Citation Nr: 21077236 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-47 322 DATE: December 29, 2021 ORDER Service connection for a toe rash/tinea pedis is denied. REMANDED Entitlement to a rating in excess of 10 percent for lumbar strain is remanded. Service connection for a neck disorder, to include as secondary to service-connected lumbar strain, is remanded. Service connection for right lower extremity radiculopathy, to include as secondary to service-connected lumbar strain, is remanded. Service connection for left lower extremity radiculopathy, to include as secondary to service-connected lumbar strain, is remanded. FINDING OF FACT A toe rash/tinea pedis was not caused by, aggravated by, or attributable to, any aspect of active-duty service. CONCLUSION OF LAW The criteria for service connection for a toe rash/tinea pedis have not been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Navy from June 1999 to February 2007. These matters come before the Board of Veterans' Appeals (Board) from a May 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Although a July 2017 statement of the case also addressed a notice of disagreement for a rating in excess of 10 percent for tinnitus and whether a reduction of rating from 20 to 10 percent for lumbar strain was proper, the Veteran did not include these issues in his September 2017 substantive appeal. In August 2021, the Veteran testified before the undersigned Veterans Law Judge. The Veteran's claims file contains a copy of the hearing transcript. SERVICE CONNECTION The Veteran asserts that a toe rash/tinea pedis was incurred in, aggravated by, or otherwise attributable to, active-duty service. At the August 2021 Board hearing, the Veteran testified that he experienced "really, really itchy feet and heavy amounts of skin" and athlete's foot (tinea pedis) from active-duty service through present. In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). In the absence of proof of a present disability there can be no valid claim. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Competent lay evidence may also include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Evidence and Analysis In a July 1999 service treatment record (STR) about one month after entry on active duty, the Veteran sought treatment at the podiatry clinic for bilateral foot pain. The clinician indicated that there was a mild pinch callous located on the Veteran's left hallux valgus. Otherwise, there was no evidence of other callouses or abnormal pathology. This clinician did not indicate the presence of a toe rash or tinea pedis. In a May 2000 STR, a clinician noted that the Veteran sought treatment for left knee pain and right foot pain. The Veteran reported that he experienced right foot pain "on and off" for most of his life. The Veteran denied any trauma to his right foot. Upon visual inspection, the clinician reported that the right foot was unremarkable, other than a possible bunion. This clinician did not note toe rash or tinea pedis. In a November 2000, the Veteran indicated that he did not have a personal history of skin diseases in a Medical Surveillance Certification. In a February 2001 Report of Medical History, the Veteran indicated that he had not had and did not have foot trouble or any skin diseases. In a February 2001 Report of Medical Examination, a clinician indicated normal clinical evaluations of the Veteran's skin and lymphatic system as well as the Veteran's feet. In an October 2005 STR, a clinician indicated that the Veteran sought treatment for "razor bumps." At this time, the clinician noted that the Veteran did not endorse any other skin problems. The clinician provided a diagnosis of pseudofolliculitis barbae (PFB). In his January 2006 Separation Report of Medical History, the Veteran indicated that he had not had and did not have foot trouble (pain, corns, bunions) or any skin diseases. Upon a VA examination in August 2007, a clinician reported that the Veteran's skin was clear of rashes and lesions. The clinician indicated a scar of the right dorsal footthe result of a second-degree burn at three years of age. However, there was no evidence of tenderness, disfigurement, ulceration, adherence, instability, tissue loss, inflammation, edema, keloid formation, hyperpigmentation, and/or hypopigmentation. The Veteran's extremities revealed no evidence of ulceration, edema, or stasis dermatitis. The Veteran's January 2010 VA treatment problem list included obesity; abscess; methicillin-resistant staphylococcus aureus; and diabetes mellitus, type 2. In subsequent records, clinicians noted pimple-like pustules on the anterior abdominal wall. Subsequent treatment records show that the Veteran underwent an incision, drainage, and debridement. However, clinicians observed these abnormalities on areas other than the feet and did not provide guidance as to on-going problems of either a toe rash or tinea pedis. Upon a March 2015 VA foot conditions examination, a clinician diagnosed left pes planus and left plantar fasciitis. The Veteran did not report, and the clinician did not observe toe rash or tinea pedis. In his June 2015 Notice of Disagreement (NOD), the Veteran reported that he worse boots as part of his naval uniform. These boots made the Veteran's feet "rough and raw." The Veteran added that he received cream to apply to his feet in service to treat bleeding, dryness, and rawness. At the August 2021 Board hearing, the Veteran repeated his earlier contentions as to his boots and emphasized the continuity of his toe rash/tinea pedis symptoms. The Veteran believes that his toe rash/toe was incurred in or aggravated by service. Indeed, the Veteran is competent to report discernable symptoms and the Board assigns his lay account a measure of probative weight. The Board has considered the Veteran's sincere beliefs very carefully; however, upon review of the evidence of record, the Veteran does not have the specialized podiatric or medical knowledge to render an opinion as to etiology, clinical aggravation. Jandreau, 492 F. 3d 1372; Kahana, 24 Vet. App. 428. The evidence is summarized above. No competent clinician has indicated that the Veteran has (or had) a toe rash or tinea pedis. Even considering the Veteran's reports of the presence of a rash at the time of his report, no competent clinician has provided a positive nexus for any toe skin disorder. The Board finds that the Veteran's reports of onset and continuity of symptoms during and after service warrant low weight because he denied any symptoms during clinical encounters and on medical history questionnaires when there were opportunities to make these reports and call the clinician's attention to the reported skin abnormalities. The expert VA clinician, who conducted the March 2015 foot conditions examination, diagnosed left pes planus and left plantar fasciitis; however, this expert noted no presence of a toe rash/tinea pedis on any toe on either foot which would have been easily seen and addressed. Moreover, as articulated above, the Veteran's STRs fail to disclose any incurrence of toe rash/tinea pedis during active-duty service. Without an in-service incurrence, the possibility of drawing a nexus is not possible. Consequently, establishing service connection is foreclosed. Saunders, 886 F. 3d 1356. Therefore, the weight of competent evidence is against granting the Veteran's service connection claim for a toe rash/tinea pedis and there are no doubts to be resolved. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. REASONS FOR REMAND Although the Board regrets an additional delay, a remand is necessary to ensure that due process is followed and that there is a full record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5102; 38 C.F.R. § 3.159. Lumbar strain At the August 2021 Board hearing, the Veteran testified that his service-connected lumbar strain symptoms did not improve and have worsened. Specifically, the Veteran endorsed constant burning pain; stiffness; and limited ranges of motion. Moreover, the Veteran indicated that this disability impacted his ability to perform his required occupational duties. The Veteran's last VA thoracolumbar spine conditions examination occurred in May 2015more than 6 years ago. An examination of the Veteran does not become outdated after any arbitrary amount of time. The duty to get a new examination is triggered only when the available evidence indicates that the previous examination no longer reflects the current state of the Veteran's disability. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); VAOPGCPREC 11-95 (1995). The Veteran's testimony suggests a degree of worsening that warrants a VA examination to assess the current severity of his service-connected lumbar strain. See 38 C.F.R. § 3.159 (c)(4)(i); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) Neck disorder Right lower extremity radiculopathy Left lower extremity radiculopathy At the Board hearing, the Veteran testified that his neck disorder and bilateral lower extremity radiculopathy are associated with his service-connected lumbar strain in that these disabilities arose from the same in-service ordnance lifting injury that caused his lumbar strain. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (1) contains competent evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that an event, injury, or disease occurred in service or certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) indicates that the disability or symptoms may be associated with the established event, injury or disease in service or with another service-connected disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. Id. The Veteran's testimony (as well as his representative's contention) indicates that contended neck disorder; right lower extremity radiculopathy; and left lower extremity radiculopathy were incurred during service or may be caused or aggravated by the service-connected lumbar spine injury and disease. VA examinations are necessary to decide the claims. The matters are REMANDED for the following actions: 1. Contact the Veteran and his representative and request that they provide or identify and authorize the recovery of any additional private records of treatment for the claimed disabilities. At the Board hearing, the Veteran testified as to private chiropractic treatment and yoga therapy. The RO must follow the procedures laid out in 38 U.S.C. § 5103A(b)(2)(B). 2. Obtain any outstanding VA treatment records and associate them with the claims file. 3. Arrange for a VA thoracolumbar spine conditions, VA cervical spine conditions, and VA peripheral nerve conditions with an appropriate clinician. The clinician must review the entirety of the claims file and indicate such a review in the body of the respective examination reports. a. For the thoracolumbar spine examination, the clinician should describe the current nature and severity of the Veteran's service-connected lumbar strain. As appropriate for the thoracolumbar spine, assess both active and passive range of motion, as well as range of motion on weight bearing and non-weight bearing. If possible, estimate range of motion, to include after repetitive use and during flare-ups in terms of degrees based upon observations in the examination and the Veteran's lay reports of symptoms. If it is not possible to provide a specific measurement, or an opinion regarding repetitive use, flare-ups, symptoms, or functional impairment without speculation, the clinician must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Discuss the functional limitation, if any, of the Veteran's residuals of back fusion with consideration of the Veteran's lay statements regarding his experienced limitations due to symptomatology. b. For the contended neck disorder, contended right lower extremity radiculopathy, and contended left lower extremity radiculopathy examinations, the clinician should determine, if any, are apposite or best approximate 1) a neck disorder; 2) right lower extremity radiculopathy; and 3) left lower extremity radiculopathy? Upon each respective current diagnostic determination, if any, the clinician should opine. i. Whether it is at least as likely as not (50 percent probability or more) that the respective diagnosed disability had its onset in service or is otherwise etiologically related to the Veteran's active service, including any incidence of service including the event reported in his hearing testimony. AND ii. Whether it is at least as likely as not (50 percent probability or more) that the respective diagnosed disability was proximately caused by, or aggravated beyond its natural progression by, the Veteran's service-connected lumbar spine. 4. For all opinions, complete rationales should be provided. The clinician should reconcile any opinion with all other clinical evidence of record and the Veteran's and other lay evidence. 5. The Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. The clinician may consider whether the reports are consistent with the medical evidence. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.