Citation Nr: 1807504 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-16 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a skin disability, to include eczema, tinea versicolor and pruritis. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a foot disability, to include pes planus and plantar fasciitis. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD David S. Katz, Associate Counsel INTRODUCTION The Veteran had active service in the Army from July 1982 through May 1986 and from August 1990 through October 2006. These matters come before the Board of Veterans' Appeals (Board) for the first time, on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran timely appealed. VA provided the Veteran a statement of the case (SOC) in March 2014 and a supplemental SOC (SSOC) in January 2017. The RO's rating decision and subsequent SOC and SSOC were predicated on narrow or mistaken definitions of the skin and foot disabilities for which the Veteran seeks service connection. On review, the Board has broadened the scope of those issues, and re-characterized them as appears above. The issue of entitlement to service connection for a foot condition, to include pes planus and plantar fasciitis, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran suffers from a skin disability, to include eczema, tinea versicolor, and pruritus, that was incurred in active military service. 2. The Veteran suffers from tinnitus that was incurred in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a skin disorder, to include eczema, tinea versicolor, and pruritus, have been met. 38 U.S.C. §§ 1110, 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1155; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify the Veteran about the information and evidence necessary to substantiate a claim for disability benefits, and a duty to assist the Veteran in obtaining that information and evidence. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326. In this case, VA fulfilled its duty to notify by means of standard informational letters sent to the Veteran in August 2010 and April 2012. Pursuant to its duty to assist, VA is required to obtain the claimant's service medical records and other relevant service records, as well as medical records from VA facilities and VA-contracted medical providers. 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c). VA must also try to obtain any relevant private records that the claimant adequately identifies. 38 U.S.C. § 5103A(b). In this case, VA obtained the Veteran's service medical records and post-service VA medical records. There is no indication the Veteran submitted or identified any private medical records. VA must also provide a claimant a medical examination or obtain a medical opinion when such an examination or opinion is necessary to make a decision on a claim for compensation. 38 U.S.C. § 5103(d)(1); 38 C.F.R. § 3.159(c)(4). A thorough medical examination is one which "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Barr v. Nicholson, 21 Vet. App. 303 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (further citations omitted). A medical opinion is adequate when it is based upon consideration of the Veteran's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Id., citing Ardison v. Brown, 6 Vet. App. 405, 407 (2007) (further citation omitted). A medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination) and relies on the service medical records alone to provide a negative opinion. Dalton v. Nicholson, 21 Vet. App. 23 (2007). VA provided the Veteran an examination for his tinnitus in October 2010. The examiner duly recorded the Veteran's description of his disability and its history, but the examiner did not review the Veteran's medical records, explaining that they had not been provided. Thus, the examination is inherently inadequate. However, because the Board is granting the benefit sought, the Veteran suffers no prejudice from this deficiency in VA's duty to assist. VA provided the Veteran an examination for his skin condition in April 2012. The examiner indicated he had reviewed the Veteran's claims file and considered the Veteran's prior medical history and examinations, as well as the Veteran's reports of his symptoms. The medical opinion provided contained a clear rationale for its conclusions. The Veteran's claims file contains the Veteran's lay statements, including those given orally at his VA examinations. Neither the Veteran nor his representative has asserted the absence of relevant documents or advanced any procedural arguments in relation to VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Accordingly, the Board concludes that VA satisfied its duties to notify and assist except as concerns the Veteran's tinnitus examination, and therein the Veteran suffered no harm. Legal Criteria Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 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). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 C.F.R. § 3.303(a). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Skin Rash The Veteran asserts that he continues to suffer from a disabling skin rash that arose during service, characterized by itching, dry scaly patches, and discolored skin on his chest, neck, shoulder and back. He describes it as physically irritating, especially when he sweats, and as disturbing his sleep, interrupting concentration at work, and causing self-consciousness about his skin discoloration. He states that he dealt with this condition throughout service, during training, on deployments while wearing required tactical gear, and during tactical training (airborne school and ranger school). The Veteran points out that he was diagnosed with tinea versicolor by VA in June 2010 and continues to use the prescribed topical treatments. The Veteran's service medical records show that in February 1994 he presented with an itching rash on his back and was diagnosed with tinea versicolor. In May 2000 the Veteran again sought treatment for an itching rash on his back of six to seven months' duration and again received a diagnosis of tinea versicolor. A June 2010 VA dermatology consult again produced a diagnosis of tinea versicolor, with a second diagnosis of pruritis. In April 2012, the Veteran underwent a VA examination for skin disorders. The examiner diagnosed the Veteran with eczema, which appeared as dry and itchy skin on the Veteran's back, shoulder and chest. The eczema covered from 5 to 20 percent of the Veteran's body. However, the examiner opined that the eczema was likely not connected to the Veteran's military service because the Veteran's in-service and other previous diagnoses were for tinea versicolor, not eczema. The examiner also noted, without further inquiry, the Veteran's use of topical medications for a skin rash during the previous 12 months. The Veteran's June 2010 VA dermatology consultation, which produced a diagnosis of tinea versicolor, occurred roughly six weeks before the Veteran filed his claim for eczema. A determination that a diagnosis is sufficiently proximate to the filing of a claim so as to constitute evidence of a "current diagnosis" is a factual finding for the Board. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000)). Here, the Board so finds. The Board notes the long history of the Veteran's tinea versicolor diagnoses, and the lack of evidence that the Veteran's rash disappeared within those six weeks. Thus, the Veteran has current differing diagnoses of a skin disability. The VA dermatology consult diagnosed tinea versicolor, the VA examination eczema. For his part, the Veteran maintains that he suffers from the same rash that arose in service, and points out that he has been using the same prescribed topical treatments continuously since his VA tinea versicolor diagnosis in June 2010. The Veteran is competent to provide lay evidence of his symptomatology, to the extent his symptoms are directly observable by him and do not require specialized medical or other training to describe. Layno v. Brown, 6 Vet. App. 465, 467-69 (1994). The Board finds the Veteran's testimony credible as to his experience of his rash, because it is consistent with the medical evidence of record, and the Board accords it significant weight. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board). In determining the scope of a claim, the Board must consider the claimant's description of the claim, symptoms described, and the information submitted or developed in support of the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009); Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009). In light of the above, the Board will expand the scope of the Veteran's claim to encompass a skin disability, to include eczema, tinea versicolor and pruritis, and find that the Veteran suffers from this disability, incurred in service. Accordingly, the Board finds that service connection for a skin disability, to include eczema, tinea versicolor, and pruritus, is warranted. Tinnitus The Veteran filed his claim for tinnitus in July 2010. At his October 2010 VA examination, the Veteran explained to the examiner that his tinnitus started in 1983 when he was exposed to artillery fire, that the condition had been continuous since then, and that it was now characterized by constant ringing in both ears, impairing his concentration and ability to sleep. He also denied any hazardous noise exposure after service, as he held an office job. The examiner did not review the Veteran's medical records, noting that they had not been provided. The examiner found no hearing loss, and thus no pathology on which to base a medical diagnosis of tinnitus. However, he also opined, "the only evidence of a relationship between the veteran's tinnitus and exposure to noise during military occupational specialty [sic] is the veteran's personal description of the onset of the tinnitus." As noted above, the Veteran is competent to provide lay evidence of his symptomatology, to the extent his symptoms are directly observable by him and do not require specialized medical or other training to describe. Layno, supra; see Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation). The Board has found the Veteran to be a credible reporter, and finds that the Veteran is competent to report the onset of his symptoms, to identify the condition of tinnitus, and to describe a continuity of such symptomatology. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), Charles v. Principi, 16 Vet. App. 370, 374 (2002), Falzone v. Brown, 8 Vet. App. 398 (1995). Further, the Board notes that during his first tour of duty the Veteran spent over three years as a construction equipment repairer, an MOS that is highly probable for hazardous noise exposure. Thus, the Board finds that the Veteran was exposed to hazardous noise while in service. On the basis of these facts, the Veteran's credible testimony and the lack of an adequate examination or evidence contradicting the actual existence of the Veteran's tinnitus or its origin in service, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran suffers from tinnitus that was incurred in service. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Accordingly, the Board finds that service connection for tinnitus is warranted. ORDER Entitlement to service connection for a skin disorder, to include eczema, tinea versicolor, and pruritus, is granted. Entitlement to service connection for tinnitus is granted. REMAND In July 2010, the Veteran filed a claim characterized as "plantar flexion of left and right foot." In early April 2012, VA requested an examination and medical opinion concerning the Veteran's "bilateral foot condition (claimed as plantar flexion of the right and left foot." The examination took place in late April 2012. Unfortunately, the examiner utilized the VA's disability benefits questionnaire for "Foot Miscellaneous (other than Flatfoot/Pes Planus)"-an examination guide that asks no questions and elicits no information about the plantar surface of the feet, except as related to the condition of clawfoot, which the Veteran does not have. The examiner diagnosed hallux valgus, metatarsalgia and degenerative arthritis in the first metatarsophalangeal joint bilaterally, and opined that these conditions were related to service, because they had been noted in service. Subsequently, the RO service-connected the Veteran's hallux valgus deformity with osteophyte 1st metatarsophalangeal joint bilaterally, and assigned a non-compensable rating. It denied service connection for "bilateral metatarsalgia claimed as plantar flexion of left and right foot." VA's examination and opinion were inadequate because they did not evaluate the Veteran's claimed plantar foot conditions and thus do not provide the Board with an adequate basis on which to adjudicate the appeal. The Veteran's service treatment records and post-service VA treatment records contain a number of notations of pes planus and plantar fasciitis. On remand, the VA should provide the Veteran with an examination eliciting information about bilateral pes planus and plantar fasciitis, as well as any other diagnosed foot condition that is not already service connected. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate efforts to obtain any relevant outstanding VA and private medical records, and associate them with the claims file. 2. Following completion of instruction 1 above, afford the Veteran a VA examination to determine the nature, etiology and severity of any and all currently diagnosed disabilities of either foot, including disabilities related to pes planus, plantar fasciitis and degenerative arthritis. The Veteran's claims file must be provided to and reviewed by the examiner prior to undertaking the examination, and the examiner should confirm this review. The examiner must obtain a detailed clinical history from the Veteran. All pertinent pathology found on examination must be noted in the report of the evaluation. Any testing deemed necessary must be performed. The examiner should respond to the following: For each disability diagnosed, the examiner should offer comments and an opinion addressing whether it is at least as likely as not (i.e., probability of 50 percent or higher) that the diagnosed disability began during service, or is causally or etiologically due to symptoms experienced during service. The examiner is advised that the Veteran is competent to report history and symptoms and that his reports must be considered in formulating any requested opinion. If the examiner rejects the Veteran's reports, the examiner must provide a rationale for doing so. A complete rationale must be given for all opinions and conclusions expressed. If it is not possible to provide a requested opinion without resorting to speculation, the examiner should state why speculation would be required (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion or other information needed to provide the requested opinion. 4. After completion of the above, and any other development deemed necessary, readjudicate the claim for service connection for a foot condition, to include pes planus and plantar fasciitis. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369. This claim must be afforded expeditious treatment. The law requires that all claims that are 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. §§ 5109B, 7112. ______________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs