Citation Nr: 20031815 Decision Date: 05/06/20 Archive Date: 05/06/20 DOCKET NO. 13-01 833 DATE: May 6, 2020 ORDER Service connection for a skin condition affecting the legs and feet, to include residuals of foot immersion and jungle rot, is denied. Service connection for bilateral hearing loss is denied. REMANDED Service connection for a right knee disability is remanded. FINDINGS OF FACT 1. The competent and probative evidence of record does not establish that the Veteran has a skin condition affecting the legs and feet that onset in service or is causally related to service. 2. Bilateral hearing loss disability was not shown in service or to a compensable degree within one year of the Veteran’s discharge from service, and the most probative evidence indicates the Veteran’s current hearing loss is not related to his military service, to included conceded in-service exposure to acoustic trauma. CONCLUSIONS OF LAW 1. The criteria for service connection for a skin condition affecting the legs and feet, to include residuals of foot immersion and jungle rot, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2019). 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to January 1970. These matters come before the Board of Veterans Appeals (Board) on appeal from a February 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his wife testified at a personal hearing before the undersigned Veterans Law Judge in June 2014. A transcript is of record. The claims were remanded by the Board in April 2015 for additional development. In March 2018, the Board remanded the claims involving the skin and right knee and denied the claim for bilateral hearing loss. The Veteran appealed the Board's March 2018 denial to the United States Court of Appeals for Veterans Claims (Court). In a July 2019 Joint Motion, the parties requested that the Court vacate the March 2018 Board decision that denied entitlement to service connection for bilateral hearing loss. In an August 2019 Order, the Court granted the Joint Motion. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 1. Service connection for a skin condition affecting the legs and feet, to include residuals of foot immersion and jungle rot The Veteran seeks entitlement to service connection for a bilateral leg and foot skin condition, to include foot fungus and residuals of bilateral foot immersion. He has reported in-service problems that resolved but have come back on occasion manifested by the skin cracking and falling off, and he testified that his skin fell off during service after his feet were immersed in water. The Veteran also asserts that he continues to have the same symptoms as the diagnosed in-service skin conditions to the present. Service treatment records document that the Veteran had a left toe infection in February 1969 that was treated with penicillin and a bilateral foot fungus in May 1959 for which he was given cream. At the time of his October 1969 discharge examination, the Veteran denied skin diseases. The post-service medical evidence of record indicates that the Veteran was admitted to a VA hospital in June 2014 with a principal diagnosis of sepsis due to cellulitis. The cellulitis was located on the left lower leg. The Veteran reported that he had a chronic rash to his left lower leg for two years, which he called “jungle rot” from Vietnam. It was noted that the Veteran was concerned about recurrent tinea pedis of the left lower extremity. The wound team was consulted during the admission, at which time the Veteran reported “I have had this on my foot ever since I was in Vietnam, It clears up for a while then it just flares up again, It cracks and bleeds and I can’t keep it healed up very long at all. It’s only is on my left foot. My kids and grandkids don’t get it so I don’t know what it is they just keep telling me it is athletes foot.” Examination revealed the left foot was flesh colored with some minor edema noted. Thickening and yellow/white scale was noted to the medial aspect of the left great toenail consistent with onychomycosis. The minor toenails and toes were without signs of fungal infection. The dorsal aspect of the left foot was without erythema or scaly tissue; the plantar aspect of the left foot, from the metatarsal phalangeal joint to the heel and from lateral side of the foot to the instep, had thick, dry, scaly tissue that was cracked and peeling, with minor erythema noted under the crusts. There were no signs of irritation to the web spaces of the toes. The right foot examination showed no signs of erythema, scaly irritation, or onychomycosis to the toenails, though mild edema was noted. The assessment was possible tinea pedis infection to the left foot plantar aspect. The wound care clinic suggested that the Veteran see his dermatologist (private sector) to do scraping of the foot tissue to identify organisms involved for better treatment possibilities. The Veteran did not respond to an October 2018 letter asking him if a skin scrape was conducted by a private dermatologist and to identify private dermatological treatment. As such, there is no private treatment of record. The Veteran underwent a VA examination in January 2016. The diagnosis was cellulitis. The Veteran reported that while in Vietnam, he had jungle rot, immersion foot, and ring worm, and that after service, the skin on his leg would peel if he was using the leg during regular physical activity. He also reported bouts of cellulitis requiring antibiotics with hospitalization in the last couple of years. The examiner reported that review of the service treatment records showed no foot or lower leg fungal condition and no skin rash or anything that would be connected with the examination that day; and that the post-service evidence showed the problem with swelling was first noted in 2014. The examiner also noted the June 2014 VA record where the Veteran reported rash over his legs. The overall impression from the examiner’s review of the post-service evidence was that the Veteran had lower extremity edema with morbid obesity and lack of adequate preventive measures for edema and reinfection of tinea pedis of the left foot, though no verification of tinea pedis was noted and no acute infection event was noted. The examiner provided an opinion that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The rationale was based on the absence of a chronic or skin condition noted for the lower extremities in the service treatment records and a lack of records showing any chronic condition since active duty. The examiner noted that if the Veteran had recurrent tinea pedis of the left foot first noted in 2014, this would not be from or since active duty as this condition would likely be from poor preventive action and re-infection from use of shoes/socks without eradicating due to insufficient treatment. The reoccurrence would not be chronic but from re-introduction of fungus causing repeated acute fungal infections. There was no indication of a possible chronic skin condition caused by or continued due to active duty. The claim was remanded by the Board in March 2018 for an addendum opinion regarding whether it is at least as likely as not (probability of at least 50 percent) that the recurrent tinea pedis of left foot noted in 2014 had its onset in, is a continuation or maturation of, or is otherwise etiologically related to the Veteran’s period of active service. The Board instructed that the opinion take into consideration the February 1969 service treatment record indicating a left toe infection was treated with penicillin; the May 1969 service treatment record indicating the Veteran had fungus on both feet and was given cream; and the Veteran’s assertion during VA treatment in June 2014 that he had had a skin condition on his left foot ever since he was in Vietnam, that it clears up for a while then it just flares up again, and that he had been told it was athlete’s foot. The Veteran underwent another VA examination in October 2019, which was conducted by the same VA examiner. He was diagnosed with lower extremity venous stasis skin changes and resolved cellulitis of the left lower extremity. The Veteran reported that he had jungle rot and immersion foot while in Vietnam. This has continued and he had to go to hospital for it at VA in 2014. The Veteran indicated that the problem was still occurring to his shins, left more than right, and that he applied moisturizing lotion given by VA to the area. He previously had cracking and bleeding of the left foot and was started on a pill for fungus of his toenail. The Veteran reported that he had testing that was negative for fungus, stating he was told “no fungus.” The examiner noted that tinea pedis is a superficial skin infection of the feet; that the cellulitis in 2014 was due to bacterial infection needing antibiotics to treat; and that there was no medical record showing or confirming actual tinea pedis had occurred, it was the Veteran’s report only. In the remarks section, the examiner reported that the Veteran was a poor historian with limited medical knowledge and with history of poor compliance as reviewed in his care records. Examination revealed the skin and nails of both feet were normal, but there was old scarring and hyperpigmentation of the skin on his shins. The examiner noted that previous shin infections in 2014 had healed with scarring and that skin changes were due to venosis stasis of the lower extremities with risk factor of obesity. There was no indication of ongoing tinea pedis consistent with jungle rot or immersion foot except for subjective report and that was treated with antifungal one time in service such that it was acute and resolved. It was further noted that dry skin in the foot arches noted in 2014 appeared to be due to factors of hygiene and venous stasis, but the Veteran did not have problems between the toes where tinea pedis usually occurs and that tinea pedis could not be verified. It was the October 2019 VA examiner’s opinion that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The rationale was based on the fact that the Veteran was not treated for fungus or other infection in 2014 and that his problems involved an acute infection of the legs at that time with risk factors of venous stasis and obesity. The findings related to his foot at that time were only consistent with dry cracking skin secondary to the poor circulation and hygienic factors. The onychomycosis of his left great toenail resolved with treatment. The examiner stated that none of these problems would be derived from any skin problems noted in service in the service treatment records or by report of the Veteran. The Veteran did not have tinea pedis in 2014 per review of records, although it was suspected, and he had no record of being treated for tinea pedis since service. The examiner acknowledged the Veteran’s report of having this on and off but given the evaluation of 2014, it was not due to tinea pedis. The Veteran’s feet were normal on the day of the examination with no indication of infection and the record is otherwise devoid of tinea pedis or anything that would be from or due to his claim of in-service skin problems of the lower extremities. The examiner stated that the tinea pedis subjectively reported in service would only be consistent with acute, resolved, and minor tinea pedis, and that the Veteran’s report of having this on and off consists only that he was possibly having tinea pedis over the course of time, but is not consistent with a chronic condition and is only that of minor fungal infections that anyone can have due to introduction of the fungus at the time of occurrence, not due to a chronic condition. The examiner again noted that the findings closer to 2014 where he reports this on and off shows it was not due to fungal infections. The examiner stated that the minor problems involving the Veteran’s skin in service were all acute and resolved conditions that are not of any chronic nature and shown to have continued to exist post service. The skin problems noted since 2014 are not due to any conditions found in service but are secondary to developing venous stasis in the presence of obesity and aging with likely poor hygienic factors. There are continued skin changes noted of the bilateral shin, but the current lower extremity dermatological condition has no etiological nexus to his service problems, all of which were treated and resolved. The preponderance of the evidence is against the claim for service connection for a skin condition affecting the legs and feet, to include residuals of foot immersion and jungle rot. The Board acknowledges the in-service findings related to the Veteran’s skin, specifically the left toe infection and subsequent bilateral foot fungus. Both conditions were treated without any indication of recurrence during service, which is corroborated by the Veteran’s denial of any skin conditions at the time of his October 1969 discharge examination and his statement made in conjunction with this appeal that the conditions resolved in service. The Board acknowledges the Veteran’s assertion that he has had occasional problems with the same symptoms as the diagnosed in-service skin conditions, as well as skin cracking and peeling/falling off, since his discharge from service. The post-service medical evidence, however, only confirms diagnoses involving the skin of cellulitis and lower extremity skin changes. The VA examiner made clear, however, that neither condition was related to service, explaining that the lower extremity skin changes were secondary to venous stasis (which in turn was due to obesity, aging, and likely poor hygiene) and that the cellulitis was due to a bacterial infection. The Board acknowledges that tinea pedis was suspected in 2014 based on the Veteran’s complaints. The diagnosis of tinea pedis, however, was never confirmed and the Veteran did not respond to the Board’s request for information about private dermatological treatment. Even assuming the Veteran’s complaints in 2014 were consistent with tinea pedis, the VA examiner provided an opinion that the recurrence would not be from or since active duty service, but would likely be from poor preventive action and re-infection from use of shoes/socks without eradicating due to insufficient treatment, in other words, not a chronic condition, but a re-introduction of fungus causing repeated acute fungal infections.   While the Veteran believes that his current skin problems affecting the legs and feet are related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of a skin disorder affecting the legs and feet are matters not capable of lay observation and require medical expertise to determine. Accordingly, the Veteran’s opinion as to the diagnosis or etiology of any skin disorder affecting the legs and feet, to include the assertion that his post-service problems are related to in-service treatment related to his skin, is not competent medical evidence. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current disability is also a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (“Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.”). Thus, the Veteran’s own opinion regarding the etiology of his current skin disorders affecting the legs and feet is not competent medical evidence. The Board finds the opinion of the VA examiner to be significantly more probative than the Veteran’s lay assertions. In the absence of competent and probative evidence of record to establish that the Veteran has a current skin condition affecting the legs and feet that onset in service or is causally related to service, service connection is not warranted and the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim for service connection for a skin condition affecting the legs and feet, to include residuals of foot immersion and jungle rot, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).   2. Service connection for bilateral hearing loss Where a veteran served continuously for 90 days or more during active service and sensorineural hearing loss becomes manifest to a degree of 10 percent or more within one year from date of termination of such service, the disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2019). For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a “disability” for the purposes of service connection. 38 C.F.R. § 3.385. “[I]mpaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.” 38 C.F.R. § 3.385. When audiometric test results do not meet the regulatory requirements for establishing a “disability” at the time of the Veteran’s separation, the Veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is the result of disease or injury in service. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran seeks entitlement to service connection for bilateral hearing loss as a result of in-service noise exposure. He has current bilateral hearing loss disability as defined by VA regulations and exposure to acoustic trauma during service has been conceded by the RO. As such, the question that remains is whether the Veteran’s bilateral hearing loss disability is related to service, to include his in-service exposure to acoustic trauma. The first indication that the Veteran met the criteria for bilateral hearing loss disability pursuant at 38 C.F.R. § 3.385 was in September 2011, during audiological testing conducted during a VA examination. At that time, the criteria were met based on a 40 decibel puretone threshold noted at 4000 Hertz bilaterally, and the examiner diagnosed sensorineural hearing loss. Since there is no competent evidence that the Veteran met the criteria for a bilateral hearing loss disability in service or within one year following his discharge from service, competent evidence linking the current condition with service is required to establish service connection. No such evidence exists in this case. The September 2011 VA examiner provided an opinion that it is less likely than not that the Veteran’s bilateral hearing loss is due to his in-service noise exposure. This opinion was based on evidence of normal hearing, bilaterally, when the Veteran was evaluated during service in January 1968, April 1968 and October 1969; the fact that when the Veteran was seen during service in April 1968 with complaint of not being able to hear well, it was found that he had otitis media, which would explain why he was not hearing well at that time and had nothing to do with acoustic trauma; a determination that had the Veteran been exposed to acoustic trauma excessive enough to damage his hearing, it would have been present and documented at the time of separation, with citation to a study conducted through The Institute of Medicine; and a determination that the Veteran’s current level of hearing loss is comparable to that of a man his age with hearing loss due strictly to presbycusis (age-related hearing loss). See addendum opinions obtained in November 2015 and February 2016. The VA examiner’s opinion, which stands uncontroverted in the record and which was based on a detailed rationale, is afforded high probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). As noted above, service connection for bilateral hearing loss was denied by the Board in March 2018 and appealed to the Court. The Joint Motion indicated that the Board failed to address lay statements of observable symptomatology, in this case post-service hearing loss, since the Veteran had testified in June 2014 that, following service, he had continued ringing in his ears, experienced buzzing, had “a little bit of problem hearing” and that as long as he was facing someone, he could understand him or her, but if his back was turned, he could not hear. The Board notes that is already service-connected for tinnitus, and the issue before the Board pertains to hearing loss. With respect to his hearing loss, while the Veteran is competent to report that he had decreased hearing acuity and ringing or buzzing at discharge and in the years following service, he is not competent to assert that he had a hearing loss disability or that he met the criteria for hearing loss per VA standards at any time during service or following his discharge from service. It is sensorineural hearing loss (as an organic disease of the nervous system), not a subjective complaint of a decrease in hearing acuity, that is considered a chronic condition pursuant to 38 C.F.R. § 3.309(a). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). In this case, a bilateral hearing loss disability was not shown to have been manifested during service, but the Veteran has reported a continuous symptom of bilateral hearing loss since service, specifically a little bit of problem hearing that he described as an inability to hear people who he was not facing. This assertion, which was raised during his June 2014 testimony, is consistent with his October 1969 report of a history of hearing loss. However, his subjective symptom of decreased hearing acuity does not equate to actual hearing loss. Indeed, he complained of decreased hearing during service, but his audiograms during service were within normal limits. Medical testing and expertise is needed to determine whether actual hearing loss exists. There is no indication that the Veteran has specialized training sufficient to diagnose hearing loss or determine its etiology. See Jandreau, 492 F.3d at 1376-77. In this regard, the presence of a hearing loss disability and the etiology of such is a matter not capable of lay observation and requires medical expertise to determine. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current disability is also a matter that also requires medical expertise to determine. See Clyburn, 12 Vet. App. at 301. In this case, hearing loss disability was not noted in service despite his complaints of hearing loss, and his assertion of “a little bit of a problem hearing,” buzzing, or ringing since service likewise does not establish the presence of a hearing loss disability during that time. Rather, the first evidence of hearing loss disability is in 2011, 40 years after discharge from service. Thus, while the Veteran may believe he suffered from hearing loss during and since service, the Board finds the in-service and post-service audiograms to be more probative as to the actual presence of hearing loss. As the Veteran was not shown to have a hearing loss disability manifested during service or following service until 2011, service connection based on continuity is not warranted. Moreover, the opinions of the VA examiners that the Veteran’s current hearing loss disability did not arise in service and is not otherwise related to service are significantly more probative than the Veteran’s assertion that the condition began in service or is related to noise exposure during service. There is no probative medical opinion linking the current hearing loss disability to service, and the Veteran, as a lay person, is not competent to opine that his subjective symptom of decreased hearing acuity during and following service constitute actual hearing loss. In sum, the preponderance of the competent and probative evidence is against a finding that the Veteran’s bilateral hearing loss arose in service or for decades thereafter, or that it is otherwise related to service. The Board finds that another VA examination is not warranted since the Veteran has not provided probative evidence linking the current bilateral hearing loss to service. See 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). REASONS FOR REMAND 1. Service connection for a right knee disability is remanded. The Board remanded this claim in order to obtain an addendum opinion. The opinion obtained does not address the questions raised in the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). The matter is REMANDED for the following action: 1. Return the claims file to the examiner who provided the October 2019 addendum opinion on the Veteran’s right knee disability. The examiner is asked to address the following questions: a. Is the developmental variant noted in the February 2016 opinion, specifically bipartite patella, the equivalent of a developmental defect? If so, was the Veteran’s bipartite patella subject to a superimposed disease or injury during service with resulting disability? Please explain why (with explanation as to what the resulting disability is) or why not. b. Does the record reflect that the Veteran undebatably had right knee degenerative joint disease and/or right knee chondromalacia that existed prior to his entry into active duty service? Please explain why or why not. c. If it is determined that either right knee degenerative joint disease and /or right knee chondromalacia undebatably pre-existed the Veteran’s active duty service, the examiner should opine whether either pre-existing condition was permanently worsened beyond normal progression (aggravated) by service. If so, the examiner should then opine whether that aggravation was undebatably the result of the natural progression of the disability (versus being worsened as a result of in-service events). d. If the Veteran did not have right knee degenerative joint disease and/or right knee chondromalacia prior to service, the examiner should opine as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that degenerative changes and chondromalacia currently seen in the right knee had their onset during active duty service or are related to such service. The examiner should explain why or why not, with specific reference to in-service findings related to the right knee, to include findings of right knee arthritis and chondromalacia. 2. If the claim remains denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Van Wambeke, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.