Citation Nr: 20036732 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 20-14 020 DATE: May 28, 2020 ORDER Entitlement to service connection for bilateral foot cold injury residuals, claimed as bilateral foot numbness, is granted. REMANDED Entitlement to service connection for bilateral tinea pedis, claimed as bilateral foot skin condition, is remanded. FINDING OF FACT The most probative and competent evidence of record is at least in equipoise as to whether the Veteran’s bilateral foot cold injury residuals, claimed as bilateral foot numbness, is etiologically related to his active duty military service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral foot cold injury residuals have been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.3. Introduction The Veteran served honorably on active duty in the United States Army during the Korean Conflict Era, from December 1952 to December 1954, and was awarded the Combat Infantry Badge, among other decorations. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2018 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that, after issuance of the Rating Decision, the Veteran timely submitted his Notice of Disagreement (NOD) in April 2019. Thereafter, and prior to issuance of the Statement of the Case (SOC) dated January 2020, the Veteran also submitted a Decision Review Request: Higher-Level Review (VA Form 20-0996) in December 2019. However, because the Rating Decision was issued prior to February 19, 2019, the Veteran had not previously opted-in to the Rapid Appeals Modernization Program (RAMP) under the Appeals Modernization Act (AMA), and the SOC had not yet been issued, submission of VA Form 20-0996 under the AMA was not appropriate at that time. Nevertheless, after issuance of the SOC, the Veteran timely submitted his substantive appeal (VA Form 9) in February 2020 and, therefore, the Board shall review his appeal under the Legacy Appeals System. Finally, this matter has been advanced on the Board’s docket. 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection requires competent evidence of: (1) a current disability; (2) 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, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. 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). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, lay evidence can be competent and sufficient evidence of a diagnosis or to establish etiology if: (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77. 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 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). 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 Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Entitlement to service connection for bilateral foot cold injury residuals, claimed as bilateral foot numbness, is granted. The Veteran seeks entitlement to service connection for cold injury residuals to both feet, claimed as numbness, due to exposure while serving in Korea for 13 months. Treatment records indicate the Veteran does have a diagnosis of “diabetic peripheral neuropathy” and, thus, the first Shedden factor is satisfied. Service treatment records (STRs) report the Veteran experienced Achilles tendon tenderness and heel pain in March 1954. In December 2006, the Veteran filed a claim for entitlement to service connection for cold injury residuals of the feet, which was denied by Rating Decision dated September 2007. At the time, the Veteran was not afforded a VA examination. According to the Veteran’s VA Form 9, he “wore the same pair of non-insulated leather boots” the entire time in Korea, and recalls his feet becoming “so cold during the winter months that [he] could not stand up and or get [his] feet out of [his] boots.” Further, the Veteran remembers his “feet burning and stinging from the cold until eventually they went completely numb.” The Veteran also reports receiving treatment during the summer months from a “medic or doctor” with whom he took a picture, which he mailed home with a note stating, “picture of me and medic who treated feet.” Additionally, the Veteran contends that the condition of his feet is not due to diabetes mellitus, type 2 (DM-II), as it “was not diagnosed until many many years after [his] time in Korea,” and “has been under control for years.” The Veteran’s claims file includes multiple lay statements prepared by family members and an affidavit by fellow soldier, Mr. L.K. According Mr. L.K.’s statement dated February 1960, while stationed in Korea he “often heard [the Veteran] complain about his feet,” and observed “the infection . . . between the toes.” The Veteran’s wife, Mrs. L.V., stated they were married the year after he returned from service, and that the Veteran has “been battling issue [sic] with his feet cracking open and bleeding” since being discharged. Further, Mrs. L.V. stated the Veteran underwent sensory examinations of his feet by the VA “on numerous occasions,” which revealed “no feeling.” The Veteran’s son, Mr. W.V., stated remembering from childhood the Veteran “coming home from work every day and soaking his feet” in Epsom saltwater “to relieve the pain.” According to Mr. W.V., the Veteran’s feet would excrete pus “that would cause his socks to stick to his feet.” Mr. W.V. also stated the Veteran described his service in combat in Korea, including experiencing infection of his feet due to cold and wet conditions, for which he began seeking medical treatment from a private physician, Dr. I.N., “immediately” after discharge. Another son, Mr. R.V., stated remembering the Veteran “would spend countless minutes and hours sitting on the step in [their] living room scratching and rubbing his feet,” as well as witnessing “flaking skin” and the Veteran soaking his feet. Mr. R.V. also stated the Veteran described experiencing “frozen feet.” Another son, Mr. W.V., Jr., also stated recalling the Veteran suffering from itching feet that caused him to scratch them until they bled, as well as soaking them “nearly every day.” In December 2018, the Veteran underwent a VA compensation and pension (C&P) examination. The VA examiner opined that the Veteran’s bilateral foot numbness was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. By way of rationale, the VA examiner noted “there is no adequate medical document for evident diagnosis and clinical symptoms description” in the Veteran’s STRs. The VA examiner diagnosed the Veteran with bilateral pes planus. The Veteran’s private treating physician, Dr. S.L.J., authored a medical opinion in April 2019. Dr. S.L.J. noted the Veteran’s complaints of “paresthesias of his feet for years,” including “decreased sensation of his distal lower extremities.” According to Dr. S.L.J., examination revealed “intact skin” with “no active skin rash” and a scar on one foot. Further, she noted the Veteran’s “prior service in the Korean War and his exposure to low temps and experience [sic] frostbite.” Dr. S.L.J. reported that she has “researched the long-term effect of frostbite and ha[s] located several articles relaying the risk of chronic neuropathy of extremities exposed to cold temperatures and suffering from frostbite,” which she provided. According to Dr. S.L.J., she believes “there is a strong correlation of [the Veteran’s] exposure to cold temperature and subsequent [sic] suffering frostbite with his neuropathy that he suffers today,” and referred to it as a “causal link.” A VA Medical Center (VAMC) treatment note dated July 2019 noted the Veteran as having a “blackened” right great toenail base, “very diminished” pedal pulses, and “no sensation at all” upon examination. In the case of a Veteran who engaged in combat with the enemy in active service during a period of war, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the Veteran. 38 U.S.C. § 1154(b). In this case, the Board finds the longitudinal medical history and statements made by the Veteran and his family members to be competent, credible, and highly probative and persuasive as to the in-service incurrence or manifestation of his bilateral foot numbness, and continuous symptoms since his military discharge, all of which is consistent with the circumstances, conditions, and hardships of his combat service in Korea. Although the Veteran’s peripheral neuropathy of the lower extremities is noted as being associated with DM-II, the totality of the evidence of record indicates the condition manifested well before his DM-II diagnosis. While it is certainly possible that the Veteran’s DM-II could contribute to a worsening of symptoms, the Board finds the Veteran’s competent and credible statements as to the onset of symptoms carries great weight and, in so finding, the Board is persuaded that the onset of symptoms predates the DM-II. As for the medical opinion evidence, the Board assigns little probative value to the VA examiner’s opinion as it fails to discuss the numerous competent lay statements of record, and provides insufficient reasoning as it appears to be based entirely upon a lack of reported symptomology or formal diagnosis in the Veteran’s STRs. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Conversely, the Board assigns substantial probative value to the private medical opinion of Dr. S.L.J., which it finds highly persuasive, as it is internally consistent and consistent with the other evidence of record (notwithstanding the VA examiner’s opinion), facially plausible, and supported by medical literature of record, including her own research. At the very least, the Board finds that the evidence for and against service connection for cold injury residuals is in equipoise; that is, the evidence demonstrating that the Veteran’s peripheral neuropathy of the bilateral lower extremities is related to an in-service cold injury, is equally weighted against the evidence demonstrating other etiology. Therefore, resolving reasonable doubt in the Veteran’s favor, it is at least as likely as not that the Veteran has a diagnosis of peripheral neuropathy of the bilateral lower extremities that had its onset during service. The Veteran is therefore entitled to the benefit of the doubt. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection is warranted for cold injury residuals manifested by peripheral neuropathy of the bilateral lower extremities. REASONS FOR REMAND Entitlement to service connection for bilateral tinea pedis, claimed as bilateral foot skin condition, is remanded. In September 1959, an Affidavit by a physician, Dr. I.N., indicated the Veteran had been diagnosed with phytosis pedis in December 1957 and involved itching of the feet. Dr. I.N. stated the Veteran “had recurrent attacks” of the skin condition “even when in service in 1954.” The Board observes that the Veteran filed a claim for VA benefits in 1959 due to a fungal infection of the feet. Although a VA examiner diagnosed the Veteran with mild to moderate chronic dermatophytosis of the feet with secondary eczematization on the dorsum of the right foot, the claim was denied due to “failure to submit . . . evidence.” The Veteran filed another claim in June 1996 for bilateral foot infection, and a VA examination was conducted in July 1996. According to the VA examiner, the Veteran presented with “a few cracks between the toes of both feet which appears to be tinea pedis.” Nevertheless, the Veteran’s claim was denied by Rating Decision dated November 1996 because his STRs were “negative for skin condition of the feet while in service.” As discussed above, in December 2018 the Veteran underwent a VA C&P examination. The VA examiner noted the Veteran was status/post dermatitis previously diagnosed in 1952, per the Veteran, but “[t]here is no medical documentation.” However, according to the VA examiner, the Veteran did not have a previous skin condition that is now completely resolved and no longer requires treatment, and no current skin condition without visible characteristic lesions. The VA examiner did note the Veteran presented with two toenails exhibiting “yellowish changes” likely due to a fungal infection. Ultimately, the VA examiner opined that the Veteran’s claimed bilateral foot skin condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. By way of rationale, the VA examiner indicated “there is no adequate medical document for evident diagnosis and clinical symptoms” in the Veteran’s STRs, no noted treatment in his VA or private medical records, and no foot skin condition present on examination. The Board notes that the VA examiner appears to have provided a positive nexus opinion between the Veteran’s bilateral pes planus (flat feet) and his military service; however, the Veteran has not yet filed a service connection claim for pes planus. The Veteran is advised that he may file a claim for service connection for pes planus by submitting the prescribed VA form. A VA treatment note dated March 2001 reported the nail fungus onychomycosis on all the Veteran’s fingers and toes. Also, a VA treatment note dated July 2019 reported the Veteran’s right great toenail base was “blackened.” The Board finds the VA examiner’s opinion inadequate for purposes of determining whether entitlement to service connection for a skin condition of the feet is warranted. As discussed above, the VA examiner failed to discuss the numerous competent lay statements of record, and her negative nexus opinion appears to be based upon a lack of reported symptomology or formal diagnosis in the Veteran’s STRs, and no presence of a skin condition on examination. Further, the VA examiner failed to address the September 1959 Affidavit by Dr. I.N. diagnosing phytosis pedis and “recurrent attacks” of the skin condition dating back to his service in 1954, the 1959 VA examiner’s diagnosis of mild to moderate chronic dermatophytosis of the feet with secondary eczematization on the dorsum of the right foot, and the July 1996 VA examiner’s diagnosis of tinea pedis. Finally, the VA examiner did not consider the possibility of the Veteran experiencing episodic flare-ups in symptomology. As such, the Board finds that remand is necessary to afford the Veteran an adequate VA examination. Accordingly, the matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a physician other than Dr. S.S. (preferably a dermatologist) possessing suitable expertise to fully assess and provide an opinion (in the appropriate DBQ form) regarding the nature, severity, and etiology of the Veteran’s claimed skin condition of the feet. All pertinent evidence of record must first be made available to and reviewed by the examiner. Any indicated studies should be performed. If the VA examiner is unable to conduct the required testing, or concludes any such testing is not necessary, he or she must explain why that is so. The examiner must obtain a full history from the Veteran. It should be noted the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully-reasoned explanation. Based upon a review of the Veteran’s pertinent medical history, including the various competent lay statements, and the examination results, the examiner must provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s claimed skin condition(s) of the feet, including tinea pedis or phytosis pedis, is due to, related to, or aggravated by an in-service event, injury, or disease (e.g., exposure to cold and/or wet conditions during combat service in Korea). If the Veteran’s claimed skin condition(s) is episodic in nature and not active at the time of the examination, that fact should be noted, and an estimate provided by the examiner regarding the frequency, duration, severity, and functional impact of such episodes. In offering the above opinion, the examiner must consider and discuss as necessary the September 1959 Affidavit by Dr. I.N., the 1959 VA examiner’s report, and the July 1996 VA examiner’s report, as well as the competent lay statements by the Veteran and his family members regarding continuous symptomology since military service. If it is not possible to provide the above-requested opinions without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts), a deficiency in the record (i.e., additional facts are required), or the examiner (i.e., does not possess the knowledge or training). T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Worsham, Associate 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.