Citation Nr: 21015330 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-41 358 DATE: March 17, 2021 ORDER Entitlement to service connection for a right foot disability is denied. Entitlement to service connection for dermatitis is granted. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s right foot disability began during active military service, or is otherwise related to an in-service injury, disease, or event. 2. Resolving reasonable doubt in the Veteran’s favor, his dermatitis is at least as likely as not related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right foot disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for establishing service connection for dermatitis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty military service from April 1972 to January 1974. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the file. In December 2019, the Board remanded the claim for further development. The Board finds substantial compliance with its December 2019 remand directives. 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; 38 C.F.R. § 3.303. Generally, 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, or nexus, between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 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.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a right foot disability The Veteran contends that his bone separation on the heel of his right foot is the result of service. Specifically, he asserts that his right ankle pain began in 1972 in service, after he jumped off a transport carrier. This injury resulted in the use of crutches and the pain has continued since service. See Ankle Conditions Disability Benefits Questionnaire, July 2017. As an initial matter, the Board notes that the Veteran's service records contained in the claims file are not complete. The Veteran attested to VA treatment for right foot issues at the Fort Gordon hospital and the Fort Polk infirmary during service. The record reflects an attempt in January 2014 to retrieve service treatment records, which was referred to the National Personnel Records Center. The National Personnel Records Center sent a response in January 2014 noting the request had been referred to the U.S. Army Human Resources Command/Army Personnel and Records Division. In May 2014, an additional attempt was made to retrieve complete medical/dental records and the entire personnel file. A May 2014 record notes that all available requested records were shipped to the contracted scan vendor for upload. The record contains limited records from this request. Pursuant to the December 2019 Board remand, the Veteran was asked to identify specific dates/years that he received treatment at both Fort Polk and Fort Gordon for his right foot disability. Per the remand, on December 11, 2019 the Regional Office sent the Veteran a letter requesting this specific information. In a Statement in Support of Claim supplied by the Veteran in January 2020, he identified his foot and skin diseases have existed since 1972. He noted the conditions have been treated by private physicians C.S. and J.S. and by Columbus Orthopedic Clinic up to present date. No dates were provided for medical treatment received at Fort Polk or Fort Gordon. When service records are missing, there is a heightened duty on the Board to explain its findings and conclusions. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, case law does not establish a heightened “benefit of the doubt,” only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing a claim, and to explain its decision when a veteran’s medical records have been lost. Ussery v. Brown, 8 Vet. App. 64, 68 (1995). Similarly, case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board’s obligation to evaluate and discuss in its decision all the evidence that may be favorable to a claimant. Russo v. Brown, 9 Vet. App. 46, 50-51 (1996). Based on the foregoing, the Board finds that VA has made reasonable attempts to obtain the Veteran's complete service records and VA treatment records, and further attempts to obtain such records would be futile. Accordingly, appellate review will proceed based on the evidence of record. Limited service treatment records (STRs) include a Report of Medical Examination from June 1976 that disclosed foot trouble. The earliest relevant post-service treatment records include an April 2015 private medical record that noted complaints of right foot pain. The Veteran stated driving seemed to irritate the pain in his right foot. A private medical record from October 2015 noted the Veteran reported he hurt his right foot several months ago and his heel is where the pain is most prominent. A private medical record from December 2015 noted the Veteran’s chief complaint was bilateral foot pain. He reported both feet hurt when walking and he had sharp shooting pains in both feet at times. During an April 2016 Informal Conference Report, the Veteran stated that he injured his foot during basic training when he fell from a troop transporter and his foot rolled. He reported he was treated, and told he had bone separation. The Veteran reported he had the same pain in the same place on the right foot since service. A current diagnosis of achilles tendonitis was noted by a private provider. The Decision Review Officer requested an examination regarding his right foot condition based on the private treatment records and the Veteran’s report of injury during active duty. During an April 2016 private Orthopedic Clinic examination, the Veteran reported a chief complaint of right foot pain. He was diagnosed with achilles tendinitis of the right lower extremity and mild plantar fasciitis of the right foot. The record noted he had a history of heel separation and the Veteran reported having to ambulate on crutches during active service. Upon examination, he had “a little bit” of tenderness with deep palpation to his posterior heel. No tenderness was noted in the achilles tendon. He had full range of motion of his ankle. No tenderness with range of motion. Sensation intact to light touch. X-rays were reviewed and were negative. Physical therapy programs were scheduled for plantar fasciitis and achilles tendinitis, along with night splints and heel inserts. A private Orthopedic examination from May 2016 noted the Veteran’s long history of possible plantar fasciitis and that he received treatment in the past. It was noted he has severe pain with this condition. On examination, he had very tender plantar fascia. His achilles was non-tender. Good range of motion was noted. An MRI of the right ankle without contrast was completed in May 2016. The achilles tendon was intact. Plantar fascia was normal. The medial and lateral malleoli were normal. Very tiny enthesophyte was present at the plantar fascial insertion. In July 2017, the Veteran was provided an Ankle Conditions Disability Benefits Questionnaire (DBQ). The examiner opined that the Veteran’s ankle condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale provided was that the Veteran’s STRs were silent for complaints or treatment of any ankle conditions and then further complaints of ankle pain were not documented until 2016. An April 2016 diagnosis of bilateral achilles tendinitis was noted. The Veteran reported his right ankle pain began in 1972 in service, after he jumped off a transport carrier and hurt his foot. The Veteran asserted he was on crutches for many weeks and continued to have pain throughout service and after. He asserted he was diagnosed with achilles tendonitis shortly after leaving service. The Veteran reported intermittent dull pain to the right ankle and rated the daily pain as a 5/10. The examiner noted review of an April 2016 private treatment record where the Veteran was seen for complaints of foot pain, not ankle pain, and full range of motion of the ankle was reported, with no tenderness. In addition, a May 2016 MRI of the right ankle yielded normal results. Upon examination, the Veteran noted flare-ups of both ankles, with prolonged standing and activity and during flare-ups the right ankle would give out. Initial range of motion testing was normal for both the right and left ankles. Pain was noted on the dorsiflexion and plantar flexion bilaterally. Repetitive use testing was administered, and no additional loss of function was noted for either ankle. There was no evidence of pain with weight-bearing. There was objective evidence of localized tenderness with palpation of the achilles tendon. Muscle strength testing of the right ankle plantar flexion was 5/5 and dorsiflexion was 5/5. No ankylosis was noted for either ankle. The Veteran testified during the November 2019 Board hearing that he received treatment at Fort Polk infirmary and Fort Gordon’s base hospital for his right foot disability. Consistent with the record, he testified as he was exiting a transport carrier, “I guess I injured my right foot.” See Hearing Testimony, Page 14. He testified he was on crutches and was told he had a bone separation in his foot. He testified he cannot stand for longer than 10 to 15 minutes without pain. See Hearing Testimony, Page 17. In December 2019, the Veteran submitted a private Foot Conditions Disability Benefits Questionnaire. A 1974 diagnosis of bilateral plantar fasciitis was noted. Extreme tenderness of the plantar surfaces was reported for both feet. Bilateral foot pain was reported on weight-bearing; however, the examiner noted the Veteran is able to maintain quality of life and function. Functional loss during flare-ups included increased pain when standing or ambulating for periods of time. The private clinician did not provide an etiological opinion in this questionnaire. Following the December 2019 Board remand, the Veteran was afforded a September 2020 Foot Conditions VA examination. The examiner opined that the Veteran’s bilateral plantar fasciitis was less likely than not incurred in or caused by service. The rationale provided was that there were no service treatment records to review and the lapse in time from service to current treatment. The Veteran’s separation examination reported “yes” for foot trouble; however, the next documentation of foot pain was thirty years post-service in 2016 when he was seen for mild plantar fasciitis of the right foot. The Veteran’s 1972 diagnosis of bilateral plantar fasciitis was noted. The Veteran described flare-ups of the right foot that occur upon standing for more than 10 minutes or any weight bearing for more than 10 minutes. The right foot flare-ups were described as severe, and last more than four hours. There was no indication of swelling on use or calluses. On physical examination, pain was noted on weight-bearing on both feet. Extreme tenderness of the plantar surfaces on both feet was noted. The Veteran did not report the use of any assistive devices. Imaging studies of the foot were performed, with no degenerative or traumatic arthritis reported. The examiner noted objective evidence of pain on weight-bearing testing of the right foot and no evidence of pain on non-weight bearing testing of the right foot. In addition, no evidence of pain on active or passive range of motion testing of the right foot. Given the above, the record contains evidence of a current disability, as both a diagnosis of achilles tendonitis and plantar fasciitis are noted. Therefore, element one of Shedden is met. The Veteran testified he received treatment for his right ankle injury at both Fort Polk and Fort Gordon during service, to include the use of crutches for several weeks. The Veteran is competent to report that he experienced pain in his ankle, and he is also competent to report when his symptoms first were identified. Therefore, satisfying element two of Shedden. However, the Board concludes that the preponderance of the evidence weighs against service connection because element three of Shedden, a nexus, has not been established. There must be this correlation between what happened during service (Veteran’s testimony of rolling his ankle) and the development of these present-day disabilities to warrant the granting of service connection. Unfortunately, the most probative evidence is unfavorable to this claim. Although the Veteran is credible to report his in-service ankle pain, it does not establish a nexus to service. The Board acknowledges the Veteran’s assertions that his current right foot disability is due to service. In this regard, the Veteran is competent to report the type of symptoms he experienced in and after service. See Layno v. Brown, 6 Vet. App. 465 (1994). However, a determination as to the etiology of the disability is a complex medical determination that goes beyond lay observation of symptoms—especially for a disability such as plantar fasciitis and/or achilles tendonitis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007). Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). Moreover, there is no competent evidence linking the Veteran’s right foot disability to service. Although the private treatment records show treatment for achilles tendonitis and plantar fasciitis, they do not discuss the etiology of the disability. Both the July 2017 and September 2020 VA examiners opined that the Veteran’s current right ankle disability is not related to service. Unfortunately, there is no competent opinion to the contrary, and the Veteran has not been shown to have arthritis of the right foot to support a nexus based on continuity of symptomatology. Accordingly, the Board finds that even if the Veteran did incur an in-service injury to his right ankle as he testified, the third element of Shedden, nexus, is not met, and the claim fails. In particular, because the record does not contain any evidence that the Veteran’s right foot disability is etiologically linked to service. The only competent evidence provides a negative nexus to service. In light of the above, the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See U.S.C. 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for dermatitis The Veteran contends that he suffers from a skin condition as a result of his active duty service. Specifically, he contends that he was sprayed with tear gas that caused a skin condition in-service, requiring treatment, and has continued to present day. See Skin Conditions examination, September 2020; Notice of Disagreement, March 2015. The evidence of record shows that the Veteran has been diagnosed with dermatitis, reflected on a September 2020 VA Skin Conditions examination. Limited service treatment records are contained in the file, but no treatment or diagnosis of a skin condition was noted in the available records. However, during the November 2019 Board hearing, the Veteran testified that he still uses topical treatment for dermatitis and presented with the rash on his face. He testified he believed the condition began during his time at Fort Dix, NJ and that he has had continued problems since service. See Hearing Testimony, Page 9. The Veteran is competent to report having skin conditions during service. The Veteran’s statements are credible, as there is no evidence to contradict his account of having experienced skin irritation in service. In addition, the September 2020 VA examiner noted the 1974 diagnoses of dermatitis and acne that continues to require topical creams during flare-ups. The Board thus accepts this evidence as a present diagnosis and the presence of an in-service event, satisfying element one and two of Shedden for service connection. The Veteran submitted a private Skin Conditions Disability Benefits Questionnaire (DBQ) in January 2020. A March 1974 diagnosis of acne was noted. Oral medication was noted for flare-ups, with use less than 6 weeks of the previous 12 months. Lesions to the face were noted, with redness, pain and swelling of the infected acne spots. No opinion was provided regarding the etiology of the Veteran’s acne. As noted previously, the Veteran was afforded a VA Skin Conditions examination in September 2020. The VA examiner noted the Veteran’s 1974 diagnoses of dermatitis and acne. Due to a lack of evidence, the examiner opined that the Veteran’s diagnosis of dermatitis was less likely related to military service. The examiner noted that although the Veteran reports the onset of his dermatitis in service, there is no documentation of any skin condition and/or treatment in his service treatment records. During the examination, the Veteran reported a history of acne and skin irritation after being sprayed with tear gas during service. He reported he was treated with oral antibiotics that helped and he now uses Betamicin. Upon review of the lay and medical evidence, the Board finds that the evidence is at least in relative equipoise on the question of whether the current skin disorder began in service; that is, whether the above listed condition was directly “incurred in” service and which has resulted in outbreaks of symptoms since that time. Evidence weighing in favor of this finding include the Veteran’s competent statements that his skin disorder began in service and has resulted in outbreaks of symptoms since that time. The evidence weighing against a finding of his current skin disorder having onset during service includes the September 2020 VA medical opinion whereby the examiner opined that the Veteran’s dermatitis was less likely than not due to service. Although the September 2020 VA examiner gave a negative nexus opinion, the Veteran competently and credibly testified that he has experienced this condition since his active military service, and that it has steadily worsened over time. He is competent to report the same symptoms during and since service. The Board notes that a positive medical nexus opinion is not necessary in light of the lay evidence of record concerning the onset and recurrence of the Veteran's skin rash symptoms. King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board accordingly finds the evidence is at least in equipoise that the Veteran’s current skin condition is the same skin condition he experienced during active duty. Therefore, the third element of Shedden having been satisfied. Thus, resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for dermatitis is warranted. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Krista Johnson, 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.