Citation Nr: 21076835 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 14-14 259 DATE: December 28, 2021 ORDER Entitlement to service connection for a skin disability of the bilateral feet (skin disability), to include dermatophytosis, onychomycosis (tinea unguium), hyperkeratosis, hyperkeratotic lesions, and porokeratosis, is denied. Entitlement to service connection for gout disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's skin disability began during his active service, or is otherwise related to an in-service event, injury, or disease. 2. The Veteran's gout disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability otherwise is not related etiologically to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a skin disability has not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for entitlement to service connection for gout disability has not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1953 until his honorable discharge in May 1955. The Board of Veterans' Appeals (Board) thanks the Veteran for his service to our country. This matter comes before the Board on appeal from a December 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a September 2019 decision, the Board denied (1) entitlement to service connection for gout and (2) entitlement to service connection for skin conditions of the bilateral feet, to include dermatophytosis, onychomycosis, hyperkeratotic lesions, and porokeratosis, (3) entitlement to a compensable disability rating for bilateral hearing loss for the period prior to July 18, 2019, and (4) entitlement to a disability rating in excess of 10 percent for bilateral hearing loss. The Veteran timely appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In May 2020, the Court vacated the Board decision and remanded the issues of entitlement to service connection for skin conditions of the bilateral feet and gout, in compliance with a Joint Motion for Partial Remand (JMPR). A December 2020 Board decision remanded the issues to the Agency of Original Jurisdiction (AOJ) in compliance with the JMPR requirements. Subsequently, Veterans Evaluation Services examinations and medical opinions were obtained in May 2021. However, the subsequent August 2021 Board decision found there was not substantial compliance with the December 2020 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, the Board remanded the issues to the AOJ for addendum opinions. The case has been returned to the Board for further consideration. A review of the claims file shows there has been substantial compliance with the Board's remand directives. Stegall, 11 Vet. App. 268. Service Connection Under the relevant law and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes the disability was incurred in service. 38 C.F.R. § 3.303(d). For the showing of a 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. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). In this case, a skin disability is not a "chronic disease" listed under 38 C.F.R. § 3.309(a), therefore, the presumptive service connection provision based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, gout (gouty arthritis) is considered a "chronic disease" for VA compensation purposes. Therefore, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309(a); Walker, 708 F.3d 1331. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's service treatment records are incomplete and/or unavailable. A single copy of the Veteran's 1955 Report of Medical Examination (separation exam) is of record. When service treatment records are unavailable through no fault of a Veteran, there is a heightened obligation on the part of VA to assist the claimant in the development of his case, explain its findings and conclusions, and to consider carefully the benefit of the doubt rule. Washington v. Nicholson, 19 Vet. App. 362 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). The Board's analysis of the Veteran's claim has been undertaken with these heightened duties in mind. 1. Entitlement to service connection for a skin disability. The Veteran asserts that he developed a chronic bilateral foot condition (skin disability) while on active duty in the tropical jungles of Okinawa with the 75th Regimental Combat Team. In a September 2013 statement, the Veteran reported that his unit was out in the jungle for weeks at a time, in constant rain. As a result of his feet constantly being wet, he developed what was then called "jungle rot." The Veteran stated that he was given medication and a salve to put on his feet, and that he has continued to suffer with a bilateral foot condition since service. In an August 2021 statement, the Veteran reported that his barracks were infected with lice and crabs, and his body was prayed with powder and harsh chemicals. As an initial matter, the Board finds the evidence of record demonstrates the Veteran has been diagnosed with a skin disability, diagnosed as dermatophytosis, onychomycosis (tinea unguium), hyperkeratosis, hyperkeratotic lesions, and porokeratosis. Regarding in-service incurrence, the Veteran's DD Form 214 confirms his military occupational specialty (MOS) was Light Weapons Infantryman, and his most significant duty assignment was Company "B" 75th Infantry APO 331 Squadron Leader. The Board finds the Veteran's lay statements to be consistent with the places, types, and circumstances of his service, and there is no evidence to contradict his reports. See 38 U.S.C. § 1154(a). The Board finds the second element for service connection is met. While the evidence shows a diagnosis of a skin disability and an in-service incurrence, the evidence does not show a nexus between the two. Turning to the medical evidence of record, an October 2011 treatment record, from Dr. W. W., indicates the Veteran was prescribed a topical gel to treat skin fungus. Next to this entry, is a note which reads "Okinawa, rice paddy, fungus." In a September 2013 statement, the Veteran's treating physician Dr. J.D. Smith, from Shoals Foot Center, reported treating the Veteran since 2011 for severe dermatophytosis, gout, onychomycosis, and hyperkeratotic lesions. Dr. J.D. Smith stated, "the Veteran has questioned me about the possibility of these medical issues arising from his military career. It is hard to prove these conditions have been a result of his military service. However, they are indeed very possible due to his military service abroad, which would expose him to various types of bacterial and fungal organisms." A September 2013 Skin Diseases DBQ, completed by Dr. J.D. Smith, reflects that the Veteran reported having problems with his nails and skin since military service. Pursuant to the Board's August 2016 remand, the Veteran was afforded a LHI Skin Diseases examination in October 2018. During the examination, the Veteran reported the date of onset as 1954. The examiner diagnosed dermatophytosis and onychomycosis. The examiner provided a negative nexus opinion. As rationale, the examiner stated, during service the condition was acute only, there is no evidence of chronicity of care, and a nexus has not been established. The examiner explained onychomycosis is a treatable condition with many causes. The examiner remarked, if the Veteran had recurrent infections throughout his lifespan, they can be related to any number of reasons, such as diabetes, being over the age of 65, wearing closed toed shoes/boots, poor circulation, moist feet where socks are not changed when wet with sweat, or other causes. The parties to the May 2020 JMPR agreed the October 2018 examination was inadequate. Specifically, the examiner failed to address the Veteran's September 2013 lay statements regarding his skin conditions of the bilateral feet. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Upon readjudication, the Board, in a December 2020 decision, remanded the claim for an examination with medical opinion. Pursuant to that remand order, a VES Skin Diseases examination was conducted in May 2021. During the examination, the Veteran reported a date of onset as 1953. The Veteran recalled being on a ship in Okinawa that was infested by lice and being sprayed with DDT. He stated this was the beginning of his skin cancer. He also stated he was treated for athlete's foot on active duty. The examiner diagnosed tinea unguium. The VES examiner provided a negative nexus opinion. In support of this opinion, the examiner stated the medical records do not support that the Veteran's claimed skin conditions are at least as likely as not incurred in or caused by an event or injury during service. As rationale, the examiner noted there is no evidence that the Veteran was diagnosed with any skin disorder during service, and there is no evidence that he was treated for any skin disorder in his post military records until 2012. The examiner noted the Veteran's medical records from November 2003 and May 2008 are silent for any skin disease or disorder. The examiner remarked, the Veteran has evidence of tinea unguium, but he does not have any current evidence of any other dermatophytosis, porokeratosis, or any other skin disability. The examiner concluded there is no evidence for a skin disorder related to service, and no evidence that any skin condition other than tinea unguium is currently a skin condition in this Veteran. In its most recent August 2021 remand, the Board determined, although the May 2021 examiner addressed the medical evidence of record related to the Veteran's skin condition of the bilateral feet, the opinion lacks the adequate analysis to substantially comply with the December 2020 remand directives. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); see also Dyment v. West, 13 Vet. App. 141, 147 (1999). Thus, the Board ordered an addendum opinion regarding the nature and etiology of the Veteran's skin disability. In a September 2021 VES addendum, the examiner reviewed the Veteran's records and lay statements. The examiner opined it would not be likely that a skin condition, to include dermatophytosis, onychomycosis, hyperkeratotic skin lesions or porokeratosis, would be related to service with no record of any treatment until 2014. The examiner noted the Veteran's only skin condition on exam was onychomycosis (tinea unguium) and there is no evidence for any other skin condition; his August 2014 VA dermatology evaluation listed actinic keratosis, skin neoplasms and xerosis as skin disorders; and his August 2016 VA treatment record noted dermatophytosis of the body, inguinal, recurrent, treated with topical terbinafine. The examiner stated the conditions of dermatophytosis, hyperkeratosis and porokeratosis are common conditions and it would be speculation to say that any skin condition was due to service. The examiner concluded, "while I agree with the lack of service medical records, and there is reason to acknowledge the Veteran's statements, there is simply no medical evidence to show continuity of a skin condition from the time of service to the current time." It is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60 (1993). The Board gives more probative weight to the medical evidence provided by the May 2021 and September 2021 VES examiner. Both medical opinions are well-reasoned, based on a thorough review of the available medical evidence, and reflect consideration of the Veteran's account of his skin disability. They are highly probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiner reviewed the evidence of record and following a clinical examination, determined that there was no clinical evidence of a chronic skin disability. The Board has considered the Veteran's lay statements asserting a nexus between his skin disability and service and describing the circumstances and conditions of his service, including skin issues therein. The Board acknowledges the Veteran, as a layperson, is competent to report the onset of his subjective symptoms and personal history, however, he does not have the medical training, expertise, or credentials necessary to offer a competent opinion on the specific etiology of his skin disability. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In any event, the probative value of these general assertions in this regard is outweighed by the evidence outlined above documenting the onset of a skin disability many years after service with no suggestion that such disability has been caused and/or aggravated by an in-service event or injury. The Board has also considered Dr. J.D. Smith's September 2013 private opinion. The Board finds this medical opinion is unsupported by any rationale. The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Bloom v. West, 12 Vet. App. 185 (1999); see also Prejean v. West, 13 Vet. App. 444 (2000). In addition, the speculative terminology "very possible" provides an insufficient basis for an award of service connection, limiting the probative value of the opinion. For these reasons, the opinion carries little probative weight. In sum, the preponderance of the evidence is against the claim. In the absence of any competent evidence to the contrary, there is no benefit-of-the-doubt to resolve in the Veteran's favor. Therefore, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. 2. Entitlement to service connection for gout disability. The Veteran contends that his gout is a result of his exposure to constant rainy conditions while stationed in Okinawa during his active military service. In an August 2021 statement, the Veteran reported that he had problems with his feet, skin lesions, and problems with balancing in walking in service. As an initial matter, the Board finds the evidence of record demonstrates the Veteran has been diagnosed with gout. Regarding in-service incurrence, the Veteran's DD Form 214 confirms his MOS was Light Weapons Infantryman, and his most significant duty assignment was Company "B" 75th Infantry APO 331 Squadron Leader. The Board finds the Veteran's lay statements to be consistent with the places, types, and circumstances of his service, and there is no evidence to contradict his reports. See 38 U.S.C. § 1154(a). Resolving all reasonable doubt in the Veteran's favor, and in light of the Board's heightened duties in this case, the Board finds the second element for service connection is met. While the evidence shows a diagnosis of gout and an in-service incurrence, the evidence does not show a nexus between the two. Turning to the medical evidence of record, private medical records indicate diagnosis of gout in 2009. In a September 2013 statement, the Veteran's treating physician Dr. J.D. Smith, from Shoals Foot Center, reported treating the Veteran since 2011 for severe dermatophytosis, gout, onychomycosis, and hyperkeratotic lesions. Dr. J.D. Smith stated, "the Veteran has questioned me about the possibility of these medical issues arising from his military career. It is hard to prove these conditions have been a result of his military service. However, they are indeed very possible due to his military service abroad, which would expose him to various types of bacterial and fungal organisms." In a September 2016 statement, the Veteran's treating physician Dr. R.M., from Avalon Medical Center, confirmed the Veteran's diagnosis of gout in November 2015. Dr. R.M. stated, "it is my medical opinion that this diagnosis is 'likely as not' or 'more likely than not' connected to the veteran's military service." Pursuant to the Board's August 2016 remand, the Veteran was afforded a LHI Non-Degenerative Arthritis examination in October 2018. The examiner noted the Veteran's gout was diagnosed several years ago and affects the Veteran's feet bilaterally. The examiner provided a negative nexus opinion. As rationale, the examiner explained gouty arthritis begins suddenly and it develops due to uric acid crystals deposited in the joint. The examiner concluded gout is an inflammatory process and not related to any injury/illness. The parties to the May 2020 JMPR agreed the October 2018 examination was inadequate. Specifically, the examiner failed to address the Veteran's September 2013 lay statements regarding his gout. Stefl, 21 Vet. App. at 123. Upon readjudication, the Board, in a December 2020 decision, remanded the claim for an examination with medical opinion. Pursuant to that remand order, a VES Non-Degenerative Arthritis examination was conducted in May 2021. During the examination, the Veteran reported the date of onset as 2013. The examiner provided a negative nexus opinion. In support of this opinion the examiner called attention to the fact that there is no record to support a diagnosis of gout for over fifty (50) years after the Veteran's discharge from active duty. The examiner remarked, the Veteran's private records show the diagnosis of gout being in 2009, and his VA records show the date of diagnosis of primary gout as being November 2013, with stated contributing factors being his chronic renal insufficiency. The examiner noted there was no discussion of the condition being related to his active duty service. The examiner explained gout is an inflammatory arthritis due to deposition of uric acid crystals in the joints. The condition is related to a combination of factors including diet, other medical comorbidities (hypertension, diabetes, renal disease), hereditary factors which typically affects older males. The examiner concluded it is not likely, nor reasonable to believe that the Veteran's disease onset was during active duty service as it would be very unusual and would likely be well documented. In its most recent August 2021 remand, the Board determined, although the May 2021 examiner addressed the medical evidence of record related to the Veteran's gout, the opinion lacks the adequate analysis to substantially comply with the December 2020 remand directives. See Donnellan, 24 Vet. App. at 176; see also Dyment, 13 Vet. App. at 147. Thus, the Board ordered an addendum opinion regarding the nature and etiology of the Veteran's gout disability. In a September 2021 VES addendum, the examiner reviewed the Veteran's records and lay statements. The examiner opined while the Veteran is competent to report his symptoms and history, the diagnosis of gout is a clinical one that requires evaluation, assay of uric acid levels, and treatment with appropriate medications. The examiner noted the Veteran's May 1955 Report of Medical Examination (separation exam) was silent for the diagnosis of gout, his private treatment records support the diagnosis of gout in September 2009, and his VA records show the date of diagnosis of primary gout as being November 2013. The examiner indicated that he had reviewed the records and the Veteran's lay statement from September 2013, but these not support the assertion that his gout is related to any in-service injury or illness. Gout is due to deposition of uric acid crystals in the joint causing inflammation and severe pain. Risk factors include dietary factors, chronic medical conditions such as kidney and heart disease, medications for hypertension, aging and male gender. It would be very uncommon to have its onset in a 20-year-old man who was otherwise healthy. The diagnosis of gout is made clinically and treated with prescribed medication. It is not likely that his condition existed prior to his February 2009 diagnosis. Review of the current available medical evidence of records reflects that the Veteran's gout was not shown as chronic in service, did not manifest to a compensable degree within one year of separation from service, and was not noted post service with attributable continuity of symptomatology. Private treatment records show the Veteran was not diagnosed with gout until February 2009, years after his separation from active service and outside of the applicable presumptive period. Thus, entitlement to service connection on a presumptive basis is not warranted. Service connection for gout may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's gout and an in-service injury, event, or disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The Board gives more probative weight to the medical evidence provided by the May 2021 and September 2021 VES examiner. Both medical opinions are well-reasoned, based on a thorough review of the available medical evidence, and reflect consideration of the Veteran's account of his gout disability. They are highly probative. Nieves-Rodriguez, 22 Vet. App. 295. The examiner reviewed the evidence of record and following a clinical examination, determined that there was no clinical evidence of a chronic gout disability. The Board has considered the Veteran's lay statements asserting a nexus between his gout disability and service, to include descriptions of the circumstances of his service and foot difficulties. The Board acknowledges the Veteran, as a layperson, is competent to report the onset of his subjective symptoms and personal history, however he does not have the medical training, expertise, or credentials necessary to offer a competent opinion on the specific etiology of his gout disability. Kahana, 24 Vet. App. at 435; see also Jandreau, 492 F.3d at 1377. In any event, the probative value of these general assertions in this regard is outweighed by the evidence outlined above documenting the onset of gout many years after service with no suggestion that such disability has been caused and/or aggravated by an in-service event or injury. The Board has also considered Dr. J.D. Smith's September 2013 private opinion. The Board finds this medical opinion is unsupported by any rationale. To the extent that Dr. R.M.'s September 2016 medical opinion also suggests a relationship between the Veteran's gout and his service, it is also unsupported by any rationale. The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Bloom, 12 Vet. App. 185; see also Prejean, 13 Vet. App. 444. In addition, the speculative terminology "very possible" provides an insufficient basis for an award of service connection, limiting the probative value of the opinion. For these reasons, the opinions carry little probative weight. In sum, the preponderance of the evidence is against finding either a nexus or continuity of symptomatology. In the absence of any competent evidence to the contrary, there is no benefit-of-the-doubt to resolve in the Veteran's favor. Therefore, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. G. E. Wilkerson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Grace Johnk, 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.