 Board decision denying service connection for pes planus is not new and material and, hence, that claim has not been reopened and, remains denied. Further, his claim for service connection for a skin disorder of the feet, in the form of plantar warts is denied. Furthermore, it is the decision of the Board that the appellant has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claims for service connection for a skin disorder of the feet, in the form of dermatophytosis, calluses and bunions; a bilateral ankle disorder; and a circulatory disorder with associated ulcerations are well-grounded. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the agency of original jurisdiction. 2. A decision of the Board in October 1955 denied service connection for bilateral pes planus. 3. The evidence submitted since the Board's decision of October 1955 is essentially cumulative when assessed with all the evidence of record, and is not sufficiently probative to present a reasonable possibility that the veteran's bilateral pes planus increased in severity during service. 4. Plantar warts were not noted on examination for service. 5. The history taken in service indicates plantar warts were present prior to service. 6. It is not shown that plantar warts which pre-existed service increased in severity during service. 7. The evidence does not show that the veteran currently suffers from a skin disorder specific to feet, in the form of dermatophytosis. There is no evidence showing calluses or bunions were manifested during active military service or any current manifestations of these entities are related thereto. Thus, the claim for these disabilities are not plausible. 8. The record does not show pertinent findings evidencing a bilateral ankle injury during service or that a bilateral ankle disability currently exists and thus the claim regarding this issue is not plausible. 9. The evidence of record does not demonstrate that a circulatory disorder with associated ulcerations was manifested during or until many years after service and thus the claim regarding this issue is not plausible. CONCLUSIONS OF LAW 1. Evidence received since the Board denied entitlement to service connection for pes planus in October 1955 is neither new nor material and the claim for that benefit is not reopened. 38 U.S.C.A. §§ 5107, 5108 (West 1991); 38 C.F.R. § 3.156 (1993). 2. The Board decision of October 1955 denying service connection for pes planus is final. 38 U.S.C.A. §§ 5107, 7104 (West 1991). 3. Plantar warts clearly and unmistakably preexisted service, and the presumption of soundness is rebutted. 38 U.S.C.A. § 1111 (West 1991); 38 C.F.R. § 3.304 (1993). 4. The veteran's preexisting skin disorder of the feet in the form of plantar warts was not aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.306 (1993). 5. The appellant has not submitted evidence of a well-grounded claim for entitlement to service connection for a skin disorder of the feet in the form of dermatophytosis, calluses and bunions. 38 U.S.C.A. §§ 1110, 5107 (West 1991). 6. The appellant has not submitted evidence of a well-grounded claim for entitlement to service connection for a bilateral ankle disability. 38 U.S.C.A. §§ 1110, 5107 (West 1991). 7. The appellant has not submitted evidence of a well-grounded claim for entitlement to service connection for circulatory disorder with associated ulcerations. 38 U.S.C.A. §§ 1110, 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, it is necessary to determine whether the appellant has submitted a well-grounded claim and, if so, whether the Department of Veterans Affairs (VA) has assisted the appellant in properly developing his claim. A "well-grounded" claim is one which is not implausible. The appellant's claims regarding bilateral pes planus; and a skin disorder of the feet appear to be reasonably based. A review of the evidence further indicates that all relevant facts have been properly developed and that there is sufficient evidence upon which to fairly resolve those issues. There-fore, another remand in order to permit additional development of the record is unnecessary. I. Pes planus The Board in October 1955 denied service connection for pes planus. The evidence of record considered by the Board in reaching that decision to deny service connection may be briefly summarized. The report of the physical examination for his entry into active duty in September 1950 noted bilateral pes planus characterized as second degree and non-symptomatic. Service medical records dated in October 1952 reveal that the veteran presented complaints of pain in the right foot and heel. An X- ray of the right foot was negative. Clinical records dated in February 1953 show that the veteran complained of right foot pain. Examination revealed moder-ate pes planus, bilateral. In July 1953, he was referred to the orthopedic clinic. It was noted that he complained of right foot pain. The examiner commented that he barely had pes planus, second degree. The examiner also reported that the veteran was given to plantar calluses. Pes planus, second degree was noted in August 1953. In September 1953, it was noted that the veteran was wearing Whitman plates for support. In April 1954, he was examined in the orthopedic clinic with left leg complaints. It was noted that his profile was pes planus, third degree. At that time his arches appeared normal. He also reported that he did not get relief from the Whitman plates. In May 1954, he was examined after complaints of "bad bone structure." He gave a history of having problems since high school. He reported that he was required to wear braces for a period of time. The August 1954 separation examination report noted he had painful feet which tended to be flat. The examiner commented that his condition may have been aggravated by service. It was further noted that the orthopedic consultant changed his profile and prescribed Whitman plates. In September 1954, the veteran underwent a VA compensation examination. It was noted that he stood with mild eversion of both feet. There was no spasm or rigidity. There was normal active and passive motion of the feet and ankle. There was a plantar wart noted on the base of the left foot. No bone or joint abnormality was noted on X-ray. A rating decision dated in December 1954 denied service connection for pes planus. The veteran submitted a statement from his parents which essentially related that the veteran's foot disability was aggravated by active military service. In October 1955, the Board found that the veteran's pes planus existed prior to service and was not "aggravated" by active duty. A decision of the Board is final. 38 U.S.C.A. § 7104 (West 1991). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the case. 38 U.S.C.A. § 5108 (West 1991). Therefore, the issue presented before the Board is whether new and material evidence has been submitted since the October 1955 Board decision. After review of the record, we conclude that the additional evidence is not new and material. Accordingly, the claim is not reopened. Evidence added to the record since the October 1955 Board denial includes written statements of the veteran; private treatment records developed between March 1987 and November 1991; and a VA compensation report dated in November 1993. After a review of the record, we conclude that the additional evidence is not new and material. The VA and private treatment records are for the most part unrelated to his pes planus and add nothing probative to the record in regards to the bilateral pes planus. There is a medical statement by a podiatrist dated in July 1991 which reports a diagnosis of hallux abduct valgus and plantar decanted metatarsal, first and fifth metatarsal phalangeal joint, both right and left feet. Although this medical statement is new and reports a current diagnosis, significantly, however, this additional documentation solely addresses the veteran's present medical condition without commenting as to the onset of the veteran's pes planus or as to the question of in service aggravation. This medical evidence does not contradict the reasoning offered in support of the prior Board decision; thus it is not material. The veteran's statements add nothing probative to the record which was not previously considered in October 1955. The recent statements essentially recount the earlier statements. They are essentially cumulative and redundant in nature. In summary, the clinical records and as well as the veteran's statements do not add to the evidentiary picture so as to provide a reasonable possibility that the previous decision should be changed. Essentially, the evidence is unchanged in terms of the probative value of the evidence submitted from the time of the prior Board decision. Therefore, the veteran has not submitted new and material evidence that would warrant a reopening of this appeal. II. Medical history as to other claimed disorders A review of the record discloses that in November 1952, the veteran was referred to dermatology for treatment for a plantar wart. He was hospitalized in January 1953 for treatment of an infected wound of the left ankle that occurred after removal of a plantar wart by a civilian physician during Christmas time (December 1952). It was described as one-half inch in diameter. Hospital notes relate that while undergoing treatment a plantar wart was noted on the left heel. Upon discharge from the hospital that month it was noted that the ulcer on the left ankle was completely healed. In January 1953, the veteran was diagnosed with dermatophytosis of the left foot, fungus undetermined. In March 1953, he was referred to dermatology. At that time a plantar wart was pared and frozen with carbon dioxide. He was treated for dermatophytosis of both feet in October 1953. In January 1954, he was again treated for dermatophytosis. It is not noted whether it occurred on one foot or both feet. Clinical records dated in May 1954, relate that the veteran gave a history of having recurring plantar warts prior to service. He related that the there were at least three unsuccessful attempts at removal of the warts including a surgical procedure. He also noted that during service calluses were removed twice by carbon dioxide. The August 1954 separation examination report does not refer to plantar warts or dermatophytosis. As noted, in September 1954, the veteran underwent a VA compensation examination. It was noted that he stood with mild eversion of both feet. There was no spasm or rigidity. There was normal active and passive motion of the feet and ankle. There was a plantar wart noted on the base of the left fourth metatarsal. No bone or joint abnormality were noted on X-ray. The veteran submitted private medical records developed between March 1987 and November 1991. In March 1987, the veteran received treatment for his legs. The examiner noted that he initially examined the veteran in January 1986. At that time the veteran gave a history of ulcers for the previous six months. Examination in January 1986 revealed evidence of stasis dermatitis. There was hyperpigmentation where the veteran claimed was the site of the ulcers. There was diffuse erythema and many varicosities in the skin. Both ankles were reportedly involved. This was treated with topical steroid cream. In December 1986, the veteran complained of itching all over his body. The examiner felt that this was due to dry skin. Two lesions were found on the back. These were characterized as a benign keratosis and a small hemangioma. They were removed. In May 1991, on physical examination there were changes noted in the legs consistent with deep venous stasis with brainwash pigmentation. It was described as located above the medial malleolus with purple discoloration. It was specifically noted that there was no ulceration although the veteran referred to ulcers. It was recommended that he wear support stockings to prevent further progression of induration and discoloration. The physician also submitted a statement dated in November 1991 which summarized his medical treatment. In addition to the treatment described above, he related that in 1987 the veteran continued his complaints of pain and soreness in his legs. He advised the veteran to lose weight, elevate his legs and continue the topical cream treatment. He examined the veteran again a year later for "itchy eruption" on his trunk. He commented that the eruption was basically a contact/irritant dermatitis and prescribed topical steroid cream. On follow-up, two weeks later the rash was better except for the groin area. Again, the veteran was given topical cream and an injection of Kenalog IM for inflammation. He reported that he treated the veteran two years later and the skin eruption was under control. In summarizing, the examiner commented that the veteran never experienced bad ulcers of the legs. He further commented that the veteran had a fair amount of stasis dermatitis which was partially due to vascular disease and the veteran's weight. Pursuant to a Board remand, the veteran underwent a VA compensation examination in November 1993. The veteran reported his medical history. He reported that subsequent to service plantar warts were removed on several occasions. He also claimed that he had recurring foot ulcers and that medical professionals told him this was due to poor circulation that was caused by "disordered" bone structure in his feet and ankles. The veteran related that he had plantar warts removed every six weeks and that he currently suffered from ulcers on both ankles. On physical examination there was no evidence of dermatophytosis or any other skin disease specific to the feet. All toenails were noted to be hypertrophies. There were no plantar warts visible on either foot. Neither foot had open ulcers. There was a moderate degree of callus formation on the plantar surfaces of both feet overlying the metatarsals. There was prominent callus formation on the plantar surface overlying the first metatarsal head of the right foot. Another callus was located on the plantar surface overlying the left first and second metatarsal heads. Also on the left foot on the plantar surface there was a callus overlying the fifth metatarsal head. There was callus overlying the heels bilaterally. There was hyperpigmentation slightly superior to the medial bilaterally. On the left leg there was patchy hyperpigmentation distal to the medial malleolus. The veteran claimed that the areas of hyperpigmentation were tender to touch and he would not allow light palpation of these regions. The dermatologist commented that the veteran's only active skin disease consisted of stasis dermatitis of both lower extremities. She further related that dermatitis occurred as a sequelae of venous stasis and insufficiency. She did not relate the development of stasis dermatitis to dermatophytosis, plantar warts or any other foot condition. The diagnoses included a history of dermatophytosis of the feet with currently hypertrophies toenails bilaterally; multiple calluses on each foot; stasis dermatitis of both lower extremities; and a history of foot ulcers. III. Plantar warts The Board notes that to permit a finding of service connection, the facts must establish that a particular disease or injury was incurred in or aggravated while serving in the Armed Forces. 38 U.S.C.A. § 1110 (West 1991). A veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed to be in sound condition except for those defects noted when he was examined and accepted for service. Clear and unmistakable evidence that the disability manifested in service existed before service will rebut the presumption. 38 U.S.C.A. §§ 1111, 1137 (West 1991). In this regard, it is noted that the veteran did have plantar warts prior to service although none were noted on the entrance examination. Service medical records dated in May 1954, relate that the veteran gave a history of having recurring plantar warts prior to service. He also reported that there were at least three unsuccessful attempts at removal of the warts including a surgical procedure. As the veteran noted a history of plantar warts prior to service to the point that attempts were made to remove them surgically, the "presumption of soundness" is rebutted. There remains for consideration the question of whether the preexisting skin disorder characterized as plantar warts was aggravated in service. Aggravation is established by showing that the preexisting disorder increased in severity during service. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(a) (1993). 38 U.S.C.A. § 1153 (West 1991) and 38 C.F.R. § 3.306(a) (1993) provide that a preexisting injury or disease will be construed to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Further, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(b) (1993). In this regard, the veteran entered active duty service with a history of plantar warts and resultant problems. The veteran's service medical records do not support a finding that one would reasonably conclude as being evident of an inservice aggravation. Although there are references to the continuing recurrence of plantar warts, the extent of the veteran's symptomatology was not shown to be inconsistent with the pre-service history. The symptoms he experienced during service are not shown otherwise than to have been representative of continuing difficulties with plantar warts consistent with the difficulties he had prior to service. Again, he required surgical removal prior to service and the manifestations in service do not reflect greater disability. Additionally, it is noted that although the veteran has complained of recurring plantar warts, recent examinations are devoid of references to the presence of plantar warts, including the most recent VA examination, which only showed plantar warts by history. Accordingly, there is no basis for a grant of service connection for a skin disorder in the form of plantar warts as the pre-existing disorder was not aggravated by service. IV. Dermatophytosis As noted, the threshold question to be answered is whether the appellant has presented evidence of a well-grounded claim; that is, one which is plausible. If he has not presented a well- grounded claim, his appeal must fail and there is no duty to assist him further in the development of his claim because such additional development would be futile. 38 U.S.C.A. § 5107(a) (West 1991), Murphy v. Derwinski, 1 Vet.App. 78 (1990). The veteran contends that a bilateral ankle disorder; a circulatory disorder including associated ulcerations; and other skin disorders of the feet in the form of dermatophytosis, calluses and bunions, resulted from active military service. As will be explained below, it is found that these claims are not well- grounded. As noted in order to grant service connection the facts must establish that a particular disease or injury was incurred in or aggravated while serving in the active military services. 38 U.S.C.A. § 1110 (West 1991). In regards to the veteran claim for dermatophytosis, as referred to above, the veteran did receive treatment for dermatophytosis during service. Significantly, however, subsequent to service there is no indication that the veteran experienced a recurrence of dermatophytosis. In fact, the most recent examination showed no evidence of a skin disorder specific to the feet including dermatophytosis. The only evidence of a skin disorder was stasis dermatitis. However, both private and VA physicians related that this was a result of his venous stasis. Although the veteran claims he has dermatophytosis of the feet, there is not any probative evidence to support such statements. We point out that a determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. See 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1993); Rabideau v. Derwinski, 2 Vet.App. 141,143 (1992). In light of the absence of a current finding of dermatophytosis his claim regarding that disorder is not well-grounded. V. Calluses and bunions As for the veteran's claim that his calluses and bunions are related to service. Service medical records dated in July 1953 only refer to the fact that the veteran was "given" or predisposed to plantar calluses and one reference to removal of calluses during basic training which is not actually documented. Otherwise, the service medical records are negative regarding calluses and bunions. Additionally, there are no pertinent records evidencing calluses during the intervening thirty plus years subsequent to service discharge. Although he currently suffers from calluses and bunions, the appellant has not provided any persuasive evidence, medical or otherwise to support a theory that they are related to military service. As such, his clam for service connection for a skin disorder in the form of calluses and bunions is not well-grounded. VI. Bilateral ankle disability In regards to the bilateral ankle disorder, we note the evidence of record, including service medical records, private treatment records and VA treatment records, do not refer to an ankle disability or injury. The veteran has referred to having "broken arches and ankles" as well as "disordered bone structure" in his claim for disability; however, the medical records are devoid of documentation evidencing such injuries or disabilities. As noted, service connection requires a finding of the existence of a current disability. In the present case there is a total lack of evidence of a chronic bilateral ankle disability existing during service or thereafter. Accordingly, without any objective evidence of a current bilateral ankle disability, the veteran's claim for that disability is not well-grounded. VII. Circulatory disorder As for the claim for service connection for a circulatory disorder with associated ulcerations, it is noted that there are no records from service demonstrating that the veteran complained or received treatment for circulatory difficulties during service. In reviewing the veteran's contentions, we note that he has made reference to the fact that medical professionals have related his circulatory disease to broken down arches and ankles. However, a review of the record has not revealed any evidence to support this. In fact, neither the private or VA physicians have commented as to the etiology of his venous stasis. Additionally, the veteran has not made reference to any specific incident or set of circumstances during service that would suggest his venous stasis or stasis dermatitis is related to service. The only evidence of record that tends to suggest a causal relationship between the veteran's circulatory problems and military service are the appellant's statements. While the statements of the appellant are deemed somewhat informative, he does not have the medical competence to establish that his venous stasis with ulcerations is related to service decades before. See Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). The United States Court of Veterans Appeals (Court) has held that, where the determinative issues involve medical causation or diagnosis, competent medical substantiation is required. Grottveit v. Brown, 5 Vet.App. 91 (1993). In summary, as there are no competent medical records or other probative records in evidence that demonstrate that the veteran's claims for service connection for a bilateral ankle disorder; a circulatory disorder; and a skin disorder of the feet in the form of dermatophytosis, calluses and bunions, are plausible or capable of substantiation, we find that these claims are not well-grounded. ORDER New and material evidence not having been submitted to reopen a claim of entitlement to service connection for a pes planus, the benefit sought on appeal is denied. Service connection for a skin disorder in the form of plantar warts is denied. The appellant's claims for service connection for a skin disorder of the feet including dermatophytosis, calluses and bunions; a bilateral ankle disorder; and a circulatory disorder with associated ulcerations characterized as venous stasis with stasis dermatitis are dismissed inasmuch as they are not well-grounded. EDWARD W. SEERY 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.