Citation Nr: 21014771 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 10-40 963 DATE: March 15, 2021 ORDER Service connection for left foot disorder as secondary to residuals, fracture of right first phalanx, right little toe with cavovarus foot (hereinafter, right foot disability), is denied. REMANDED Entitlement to service connection for skin disorder, to include basal cell carcinoma, lichenoid keratosis, and dermatitis and as due to exposure to environmental hazards, is remanded. FINDING OF FACT A left foot disorder is not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a left foot disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1962 to August 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2009 and April 2014 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Veteran testified at a Board hearing before a Veterans Law Judge. A transcript of the hearing is associated with the record. While the Veterans Law Judge who presided over the hearing is no longer employed by the Board, the Veteran was provided with an opportunity to testify at another Board hearing; however, in January 2021, he declined a new hearing. While additional evidence relating to the Veteran’s skin condition was associated with the record after the most recent adjudication by the Agency of Original Jurisdiction (AOJ) and the Veteran has not waived AOJ consideration of it, no prejudice results to him in the Board considering such evidence for the limited purpose of issuing a comprehensive and thorough remand of such claim as the AOJ will have an opportunity to review all of the newly received evidence in the readjudication of the claim. In a February 2018 decision, the Board reopened the appellant’s claim for service connection for a skin disorder and remanded the reopened claim and the claim for service connection for a left foot disorder to the AOJ for additional development. The case was remanded again in January 2020 for additional development; it now returns for further appellate review. Entitlement to service connection for a left foot disorder, to include as secondary to right foot disability. As an initial matter, the Board notes that the Veteran does not allege, nor does the record reflect, that he first manifested a left foot disorder during service, or within one year of his discharge from service, or that such is otherwise related to service on a direct basis. In this regard, his service treatment records are silent for any complaints, treatment, or diagnoses referable to a left foot disorder. Instead, the Veteran asserts his left foot disorder is proximately due to and/or aggravated by his service-connected right foot disability. VA treatment records dated February 2017 reflect the Veteran felt his old right foot fracture alters his gait and affects his left foot. Further, in August 2017 he testified to having an odd gait due to his right foot, which he believes has caused his left foot to become deformed. In pertinent part, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.R.F. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). With respect to a current disability, VA examination reports reflect diagnoses of left foot pes cavus and metatarsalgia during the pendency of the appeal. The Veteran also was afforded VA examination in March 2014. At such time, after a review of the record and physical examination, the examiner diagnosed the Veteran with metatarsalgia and pes cavus of the left foot. The examiner opined that it was less likely than not that such disorders are caused by his right foot disability. In this regard, current medical literature does not support a right little toe fracture residuals in one foot causing cavus deformity or metatarsalgia in the contralateral foot. The examiner explained that pes cavus is typically a hereditary disorder but can also be caused from neurological or neuromuscular disorders, which subsequently leads to metatarsalgia due to a high arch, which causes metatarsal compression, leading to pain. Further, the examiner stated that “claw foot on one side does not produce claw foot on the other side,” but that the foot itself has to be abnormal because of trauma to produce claw foot. The examiner noted the Veteran sustained an injury to his left foot in July 2003 while working on a farm when the tongue of a two-ton air conditioner fell on his left foot causing a fracture. The Veteran underwent another VA examination in May 2017. At such time, after a review of the record and physical examination, the examiner opined that it was less likely than not that the Veteran’s left foot metatarsalgia is due to the right foot disability. The examiner explained that his right foot digit fractures healed without complications and that there is no science-based rationale for any aggravation of left foot metatarsalgia beyond expected progression. The examiner opined that the Veteran’s left foot pain is more likely caused by residuals of the healed 2nd, 3rd, and 4th metatarsal fractures from a July 2003 workplace injury. The Veteran underwent another VA examination in April 2019, at which time the examiner determined that the Veteran did not have a current diagnosis of a left foot condition. As a result, the examiner did not render an opinion regarding the Veteran’s left foot pes cavus disorder. However, as noted above, the record reflects diagnoses of metatarsalgia and left foot pes cavus and, thus, the Board remanded the case again to obtain an addendum opinion. After a review of the record and physical examination in March 2020, the examiner diagnosed the Veteran with bilateral metatarsalgia, hammertoes, acquired pes cavus, plantar fasciitis, and a bilateral foot injury, specifically blister and callous formation on the soles from walking without shoes. Specific to metatarsalgia and pes cavus, the examiner opined the Veteran’s reported walking barefoot for miles to get back to his ship in the Mediterranean and marching 50 miles over the mountains in Turkey with a broken toe in service resulted in blisters on both soles of his feet resulting in scabs, callouses, and ultimately in bilateral metatarsalgia, and nerve damage to the left foot causing the arch to exaggerate, resulting in pes cavus. However, the Board notes the Veteran’s service treatment records are negative for treatment of blisters, scabs, and callouses of the feet, and while the Veteran has a documented in-service right foot first phalanx fracture, the record does not reflect service in Turkey. Thus, as the examiner’s favorable direct service connection opinion is based on an inaccurate factual premise, it is entitled no probative weight. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (reliance on veteran’s statement renders a medical report not credible only if the Board rejects the statement of the veteran). However, the examiner also opined that when the Veteran sustained his right foot fracture [of the] first phalanx, his tendency is to favor the right foot and place more weight on the left foot, which resulted in the aggravation of the left foot metatarsalgia. Specific to the Veteran’s hammertoe disorder, the examiner opined that his July 1966 separation examination reflected a normal left foot. However, as time passed the Veteran’s L4 and L5 toes became deformed to a hammer-like formation. This abnormal formation of L4 and L5 is related to the after-effect of the callouses or thickened skin on the left foot. A defense mechanism of the foot is to prevent friction or contact of the sole of the foot to the shoe-surface is to curl the toes causing it to form a hammer-like appearance. Due to the fracture of the right first phalanx, the examiner opined that the left foot favored the right foot, hence allowing the left foot to take more weight. Thus, to have more balanced ambulation, the toes at the lateral aspect of the foot, create a hammer-like formation. Repetitive use of this formation would lead to a more permanent condition, which is “hammer toes” of the L4 and L5. Specific to the Veteran’s pes cavus, the examiner again opined that because of right foot first phalanx fracture, the right foot is favored, more pressure on the left foot was applied. This additional work of the left foot further creating nerve damage of the left foot. Hence, pes cavus of the left foot is aggravated. Overall, the examiner opined that the Veteran’s left foot disorders, to include metatarsalgia, hammertoes, and acquired pes cavus, were at least as likely as not aggravated beyond the natural progression by his service-connected right foot disability due to repeatedly taking more weight due to his right foot fracture of the first phalanx. In June 2020, the March 2020 examiner offered an additional opinion as to the etiology of the Veteran’s plantar fasciitis. In this regard, she opined that due to the right foot fracture of the first phalanx, the Veteran’s plantar fasciitis was at least as likely as not aggravated beyond the natural progression by his service-connected right foot disability. In order to resolve the multiple conflicting medical opinions, an addendum opinion was obtained in August 2020. At such time, after a review of the record, the examiner opined the Veteran’s left foot conditions were less likely than not caused or aggravated by his service-connected right foot disability. In this regard, the examiner characterized the multiple left foot diagnoses as “over the top.” However, the Board notes the left foot pes cavus and metatarsalgia diagnoses are borne out by VA treatment records and VA examinations. Nonetheless, the examiner opined that he supported the May 2017 examiner’s opinion that the Veteran’s left foot metatarsal condition is a residual of his metatarsal fractures from 2003. Further, he stated that the Veteran’s left foot condition[s] are all due to work related conditions or his personal life since active duty discharge. He has worked some very physically demanding jobs and has also been a school bus driver, all of which put high physical demands on his bilateral feet. Additionally, the Veteran has non-service connected type II diabetes, along with bilateral lower extremity diabetic peripheral neuropathy, and this condition adds to the bilateral foot discomfort and toenail issues. Further, his fracture of the left foot at three metatarsals in the 2003 farming injury also adds to left foot discomfort. The Board finds the August 2020 VA examiner’s opinions to be highly probative as they considered all of the pertinent evidence of record, to include the statements of the Veteran and medical evidence of record, and provided a complete rationale, relying on and citing to the records reviewed, to include a discussion of the July 2003 farming accident. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). In contrast, the Board affords the March 2020 examiner’s opinion to be of less probative value. In this regard, her direct service connection opinion is based on the Veteran’s report of marching 50 miles in the mountains, which is not substantiated by the record. Further, she does not consider his July 2003 farming accident which resulted in nondisplaced fractures of the second, third, and fourth metatarsals of the left foot. The Board has also considered the Veteran’s assertions that his left foot disorder is related to his military service; however, as he is a lay person, he does not possess the requisite training and experience necessary to address such a complex medical matter. Specifically, although the presence of pain and an altered gait is readily observable, the etiology of such symptoms involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect. Further, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, the etiology of foot disorders, such falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the Veteran’s opinion as to the etiology of his left foot disorder is not competent and, consequently, is afforded no probative weight. Consequently, the Board finds that the Veteran’s left foot disorder is not shown to be proximately due to and/or aggravated by a service-connected disability. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of service connection for a left foot disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 2. Entitlement to service connection for skin disorder, to include basal cell carcinoma, lichenoid keratosis, and dermatitis and as due to exposure to environmental hazards, is remanded. The Veteran contends he developed a skin disorder due to exposure to certain environmental hazards in service. In this regard, the Veteran claims that during his active service, he worked as a barber and as a result, hair follicles would fall on his body. Additionally, the Veteran states that during his duties as a mechanic and driver, the Veteran handled fuel and oil and was exposed to chemicals from the fuel and oil. The Veteran also testified to driving through areas where pesticides and other chemicals may have been sprayed. As an initial matter, the Board notes the Veteran has current diagnoses of multiple skin disorders, to include basal cell carcinoma, lichenoid keratosis, dermatitis, eczema, and chronic urticaria. In April 2019, the Veteran was afforded a VA examination, at which time the examiner opined that his skin disorder was less likely than not incurred in or due to any event, exposure, or condition experienced while in service. As rationale, the examiner stated there was no evidence of chronicity and the prolonged period between service and initial skin diagnosis makes any connection unlikely. However, the opinion did not address the Veteran’s allegations regarding exposure to fuel, motor oil, chemical pesticides, and hair follicles and if the pathology of the Veteran’s skin disorder was consistent with the alleged exposures. Additionally, the Veteran testified at his August 2017 hearing that he had issues with his skin since service. Thus, the case was remanded for an addendum opinion. The Veteran was afforded a VA examination in March 2020. After a review of the record, several medical articles, and a physical examination, the examiner opined the Veteran’s skin disorder was at least as likely as not incurred in or caused by his exposure to hair follicles while working as a barber, exposure to fuel and oil working as an automotive mechanic, and exposure to other chemicals and pesticides while working as a driver in service. As rationale, the examiner quoted from an article ‘Skin problems in hairdressers and barbers,’ which stated “the shafts of a client’s hair can be as sharp as a needle and may penetrate the skin on the hands or under the fingernails, and occasionally other exposed sites.” Thus, she opined the Veteran’s actinic keratosis, dermatitis, chronic urticaria, chronic idiopathic pruritis, and skin cancer, which are probably due to exposure to hair “needles” contaminated with herbicide. Regarding the Veteran’s work as an automotive mechanic, the examiner opined that contact with oil, grease, solvents and degreasing agents, and exposure to potentially toxic or allergenic chemicals are probably the factors that contributed to his skin disorders. Further, with respect to his duties as a driver, the examiner reviewed two articles that discussed a link between Agent Orange and skin diseases, and Agent Orange and skin cancer specifically. In this regard, the examiner noted that after driving around areas contaminated with the herbicide, the Veteran had exposure to the air and dust sufficient for him to present skin conditions such as the basal cell carcinoma. Further, the examiner opined the Veteran’s actinic keratosis, dermatitis, chronic urticaria, and chronic idiopathic pruritis are also caused by the herbicide exposure as explained in the articles. Upon review, however, the Board notes one article states there is inconclusive evidence for an increased risk of other skin diseases in Vietnam veterans exposed to Agent Orange including benign fatty tumors, melanomas, nonmelanoma skin cancers, milia, eczema, dyschromias, disturbance of skin sensation, and rashes not otherwise specified. Further, there is no record the Veteran was exposed to Agent Orange or other defoliants while in service, and the Veteran reported he did not serve in the Republic of Vietnam. See July 2001 VA examination. An addendum opinion was obtained in August 2020. After a review of the record, the examiner offered a negative nexus opinion as to the etiology of the Veteran’s skin conditions. In this regard, he noted that the Veteran’s basal cell carcinoma was cured with biopsy, without recurrence, complication, or sequela. Further, he stated that while the Veteran had valid exposures to hair follicles, fuel, oil, chemicals, and pesticides in service, no skin conditions were noted in service, and all his exposures were 50 years ago, without chronicity of care. Here, the Board notes the examiner did not address the Veteran’s assertions that he has had issues with his skin since service. See January, August 2012 VA treatment records, January 2017 Veteran’s statement, and August 2017 hearing testimony. Moreover, the Veteran submitted a statement in October 2020 in which he stated he recently underwent another cancerous skin removal procedure, and VA treatment records dated that same month reflect the Veteran was undergoing private dermatological treatment. such records have not been requested or obtained. Thus, the Board finds a remand is necessary to procure any outstanding, relevant private records and obtain an addendum opinion that addresses such matters. The matter is REMANDED for the following actions: 1. Provide the Veteran an opportunity to submit or identify any outstanding private treatment records relevant to the claims on appeal, including records from the Skin Care Center of Southern Illinois. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 2. After the receipt of any additional treatment records, return the record, to include a copy of this Remand, to the August 2020 VA examiner who offered an opinion addressing the etiology of the Veteran’s skin disorder. If the VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. After a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a current skin disorder, to include the Veteran’s diagnosed basal cell carcinoma, lichenoid keratosis, dermatitis, eczema, and chronic urticaria, had its onset in, or is otherwise related to, the Veteran’s military service, to include his acknowledged in-service exposure to hair follicles, fuels, oils, and pesticides. In offering such opinion, the examiner must consider and discuss the Veteran’s competent statements that his skin disorder had its onset during military service and has continued to the present time. The examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran’s STRs are silent as to any complaints, treatment, or diagnosis of a skin disorder, or a lack of medical records demonstrating a continuity of care after service. A complete rationale for any opinion offered should be provided. M. M. Celli Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. M. Kelly, Associate 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.