Citation Nr: 21077317 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 16-10 566 DATE: December 29, 2021 ORDER Entitlement to service connection for bilateral athlete's foot is granted. REMANDED Entitlement to service connection for a left knee disability is remanded. FINDINGS OF FACT 1. The record evidence shows that a person is at a higher risk of athlete's foot if he is a man, frequently wears damp socks or tightfitting shoes, or shares mats or rugs with someone who has athlete's foot and walking barefoot in public areas, such as communal baths and showers where the infection is present, may spread the infection. 2. The record evidence shows that the risk factors for athlete's foot are consistent with the Veteran's active service on a U.S. Navy ship and weigh in favor of his assertion that his bilateral athlete's foot had its onset in service. 3. The record evidence shows that none of the medical opinions obtained during the pendency of this appeal are sufficient to determine whether the Veteran's current bilateral athlete's foot is related to active service. 4. Resolving any reasonable doubt in the Veteran's favor, the evidence reasonably supports finding that his bilateral athlete's foot began during active service. CONCLUSION OF LAW The criteria for service connection for bilateral athlete's foot are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from September 1967 to September 1971. The Board notes initially that the Veteran filed a request to reopen his previously denied service connection claim for bilateral athlete's foot in November 2010. In an October 2012 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied this request because there was no new and material evidence sufficient to reopen the previously denied claim. The Board next notes initially that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records which existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring the submission of new and material evidence. 38 C.F.R. § 3.156(c) (2020). The Veteran's service personnel records were obtained in January 2013 after the RO promulgated the October 2012 rating decision. These records are relevant to his assertion that he served in the official waters offshore of the Republic of Vietnam because they show he was stationed on the U.S.S. ST. PAUL between 1969 and 1970. The Veterans Benefits Administration (VBA) has found that this ship was docked in Da Nang harbor, Vietnam, and the service personnel records confirm that the Veteran was stationed onboard this ship when it was docked in Da Nang harbor (so-called Blue Water Navy service). Accordingly, the Board has recharacterized this claim as stated above and finds that this appeal arises from disagreement with the October 2012 denial of service connection for bilateral athlete's foot. The Board remanded this appeal to the RO most recently in April 2021. The RO subsequently granted claims of service connection for a right foot disability, a left foot disability, and headaches. This represents a full grant of the benefits with respect to these claims so they are no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). 1. Entitlement to service connection for bilateral athlete's foot is granted. The Board finds that the evidence reasonably supports granting the Veteran's claim of service connection for bilateral athlete's foot. The Veteran contends that this condition is due to service, to include his presumed in-service exposure to an herbicide agent while in Vietnam. A current disability of tinea pedis (athlete's foot) is confirmed, as documented in the June 2020 VA examination. Thus, the first element of service connection has been met. The Veteran is competent to discuss symptoms which he experiences such as itching and physical symptoms such as scaly skin on his foot. He attributes all of these symptoms to his current bilateral athlete's foot. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In a June 2020 opinion, a VA examiner noted that athlete's foot is contagious and can be spread via contaminated floors, towels, or clothing. This clinician explained that a person is at a higher risk of athlete's foot if he is a man, frequently wears damp socks or tightfitting shoes, or shares mats or rugs with someone who has athlete's foot. This clinician explained that walking barefoot in public areas, such as communal baths and showers where the infection is present, may spread the infection. As noted in the Board's prior remand in April 2021, the June 2020 opinion listed risk factors including being a man and wearing tightfitting shoes and discussed how the condition spreads while walking in communal baths and showers. As also noted by the Board in April 2021, these risk factors are consistent with the Veteran's active service on a U.S. Navy ship with communal baths and weigh in favor of the Veteran's assertion that the bilateral athlete's foot had its onset in service. The Board finds that the Veteran's assertions regarding in-service incurrence of bilateral athlete's foot are credible because they are consistent with the facts and circumstances of his active U.S. Navy service. See Smith v. Derwinski, 1 Vet. App. 235 (1991) (credibility is determined by the fact finder). Accordingly, the second element of service connection has been met. Unfortunately, despite multiple remands by the Board, no VA clinician has provided a competent medical opinion concerning the contended etiological relationship between the Veteran's current bilateral athlete's foot and active service. The Board previously found a June 2020 opinion inadequate for VA adjudication purposes on the issue of whether bilateral athlete's foot is related to service in the April 2021 remand. In a May 2021 addendum opinion, a different VA clinician opined that it was at least as likely as not that the Veteran's bilateral athlete's foot is related to active service. The May 2021 VA clinician stated that "1992 service medical records are negative as to any treatment." The rationale for this opinion was that, while the service records do not show complaints or treatment, the Veteran reported symptoms began in 1992 and there are complaints with a 10 plus year history noted in record review. The Board notes here that the rationale provided by the VA clinician for the May 2021 addendum opinion is confusing. It is not clear that this clinician adequately reviewed the record evidence when she provided the medical opinion because she referred to service treatment records apparently dated in 1992. Although the Veteran previously filed for service connection for bilateral athlete's foot in 1992, this was 21 years after he discharged from service in 1971. Thus, the Board finds that this opinion is not probative on the issue of whether the Veteran's bilateral athlete's foot is related to active service. The private opinions provided by the Veteran during the pendency of this appeal also are not probative on the issue of whether bilateral athlete's foot is related to active service. While a private March 2011 medical record does not relate the Veteran's current bilateral athlete's foot to service, the private physician reports that "it is possible." The Veteran stated that his problem began while he was serving in Vietnam and he had tried a "myriad" of medications that only temporarily worked. The private physician stated "it is possible" that the Veteran's dermatophytosis started during his service in Vietnam. In May 2014 correspondence, the same private physician opined that the Veteran's fungal problems appear to be service related and "this is a possibility" from a medical standpoint. The Veteran reported that his problems first presented when he was on active duty with the military. The physician explained that the Veteran's fungal problem was ongoing. While it improved with treatment, it "never truly resolves." The two private opinions from the Veteran's family physician dated in March 2011 and in May 2014 are speculative in nature. Current regulations provide that service connection may not be based on a resort to speculation or even remote possibility. See 38 C.F.R. § 3.102; Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); and Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Accordingly, even if the March 2011 and May 2014 private opinions are viewed in the light most favorable to the Veteran, this evidence does not establish service connection for bilateral athlete's foot. See also Warren v. Brown, 6 Vet. App. 4, 6 (1993). In other words, these opinions are not probative on the issue of whether the Veteran's current bilateral athlete's foot is related to active service. The Court has held that the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The Court also has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). The Veteran has asserted credibly that he incurred bilateral athlete's foot during active service and experienced continuous post-service disability. The record evidence documents the presence of current disability due to bilateral athlete's foot which may be related to active service. As discussed above, none of the VA or private medical opinions associated with the claims file are sufficient to address the question of whether the current bilateral athlete's foot is related to service. The Board has considered whether to remand this claim yet again in an attempt to correct the prior errors committed by multiple VA clinicians and obtain an opinion concerning this matter which is likely to survive judicial review. The Board acknowledges in this regard that, in Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. Despite the Board's best efforts, the RO has not achieved substantial compliance with the remand orders concerning a medical opinion which addresses this matter. The Board concludes that it is unlikely that yet another remand will result in an adequate medical opinion given the RO's apparent difficulty in complying with prior remands. Nevertheless, after reviewing the record evidence, the Board will resolve any reasonable doubt in the Veteran's favor and find that service connection for bilateral athlete's foot is warranted. See 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for a left knee disability is remanded. This claim was remanded previously in February 2019 for an etiology opinion and in April 2021 for a supplemental statement of the case (SSOC). Having reviewed the record evidence, and although the Board is reluctant to contribute to "the hamster-wheel reputation of Veterans law" by remanding this claim again, additional development is required before the underlying claim can be adjudicated on the merits. Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law"). The February 2019 remand requested that the RO obtain any outstanding service treatment records which may be available for the Veteran. Unfortunately, it appears that this development has not occurred. The Board notes in this regard that a December 2020 opinion relies on the lack of inservice treatment for the left knee as support for the negative nexus opinion provided at that time but it is not clear whether the December 2020 VA clinician had access to or reviewed all of the Veteran's available service treatment records. Thus, remand is required. See Stegall, 11 Vet. App. at 268; see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The matters are REMANDED for the following actions: 1. As requested in a February 2019 remand, conduct any appropriate development to obtain the Veteran's complete service treatment records. Document any request(s) for these records and any reply, to include any service treatment records provided, in the claims file. 2. If, and only if, additional service treatment records are obtained, then forward the claims file and a copy of this REMAND to the clinician who provided the December 2020 VA medical nexus opinion concerning the nature and etiology of the Veteran's left knee disability or another appropriate clinician for an addendum opinion. The Veteran does not need to report for examination. Based on a review of the claims file, the clinician is asked to state whether the additional service treatment records change the opinion(s) provided in December 2020 concerning the nature and etiology of the Veteran's left knee disability. If the opinion(s) provided in December 2020 concerning the nature and etiology of the Veteran's left knee disability do not change after reviewing the additional service treatment records, then the clinician is asked to explain why this is so. A rationale must be provided for any opinion(s) expressed. A separate opinion and rationale should be provided for each left knee disability currently experienced by the Veteran, if appropriate. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for a left knee disability, alone, is insufficient rationale for a medical nexus opinion. 3. Readjudicate the appeal. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Wade 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.