Citation Nr: 18158816 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 16-59 955 DATE: December 18, 2018 ORDER Entitlement to service connection for athlete’s foot is granted. Entitlement to service connection for degenerative joint disease of the right thumb (formerly characterized as right hand strain) is granted. REMANDED Entitlement to a rating in excess of 10 percent for degenerative joint disease in the left ankle and foot is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise that the Veteran’s athlete’s foot is related to his active duty in service. 2. The evidence is at least in equipoise that the Veteran’s degenerative joint disease of the right thumb is related to his active duty in service CONCLUSIONS OF LAW 1. The criteria for service connection for athlete’s foot have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for degenerative joint disease of the right thumb have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1981 to June 2010. He served honorably in the U.S. Marine Corps, including service in Saudi Arabia, Kuwait, and Japan. The Board thanks the Veteran for his service to our country. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the December 2015 Rating Decision of the Little Rock, Arkansas, Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this case in July 2017 for further development. The issue of service connection for bilateral hip disability was remanded for the issuance of a statement of the case. As a statement of the case was issued, but the appeal was not perfected by the filing of a timely VA Form 9, Substantive Appeal, that issue will not be addressed further. In November 2018, the Veteran’s then-representative submitted a written VA Form 21-4138 stating that the Veteran “requests that the power of attorney be revoked and withdrawn.” Accordingly, the Board finds that the Veteran is currently representing himself. In December 2018, the Veteran submitted additional evidence, which will be discussed in greater detail below. The case has now returned to the Board for further appellate review. 1. Entitlement to service connection for athlete’s foot is granted. The Veteran contends that he is entitled to service connection for athlete’s foot, as it is a recurrent condition that first arose in service. The Board finds that a grant of service connection for athlete’s foot is warranted. As noted above, the Board previously remanded this claim in July 2017. The Board finds that, for the claims of entitlement to service connection for athlete’s foot and degenerative joint disease of the right thumb, any deficiency in compliance with the Board’s remand directives is harmless given the full grant of the claims. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, the Veteran’s athlete’s foot was diagnosed in a September 2017 examination. The Veteran reported that athlete’s foot arose in service from wearing military boots all the time. Records during service include notations of athlete’s foot by both treatment providers and the Veteran. Additionally, prescription and active medication records, including those submitted by the Veteran in December 2017, demonstrate that the Veteran was treating his athlete’s foot with medication. In a September 2017 C&P exam, the examiner opined that the Veteran’s athlete’s foot is less likely than not caused by service, based on the rationale that athlete’s foot is a very treatable condition and, if treated properly and preventative measures are taken, flare-ups are less likely. However, this rationale acknowledges the recurrent nature of athlete’s foot and does not demonstrate that athlete’s foot was not incurred in service. Accordingly, the opinion lacks probative value. As a layperson, the Veteran is competent to testify that he has been experiencing an ongoing skin disability. Further, the U.S. Court of Appeals for Veterans Claims has acknowledged that some skin disorders, like athlete’s foot, have active and inactive periods. Ardison v. Brown, 6 Vet. App. 405, 408 (1994). His statements established the history of his symptoms since service. See VA Form 21-0958, Notice of Disagreement. This evidence of continuity of symptomatology tends to establish that the Veteran's current condition is the same condition that was first observed in service. Accordingly, after resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's athlete's foot is related to his military service. Service connection is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for degenerative joint disease of the right thumb is granted. The Veteran contends that he is entitled to service connection for a disorder that has been variously characterized as right hand strain or hand movement pain, as it is a disorder that first arose in service. The Board finds that a grant of service connection for degenerative joint disease of the right thumb is warranted. The July 2017 remand directed that a medical opinion be provided as to whether any diagnosed right hand strain was due to military service. An August 2017 medical opinion found right hand strain was less likely than not due to service, but also stated that “pain in the thumbs... is...likely incurred in the service because it was present 1 year after service when xrays were taken here at VA. He has arthritis of the hands bil.” A review of the record includes an early July 2011 (just slightly over one year after service) VA examination of the hands which included X-rays of the hands which showed “mild arthritis,” specifically of the first carpometacarpal joint of the right hand. At that time, the Veteran reported his hand pain began in 2008. That examiner opined it was less likely than not that the DJD of the hands was caused by “the veteran’s service connected disability.” After resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s right thumb degenerative joint disease is related to his military service. Service connection is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.   REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for degenerative joint disease in the left ankle and foot is remanded. It appears that this matter was prematurely returned to the Board of Veterans’ Appeals without completion of the directives noted in the July 2017 remand. The Board is obligated by law to ensure compliance with its directives. In its July 2017 remand, the Board directed that a VA examination be scheduled to determine the current severity of his service-connected degenerative joint disease of the left ankle and foot, including testing for pain on active and passive motion, and in weight-bearing and nonweight-bearing, consistent with Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016). The Board further directed that the claim be readjudicated. In August 2017 the Veteran was provided an examination but this did not record range of motion testing results; additionally, the claim was not readjudicated before certification to the Board. The matter is REMANDED for the following action: 1. Please obtain any updated VA and non-VA treatment records relevant to the claim. 2. After the record is determined to be complete, schedule the Veteran for an examination of the severity of his left ankle and foot disability. (a.) The examiner must test the Veteran’s active motion, passive motion, and pain with weight bearing and without weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (b.) The examiner should also render, if possible to do so without resorting to mere speculation, a retrospective opinion that identifies active motion, passive motion, pain with weight-bearing and without weight-bearing (to the extent medically appropriate) at each time the left ankle and foot disability was previously examined with documented range of motion testing for VA rating purposes. (c.) The VA examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups, and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. The VA examiner should assess or estimate the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If an opinion cannot be provided without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional   evidence would permit such an opinion to be made. A rationale should be provided for each medical opinion presented. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Vashaw, Associate Counsel