Citation Nr: 1745539 Decision Date: 10/12/17 Archive Date: 10/19/17 DOCKET NO. 08-27 434 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1 Entitlement to service connection for a back disability. 2. Entitlement to service connection for tinea pedis and onychomycosis, claimed as fungus of the feet. 3. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance (A & A) or by reason of being housebound. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran had active military service from July 1965 to July 1968. These matters initially came to the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In May 2011, the Veteran and his wife testified during a hearing at the RO before the undersigned; a transcript is of record. In a November 2011 decision, the Board reopened the Veteran's previously denied claim for service connection for a back disability, remanded the reopened claim for service connection for a back disability, and his claim of service connection for tinea pedis and onychomycosis, claimed as a fungus of the feet, and entitlement to SMC, to the Agency for Original Jurisdiction (AOJ) for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In September 2014, the Board remanded the back and tinea pedis/onychomycosis issues for further etiological opinions, and for issuance of a supplemental statement of the case (SSOC) regarding the SMC A&A/housebound issue. In April 2016, the Board requested clarification regarding the December 2011 VA examiner's opinion. Specifically, the Board requested that the examiner clarify the examiner's assertion that the Veteran's mild degenerative disc disease was not related to active service, in part, because there was "no chronicity" seen. The Board requested that the examiner provide an explanation for what is meant by "no chronicity." In April 2016, a VA examiner stated that "no chronicity" means that the Veteran had a single presentation for back pain noted in the service treatment records but showed no evidence of recurrence of symptoms or chronic symptoms thereafter. The examiner stated that the service treatment records reveal the Veteran reported in June 1968 with a history of back injury in Vietnam and then reported back pain beginning one week prior to presentation. This was also noted on a July 1968 Statement of Medical Conditions. The examiner stated that no back condition was noted on separation physical in June 1968. The examiner noted that medical records reflected a report of low back pain from service at a primary care visit in November 1997. There is no evidence to support ongoing back symptoms (hence the examiner's reference to no chronicity) after service in the nearly 30 year interval from 1968 until 1997. In formulating the opinion and providing the explanation, the April 2016 VA examiner still did not appear to consider the Veteran's documented reports of back pain or the diagnosis of lumbar spondylosis in May 2011. Thus, the Board finds that a VA examiner should review the entirety of the record and provide an etiological opinion based on consideration of the medical and lay evidence of record. With regard to his claimed tinea pedis and onychomycosis, in September 2014 the Board requested a rationale for the December 2011 negative etiological opinion that his onychomycosis was less likely than not caused by or a result of diabetes or his time in service. An April 2016 VA examiner noted that service treatment records are silent with regard to a complaint of or diagnosis of onychomycosis nor was a skin/toenail abnormality claimed by the Veteran or noted on his separation physical. Thus, the examiner found no evidence linking onychomycosis to service. The examiner noted that the Veteran reported prior treatment for onychomycosis in October 1997. The examiner noted that the Veteran was diagnosed with diabetes in October 2003 and as his onychomycosis preceded his diabetes by several years and as he had multiple risk factors for onychomycosis including immune disorder (Castleman's) and history of taking immunosuppressive meds (Prednisone) his onychomycosis could not be attributed solely or primarily (greater than 50 percent) to his diabetes without resorting to conjecture. Such opinion, however, does not address aggravation; thus, a further opinion should be sought. Notwithstanding the above, subsequent to the April 2016 VA opinions and association of additional VA treatment records (see 10/01/2014 Medical Treatment Record-Government Facility entries), an SSOC was not issued with regard to the service connection issues and with regard to the SMC issue which remains in appellate status. Remand is necessary for compliance with the September 2014 Remand directives. Accordingly, the case is REMANDED for the following actions: 1. Request that a VA physician with appropriate expertise review the virtual folder and respond to the following: Is the currently diagnosed back disability at least as likely as not (50 percent or greater probability) due to service, to include in-service complaints? Provide a medical rationale for every opinion. All pertinent evidence, including both lay and medical, should be considered. A physical examination should be scheduled if deemed necessary by the examiner. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. 2. Request that a VA physician with appropriate expertise review the virtual folder and respond to the following: a) Indicate whether it is at least as likely as not (i.e., a likelihood of 50 percent or more) that onychomycosis is caused by service-connected diabetes mellitus; b) Indicate whether it is at least as likely as not (50 percent or greater probability) that onychomycosis has been aggravated by service-connected diabetes mellitus. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. Provide a comprehensive rationale for every opinion. All pertinent evidence, including both lay and medical, should be considered. A physical examination should be scheduled if deemed necessary by the examiner. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. 3. Readjudicate the Veteran's claims of service connection for a back disability and onychomycosis and entitlement to SMC based on the need for A&A or being housebound, in light of the evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a SSOC. An appropriate period of time should be allowed for response. The Veteran and his representative have the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).