Citation Nr: 21009127 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 18-29 186 DATE: February 19, 2021 REMANDED Entitlement to service connection for a skin disability (other than dermatophytosis, tinea pedis and onychomycosis) is remanded. Entitlement to service connection for bilateral foot disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1997 to March 2004. This appeal comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The VLJ held the record open for 60 days for the submission of supporting medical evidence. No evidence was subsequently received from the Veteran or his representative. In May 2020, the Board remanded the appeal for additional evidentiary development. During the pendency of this appeal, a November 2020 rating decision granted service connection for posttraumatic stress disorder (PTSD) and dermatophytosis, to include tinea pedis and onychomycosis. This constitutes a full award of the benefits sought on appeal with respect to this issue. As such, there is no case or controversy for the Board to adjudicate with respect to the original claim of entitlement to service connection for PTSD and dermatophytosis. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997); see also 38 U.S.C. § 7104; 38 C.F.R. § 20.101. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to service connection for a skin disability (other than dermatophytosis, tinea pedis and onychomycosis). 2. Entitlement to service connection for bilateral foot disability. Issues 1 & 2: The Veteran, and his representative, contends that his current skin disability stems from exposure to polluted water. Specifically, the Veteran argues that after the 1998 monsoon he began to have issues with his skin because of having to walk through water contaminated with animal carcasses and human remains. See Hearing Transcript (February 2020). The Veteran described his skin condition as little raspberry like spots with dry skin similar to eczema that is dry and flakes off. Id. With regard to his bilateral foot disability, the Veteran also argues that his bilateral foot disability is related to his military occupation including carrying heavy photographic/video equipment. Id. Although a VA skin examination was provided in November 2020 with a December 2020 addendum opinion and a VA Foot conditions examination was conducted in November 2020, the Board finds there has not been substantial compliance with the Board’s prior remand directives. See Dyment v. West, 13 Vet. App. 141 (1999). A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Initially, the Board finds that the Veteran has a current skin disability – eczema - and there is competent and credible evidence that the Veteran was exposed to contaminated/polluted water during his service in South Korea. The Board also finds that the Veteran has current bilateral foot diagnoses, including bilateral pes planus, metatarsalgia and plantar fasciitis. In its May 2020 remand, the Board found that the August 2014 VA foot examination was inadequate and remanded the Veteran’s claim to afford him a new VA examination. See BVA Decision (May 2020). The Board also requested a skin disability examination. Id. First, the November 2020 VA skin examination and December 2020 addendum opinion obtained do not substantially comply with the Board’s prior remand instructions. The Board requested an opinion as to whether the Veteran’s now diagnosed eczema “at least as likely as not (i) had its onset in service or (ii) related to an in-service injury, event, or disease. Consider whether the disability stems from exposure to contaminated/polluted water.” See BVA Decision (May 2020). The opinions addressed only whether eczema was at least as likely as not incurred in or caused by the claimed in-service injury, event or illness. See C&P Exam (December 2020). No opinion was provided in regard to the disability stemming from exposure to contaminated/polluted water, despite the Board’s remand instructions. See Stegall, supra. Second, the November 2020 foot conditions opinion and the December 2020 skin conditions opinion essentially relied on the absence of documented evidence, in other words records showing “any chronic conditions” of the feet and a “chronic or recurrent” eczema while in the service or immediately after exiting service. The opinion does not answer the question of whether the Veteran’s current bilateral pes planus, metatarsalgia and plantar fasciitis are related to service, to include his military occupation, which he reported required carrying heavy photographic/video equipment. With regard to eczema, the December 2020 opinion does not answer the question of whether the Veteran’s current eczema is related to service, to include as due to exposure to contaminated/polluted water. Notably, an absence of “chronicity of care” is not a valid basis for a negative medical conclusion given that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Cosman v. Principi, 3 Vet. App. 503 (1992); see also 38 C.F.R. § 3.303(d). Third, the November 2020 VA examinations and December 2020 addendum opinion are inadequate to decide the appeal, because they are predicated on the absence of “objective” data or information without any consideration of the Veteran’s reports of in-service injuries. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board specifically requested that consideration is given to the Veteran’s lay statements regarding his symptoms of bilateral foot disability and skin disability during and after service. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) (“the VA examiner's failure to consider [the Veteran's] testimony when formulating her opinion renders that opinion inadequate.”). Generally, a claimant is competent to attest to observable symptomatology and, if rejected or found unpersuasive in view of other facts, this must be explained. Here, the November 2020 VA examinations and December 2020 addendum opinion, while the lay evidence, do not reflect any actual consideration of the lay statements. Regarding his bilateral foot disability, the Veteran reported carrying heavy photographic/video equipment, which went unaddressed the written opinion, despite the Board’s May 2020 finding that the August 2014 VA Foot examination was inadequate as it did not fully address the Veteran’s competent lay reports. Regarding his skin disability, the opinion does not reflect meaningful consideration of the Veteran’s assertions of small red spots with dry skin appearing during service, and continuing to appear and grow after service. Along the same lines, the opinion does not identify or explain the relevance or significance of any history, clinical findings, etc., relied upon in reaching the conclusion, including private treatment records with findings of diffuse, dry and scaly skin as well as complaints of and treatment for accessory skin tags. See CAPRI (June 2017); Medical Treatment Record-Non-Government Facility (July 2013); Medical Treatment Record-Non-Government Facility (July 2020). It does not reflect consideration of reports of pain inside bottom heels and arches for many years, despite listing it. Moreover, in its May 2020 remand, the Board requested that all VA treatment records from August 2017 to the present are obtained. See BVA Decision (May 2020). However, records only from February 2017 to August 2017 were obtained. See Stegall, supra. On remand, all outstanding VA treatment records, including from August 2017 to the present, must be obtained. See Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016); 38 C.F.R. § 3.159(c). Lastly, the Board notes that the November 2020 rating decision denied entitlement to service connection for bilateral foot condition, but no Supplemental Statement of the Case (SSOC) has been issued. Therefore, remand is necessary to ensure due process of law. 38 C.F.R. § 19.31. The matters are REMANDED for the following action: 1. Send the Veteran and his representative a Supplemental Statement of the Case on the issue of entitlement to service connection for bilateral foot condition. 2. Obtain the Veteran’s VA treatment records from August 2017 to the present. 3. Schedule the Veteran for a VA examination (which, if deemed appropriate, may be via telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician(s) to determine the nature and etiology of (a) his foot disabilities, to include bilateral pes planus, metatarsalgia and plantar fasciitis, and (b) skin disability (other than dermatophytosis, tinea pedis and onychomycosis), to include eczema. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. A complete medical history should be obtained. The opinion should, among other things, include a discussion of the Veteran’s documented history and assertions, and, at minimum, reflect consideration the Veteran’s reports of bilateral foot and skin symptoms since and after service. The examiner must opine on: (a.) Whether any current foot disability, to include bilateral pes planus, metatarsalgia and/or plantar fasciitis, is at least as likely as not (i) had its onset in service or (ii) is related to an in-service injury, event, or disease to include carrying heavy photographic/video equipment. Explain. (b.) Whether any skin disability (other than dermatophytosis, tinea pedis and onychomycosis), to include eczema, is at least as likely as not (i) had its onset in service or (ii) related to an in-service injury, event, or disease. Consider whether the disability stems from exposure to contaminated/polluted water. Explain. If the examiner opines that any reported in-service bilateral foot and/or skin complaints fully resolved, the examiner must specify the evidence relied upon in formulating the opinion. If another etiology is the more likely cause of the Veteran’s bilateral foot and/or skin disability, then identify that etiology and fully explain. The conclusions must be supported with data (e.g. history, findings, etc.) along with a reasoned medical explanation connecting the two. NOTE: A negative medical opinion may not be predicated on the absence of documented complaints or findings in service. 4. Ensure that the VA medical opinions obtained includes a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.