Citation Nr: 21062577 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 19-25 939 DATE: October 8, 2021 ORDER Entitlement to service connection for a right ankle disability is denied. Entitlement to service connection for a left ankle disability is denied. Entitlement to service connection for a right foot disability is denied. Entitlement to service connection for a left foot disability is denied. REMANDED Entitlement to service connection for erectile dysfunction is remanded. Entitlement to an increased rating in excess of 10 percent for tinea versicolor is remanded. FINDINGS OF FACT 1. A right ankle disability did not manifest during service, was diagnosed more than one year after service, is etiologically not related to service, and is not secondary to a service-connected disability. 2. A left ankle disability did not manifest during service, was diagnosed more than one year after service, is etiologically not related to service, and is not secondary to a service-connected disability. 3. A right foot disability did not manifest during service, was diagnosed more than one year after service, is etiologically not related to service, and is not secondary to a service-connected disability. 4. A left foot disability did not manifest during service, was diagnosed more than one year after service, is etiologically not related to service, and is not secondary to a service-connected disability. CONCLUSIONS OF LAW 1. A right ankle disability did not manifest during service, may not be presumed to have been incurred therein, is unrelated to service, and was not caused or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. A left ankle disability did not manifest during service, may not be presumed to have been incurred therein, is unrelated to service, and was not caused or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. A right foot disability did not manifest during service, may not be presumed to have been incurred therein, is unrelated to service, and was not caused or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 4. A left foot disability did not manifest during service, may not be presumed to have been incurred therein, is unrelated to service, and was not caused or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from December 1984 to March 1999. He also had a period of service in the Army Reserve. In February 2019 the Veteran filed a claim to reopen service connection for right hip arthritis. In a May 2019 cover letter associated with a May 2019 rating decision the Agency of Original Jurisdiction (AOJ) indicated that the claim for right hip arthritis was under appeal, however the appeal of this issue has not been perfected and is not currently before the Board. Thus, the Board refers this matter to the AOJ for appropriate action. Issues 1-4: Entitlement to service connection for a right ankle disability, left ankle disability, right foot disability and left foot disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for arthritis if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disorder. 38 C.F.R. § 3.310(a). Secondary service connection may be found in certain instances in which a service-connected disability aggravates another condition. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before 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 of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). The Veteran contends that his plantar fascitis, fibrosis, pes planus, and enthesopathy of the ankle and tarsus are secondary to his service-connected right knee patella tendinitis. See June 2018 claim. The Veteran also contends that service connection for arthritis of the ankles is warranted as directly related to service. Id. During his February 2005 Regional Office hearing the Veteran testified that carrying heavy communication equipment for 15 miles at a time during service caused arthritis in his ankles. In a statement in October 2018 the Veteran claimed that service connection for the ankles and feet was secondary to his service-connected low back and right knee disabilities. To the extent that the Veteran discussed ratings under the applicable diagnostic codes, the issues on appeal are not for higher ratings for the ankles and feet but for the claims of entitlement to service connection. The Veteran's service-connected disabilities include a low back disability with degenerative changes of the lumbar spine and degenerative spurring of the thoracic spine; patella tendinitis, chondromalacia patella and degenerative arthritis of the right knee; and, patella tendinitis, chondromalacia patella of the left knee. Service treatment records do not document any complaints nor treatment for a bilateral foot disability and erectile dysfunction. On the March 1999 Report of Medical History upon separation from service the Veteran denied foot trouble. On the March 1999 separation exam the examiner noted that the Veteran had mild ankle valgus and his lower extremities were normal. After service, VA treatment records in November 2003 show the Veteran's ankles were swollen and painful. The Veteran complained of swelling in his feet and ankles since mid-October, which he reported was something new for him. The assessment was uncharacterized arthritis with labs pending. The examiner commented that feet discomfort may be from fluid retention due to medication. X-ray studies of the ankles in November 2004 were normal. VA medical records in November 2005 show that the Veteran was diagnosed with arthritis in the back and the examiner noted that the Veteran had pain in his ankles. VA treatment records in October 2016 show osteoarthritis in the ankles. Private medical records in February 2017 show an assessment of plantar fascial fibromatosis, other enthesopathy of ankle and tarsus, tinea pedis, and congenital pes planus. X-ray of the right foot in September 2017 shows a small bony projection in the anteroinferior aspect of the calcaneus. On VA ankle examination in March 2019, the diagnoses were lateral collateral ligament sprain in both ankles. The x-ray showed soft tissue swelling without significant bone or articular abnormalities. On VA foot examination in August 2018, the examiner noted that medical records in February 2017 show an assessment of plantar fascial fibromatosis and in September 2017 congenital pes planus. Upon evaluation the examiner provided a diagnosis of bilateral pes planus and bilateral foot plantar fascial fibromatosis. The Veteran reported that he did a lot of running and marching during service. He felt that his feet dropped and had pain upon standing and walking. In an accompanying opinion the examiner opined that the Veteran's claimed plantar fascitis and pes planus were less likely than not proximately due to or the result of his patella tendinitis/chondromalacia patella of the right knee as there is no literature that the disabilities will result in plantar fascitis. The examiner indicated that the evidence was insufficient to render a diagnosis of fibrosis. The Board finds the August 2018 VA opinions to be probative as to whether the Veteran's foot disabilities were caused by his service-connected right knee disability as they were based on medical principles and applied to the facts of the case. Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). The examiner considered the nature of the Veteran's bilateral foot disability in proffering the opinions. The opinions are uncontroverted by the other competent evidence of record. The Board recognizes that VA examiners have not proffered opinions regarding whether the Veteran's bilateral ankle disability was directly related to service or secondary to a service-connected disability nor did they offer opinions regarding whether the Veteran's bilateral foot disability was directly related to service or aggravated by a service-connected disability. In addressing the lack of these opinions the Board in the February 2020 remand instructed that the Veteran be afforded VA examinations for the examiner to address whether he has a bilateral ankle disability and bilateral foot disability that is directly related to service or caused or aggravated by a service-connected disability. However, documentation in the file dated in June 2020 and May 2021 shows the Veteran cancelled his scheduled examinations. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If a claimant wishes help, he or she cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining the putative evidence. Thus, further development of the claims of service connection for disabilities of the ankles and feet is not warranted. The Veteran stated that he entered the Army Reserve in 1999 and that he was entitled to service connection for "every medical condition that has manifested since July 1999 to the present on account of his active Reserve status. See, e.g. statement dated in August 2005. Contrary to the Veteran's assertions that being on Reserve status alone after 1999 entitles him to service connection for any conditions incurred thereon, VA law requires that there be an injury sustained while performing ACDUTRA (active duty training) or INACDUTRA (inactive duty training) (or disease incurred while performing ACDUTRA) before service connection may be established for a chronic condition arising from such an injury or disease. There is no documentation that he injured his ankles or feet during the performance of ACDUTRA or INACDUTRA. The Veteran in statements including in November 2003 stated that during service in April 1997 he was diagnosed with joint arthrosis that spread to his ankles. Notably, service treatment records in April 1997 do not document arthritis in his ankles. In June 2018 the Veteran clarified that arthritis of the ankles was discovered in November 2004 and has since developed into plantar fascial fibromatosis, enthesopathy of ankles and tarsus, and pes planus. As a lay person, the Veteran is competent to report symptoms pertaining to his feet and ankles. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, the etiology of the bilateral ankle disability and bilateral foot disability falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). The Veteran's bilateral foot and bilateral ankle disabilities are not the type of conditions that are readily amenable to mere lay diagnosis or probative comment regarding their etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating such disorders. Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. As the lay evidence is not competent, the matter of whether it is credible is not reached. Arthritis is included among the chronic diseases under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). While a VA x-ray in March 2019 did not show arthritis in the ankles VA treatment records in October 2016 show osteoarthritis in the ankles. Assuming without conceding that the Veteran has arthritis, to the extent that the Veteran is asserting continuity of symptomatology, his assertions are outweighed by the evidence of record discussed above. Accordingly, because the preponderance of the evidence is against the claims of service connection for a right ankle disability, left ankle disability, right foot disability, and left foot disability, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Issues 5-6: Entitlement to service connection for erectile dysfunction and entitlement to an increased rating in excess of 10 percent for tinea versicolor. The Veteran underwent an examination for his tinea versicolor in March 2019. It was noted that he takes selenium sulfide and Aquaphor for a duration of 6 weeks or more, but not constant. The medication was reported as topical. In February 2020, the Board remanded the issue of entitlement to an increased rating for tinea versicolor for an addendum opinion regarding whether the Veteran's medications, noted on the March 2019 VA examination can constitute systemic therapies under Diagnostic Code 7806. Such an opinion was not obtained. The Board is required to ensure compliance with the instructions of its remands. Stegall v. West, 11 Vet. App. 268 (1998). Further, in the February 2020 remand the Board asked that the Veteran be afforded a VA examination to determine the nature and etiology of erectile dysfunction to include whether it is secondary to medications prescribed for his service-connected disabilities. While the Board recognizes that there is documentation in the file dated in June 2020 and May 2021 that shows the Veteran cancelled his scheduled examination, the Board in the February 2020 remand also presented the option of obtaining an addendum opinion to the March 2019 VA examination regarding the nature and the etiology of the Veteran's erectile dysfunction. On remand, an addendum opinion should be obtained addressing the nature and etiology of the Veteran's erectile dysfunction. By this remand the Board makes no determination, expressed or implied, as to the credibility of any statements on file. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the VA examiner who conducted the March 2019 VA male reproductive examination. If this examiner is not available another appropriate examiner should render the opinion. The clinician must be provided with and review the entire claims file, to include a copy of this remand. Following a review of the evidence of record, to include the lay statements, the clinician is to address the following: (a.) Is it at least as likely as not (50 percent or greater probability) that erectile dysfunction was caused by a disease or injury in service? (b.) If no, is it at least as likely as not (50 percent or greater probability) that the Veteran's disability was either 1) proximately due to OR 2) aggravated by any service-connected disability, to include medication that he takes for his service-connected disabilities? See statements dated in June 2018 and May 2019. The term "aggravated" refers to a worsening of the underlying condition beyond the natural progression of the disease, as opposed to temporary or intermittent flare-ups or symptoms that resolve with return to the baseline level of disability. If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation. The Veteran is service connected for the following disabilities: low back disability with degenerative changes of the lumbar spine and degenerative spurring of the thoracic spine; patella tendinitis, chondromalacia patella and degenerative arthritis of the right knee; patella tendinitis, chondromalacia patella of the left knee; tinnitus; blepharitis/chronic dry eye disorder, status post corneal abrasion of the left eye; and tinea versicolor. Inform the examiner a comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Obtain an addendum opinion from an appropriate clinician concerning the Veteran's tinea versicolor. The clinician must be provided with and review the entire claims file, to include a copy of this remand. Following a review of the evidence of record, to include the lay statements, the clinician is to address: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's use of selenium sulfide and/or Aquaphor, as noted in the March 2019 examination, constitutes systemic therapy in that it is of sufficient scale to affect the body as a whole; (b.) If so, was the Veteran's use of selenium sulfide and/or Aquaphor treatment similar to corticosteroids or other immunosuppressive drugs. Additionally, the clinician is to indicate whether any other (i) medication identified in the Veteran's records is considered a corticosteroid or other immunosuppressive drug or is (ii) like a corticosteroid or other immunosuppressive drug. If either inquiry is answered affirmatively, the clinician should (iii) identify any such medication by name. The examiner is to also discuss whether there are periods of time in which the disorder flared up, and if so the duration, frequency and severity of such flare-ups, to include an assessment of the size of the area affected during such flare-ups. Inform the examiner a comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mac, 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.