Citation Nr: 21067174 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 15-16 108 DATE: November 3, 2021 ORDER Entitlement to service connection for a right foot disability is denied. Entitlement to service connection for a skin condition, to include rosacea, is denied. REMANDED Entitlement to service connection for left wrist carpal tunnel syndrome is remanded. FINDINGS OF FACT 1. The Veteran's right foot disability, which has occurred during the relevant time frame, did not occur in service and has not been otherwise related to or etiologically linked to an in-service event, injury, or disease. 2. The Veteran's current skin condition, which has occurred during the relevant time frame, did not occur in service and has not been otherwise related to or etiologically linked to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right foot disability has not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a skin condition has not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active service with the United States Army from October 1965 to March 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the Veterans Law Judge (VLJ) Alibrando in November 2018. A transcript of the hearing has been included in the record. In November 2019, and February 2021, VLJ Alibrando remanded the Veteran's claims for development. The Veteran was afforded a new VA examination in January 2020, and another VA medical opinion in March 2021. Afterwards, a Supplemental Statement of the case (SSOC) was issued and the claims were returned to the Board. Since the February 2021 Remand, VLJ Alibrando has since left the Board. As a result, in September 2021, the Board sent the Veteran a letter informing him of the reassignment of his appeal to another VLJ, and that an optional new Board hearing was available upon request. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.604. In October 2021, the Veteran sent a letter to the Board which stated that he wanted a priority review of his current appeal. There was no request for a new hearing. Therefore, the Board will proceed to consider the case on the evidence of record. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease, resulting in disability, was incurred in the line of duty in active military service or, if preexisting service, was aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires competent evidence showing: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the in-service event, injury, or disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including the evidence pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be granted for specified chronic diseases when shown in service with subsequent manifestations at a later date, however remote, unless clearly attributable to intercurrent causes. 38 C.F.R. §§ 3.303(b), 3.307. Some chronic diseases are subject to presumptive service connection, although, not otherwise established as incurred or aggravated by service if manifest to a compensable degree, within an applicable time limit, provided that the rebuttable presumptive provisions of § 3.307 are also satisfied. See also 38 C.F.R. §§ 3.303, 3.309. Alternatively, to show a chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the Veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In this case, the Board has reviewed all the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. 1. Entitlement to service connection for a right foot disability is denied. The Veteran contends that his right foot condition should be service connected. At the November 2018 hearing, he explained that his right foot sometimes collapsed during exercise or activity. The Veteran was unsure what his specific right foot condition was that caused his foot to collapse. He described two in-service occurrences, where his foot collapsed during training or exercise. The Veteran also complained about his foot turning during running. He testified that since service he had developed a separate issue, a neuroma on that same foot. The Veteran testified that he did not believe he had plantar fascitis of the right foot. While the Veteran's testimony was fully considered, the Board finds that the evidence does not support that the Veteran's current right foot disability occurred in service, began within a year of leaving service, or that it continued since service. In particular, the Veteran's service records do not show an injury to his right foot and the Veteran's feet were noted as normal at his retirement examination. See STR Medical received March 2010. Additionally, the retirement Report of Medical History presumably completed by the Veteran noted no foot trouble. Id. Moreover, the Veteran's records do not show complaints of or treatment of right foot pain until around 2002, which is more than ten years after service. For example, in September 2002, the Veteran complained of right foot pain off and on for a year. He reported no recent injury. He had pain and discomfort over the fourth toe, possibly a hammer toe. He was referred to podiatry. See Medical Treatment Record-Government Facility received March 2010. Then in November 2002 the Veteran was seen by a podiatrist at the VA. He reported right foot pain. The Veteran had pain in his third and fourth digits. The x-ray revealed splaying of the digits on the third and fourth toes with no overt deformity. See Medical Treatment Record-Government Facility received March 2010. The November 2002 imaging found mild degenerative changes in the right foot including the great toe. See Medical Treatment Record Government Facility received March 2011. Then in April 2011, the Veteran had some treatment at a podiatry clinic at the VA. He reported about 11 years of right foot pain. He stated that he was still wearing custom orthotics. He had tried conservative treatment and was awaiting surgical intervention for his neuroma. He had no leg pain, no ankle joint pain, no ankle swelling, no stiffness of the foot, no toe symptoms, and no localized swelling in the foot. On examination, he had tenderness on palpitation of the metatarsal bones, intermetatarsal spaces, third intermetatarsal space, and he had a positive Morton's test. See Medical Treatment Record Government Facility received July 2011. Later that year the Veteran had a procedure on his right foot neuroma. See Medical Treatment Record Government Facility received September 2011. Considering all the evidence, the Board finds that the Veteran's right foot disability did not occur in service. The evidence also does not show a continuity of symptoms since service. In making this determination the Board noted that in September 2002, the Veteran complained of right foot pain off and on for a year, and in April 2011 the Veteran's treatment records reported about eleven years of right foot pain, but the Veteran did not report pain in his foot since service. Next, the Board considered direct service-connection, but the evidence does not show a causal relationship ("nexus") between the Veteran's current right foot disability and an in-service event, injury, or disease. The Veteran has a current disability to his right foot, including hammer toes and hallux rigidus. See C&P Exam received January 2020. Hallux rigidus is arthritis of the big toe. The Veteran was noted with pain on weight-bearing and lack of endurance in his feet. Id. For direct service connection, you must also have an in-service event, injury, or disease. The Veteran's service treatment records do not discuss any injuries of the Veteran's right foot. If we assumed that the Veteran's testimony supported an in-service event, the Board finds that the evidence of record, including an opinion, still does not support a link between the Veteran's present right foot condition and the described in service events. In January 2020, the VA examiner opined that the Veteran's current right foot conditions hallux rigidus and hammertoes were not caused by an in-service event. The examiner noted that there was no evidence of an injury in the Veteran's service treatment records. The examiner also stated that these conditions were diagnosed many years after service. See C&P Exam received January 2020. Then in March 2021 another opinion was obtained. The VA expert opined that the Veteran's hammertoe and hallux rigidus did not begin during active duty, did not manifest within one year after discharge, and that a continuity of symptoms since service was not noted. See Medical Opinions received March 2021. The expert explained that the Veteran's medical records from service and retirement physical examination from January 1988 was silent for a diagnosis of or treatment for hammer toes or hallux rigidus. Additionally, the Veteran was diagnosed and treated for these conditions many years after service and not within a year after discharge. Id. While the Veteran believes that his current right foot conditions are related to service, as a lay person, the Veteran 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 specific foot conditions described are matters not capable of lay observation and require medical expertise to determine. Accordingly, his opinion as to the etiology of his current right foot condition is not competent medical evidence. The Board finds the opinions of the VA experts to be significantly more probative than the Veteran's lay assertions. Neither the Veteran nor his representative has raised any duty to notify or duty to assist issues regarding the Veteran's right foot claim denied herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board finds that the preponderance of the evidence of record weighs against the establishment of a nexus between the Veteran's right foot conditions and active duty service. Given the extensive time between active duty service and the diagnosis of the Veteran's right foot conditions, as well as considering all of the evidence of record, the Board finds that the preponderance of the evidence of record weighs against service-connection for a right foot disability. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The claim of entitlement to service connection for a right foot condition must be denied. 2. Entitlement to service connection for a skin condition, to include rosacea, is denied. The Veteran testified that he first noticed a skin condition on his face while in the service. In the 1970s he had pustules and various lesions predominantly on his face. He stated that his face often looked terrible. He testified that he had his facial problems diagnosed as eczema, rosacea, and a number of other things. The Veteran also testified that his skin breakouts would come and go. He explained that eventually the doctors settled on a diagnosis of rosacea for his facial skin problems. First, the Board considered whether the Veteran's current skin condition began in service and continued since service. However, the Board finds that the evidence does not strongly support that the Veteran's current skin condition occurred or began in service and continued since service. For example, in June 1972, the Veteran had allergic dermatitis on his trunk and legs, possibly due to chemicals on the grass, and seborrhea on the face. See STR -medical received August 2010. Then in February 1974, he had severe seborrheic dermatitis on his face. Id. In January 1978, the Veteran had scaling and a rash on his face and scalp. The Veteran was notably seen at an Army dermatology clinic. The impression was seborrhea dermatitis. Id. In the January 1985 annual Report of Medical Examination, the Veteran was noted with abnormal skin. The report detailed seborrheic dermatitis on the skin of the face and dry eczema on the skin of the sacral region. Id. In December 1986, similarly, the Report of Medical Examination noted seborrheic dermatitis of the skin of the face. On the retirement Report of Medical Examination, dated January 1988, the Veteran again was noted with seborrheic dermatitis of the skin of the face, as well as small sebaceous cysts. Id. The Veteran appears to have started treatment for rosacea in early 1997. In February 1997, he reported sores on his face for about six weeks. In November 1998, the Veteran's treatment record at primary care stated that the Veteran had acne symptoms for about the last three years. The Veteran had tried antibiotics, and was on Retin A. He was a teacher and worried about his appearance. See Medical Treatment Record Government Facility received March 2010. Later in November 1998, the Veteran saw someone at the dermatology department at the VA. The record reported only a five-year history of acne eruptions. The dermatology provider settled on a diagnosis of rosacea for recurrent acne eruptions on the face related to stress. The provider prescribed the Veteran erythromycin and discontinued the Veteran's prescription for Retin A. Id. In December 2010, the Veteran had a VA examination. He reported flaky skin on the face with acne lesions. He reported being treated with erythromycin twice daily for over ten years, and with MetroGel, a topical, for flare-ups. He had a good response to treatment with no side effects. On examination, the Veteran had central facial faint erythema without pustules, cysts, or nodules. See VA examination dated December 2010. After the December 2010 VA examination, the Veteran continued to receive skin treatments for rosacea. In April 2015, the Veteran had another appointment with a dermatologist at the VA. The provider noted that the Veteran had rosacea on his cheeks and nose since age 50 with treatment including erythromycin and a topical. See Medical Treatment Record Government Facility received December 2019. Recent treatment records continue to show that the Veteran has treatment for rosacea and that he also has dry skin. See VAMC Other Output/ Report received February 2021. The VA examination in January 2020 also found that the Veteran had rosacea. See C&P Exam received January 2020. The Board has considered whether any evidence supported that the Veteran's rosacea began in service or continued after service. The Board noted that the Veteran had some intermittent or even chronic skin conditions on his face during service. While the Veteran's current condition rosacea affects the face, the Veteran was not diagnosed with rosacea during service. The Board also noted that the Veteran testified that his symptoms began in service, but treatment records suggested that during service the Veteran had some different symptoms than he has had since being diagnosed with rosacea. Specifically, in-service records noted he had scaling, severe rash, and dry skin. Various records diagnosed the Veteran seborrheic dermatitis of the skin of the face, as well as small sebaceous cysts, dry skin, or eczema. The Veteran was seen by specialist in dermatology during service. While the Veteran testified that he had a longer history of intermittent acne related to rosacea, the treatment in 1997 noted a much shorter history of acne. As discussed above, the records reported between six weeks to five years of acne symptoms, starting more than a year after service. Considering all the evidence, the Board finds that the Veteran's current disability of rosacea did not occur in service, nor was a continuity of symptoms since service of the same skin condition supported. Next, the Board considered direct service-connection, but the evidence does not show a causal relationship ("nexus") between the Veteran's current skin condition rosacea and an in-service event, injury, or disease. For direct service connection, first you must have a present disability. The Veteran's treatment records reflect a current diagnosis of rosacea. For example, in June 2020, the Veteran's problem list included rosacea, which was noted as stable with the continued use of topical therapy. See VAMC Other Output/ Report received February 2021. For direct service connection, you must also have an in-service event, injury, or disease. If we assume that the Veteran's skin conditions in service, described above, supports an in service event, injury, or disease, there must still be a causal relationship ("nexus") between the present disability and the in-service event, injury, or disease. On review of all the evidence of record, including an opinion, a link between the Veteran's present condition and an in-service event, injury, or disease is not supported. As for the opinions in the record, in December 2010, the Veteran had a VA examination. The examiner opined that the Veteran's skin condition rosacea was less likely than not the same as in service. See VA Exam received December 2010. Since the rationale provided for this opinion was not adequate, another VA examination occurred in January 2020. At that time, the January 2020 examiner opined that the Veteran's current condition, rosacea, was not caused by an in-service event. The examiner explained that the Veteran's records were silent for a diagnosis of rosacea during service and that the Veteran was first diagnosed with this condition many years post service. See C&P Exam received January 2020. Then in March 2021, the Board obtained another opinion to more thoroughly consider the records, and specifically the Veteran's skin conditions during service. See Medical Opinion received March 2021. The March 2021 examiner stated that the Veteran's current condition, rosacea, was not caused by the annotations in the service treatment records of seborrheic dermatitis, sebaceous cysts, dry skin, or eczema. The examiner explained the in-service conditions were distinct from the current condition and that the various conditions from service could resolve with treatment or in the course of time. The March 2021 examiner opined that the records suggested that the Veteran's rosacea began many years post service. The March 2021 examiner considered the medical records as well as medical literature in providing an opinion. Id. The Board recognizes that the Veteran believes his current skin condition, rosacea, is related to his active duty service. The Veteran testified he was having intermittent breakouts and believed his skin conditions in service included rosacea, but that rosacea was not diagnosed until after service. And while the Board thoroughly considered the Veteran's lay statements, the Board finds the Veteran's statements and opinions are less persuasive than the opinions of the medical examiner in March 2021. Moreover, the Board finds that the Veteran is not competent to provide a nexus opinion regarding this issue. While the Veteran can attest to observable symptomatology of a skin condition, he is not competent to diagnose any observed symptoms he may have experienced in service as the same skin condition he currently has. Furthermore, the VA medical professionals were unable to relate the Veteran's lay statements regarding symptoms around the time of his active duty service with his presently diagnosed skin condition. The issue is medically complex, as it requires medical knowledge and training. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Thus, the Veteran's own opinion regarding the etiology of his current skin condition 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. Neither the Veteran nor his representative has raised any duty to notify or duty to assist issues regarding the Veteran's rosacea claim denied herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board finds that the preponderance of the evidence of record weighs against the establishment of a nexus between the Veteran's current skin condition, rosacea, and active duty service. As noted above, the Veteran's own treatment records reported his rosacea symptoms began around six weeks to five years prior to 1997, which would support that the Veteran's rosacea started more than a year after service. Given the time between active duty service and the diagnosis of rosacea, as well as considering all of the evidence of record, the Board finds that the preponderance of the evidence of record weighs against service-connection for rosacea. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The claim of entitlement to service connection for rosacea must be denied. REASONS FOR REMAND 1. Entitlement to service connection for left wrist carpal tunnel syndrome is remanded. Although further delay is regrettable, a remand is necessary for an adequate VA medical opinion. The March 2021 opinion does not adequately address whether the Veteran's left wrist carpel tunnel syndrome was aggravated by the Veteran's service-connected right wrist carpel tunnel syndrome. In particular, the Board noted that the opinion as to whether the Veteran's service-connected carpel tunnel syndrome aggravated his left wrist carpel tunnel refers back to the definition of carpal tunnel syndrome without any assessment of the specific facts of the Veteran's claim, or his medical history. Thus, the March 2021 VA medical opinion is inadequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that when the VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); see also El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (holding that an opinion for secondary service connection is inadequate when it does not address or rule out the possibility that the service-connected impairment aggravated to some degree the claimant's non service-connected impairment). Thus, a remand is needed to correct these duty-to-assist deficiencies. The matters are REMANDED for the following action: 1. Update all VA treatment and relevant private treatment records, as deemed necessary. 2. After the above, arrange for an appropriate clinician to provide an opinion in the case regarding the etiology of the Veteran's left wrist carpel tunnel syndrome. A complete copy of the claims file must be made available to the examiner. The examiner may perform an examination of the Veteran at his or her own discretion. After a thorough review of the medical and lay evidence of record, the examiner should address the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's left wrist carpel tunnel syndrome is etiologically related to or caused by his service? Please consider that the Veteran had a release of his left wrist carpel tunnel syndrome before he had a release on his right wrist. (b.) Then also answer, is it at least as likely as not (50 percent probability or greater) that the Veteran's left wrist carpel tunnel syndrome was either: 1. caused by the Veteran's service-connected right wrist carpel tunnel syndrome, OR; 2. aggravated by (i.e., worsened beyond the normal progression of the disease) the Veteran's service-connected right wrist carpel tunnel syndrome? In addressing whether the Veteran's right wrist carpel tunnel syndrome was a source of aggravation of the Veteran's left wrist carpel tunnel syndrome the examiner must attempt to establish a baseline level of severity of the left wrist carpel tunnel syndrome prior to aggravation by the right wrist carpel tunnel syndrome, if any can be determined. Please note, causation and aggravation are separate concepts and must be addressed independently. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a SSOC and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, C. Parnell 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.