Citation Nr: 21065031 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 14-18 817 DATE: October 22, 2021 REMANDED Service connection for a right foot skin condition. A temporary total rating due to treatment for a right foot skin condition. REASONS FOR REMAND The Veteran served on active duty from February 1974 to January 1975. The matter is on appeal from a June 2011 rating decision. In August 2017, the Veteran testified at a Board hearing. The Board denied this appeal in a December 2019 decision. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), which issued an order in December 2020 granting a December 2020 joint motion for partial remand (JMPR). The Court's order remanded the matter for action consistent with the terms of the JMPR. Most recently, in a May 2021 decision, the Board remanded these issues for action consistent with the terms of the JMPR. 1. Service connection for a right foot skin condition. This issue must be remanded as there has not been substantial compliance with the Board's previous remand directives. The May 2021 remand explained that a new VA examination was needed because the parties to the JMPR agreed that a May 2011 VA examination report and October 2018 VA opinion, on which the Board had relied, were inadequate because the examiners failed to address the Veteran's lay statements of symptoms. Consistent with the terms of the JMPR, the Board essentially concluded that a new opinion was needed to address the Veteran's report of symptoms first starting during service. The Board directed the examiner to consider four evidentiary statements from the Veteran indicating symptoms starting in service. In doing so, the Board specifically asked the examiner to consider the statements from the Veteran indicating that his symptoms first occurred during service. The examiner was asked to explain why his statements make it more or less likely that a current condition started during service. The Board asked the examiner, if indicated, to explain whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The Board also cautioned the examiner not to rely on silence in the medical records unless it could be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. Upon remand, an opinion was given in June 2021. The VA examiner concluded that the Veteran's diagnosed tinea pedis or other foot condition was less likely than not incurred in or caused by service. In pertinent part, the examiner reasoned that "there is no evidence of foot fungus/tinea pedis while in service. This is absolutely clear from the in-service note. Additionally, there was no evidence of a skin condition at the time of separation, including the feet and the groin." The examiner acknowledged the Veteran's report of onset in service but stated that "there is no evidence to support that claim." The examiner cited the four evidentiary statements from the Veteran, as directed by the Board, but concluded that "[t]hese are rendered moot by the above rationale." The examiner went on to declare that "[t]he medical records refute in-service foot conditions, especially the separation exam[ination]." The examiner stated that the "[n]otes after service are as reported to the provider and represent [V]eteran-related history," but "[t]he documented history belies the [V]eteran's claim of onset of his foot condition in service or as due to the groin rash." This opinion does not substantially comply with the Board's remand directives. Although the examiner gave facial recognition to the Veteran's statements,the examiner essentially dismissed the veracity of these statements by relying on an absence of documented evidence during service as affirmative evidence of absence without explaining why, as a medical matter, that the Veteran would have sought treatment or complained of the condition during service, or why an absence of treatment (as opposed to symptoms) was otherwise medically significant. See McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011). In other words, the examiner in effect dismissed the Veteran's own account of his symptoms based on an absence of evidence without giving a medical reason for doing so. This is a legally inadequate rationale, and it is directly contrary to the Board's instructions to the examiner. Hence, this opinion is not substantially compliant with the remand directives, and a new opinion is needed. Upon remand, the Board will direct the examiner to accept the Veteran's statements as true. This is not intended to be a favorable credibility finding. Rather, it is an interim finding needed to comply with the terms of the JMPR. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). The evidence already includes opinions addressing the likelihood of a nexus to service if assuming the Veteran's statements are inaccurate. Hence, a new opinion is not needed on that basis. Accordingly, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. A temporary total rating due to treatment for a right foot skin condition. The December 2020 JMPR found that this issue must be remanded as inextricably intertwined with the claim of service connection for right foot skin condition. The May 2021 Board accordingly remanded this issue as intertwined. At present, the issue appears to remain intertwined, so is again remanded. The matters are REMANDED for the following action: Obtain an opinion from an appropriate clinician regarding the Veteran's right foot skin condition. An in-person examination of the Veteran should be arranged if determined necessary by the appointed examiner. The examiner is asked to address whether the current diagnosis is at least as likely as not related to an in-service injury, event, or disease. In answering this question, the examiner must address: (a.) That part of the August 2017 Board hearing transcript where the Veteran indicated his rash started at his feet during basic training (August 22, 2017 hearing transcript at page 3); (b.) A February 2012 VA Podiatry note where the Veteran reported his fungus started in service; (c.) The Veteran's July 2011 NOD reporting the onset of itching in-service and that he self-medicated until the condition became more severe; and (d.) The March 2011 VA examination report where the Veteran reported he started having constant itchiness between his fourth and fifth toes. (Continued on the next page) As discussed herein above, in answering these questions, the examiner must consider the statements from the Veteran indicating that symptoms occurred during service. The examiner is asked to explain why his statements make it more or less likely that a current condition started during service. For the limited purpose of answering this question, the Veteran's statements should be taken as true unless it can be explained why there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.