Citation Nr: 21005614 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-24 506A DATE: February 2, 2021 ORDER Service connection for a bilateral foot skin disability is granted. REMANDED Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for a right knee disability, claimed as secondary to bilateral pes planus, is remanded. FINDING OF FACT Resolving all reasonable doubt in his favor, the Board finds that the Veteran’s diagnosed tinea pedis had its onset in service. CONCLUSION OF LAW The criteria for service connection for bilateral tinea pedis are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1979 to July 1982. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in June 2010 by the Department of Veterans Affairs (VA) Regional Office in Baltimore, Maryland. This appeal was previously before the Board in April 2018 and August 2020, at which times it was remanded for further development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Veteran asserts that his tinea pedis first manifested while he was in service, and that he has treated the condition with over-the-counter medications since that time. His service treatment records are silent as to any in-service treatment for any skin rash of the feet. In December 2019, the Veteran underwent a VA skin diseases examination. At that time, the examiner diagnosed the Veteran with tinea pedis, with an onset date of 1982. The Board notes that the examiner found that tinea pedis was present at the time of the examination. In an accompanying medical opinion, which the Board found inadequate in August 2020, the examiner found it was less likely than not that the Veteran’s tinea pedis had an in-service onset because there was no record of in-service treatment of the condition. The Board requested an addendum opinion in August 2020. In a September 2020 opinion, the examiner continued to find that there was no nexus to military service because of the silent service treatment records. The Board notes that the Veteran is competent to testify to facts or circumstances that can be observed and described by a lay person, such as a rash. 38 C.F.R. § 3.159 (a)(2); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). As such, the Board finds the Veteran is competent and credible to report onset and continuity of his skin symptoms. He has consistently reported that he first experienced tinea pedis in service, and that the condition has recurred since service. Importantly, the December 2019 examiner found both a 1982 onset, and a current manifestation of the skin disorder. Although the VA examiner found a lack of continuation of his symptoms, the Veteran’s lay testimony is sufficient to establish a continuity of outbreaks. Therefore, when resolving all reasonable doubt in the Veteran’s favor, service connection for tinea pedis is granted. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C. § 5107 (b). REASONS FOR REMAND As noted above, the Veteran’s claims were previously before the Board in August 2020. At that time, the Board found that the VA examination reports of record—specifically, those authored in December 2019—were inadequate on the question of whether or not the Veteran’s bilateral pes planus, which pre-existed service, and a right knee disability were caused or aggravated by his military service. At that time, the Board explained in great detail why the examiner’s December 2019 opinion concerning the Veteran’s pes planus claim was not adequate. In an addendum report authored in September 2020, the December 2019 examiner concluded that the Veteran’s pes planus was less likely than not due to his military service. In support of this conclusion, the examiner merely restated, almost word for word, his previous opinion. As noted above, the Board has found that the December 2019 opinion is inadequate for purposes of deciding the claim. In addition, the examiner found in September 2020 that the Veteran’s right knee disability was at least as likely as not due to his pes planus, due to “medical evidence.” This conclusion lacks an adequate rationale, and secondary service connection cannot be granted for a condition that developed as a result of a non-service-connected disability. (Parenthetically, the Board notes that at this point, service connection for the Veteran’s pes planus has not been established.) Thus, owing to its lack of rationale, this opinion is inadequate for purposes of deciding the Veteran’s right knee claim. Because the examiner’s medical opinions fail to comply with the Board’s prior remand instructions, the Board must remand the claims once again to obtain adequate opinions. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board is obligated by law to ensure compliance with its directives, as well as those of the appellate courts. Where the remand orders of the Board or the courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, remand for an additional medical opinion—preferably from an examiner other than the one who provided the December 2019 and September 2020 opinions—is warranted. The matters are REMANDED for the following action: Obtain a new VA opinion—conducted by an examiner other than the one who provided the December 2019 and September 2020 opinions, if possible—to address the etiology of the Veteran’s pes planus and right knee disability. a) The examiner is asked to address whether is there clear and unmistakable evidence that the Veteran’s pre-existing pes planus did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service? If there was an increase in severity of the Veteran’s pes planus during service, was that increase due to the natural progress of the disease, or was it above and beyond the natural progression? b) If the examiner determines there is clear and unmistakable evidence that bilateral pes planus was not aggravated by service, the examiner is asked to address whether it is at least as likely as not (i.e., a 50 percent or greater probability) that bilateral pes planus was incurred in or is otherwise related to his military service. In offering the above opinion, the examiner should consider the Veteran’s contentions that his pes planus was aggravated by a lack of adequate corrective treatment while in service. b) Then, if the examiner opines that the Veteran’s bilateral pes planus is at least as likely as not related to service (or finds pes planus to have been aggravated beyond its natural progression), then the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed right knee disability is proximately due to, or aggravated by, the Veteran’s bilateral pes planus. The rationale for any opinion offered should be provided. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeremy J. Olsen, 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.