Citation Nr: 18160295 Decision Date: 12/28/18 Archive Date: 12/26/18 DOCKET NO. 13-21 058 DATE: December 28, 2018 ORDER Entitlement to service connection for a skin disorder involving the feet, to include tinea pedis, is denied. REMANDED The claim for service connection for pulmonary scarring is remanded. FINDING OF FACT A presently existing diagnosis of a skin disorder affecting the feet, including tinea pedis, is not demonstrated by the evidence of record. CONCLUSION OF LAW The criteria for service connection for a disorder of the skin involving the feet, to include tinea pedis, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1982 to June 1986 and from August 1987 to December 2008. This matter comes before the Board of Veterans’ Appeals (Board) from decisions of a Department of Veterans Affairs (VA) Regional Office (RO). Service connection is in effect, and noncompensable disability ratings are assigned, for interigo (claimed as tinea cruris); burns scars of the back; a scar as a residual of excision of a cyst of the back; and bronchitis. Service connection is also in effect for chronic sinusitis with headaches, rated 30 percent disabling. In February 2015 the Veteran appeared at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is in the record. In May 2015, the Board granted the Veteran's claim of entitlement to service connection for bruxism but denied the claims of service connection for a skin disorder involving the feet, to include tinea pedis, and pulmonary scarring. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court) which in October 2016 granted a Joint Motion for Remand (JMR), vacating the Board's decision regarding these issues, and remanding the claims to the Board for further proceedings consistent with the JMR. The JMR did not disturb the grant of service connection for bruxism. In March 2017, pursuant to the JMR, the Board remanded the claims for service connection for a skin disorder involving the feet, to include tinea pedis, and service connection for pulmonary scarring for additional VA examinations. Following a December 2017 VA examination for sleep apnea, which confirmed that the Veteran had obstructive sleep apnea (OSA), a February 2018 rating decision denied service connection for sleep apnea, to which the Veteran filed a Notice of Disagreement (NOD), VA Form 21-0958, in April 2018. However, a June 2018 rating decision deferred further adjudication of that claim pending the obtaining of a medical opinion. Typically, when there has been an RO adjudication of a claim and a NOD has been filed thereto, the appellant is entitled to a Statement of the Case (SOC), requiring remand. Manlincon v. West, 12 Vet. App. 238 (1999). However, as the RO is taking further action with respect to this issue, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized. As the RO is properly addressing this issue, no action is warranted by the Board. 1. Entitlement to service connection for a skin disorder involving the feet, to include tinea pedis Background During the service entrance examination in December 1981, the Veteran reported "cramps in his feet sometimes" and the clinician described it as occasional pain. The Veteran's service treatment records (STRs) are silent as to any complaints regarding skin conditions affecting his feet. He was seen several times throughout his period of active service for complaints related to skin irritation in his groin, however. At his August 2008 retirement examination the Veteran marked "yes" to "foot trouble." However, in his explanation of his "yes" answer, the Veteran noted "ankle sprains" in relation to that particular question. The Veteran also reported "yes" to skin diseases but did not provide an explanation for that answer. No disorder of the skin involving the feet, or any other problem related to the feet, was noted on the retirement examination. VA treatment records, dated between November 2008 and September 2018, contain no finding, complaint, treatment, or diagnosis of a disorder of the skin involving the feet, including tinea pedis. The Veteran was afforded a VA dermatology examination in November 2008. At that time his skin condition was not in an active phase (inasmuch as he has reported that it is most active during the summer). On VA examination November 2008 the Veteran described symptoms of a rash in his groin area but made no mention of any skin irritation or symptoms involving the feet. A physical examination of the skin revealed a scar on the left shoulder, and an intermittent, itchy rash of the bilateral groin. The diagnoses were a left shoulder scar and intertrigo. At the February 2015 Board hearing, the Veteran testified that he began experiencing skin problems on his feet in 1984 or 1985, and that he went to sick call for this condition for which he was prescribed athletes foot cream and powders. He had continued to suffer from "flare ups" when the weather was warm during the summer. When he had flare ups, he self-treated by soaking his feet, using alcohol rubs, and using anti-athletes foot powders and creams. He recounted that the skin condition flared-up on his feet for five or six months, during the summer, before it subsided. He described this as blisters on his feet, which were red, dry spots that itched and burned. He stated that he has not sought treatment for this condition from his primary care physician. Following the Veteran’s appeal of the May 2015 Board decision, the Court’s October 2016 JMR, the Board remanded the claim for service connection for a skin disorder involving the feet, to include tinea pedis, for a VA examination to determine the nature, onset, and etiology of skin condition, to include tinea pedis. The examination was to be scheduled during an active phase of the Veteran's skin condition. The Veteran was afforded a VA dermatology examination in April 2017 (in the spring) at which time his VA e-folder and electronic treatment records were reviewed. It was noted that the Veteran had had a diagnosis of tinea pedis in 1982. The Veteran reported having a long history of tinea pedis since the 1980's. He stated he was seen multiple times in the military for it. His symptoms included itching and on occasion blisters. He could not remember the last time he was seen for it. On physical examination the Veteran was clinically clear, and there was no evidence of active disease. It was reported that the skin condition had not caused scarring, regardless of location, or disfigurement of the head, face or neck. He did not have any benign or malignant skin neoplasms or any systemic manifestations. The examiner was unable to comment on the Veteran’s service related complaint because he was “NOT” in an active phase of disease. He currently had no evidence of active tinea pedis. Therefore, an opinion had not been rendered because the examiner could not confirm the diagnosis of tinea pedis. An August 18, 2017 VA Form 27-0820, Report of General Information, reflects that, concerning an examination of the Veteran during a flare-up of his skin condition, by telephone he was informed that upon a flare-up should proceed to the nearest VA hospital C&P emergency department to get his foot examined. The Veteran agreed that he would do that. By RO letter of August 21, 2017, the Veteran was reminded of his August 18, 2017, telephone conversation and that if he had a flare-up of a skin condition of the feet he should go to the nearest VA Medical Center to get the condition evaluated. Enclosed was a VA Form 21-4138, Statement in Support of Claim, to allow him to explain how his claimed condition affected him on a daily basis. He was informed that if he had pictures or other evidence, he could submit this as well, and he could also submit statements from people who know how his condition affected him. The VA Form 21-4138, Statement in Support of Claim, was not executed and returned, no photographs were submitted, and no supporting lay statements were submitted. A November 2, 2017, VA Form 27-0820, Report of General Information, reflects that because the Veteran had not returned the VA Form 21-4138 sent to him in August 2017, a telephone call was made to the Veteran to verify when he had flare-ups of his claimed skin condition in order to have a time line to request an examination. However, there was no answer to the telephone call and a message was left requesting that the Veteran return the phone call. A September 20, 2018, VA Form 27-0820, Report of General Information, reflects that the Veteran was called, by phone, to determine if he was having a flare-up of his claimed tinea pedis. He said he was not. However, he stated he took special care when washing his feet, and used over-the-counter medications to prevent the tinea pedis from flaring up. He stated that he was told to stop using the medications for multiple weeks so the VA Medical Center could examine his condition. It was unclear who provided this guidance. He did not want to stop the use of the medication because he would be uncomfortable. The Veteran was told that queries would be made as to what could be done, and he would be called back tomorrow. A September 21, 2018, VA Form 27-0820, Report of General Information, reflects that when the Veteran was called, by phone, he was unsure of who told him to discontinue treatment of tinea pedis prior to being examined. He did report for his first examination, i.e., in April 2017, and was willing to attend another examination but he felt it was unreasonable to discontinue treatment for weeks so the condition could flare-up, and then be examined. Accordingly, the Veteran was advised that the claim would be adjudicated (without an additional examination during a flare-up), and the Veteran had no further questions. Principles of Service Connection Establishing entitlement to service connection generally requires having probative (meaning competent and credible) evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation ("nexus") between the disease or injury in service and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements required of service connection by demonstrating continuity of symptomatology since service - but only for specific chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). These § 3.309(a) chronic disabilities do not include tinea pedis. Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the unique and readily identifiable features of a medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994); and 38 C.F.R. § 3.159(a)(2). However, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). See 38 C.F.R. § 3.159(a)(1). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis As to the claim for service connection for a skin disorder of the feet, to include tinea pedis, there must be competent and credible evidence establishing the current existence of such disability, or existence at any time during the appeal. See U.S.C.A §§ 1110, 1131; see also Degmetich v. Brown, 104 F.3d. 1328 (1997); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996); and Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Although the Veteran is competent to attest to visible symptoms of the skin of the feet, he is not competent to attest that any current underlying disease is the same as any underlying disease which may have produced similar symptoms during his active service. More to the point, there is no corroborating evidence that the Veteran has ever had any skin disease of his feet after his military service. Indeed, as recently as the April 2017 VA examination he had no active skin disease of his feet. Similarly, he has not reported having received any postservice treatment from private clinical sources. Also, and contrary to the Veteran’s statements, a review of VA treatment records while documenting treatment for tinea cruris, is negative for any complaints, symptoms, signs, or treatment for a skin disease of his feet, including tinea cruris. The case was remanded in 2017 to attempt to obtain corroborating evidence of a skin disease of the feet, pursuant to the JMR. While the April 2017 VA skin examination was not conducted during the summer or during a flare-up, subsequent steps were taken to arrange for such an examination. Ultimately, the Veteran declined to stop taking medication, which he has reported keeps a skin condition of his feet under control, in order to allow for flare-up of such skin condition to corroborate and document the existence of such disease. In this regard, 38 C.F.R. § 3.655 provides that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. Thus, the question is whether the reason the Veteran failed to attend a VA examination, which could have been scheduled in the summer or during a flare-up, constituted good cause. The Board acknowledges that to stop taking medication that putatively controls his skin disorder might cause some discomfort, as he has alleged. Nevertheless, absent a showing of good cause, a Veteran's refusal to participate or cooperate during a VA examination is akin to a failure to report for VA examination for purposes of VA regulations under 38 C.F.R. § 3.655. See generally VAOPGCPREC 4-91 (Feb. 13, 1991). Failure to cooperate during VA examinations "subject[s claimants] to the risk of an adverse adjudication based on an incomplete and underdeveloped record." Kowalski v. Nicholson, 19 Vet. App. 171, 181 (2005). Logically, the same reasoning applies to cooperating with respect to the circumstances needed in order to conduct an examination. The Board notes that the Veteran has a duty to cooperate in the development of his claim. Wood v. Derwinski, 1 Vet. App. 191 (1991) (noting that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."); see also Hayes v. Brown, 5 Vet. App. 60, 68 (1993). In Harris v. Shinseki, No. 08-2997, slip op. (U.S. Vet. App. Arp. 30, 2010); 2010 WL 1734880 (Vet.App.) (nonprecedential Memorandum decision) United States Court of Appeals for Veterans Claims (Court) addressed a case in which a veteran attended but failed to cooperate at a scheduled VA examination because he alleged that the examination procedure would have caused pain. Therein the appellant argued that under 38 C.F.R. § 3.655 he had good cause for his failure to submit to the examination procedure because in the past he had been “diagnosed with a painful [] mass and [] cancer [and thus] it was too painful to undergo the examination.” Harris v. Shinseki, slip op. at 2. However, in Harris, Id., the Court found “no merit in the appellant's good cause argument. If he was in so much pain that physical examination was impossible, he should have attempted to reschedule the examination, or failing that, informed the examiner of the situation so that the reason for his lack of cooperation would have at least appeared on the examination record. The examiner might also have been able to dull the pain with medication so that the examination could proceed.” Harris v. Shinseki, slip op. at 2. In this case, the Veteran alleges that to allow his skin disability of the feet, i.e., tinea pedis or athlete’s feet, to flare-up would have caused discomfort. He does not allege that the severity of the flare-up would have been so severe that an examination could not have been conducted. Accordingly, the Board finds that the Veteran’s failure to cooperate by attending a VA examination during a flare-up because such a flare-up might cause discomfort, does not constitute good cause for failing to cooperate in arranging for a VA examination during a flare-up. Moreover, it is noteworthy that the Veteran was provided other means of documenting the current existence of the claimed disability. Specifically, he was informed that he could submit photographs. Such photographs establishing a skin disease of the feet could have been evidence in favor of his claim. Likewise, he was informed that he could submit lay evidence from others, i.e., statements from others who had witnessed his having a skin disability of the feet. However, he did neither. Similarly, he was twice informed to go to a VA medical facility when he had a flare-up to document the disorder, and the VAOPT records show that he never did so. Given this, there remains no persuasive competent evidence that the Veteran now has or at any time since service has had a skin disability of his feet, including tinea pedis. Accordingly, for these reasons, the Board must find that the preponderance of the evidence is against the claim for service connection for a skin disorder of the feet, including tinea pedis. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski 1 Vet. App. 49 (1990). REASONS FOR REMAND 2. The claim for service connection for pulmonary scarring is remanded. The STRs reflect that the Veteran received repeated treatment for pulmonary and sinus conditions, including chronic cough, sinusitis, and bronchitis, during his active duty. While the STRs reveal no specific finding of definitive pulmonary scarring in service, an August 25, 2008, radiologic examination report noted “[m]inimal linear opacities in the lung bases likely represent minimal parenchymal scarring.” At his retirement examination in August 2008, the examiner noted that the Veteran's lungs were "normal." A diagnosis of pulmonary scarring was not recorded. In the Veteran’s VA Form 21-526, Application for Compensation, received in October 2008, he claimed service connection for, in part, sinusitis and bronchitis. He reported that he had not been exposed to asbestos. VA treatment records, dated between November 2008 and April 2013, contain no finding, complaint, treatment, or diagnosis of any pulmonary scarring. On VA examination in November 2008 a chest X-ray was normal. In the Veteran’s VA Form 21-4138, Statement in Support of Claim, received in March 2010 in which he claimed service connection for, in part, pulmonary scarring he reported “[p]ulmonary scarring (Asbestos).” On VA respiratory examination in March 2013 and examiner noted that the Veteran has "other pulmonary conditions, pertinent physical findings, or scars due to pulmonary conditions." On the other hand, later in the questionnaire the examiner clarified that the Veteran did not have any scars related to any pulmonary condition. The examiner explained that the Veteran was diagnosed with chronic bronchitis, but did not have any other pertinent physical findings, complications, conditions, signs or symptoms related to the diagnosis of chronic bronchitis. The March 2013 VA examiner further explained that a chest X-ray had been performed in March 2013, which revealed that the mediastinal structures were normal, and that there was no infiltrate, effusion, or focal lung lesion shown. The examiner observed that the March 2013 chest X-ray had a "similar appearance of the chest to the previous examination" in November 2008. Later, when providing an opinion related to a different pulmonary condition, the examiner found that the Veteran's chest X-ray was normal and that there were no physical abnormalities. At the February 2015 Board hearing, the Veteran testified to effect that he was told during his retirement examination that an X-ray result showed that he had pulmonary scarring. The JMR stated that “the claim should be remanded so that the Board can address and discuss this evidence” and, if necessary, “consider whether a new medical opinion is warranted.” In March 2017 the Board remanded the claim for service connection for pulmonary scarring for an examination to determine the nature, onset, and etiology of the Veteran's claimed pulmonary scarring. It was stated in the remand that “[t]he examiner shall also note the August 2008 treatment record indicating ‘[m]inimal linear opacities in the lung bases likely represent minimal parenchymal scarring’." It was requested that an examiner render an opinion as to whether it was at least as likely as not (50 percent or greater probability) that the Veteran's pulmonary scarring was related to his active duty service. The Veteran was afforded a VA respiratory examination in March 2017. It was reported that: The veteran was seen and treated for chronic respiratory problems on several occasions while in military service, and he was diagnosed with "bronchitis" on several occasions. He continues to complain of intermittent cough, sputum, and "bronchitis." His bronchitis is mild. He has not taken antibiotics for several years, his chest x-ray is normal, his PFT is normal, his chest examination is normal, and he denies shortness of breath; the veteran has no objective physical signs or lab/x-ray/PFT abnormalities suggestive of bronchitis. He continues to smoke cigarettes. Confusingly, despite reporting that the Veteran had bronchitis, the examiner reported that the Veteran did not “now have or has he/she ever been diagnosed with a respiratory condition.” The examiner stated that the Veteran was told on his discharge physical that he has scarring on his lungs; however, at the current examination he was feeling fine and had no shortness of breath. His respiratory condition did not require the use of oral or parenteral corticosteroid medications; inhaled medications; oral bronchodilators; antibiotics; or outpatient oxygen therapy. The March 2017 VA examiner reviewed the results of pulmonary function testing and chest X-rays in March 2017. The March 2017 chest X-ray was compared to chest X-rays in March 2013, and revealed mild apical pleural thickening which was symmetric and unchanged. The examiner reported that the Veteran did not have multiple respiratory conditions. The examiner concluded, stating that: There is no objective evidence (spirometric or radiographic) of any respiratory abnormality other than some thickening of the apices of the lungs which are of no clinical significance and most likely reflect changes from cigarette smoking. The examining VA physician also stated that: VA may request additional medical information, including additional examinations if necessary to complete VA's review of the Veteran's application. In light of the conflicting information provided by the Veteran was to any putative inservice exposure to asbestos, he should be contact and requested to clarify whether he was, in fact, exposed to asbestos during active service. Also, because the March 2017 VA examiner did not address the significance, if any, of the August 25, 2008, radiologic examination report which noted “[m]inimal linear opacities in the lung bases likely represent minimal parenchymal scarring” the report of that examination should be returned to that examiner for that purpose. The matter is REMANDED for the following action: 1. Contact the Veteran and request that he clarify whether he was, in fact, exposed to asbestos during active service. If he responds in the positive, the RO should take any appropriate steps to develop the claim in this regard. 2. Return the report of the March 2017 VA respiratory examination to the examiner that conducted that examination to address the significance, if any, of the inservice August 25, 2008, radiologic examination report which noted “[m]inimal linear opacities in the lung bases likely represent minimal parenchymal scarring.” The examiner is requested to render an opinion as to, whether, in light of the August 2008 X-ray findings, it is at least as likely as not (50 percent or greater probability) that the Veteran now has pulmonary scarring which is related to his active duty service? If the Veteran reports that he was exposed to asbestos, and after any needed development in this regard, the examiner should opine as to whether it is at least as likely as not that the Veteran now has asbestosis or any other residual of asbestos exposure, including pulmonary scarring. If the examiner that conducted the March 2017 VA respiratory examination is not available, request another VA clinical familiar with respiratory disorders to respond to the query which is posed. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The medical professional should discuss the particulars of this Veteran's medical history and the relevant medical principles that apply to this case, including, if necessary, the use of any medical literature, which may reasonably explain the medical guidance in the study of this case. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs