Citation Nr: 1808979 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 13-30 001 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a skin disorder of the left foot. 2. Entitlement to service connection for a right ankle disorder. 3. Entitlement to service connection for a left ankle disorder. 4. Entitlement to service connection for a right hip disorder. 5. Entitlement to service connection for a left hip disorder. REPRESENTATION Veteran represented by: Ashley Brooke Thomas, Attorney ATTORNEY FOR THE BOARD A. Tenney, Associate Counsel INTRODUCTION The Veteran had active service from March 1978 to October 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from various rating decisions by the RO in St. Petersburg, Florida. This case was previously before the Board in June 2016, where the Board determined that new and material evidence had been received to reopen service connection for a left ankle disorder, a right hip disorder, and a skin disorder of the left foot, and remanded all issues on appeal for additional development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Per the June 2016 Board remand directives, the Agency of Original Jurisdiction (AOJ) was to schedule a VA dermatology examination and obtain an addendum opinion as to whether the claimed skin disorder of the left foot may be related to service and/or the service connected left foot disability. The record reflects that the Veteran attended an April 2017 VA dermatology examination and an adequate VA addendum medical opinion was rendered. As such, the Board finds that Stegall is satisfied as to the issue of service connection for a skin disorder of the left foot. Id. Unfortunately, for the reasons discussed below, it does not appear that an April 2017 VA orthopedic medical opinion adequately addressed the Board's remand directives as to the issues of service connection for right ankle, left ankle, right hip, and left hip disorders. The Board must again remand these issues to ensure compliance with the June 2016 Board remand directives. Id. As such, the issues of service connection for right and left ankle disorders, as well as right and left hip disorders are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT The Veteran does not have, nor has he had at any time proximate to or during the course of this appeal, a skin disorder of the left foot. CONCLUSION OF LAW The criteria for service connection for a left foot skin disorder have not been met. 38 U.S.C. §§ 1117, 1131, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection for Left Foot Skin Disorder Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran contends that a skin disorder of the left foot is due to service and/or his service-connected left foot disability. An April 2017 VA examination report reflects the Veteran's report that left foot fungus began during service in approximately 1979. After a review of the evidence, both lay and medical, the Board finds that the Veteran does not have, nor has he had at any time proximate to or during the course of this appeal, a current left foot skin disorder. In April 2012, a VA examiner noted the Veteran's left foot fungus that occurred during service. However, the examiner noted that the Veteran had no current evidence of foot fungus, and had not used medication within at least the last year to treat the condition. The examiner noted that tinea pedis had resolved without residual. (Inexplicably, however, the examiner also later concluded that any current condition was caused by service; due to the inconsistent nature of the April 2012 VA medical opinion, a June 2016 Board remand requested a new VA medical opinion.) Subsequently, the April 2017 VA dermatology examination report reflects that the VA examiner concluded that the Veteran did not have a skin disorder of the left foot. The April 2017 VA examiner noted the in-service tinea pedis and specifically opined that any left foot skin disorder had resolved itself during service without residuals. The April 2017 VA examiner conducted an in-person examination, considered a complete and accurate medical history, addressed the Veteran's statements, and conducted appropriate diagnostic testing in the form of a complete skin examination. The Board finds this opinion adequate and highly probative. In evaluating a service connection claim, evidence of a current disability is an essential element, and where not present, the claim under consideration cannot be substantiated. See Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("Compensation for service-connected injury is limited to those claims which show a present disability"). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In this case, the evidence shows no left foot skin disorder at any time during the current claim, including immediately prior to the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that service connection can be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (recognizing that a recent diagnosis of disability prior to a veteran filing a claim is relevant evidence on the question of current disability). For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for a left foot skin disorder, and the claim must be denied. Because the preponderance of evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a skin disorder of the left foot is denied. REMAND Service Connection for Right and Left Ankle Disorders A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. In its June 2016 remand directives, the Board noted that the evidence of record showed right and left ankle diagnoses of degenerative joint disease. The Board explained that a February 2011 private treatment record reflected that the Veteran had been diagnosed with bilateral ankle arthritis and peripheral neuropathy. A VA opinion was rendered in April 2017. While the VA examiner diagnosed bilateral Achilles tendon spur, the VA examiner concluded that the Veteran did not have any other diagnosis related to the right or left ankle. This finding was based upon the fact that the current medical records were "silent" as to any other diagnosis and/or treatment for either a right or left ankle disorder, which, as discussed above, is incorrect as there are private treatment records from 2011 showing a diagnosis of bilateral ankle degenerative joint disease and bilateral peripheral neuropathy. Unfortunately, pursuant to Stegall, yet another remand is necessary for the VA examiner to address the evidence of record that the Veteran was previously diagnosed with degenerative joint disease of the right and left ankle. In addition, per the Board's June 2016 Remand, an opinion addressing whether a right or left ankle disorder was caused or aggravated by the service-connected left foot disorder was also obtained. The Board notes that the secondary service connection opinion rendered by the April 2017 VA examiner is unclear, especially as to aggravation; therefore a new secondary opinion would be helpful. Service Connection for Right and Left Hip Disorders At the conclusion of the April 2017 VA examination, the VA examiner opined that the diagnosed bilateral hip impingement disorder was less likely as not due "caused by, related to or permanently aggravated" by service, a right ankle disorder, a left ankle disorder, or the service-connected left foot disability. Inadequate rationale was provided as the VA examiner noted that the service treatment records were silent for any hip disorder; however, a July 1983 service treatment record reflects treatment for left hip pain, as specifically noted by the June 2016 Board remand. In addition, the Veteran has specifically indicated that he injured he hips during an in-service basketball game, and post-service VA and private treatment records reflect treatment for bilateral hip pain. As such, on remand a new direct service connection opinion with adequate rationale should be provided, to specifically include the Veteran's lay statements of an in-service bilateral hip injury. In addition, per the Board's June 2016 Remand, an opinion addressing whether a right or left hip disorder was caused or aggravated by the service-connected left foot disorder was also obtained. The Board notes that the opinion rendered by the April 2017 VA examiner is unclear, especially as to aggravation; therefore a new secondary opinion would also be helpful, especially in light of a May 2008 VA treatment record reflecting that the VA examiner suggested that the service-connected left foot disorder may have caused a bilateral hip disorder. Outstanding Treatment Records VA should obtain all relevant VA and private clinical documentation which could potentially be helpful in resolving the issues. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand, the AOJ should inquire as to whether there are any outstanding private treatment records concerning treatment of the bilateral ankle and/or bilateral hip disorders. Further, the AOJ should attempt to obtain any outstanding VA treatment records. Accordingly, the issues of service connection for right ankle, left ankle, right hip, and left hip disorders are REMANDED for the following action: 1. Contact the Veteran and request information as to any private treatment received for the right and left ankle and right and left hip disorders. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the ankles and hips, not already of record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2017). 2. Associate with the record all VA treatment records pertaining to the treatment of the ankle and hip disorders, not already of record. 3. Request that a VA medical professional, other than the VA examiner who conducted the April 2017 VA examination, review the electronic file and provide the VA addendum opinions requested below. The relevant documents in the electronic file should be made available to, and be reviewed by, the VA examiner. The VA examiner should note such review in the addendum opinions. If the VA examiner determines that additional examination(s) of the Veteran is necessary to provide reliable opinions, such examination(s) should be scheduled; however, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The VA examiner should provide the following opinions with supporting rationale: A. Is it at least as likely as not that any currently diagnosed right and/or left ankle disorder was caused by, or is otherwise etiologically related to active service, to include the November 1981 and July 1983 in-service ankle injuries? Please specifically address the private treatment records from 2011 showing a diagnosis of bilateral ankle degenerative joint disease. B. Is it at least as likely as not that any currently diagnosed right and/or left hip disorder was caused by, or is otherwise etiologically related to active service, to include the left hip pain reported as due to the July 1983 left ankle injury? C. Is it at least as likely as not (50 percent or higher degree of probability) that the service-connected left foot disability caused any currently diagnosed right ankle, left ankle, right hip, and/or left hip disorder? D. Is it at least as likely as not (50 percent or higher degree of probability) that the service-connected left foot disability aggravated (that is, worsened in severity) any currently diagnosed right ankle, left ankle, right hip, and/or left hip disorder? Please specifically address the May 2008 VA treatment record reflecting the VA examiner suggested that the service-connected left foot disorder may have caused a bilateral hip disorder. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A rationale should be given for all opinions and conclusions rendered. If it is the examiner's opinion that there is aggravation of an ankle and/or hip disorder, he or she should identify the baseline level of severity of the disability prior to the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity. "Aggravation" is defined for legal purposes as a worsening of the underlying condition (versus a temporary flare-up of symptoms) beyond its normal progression. 4. Readjudicate the issues of service connection for right ankle, left ankle, right hip, and left hip disorders. If any benefit sought on appeal remains denied, the Veteran and representative should be provided a Supplemental Statement of the Case. The Veteran has 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 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 (2017). ______________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs