Citation Nr: 21077218 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 11-12 813 DATE: December 29, 2021 ORDER Service connection for a skin disability is granted. Service connection for a bilateral foot disability is granted. REMANDED Higher initial ratings for service-connected right wrist status post triangular fibrocartilage repair (right wrist disability), currently rated based on limited supination and pronation (10 percent prior to February 27, 2018 and 20 percent thereafter, with a temporary total rating from January 5 to February 28, 2010), limited ulnar deviation (10 percent from August 15, 2008), limited forearm flexion (10 percent from February 27, 2018), and scarring (0 percent from January 5, 2010), are remanded. Higher initial ratings for service-connected right knee patellar tendonitis (right knee disability), currently rated 0 percent prior to September 28, 2009 and 10 percent thereafter, are remanded. Higher initial ratings for service-connected left knee patellar tendonitis (left knee disability), currently rated 0 percent prior to September 28, 2009 and 10 percent thereafter, are remanded. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to September 28, 2017 is remanded. FINDINGS OF FACT 1. The medical evidence of record confirms a diagnosis for eczematous dermatitis that affects, among other areas, the hands; service records show the Veteran complained of skin concerns following active duty deployment between 2002 and 2003 and was observed with eczema of the hands a year later in 2004; and there is competent and credible lay evidence of record indicating such problems began during the Veteran's active duty deployment. 2. The medical evidence of record confirms diagnoses for bilateral pes planus and plantar fasciitis and there is competent and credible lay evidence indicating that observable symptoms (e.g., pain and aching in the soles of the feet) only began during service and have persisted ever since. CONCLUSIONS OF LAW 1. The criteria for service connection of a skin disability are met. 38 U.S.C. §§ 1110, 1113, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303(b) (2021). 2. The criteria for service connection of a bilateral foot disability are met. 38 U.S.C. §§ 1110, 1113, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303(b) (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from August 1995 to December 1995 and June 2002 to October 2003. These matters are before the Board of Veterans' Appeals (Board) on appeal from August 2009 and February 2010 rating decisions. The Board previously remanded these matters in September 2016 along with other service connection claims that were subsequently granted in November 2017 and December 2020 rating decisions. Those matters are no longer on appeal. SERVICE CONNECTION To substantiate a claim of service connection, there must be evidence of: (1) a current disability; (2) a pertinent event or injury in service; 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, 1166-1167 (Fed. Cir. 2004). In evaluating these requirements, VA must analyze all evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). 1. Service connection for a skin disability September 2010 and September 2017 VA examination reports confirm a diagnosis of eczematous dermatitis. On the latter examination, the Veteran said this began "after deployment" around 2002 and 2003. The Veteran does not indicate, either implicitly or explicitly, that it resolved or ceased at any time after active service. The examiner at that time specifically observed eczematous lesions between fingers on the right hand. During active service, a June 2003 post-deployment health assessment shows the Veteran explicitly complained of skin disease or rashes during and after deployment. Shortly thereafter, a November 2004 National Guard report of medical history explicitly includes a physician's notation of eczema affecting the hands. While there are two negative September 2010 and September 2017 VA medical opinions of record, neither adequately considers the significance of the Veteran's perfectly competent lay reports indicating symptomatic lesions first appeared during or shortly following his active duty deployment, the post-deployment health assessment suggesting the same, or the November 2004 National Guard record just over a year post-service noting a history of the same dermatological presentation found in September 2017. Consequently, the Board finds those opinions are inadequate for rating purposes and are not probative in this analysis. However, given the Veteran's overall competence to describe the onset, course, and progression of lay observable symptoms (such as a skin rash), the June 2003 post-deployment health assessment corroborating that report, the consistency of his more recent presentation with the history of eczema documented in service records (i.e., eczematous lesions affecting the hands), the temporal proximity of said records with the June 2003 reports of skin disease or rashes, and the absence of probative or convincing evidence contradicting the Veteran's allegations, the Board finds the evidence is at least in relative equipoise as to whether the Veteran has a skin disability that began during active service. 2. Service connection for a bilateral foot disability June 2011, September 2017, and April 2021 VA examination reports and clinical treatment throughout the record confirm diagnoses for bilateral pes planus and plantar fasciitis causing pain and tenderness around the Achilles region and posterior tibial tendon bilaterally, as well as pain in the arches. Therefore, a current diagnosis is found. The Veteran alleges that he has pes planus that was first diagnosed as a child (when he was around 12 years old) but started causing pain between 2003 and 2004. He said he sought treatment around 2010 and was prescribed custom orthotics. Service records do not appear to include any enlistment examinations preceding his periods of active duty and, therefore, no presumption of soundness attaches for his feet. Consequently, the Board finds that he had flat feet prior to active service based on competent statements from himself (during September 2017 and April 2021 examinations) and his mother. While service records are silent for formal treatment of any foot complaints, a June 2003 post-deployment health assessment does show he complained of "numbness or tingling in the hands or feet" and the Veteran and his mother have provided competent lay evidence that his foot disability first became symptomatic during or shortly after his active duty deployment between 2002 and 2003. Specifically, he told VA examiners that his foot symptoms began between 2003 and 2004, which roughly coincides with an active duty deployment to Utah, and that his foot has ached ever since. Likewise, his mother said that, despite being diagnosed with flat feet early on, his feet didn't bother him until military service, when it "got worse." Moreover, although there are two negative September 2017 and April 2021 VA medical opinions of record, both improperly dismiss the Veteran and his mother's competent lay statements of record based on the absence of corroborating contemporaneous medical evidence, and neither discusses the relevance of the June 2003 post-deployment health assessment mentioned above. Therefore, the Board finds them inadequate for rating purposes and not probative here. The only other medical opinion of record is a May 2011 private opinion that relates his pes planus to the rigors of service broadly, with little explanation. Considering the above along with the Veteran's and his mother's competence to describe the onset, course, and progression of lay-observable symptoms associated with his foot disability and the absence of compelling evidence impugning their credibility or otherwise contradicting their reports (that his feet were asymptomatic until his active duty deployment, when pain and aching began and persisted thereafter), the Board finds the evidence is at least in relative equipoise as to whether the Veteran has a current foot disability with symptoms that began during active service. REASONS FOR REMAND 1. Higher ratings for service-connected right wrist disability are remanded. 2. Higher initial ratings for service-connected right knee disability are remanded. 3. Higher ratings for service-connected left knee disability are remanded. The prior remand specifically ordered an examination to assess the current severity of these conditions that complied with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016) and noted where any observed painful motion began on range of motion testing. A review of the examination reports returned on remand shows that none appear to include range of motion data during weight-bearing or non-weight-bearing, estimations of where pain began during motion testing, or otherwise explain the absence of such information. Consequently, another remand is required to ensure compliance with the prior remand. Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that the Board must ensure compliance with prior remand orders). In addition, the Board notes that early medical records close to his initial right wrist injury and follow-up therapy suggest the condition also caused nerve pain and limitation of thumb motion, but the formal examinations in conjunction with this appeal have never considered such potential impairments. Therefore, additional evaluation(s) to do so should be ordered on remand. 4. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to September 28, 2017 is remanded. While a September 2021 rating decision granted TDIU from September 28, 2017, this matter was raised during the pendency of the initial rating appeals discussed above and, therefore, the matter of whether TDIU is warranted prior to that date remains on appeal. However, that question is inextricably intertwined with the other issues on appeal and implementation of the service connection awards above, as changes in combined disability ratings and effective dates may materially alter the scope and substance of a retrospective TDIU analysis. Consequently, a final adjudication must be deferred at this time. The matters are REMANDED for the following action: 1. Obtain all updated records (i.e., those not already of record) of VA and adequately identified private treatment the Veteran has received for the disabilities remaining on appeal. 2. Schedule the Veteran for an in-person or telehealth examination (whichever is more appropriate) by an orthopedist, neurologist, or other appropriate physician(s) to assess the current severity of his service-connected right wrist disability. Multiple examinations should be ordered as appropriate (including, but not limited to, elbow and forearm examinations to assess impairment of forearm flexion, supination, and pronation, peripheral nerve examinations to assess any potential neurological manifestations, and hand and finger examinations to assess potential thumb limitation of motion). Based on an examination (INCLUDING A COMPLETE SUBJECTIVE HISTORY AND REPORT DESCRIBING HIS SYMPTOMS AND HOW FUNCTIONING AND MOTION VARY WITH FLARE-UPS OR REPEATED USE OVER A PERIOD OF TIME), review of the record, and any tests or studies deemed necessary, the examiner should describe all pathology, symptoms (frequency and severity), and functional impairment associated with such disabilities in enough detail to allow for application of the pertinent rating criteria. Range of motion test results must be recorded in ACTIVE MOTION, PASSIVE MOTION, WEIGHT-BEARING, and NON-WEIGHT-BEARING, including in the opposite, undamaged joint (where applicable). If it is not feasible to perform range of motion testing in any of these circumstances, the examiner MUST EXPLAIN WHY. If motion in any of these circumstances is identical, the examiner should explicitly say so. The examiner should also note whether there are neurological manifestations of his right wrist disability, or associated impairment of hand or finger range of motion (including the thumbs), particularly given records from 2006 indicating impaired thumb movement during therapy to improve right wrist functioning. The examiner should also note any further functional limitations due to pain, weakness, fatigue, incoordination, or any other such factors AND comment on or describe, to the extent possible, the impact the Veteran's service-connected right wrist disability has on his functioning during flare-ups or with repeated use over a period of time. In doing so, the examiner MUST elicit subjective reports of functioning under such conditions and consider them with other pertinent evidence. If the examiner is unable to provide such an opinion, he or she MUST explain why in detail. The examiner should note that the inability to directly observe functioning under such conditions IS NOT a valid reason to avoid providing an opinion in this matter per se. The examiner should also consider and discuss the significance of reports on February 2018 VA examination that flare-ups required he not move the wrist at all. In particular, the examiner should consider whether this presents impairment that is functionally consistent with ankylosis. If so, the examiner should describe the favorability of any such impairment or resultant immobility (however voluntary), drawing upon not only in-person observations, but also subjective descriptions of wrist positioning under such circumstances. All opinions must include a detailed rationale. Providing an opinion without one will delay processing of the claim and may require clarification. 3. Schedule the Veteran for an in-person or telehealth examination (whichever is more appropriate) by an orthopedist, neurologist, or other physician(s) to determine the current severity of his service-connected right and left knee disabilities. Based on an examination (INCLUDING A COMPLETE SUBJECTIVE HISTORY AND REPORT DESCRIBING HIS SYMPTOMS AND HOW FUNCTIONING AND MOTION VARY WITH FLARE-UPS OR REPEATED USE OVER A PERIOD OF TIME), review of the record, and any tests or studies deemed necessary, the examiner should describe all pathology, symptoms (frequency and severity), and functional impairment associated with such disabilities in enough detail to allow for application of the pertinent rating criteria. Range of motion test results must be recorded in ACTIVE MOTION, PASSIVE MOTION, WEIGHT-BEARING, and NON-WEIGHT-BEARING. If it is not feasible to perform range of motion testing in any of these circumstances, the examiner MUST EXPLAIN WHY. If motion under any circumstances is identical, the examiner must explicitly say so. The examiner should also note any further functional limitations due to pain, weakness, fatigue, incoordination, or any other such factors AND describe, to the extent possible, the impact the Veteran's service-connected right and left knee disabilities have on functioning during flare-ups or with repeated use over a period of time. In doing so, the examiner MUST elicit from the Veteran subjective reports of his functioning under such conditions and consider such reports along with all other pertinent evidence. If the examiner is still unable to provide such an opinion, he or she MUST explain why that is so in specificity. The examiner should note that the inability to directly observe functioning under such conditions IS NOT a valid reason to avoid providing an opinion in this matter per se. All opinions must include a detailed rationale. Providing an opinion without one will delay processing of the claim and may require clarification. 4. Once all above-ordered development is complete and the Board's service connection awards for skin and foot disabilities are implemented, conduct any additional development appropriate or indicated (e.g., obtaining additional medical opinions to develop the retrospective TDIU appeal or referring that matter for extraschedular consideration as needed). David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Yuan, 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.