BVA9504189 DOCKET NO. 92-55 971 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether the application to reopen a previously denied claim of entitlement to service connection for residuals of a left eye injury is well-grounded. 2. Entitlement to service connection for rheumatism. 3. Entitlement to service connection for arthritis of the right hand. 4. Entitlement to service connection for tinea corporis. 5. Entitlement to service connection for a disorder manifested by pain in the left shoulder, low back, and left hand. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The veteran served on active duty from March 1969 to September 1973. The claims file contains a rating decision of March 1976, denying entitlement to service connection for a scar of the left eye with a history of trauma. Such denial was based on the conclusion that trauma to the left eye with resultant disability was not shown to have been incurred in or aggravated by active service. The current appeal arose from an April 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The RO determined that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for residuals of a left eye injury; also, the RO denied entitlement to service connection for rheumatism, arthritis of the right hand, and tinea corporis, and determined that service connection for pain of the left shoulder, low back, and left hand was not in order because the claimed entity was not a ratable disability. In a July 1991 rating decision, the RO denied entitlement to service connection for dermatitis, and for arthritis of the left hand and both hips, inasmuch as those issues were raised in the notice of disagreement filed in connection with the April 1991 denial. Notice of the July 1991 denial is not shown to have been furnished to the veteran. In August 1991, the veteran submitted a VA Form 1-9, Appeal to the Board of Veterans' Appeals (BVA or Board), wherein the veteran identified issues, in addition to those developed and certified for BVA review, involving entitlement to service connection for arthritis of the left hand and hips, for dermatitis, and for a left wrist disorder. The aforementioned matters are not herein addressed in the absence of appropriate development and certification for BVA review, but are referred to the RO for appropriate action. This case was initially before BVA for appellate review in June 1993, when it was remanded to the RO for further development. Subsequent to the completion of the requested actions, the case has been returned for further review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that service connection is warranted for a left eye disorder since he injured it while serving in Vietnam in 1970. He states that he injured his hip, shoulder, and left wrist in 1972 when he fell off a tank. He states that while on active duty he was treated for skin disorders. DECISION OF THE BOARD BVA, 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 veteran has not submitted evidence of a well-grounded application to reopen a claim of entitlement to service connection for residuals of a left eye injury; and that the claims for service connection for rheumatism, arthritis of the right hand, and a disorder manifested by pain in the left shoulder, low back, and left hand, are not well-grounded. A preponderance of the evidence supports entitlement to service connection for tinea corporis. FINDINGS OF FACT 1. The application to reopen a claim for service connection for residuals of a left eye injury is not supported by cognizable evidence showing that the application to reopen is plausible or capable of substantiation. 2. The claims for service connection for rheumatism, arthritis of the right hand, and a disorder manifested by pain in the left shoulder, low back, and left hand, are not supported by cognizable evidence showing that the claims are plausible or capable of substantiation. 3. Tinea corporis of the veteran, although not shown to have been treated in service, is noted by him to have been present since service in Vietnam and there has been a showing that a fungal infection was present within approximately 18 months of service discharge and that tinea corporis is most frequently caused by exposure to a fungus found in Vietnam soil. CONCLUSIONS OF LAW 1. The application to reopen a claim for service connection for residuals of a left eye disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claims for service connection for rheumatism, arthritis of the right hand, and a disorder manifested by pain in the left shoulder, low back, and left hand are not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. Tinea corporis was incurred in wartime service. 38 U.S.C.A. 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The threshold question to be answered in this case is whether the veteran has submitted evidence of well-grounded claims; that is, claims which are plausible and meritorious on their own or capable of substantiation. If he has not, his appeal must fail. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1990). The Board finds that the appellant's application to reopen a claim of entitlement to service connection for residuals of a left eye injury; and the claims for service connection for rheumatism, arthritis of the right hand, and a disorder manifested by pain in the left shoulder, low back, and left hand are not well-grounded. There is no further duty to assist the veteran in the development of such claims. For reasons set forth in detail below, the claim for service connection for tinea corporis is found to be well-grounded. 38 U.S.C.A. § 5107(a). Residuals of Left Eye Injury With respect to the issue of whether the application to reopen a prior claim of entitlement to service connection for residuals of a left eye injury is well-grounded, BVA observes that the RO denied service connection for a disorder of the left eye with a history of trauma in March 1976. That denial was predicated on the basis that trauma to the left eye and a chronic disorder resulting therefrom was not shown to have been incurred in or aggravated by active service. The RO utilized the evidence then of record to reach its decision and such evidence consisted of service medical records and the post-service medical statement from a private physician, as well as the report a VA examination conducted in 1975. The RO reviewed the service medical records consisting of a March 1969 report of a medical examination for enlistment showing uncorrected visual acuity of 20/25 in the right eye and 20/30 in the left eye. On a report of medical history compiled at the time of the aforementioned evaluation, the veteran noted a history of eye trouble or infection. Clinical evaluation of the eyes was otherwise noted to be normal. The March 1973 report of a medical examination for discharge showed the eyes were normal clinically. Uncorrected vision in the right eye was 20/25 and 20/30 in the left eye. The veteran set forth a history of eye trouble and an old injury of the left eye. No other service medical records were available. The RO also evaluated a medical statement from a private physician, dated in February 1975, wherein it was noted that the veteran had furnished a history of a left eye injury during the Korean War. The physician noted the veteran had increased pressure or intraocular tension (17 millimeters) on tonometry examination. Traumatic glaucoma of the left eye was diagnosed. The RO reviewed a June 1975 VA eye examination report, wherein an old superficial scar of the left eye was noted. Uncorrected visual acuity was 20/25 and 20/30. The diagnosis was of suspicious discs. As the veteran did not timely appeal the March 1976 rating decision by the RO, denying entitlement to service connection for a disorder of the left eye with a history of trauma, his previous claim of service connection for a left eye disorder is final and it may not be reopened absent the presentation of new and material evidence. 38 U.S.C.A. §§ 5108, 7105. "New" evidence is that which is not merely cumulative of other evidence of record. "Material" evidence is that which is relevant to and probative of the issue at hand, and which must be of sufficient weight or significance (assuming its credibility), see generally, Justus v. Principi, 3 Vet.App. 510, 513 (1992) that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the prior outcome. Cox v. Brown, 5 Vet.App. 95, 98 (1993). Since the March 1976 rating decision, the evidence associated with the claims file consists of the reports of an outpatient visit at a VA facility in December 1989 and a VA eye examination in February 1991. In December 1989, the veteran sought medical assistance because of a diminution in vision, but he failed to appear for examination. The eye examination in 1991 demonstrated evidence of an old foreign body scar in the left eye, with right uncorrected visual acuity of 20/25 and left uncorrected visual acuity of 20/30. In other words, the additional evidence developed since 1976, like the evidence of record prior to the March 1976 rating decision, in no way confirms any inservice injury involving the left eye or the existence of chronic residuals therefrom. It provides no link between the eye abnormality currently shown and the veteran's service or any event thereof. Accordingly, nothing has been added to the record since the March 1976 rating decision which creates even a plausible basis for reopening that final rating decision. As such, the veteran's attempt to reopen is not well-grounded, and his appeal must be dismissed. Rheumatism, Arthritis of the Right Hand, & Pain of the Left Shoulder, Low Back, and Left Hand Regarding these issues, BVA observes that service medical records are silent for pertinent complaints or findings. It is acknowledged, however, that repeated attempts to obtain the veteran's complete service medical records have been unsuccessful. Of record is a medical certificate, dated in February 1975, from a private physician indicating a pertinent diagnosis of periodic anesthesia of the left leg. In May 1975, findings and history from a VA orthopedic examination culminated in a diagnosis of no disease found. A diagnosis of atypical musculoskeletal chest pain was entered during the veteran's hospitalization at a VA facility in August 1986. A December 1990 VA outpatient treatment report shows that the veteran was seen with complaints of pain in the left hip that radiated into his lower back. There was some pain in the left shoulder and right thumb. The diagnosis was of probable degenerative joint disease. On the occasion of a February 1991 VA orthopedic examination, the veteran reported having no bone or joint problems referable to his military service. He had complaints of multiple joint pain which had been present for approximately the last three years. He particularly mentioned pain in his left buttock, left shoulder, hands, and back. He also complained of pain in the metacarpophalangeal joint of the right thumb and to a lesser extent in the right index finger. The appellant stated he had no history of a specific injury to any joint to account for his joint problems. A physical examination concluded in diagnoses of intermittent low back pain with pain radiating into the left buttock. The examiner noted there was no X-ray evidence of degenerative disc disease or osteoarthritis, and that the veteran had mild impairment of back function. The examiner also described the presence of osteoarthritis of the metacarpophalangeal joint of the right thumb with slight limitation of motion of the metacarpophalangeal joint and moderate pain, and mild impairment of function of the thumb secondary to arthritic change. The last diagnosis was of complaints of pain in the left shoulder and left hand, which were both normal on clinical examination with no impairment of function. X-rays of the lumbar spine, pelvis, left shoulder, and left hand were interpreted as being within normal limits. A July 1991 VA outpatient treatment report shows the veteran complained of pain in his back between the scapulae of two days' duration, among other symptomatology. Clinical inspection of the back disclosed tenderness of the mid-back over the paraspinal musculature. The clinical assessment was of musculoskeletal pain. In mid-July, the veteran was seen with complaints of numbness and tingling on the left side of his body, pain in the left chest area and under the shoulder blade, and pain in the left hip. The clinical assessment was of probable peripheral nerve entrapment. A computerized axial tomogram was ordered to rule out a cerebrovascular accident. A few days later, chest pain was noted to radiate to the back, left shoulder, and left arm. The tomogram was reported to be normal. In August 1991, the appellant was seen with complaints of low back pain and left leg discomfort, with foot numbness. In November 1991, he complained of left shoulder pain of two weeks' duration. The cited evidence in the view of BVA does not show that the veteran has rheumatism, arthritis of the right hand, or a disorder manifested by pain in the left shoulder, low back and left hand that is related to his period of active service. Rheumatism is not shown clinically or otherwise. Service medical records do not identify arthritis of the right hand, and there is no medical evidence presented to link the right hand arthritis, first shown many years subsequent to the veteran's separation from active service, with his period of military service or any event thereof. The same may be said with respect to service connection for a disorder manifested by pain in the left shoulder, low back, and left hand. Complaints of symptomatology referable to such disorder were initially expressed many years following service and there is no evidence of record to relate such complaints to service. In all, the veteran has not presented any competent evidence to link any of the foregoing discussed disabilities with his military service. A well-grounded claim requires supporting evidence sufficient to justify a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). See also, Rabideau v. Derwinski, 2 Vet.App. 141 (1992); Montgomery v. Brown, 4 Vet.App. 343 (1993). The Board must conclude that the veteran's claims for service connection for rheumatism, arthritis of the right hand, and a disorder manifested by pain in the left shoulder, low back, and left hand are not well-grounded and must be dismissed. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). _____________________ Although BVA has considered the veteran's appeal on a ground different from that of the RO, he has not been prejudiced by the decision. This is because in assuming that his claim to reopen and other claims were well-grounded, the RO accorded the appellant greater consideration than his claims in fact warranted under the circumstances. Bernard v. Brown, 4 Vet.App. 384, 392- 94 (1993). To remand this case to the RO for consideration of the issue of whether the appellant's claims are well-grounded would be pointless and, in light of the law cited above, would not result in a determination favorable to him. VA O.G.C. Prec. Op. 16-92, 57 Fed.Reg. 49-747 (1992). Tinea Corporis In view of the fact that the veteran served in Vietnam and that a VA physician has indicated that tinea corporis is most frequently the result of exposure to a fungus found in Vietnam soil, and in light of a private physician's finding of a generalized fungus infection in February 1975, it is found that the claim for service connection for tinea corporis is well-grounded. BVA also finds that the record is adequate for equitable disposition of the instant appeal, and that no useful purpose would be served by again remanding the case to the RO for additional action. Available service medical records include only the entrance and exit medical evaluations and disclose no complaints or findings referable to tinea corporis. In February 1975, the veteran was treated by a private physician for a generalized fungal infection that was judged to be of moderate to severe proportions. No pertinent abnormality was found on a general medical examination conducted by VA in May 1975, although on an orthopedic examination performed at the same time, the veteran reported that he had a fungus infection of the left foot that had been acquired in Vietnam. When seen on an outpatient basis by a VA physician in July 1986, the veteran reported a history of a pruritic papular rash over the thorax, sacrum, thighs, and arms since 1972. Reportedly, he had been treated by a local dermatologist in 1985 for dermatitis herpetiformis and contact dermatitis. Clinical inspection of the hands resulted in pertinent diagnostic impressions of a chronic skin rash and probable dermatitis herpetiformis. A dermatology examination the following day resulted in a diagnostic impression of tinea corporis. In February 1991, the veteran underwent a VA medical examination in connection with his claim for benefits resulting from alleged Agent Orange exposure. At that time, the veteran related he had served in Vietnam where he developed a skin rash which he had had since that time. The rash allegedly involved his hands, shoulders, waist, and thighs. The rash caused thickening of his skin, itching, and occasionally following scratching, some bleeding. He reportedly had tried various medications but nothing seemed to relieve his skin problems. The examination concluded in pertinent diagnoses of tinea palmaris, dermatitis of the abdominal skin, and tinea corporis of the buttocks. A February 1991 VA dermatologic examination report shows the veteran dated onset of his skin disorder to shortly after his return from Vietnam. He presented with diffuse scaling vesiculation and excoriation involving the medial thighs with a sharp border on the buttock and similar patches on the back and hands. Clinically, these were indicia of tinea corporis according to the examiner. The examiner noted that most frequently this was caused by a soil fungus acquired in Vietnam. The veteran was seen by a private dermatologist in March 1991, at which time he reported a history of dermatitis that began over the forearms in 1971 or 1972, and spread elsewhere in subsequent years. Findings led to entry of a pertinent diagnosis of tinea corporis of the buttocks. A March 1991 VA outpatient treatment report shows the veteran was given medication for treatment of a dry scaly area of his hand, waist, and back. The clinical inspection was positive for pruritus. The examiner noted xerosis. Although in February 1991 a VA dermatologist noted that tinea corporis was known to be caused most frequently by a soil fungus in Vietnam, he did not offer a medical opinion that the veteran in this case had contracted tinea corporis from inservice exposure to a certain fungus. Nevertheless, BVA finds it significant that, in the dermatologist's view, the cause of tinea corporis was most frequently fungi found in Vietnam soil. That opinion, in combination with the showing of a generalized fungal infection in February 1975, approximately 18 months after service discharge, and the veteran's statement to a VA orthopedic examiner later in the same year (at a time when no claim for VA compensation for a skin disorder was pending), to the effect that he had had a fungal infection of the foot since Vietnam, are found to warrant a grant of service connection for tinea corporis, particularly in light of more recent examination and testing identifying the continued presence of the disorder. ORDER Service connection for tinea corporis is granted. The application to reopen a claim of entitlement to service connection for residuals of a left eye injury is dismissed. The claim for service connection for rheumatism is dismissed. The claim for service connection for arthritis of the right hand is dismissed. The claim for service connection for a disorder manifested by pain in the left shoulder, low back, and left hand is dismissed. BRUCE KANNEE 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.