Citation Nr: A21017683 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 200902-107407 DATE: November 2, 2021 REMANDED Entitlement to service connection for chronic mycotic infection of the feet is remanded. Entitlement to service connection for bilateral flat feet is remanded. Entitlement to service connection for lumbosacral strain is remanded. Entitlement to service connection for bilateral eye retinitis pigmentosa is remanded. Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran had active service from July 1963 to August 1967 and from November 1971 to August 1990. The rating decision on appeal was issued in August 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the September 2020 VA Form 10182, Decision Review Request: Board Appeal, that is on appeal, the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. In the August 2020 rating decision, the AOJ considered new evidence received since a January 2020 rating decision that denied the Veteran's original claims, and decided the claims on the merits. The Board interprets the AOJ's actions in the August 2020 rating decision as finding that new and relevant evidence had been received to readjudicate the claims. The Board is bound by that favorable finding and will proceed to address the claim on the merits. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). 1. Entitlement to service connection for chronic mycotic infection of the feet is remanded. The Veteran has claimed entitlement to service connection for chronic mycotic infection of the feet. In the August 2020 rating decision on appeal, the AOJ made the favorable finding that the Veteran's "service treatment records show a diagnosis of fungus pale and black of your feet in April 1990." As noted above, the Board is generally bound by any finding favorable to the claimant made by the AOJ. However, the Board is not bound by favorable findings that were based on clear and unmistakable error. 38 C.F.R. § 3.104(c). In this case, the AOJ's favorable finding in the August 2020 rating decision, which it also made in the January 2020 rating decision that denied the Veteran's original claim, was based on clear and unmistakable error. Specifically, a review of the Veteran's service treatment records reveals that at an April 1990 medical examination for retirement from active service the Veteran had normal evaluations of the skin and feet. However, his ophthalmoscopic clinical evaluation was noted as abnormal for "Fundus pale with block pigmentation, ou". The Board notes that, in his June 2019 original claim for service connection, the Veteran did not list a fungal infection of the feet as a disability for which he sought benefits. Rather, he listed, "fundus pale with block pigmentation", which is consistent with the finding on the April 1990 medical examination. It appears that the AOJ misread the April 1990 medical examination and the June 2019 claim because in its October 2019 request for examination it listed the disability at issue as "Fungus Pale with Black Pigmentation." A November 2019 VA examiner also misread the April 1990 medical examination and the June 2019 claim by noting on a skin diseases disability benefit questionnaire (DBQ) that the April 1990 medical examination report included a finding of "fungus pale and black". There is no record in the service treatment records showing a diagnosis of fungus pale and black of the feet or any other fungal infection of the feet. The favorable finding that the Veteran had an in-service diagnosis of fungus pale and black of the feet was based on a clearly and unmistakably erroneous reading of the in-service finding of "Fundus pale with block pigmentation". Thus, the January 2020 and August 2020 rating decisions are clearly and unmistakably erroneous in that finding, and the Board is not bound by the finding. As noted above, there is no evidence in the Veteran's service treatment records that he was diagnosed with or treated for a mycotic infection of the feet during his active service. However, in June 2020, a private examiner found that the Veteran has suffered from continual chronic and constant itching and pain with exfoliation and discoloration of the bilateral feet through the present. That opinion is not probative because it is unclear what evidence the examiner based her findings on, because the examiner did not provide a rationale for her opinion, and because the examiner is not a neutral medical source but rather provided her opinions as advocacy for the Veteran, as evidenced by the fact that the stated intents and purposes of the examination report include to "assist the Veteran with defining and explaining any applicable injuries or illnesses on which benefits will be applied for" and to provide "data supporting any illness or injury, as well as, the basis on which service connection will be claimed by the Veteran." Nevertheless, the examination provided a sufficient indication prior to the decision on appeal that the Veteran may have a current disability that may have had its onset during his active service or that may otherwise be etiologically related to his active service such that an opinion should have been obtained. The November 2019 VA skin diseases examination did not adequately consider the Veteran's claimed chronic mycotic infection of the feet. As such, the issue must be remanded to correct a duty to assist error that occurred prior to the August 2020 rating decision on appeal. 2. Entitlement to service connection for bilateral flat feet is remanded. The Veteran's service treatment records show that he had a normal evaluation of the feet on examination for entrance into active service in July 1963. In July 1964, he was issued arch supports. He had a normal evaluation of the feet on examination for separation from active service in June 1967. When he was examined for reentry into active service in November 1971, he was noted as having pes planus. In August 1974, he was again issued arch supports. He had a normal evaluation of the feet on examination for separation from active service in April 1990. He denied having current or prior foot trouble on an April 1990 report of medical history for separation from active service. In November 2019, a VA examiner diagnosed the Veteran with bilateral pes planus and opined that the Veteran's bilateral pes planus was less likely than not incurred in or caused by an in-service injury, event, or illness because, "[d]uring service, condition was acute only. [T]here is no documentation of treatment and care while in the military for pes planus. There is no evidence of chronicity of care. A nexus has not been established." The examiner did not address whether the Veteran's request for arch supports in July 1964 indicates that the current pes planus may have had its onset during his first period of active service, or whether the Veteran's request for arch support in August 1974 indicates that the pes planus noted on the November 1971 reentry examination was aggravated during his second period of active service. Rather, the examiner provided a negative opinion based solely on the lack of contemporaneous medical evidence documenting the Veteran's pes planus from his active service through the present. See Buchanan, 451 F.3d at 1337. The opinion is therefore inadequate for decision-making purposes, and the issue must be remanded to correct a duty to assist error that occurred prior to the August 2020 rating decision on appeal. 3. Entitlement to service connection for lumbosacral strain is remanded. The service treatment records show that the Veteran was diagnosed in service with dextroscoliosis of the lower dorsal spine, which was deemed congenital in nature. In November 2019, a VA examiner diagnosed the Veteran with lumbosacral strain and opined that the disability was less likely than not incurred in or caused by an in-service injury, event, or illness because, "[d]uring service, condition was acute only. On examination today, Veteran has mild range of motion abnormalities, and normal strength. [T]here is no documentation of thoracolumbar x-rays or MRI during service; no x-rays were ordered today due to the mild symptoms on examination. There is no evidence of chronicity of care. A nexus has not been established." The examiner did not address whether the in-service manifestations of congenital dextroscoliosis constituted an aggravation of the condition. See VAOPGCPREC 82-90. She also did not provide an opinion as to whether the current lumbosacral strain may be etiologically related to the Veteran's active service. In addition, the examiner provided a negative opinion based solely on the lack of contemporaneous medical evidence documenting the Veteran's claimed low back disability from his active service through the present. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The opinion is therefore inadequate for decision-making purposes, and the issue must be remanded to correct a duty to assist error that occurred prior to the August 2020 rating decision on appeal. 4. Entitlement to service connection for bilateral eye retinitis pigmentosa is remanded. The service treatment records show that the Veteran was diagnosed in service with hereditary retinal degeneration. He was also noted to have defective vision during his active service. In October 2019, a VA examiner diagnosed the Veteran with bilateral retinitis pigmentosa and bilateral cataracts. He stated that retinitis pigmentosa is a progressive congenital condition and has variable rates of expression and progression. He noted that there is no evidence of a diagnosis of the condition until 2003, but that the condition appeared fairly advanced at that time. He opined that, due to the genetic nature of the condition, it was more likely than not beginning to express itself while the Veteran was in service. Although the condition was not caused by the Veteran's service, "it is plausible that stress may have exacerbated its progression." The examiner did not adequately address whether the in-service manifestations of hereditary retinal degeneration constituted an aggravation of the condition. See VAOPGCPREC 82-90. He also did not provide an opinion as to whether the current bilateral cataracts may be etiologically related to the Veteran's active service. The opinion is therefore inadequate for decision-making purposes, and the issue must be remanded to correct a duty to assist error that occurred prior to the August 2020 rating decision on appeal. 5. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran was provided a VA hearing loss examination in November 2019. That examination did not show a current hearing loss disability for VA purposes, as defined in 38 C.F.R. § 3.385. In July 2020, prior to the August 2020 rating decision on appeal, the Veteran submitted a private audiological examination that shows worse hearing acuity as compared to the November 2019 VA examination. The Board cannot accept the private audiological examination as probative evidence that the Veteran has a current bilateral hearing loss disability for VA purposes because the testing was performed by a hearing aid specialist and not by a state-licensed audiologist, as required by the relevant regulations. See 38 C.F.R. § 4.85. However, the private audiological examination does suggest that the Veteran's hearing had worsened to the point that he may have had a hearing loss disability. Thus, VA's duty to assist in providing another examination was triggered prior to the rating decision on appeal, but another examination was not provided. Therefore, the issue must be remanded to correct a duty to assist error that occurred prior to the August 2020 rating decision on appeal. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his claimed mycotic infection of the feet. The examiner must review the claims file. The examiner must also obtain from the Veteran a full history of the claimed disability. Based on the review of the claims file and the history provided by the Veteran, the examiner is asked to provide a response to the following: Does the Veteran have a diagnosis of a chronic mycotic infection of the feet? If so, is it at least as likely as not (50 percent probability or greater) that the diagnosed chronic mycotic infection of the feet is related to the Veteran's active service. Provide a rationale to support the opinion. In providing the requested opinion, consider the Veteran's description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The examiner should note that the April 1990 medical examination for retirement from active service shows that the Veteran had normal clinical evaluations of the feet and skin, and that the ophthalmological evaluation was abnormal for "Fundus pale with block pigmentation, ou". In considering the Veteran's reports as to the onset and continuity of the claimed mycotic infection of the feet, the clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible, but may be considered in conjunction with other factors in determining the credibility of lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In determining whether the Veteran's statements are credible, other factors for consideration include internal consistency, facial plausibility, and consistency with other information submitted by or on behalf of the Veteran. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's bilateral pes planus at least as likely as not (50 percent probability or greater) had its onset during his first period of active service from July 1963 to August 1967. The opinion must reflect consideration of the July 1964 treatment note showing that the Veteran was issued shoe inserts. If not, the examiner must also provide an opinion regarding whether the Veteran's bilateral pes planus, which was noted at the time of his examination for reentry into active service in November 1971, at least as likely as not was aggravated beyond its natural progression during his second period of active service from November 1971 to August 1990. If so, was the increase in severity clearly and unmistakably (obviously, manifestly, and undebatably) due to the natural progress of the disease? The opinions must reflect consideration of the August 1974 treatment note showing that the Veteran was issued shoe inserts. In considering the Veteran's reports as to the onset and continuity of any reported foot symptoms, the clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible, but may be considered in conjunction with other factors in determining the credibility of lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In determining whether the Veteran's statements are credible, other factors for consideration include internal consistency, facial plausibility, and consistency with other information submitted by or on behalf of the Veteran. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the congenital dextroscoliosis of the lower dorsal spine that was noted during the Veteran's active service clearly and unmistakably (obviously, manifestly, and undebatably) was not aggravated by service. If the response to the above is in the negative (i.e., the examiner finds that the in-service congenital dextroscoliosis was not clearly and unmistakably not aggravated by service), the examiner must opine whether it is at least as likely as not (50 percent probability or greater) that the current lumbosacral strain is related to the Veteran's active service, to include the in-service dextroscoliosis. In considering the Veteran's reports as to the onset and continuity of his low back symptoms, the clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible, but may be considered in conjunction with other factors in determining the credibility of lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In determining whether the Veteran's statements are credible, other factors for consideration include internal consistency, facial plausibility, and consistency with other information submitted by or on behalf of the Veteran. 4. Obtain an addendum opinion from an appropriate clinician regarding whether the hereditary retinal degeneration that was noted during the Veteran's active service clearly and unmistakably (obviously, manifestly, and undebatably) was not aggravated by service. If the response to the above is in the negative (i.e., the examiner finds that the in-service hereditary retinal degeneration was not clearly and unmistakably not aggravated by service), the examiner must opine whether it is at least as likely as not (50 percent probability or greater) that the current bilateral eye retinitis pigmentosa and/or bilateral cataracts are related to the Veteran's active service, to include the in-service retinal degeneration. Schedule the Veteran for a VA examination for his claimed bilateral hearing loss. If examination reveals a hearing loss disability for VA purposes, as defined in 38 C.F.R. § 3.385, then the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hearing loss is related to an in-service event, injury, or disease, to include the in-service exposure to noise from artillery fire and aircraft and jet engines that he reported to a private medical examiner in June 2020. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. J. Anthony, 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.