Citation Nr: 21025036 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 13-03 951 DATE: April 27, 2021 REMANDED Entitlement to an initial, compensable rating prior to February 21, 2019, and a rating higher than 10 percent from that date, for vesicular tinea pedis, is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for right lower extremity neuropathy, claimed as secondary to low back disability, is remanded. Entitlement to service connection for left lower extremity neuropathy, claimed as secondary to low back disability, is remanded. Entitlement to service connection for a headache disability is remanded. REASONS FOR REMAND The Veteran had active duty service from January 1968 to April 1989. This appeal to the Board of Veterans' Appeals (Board) arose from November 2011 and December 2015 Rating Decisions by Department of Veterans Affairs (VA) Regional Offices (ROs). In August 2016, the Veteran testified at a Board videoconference hearing before a Veterans Law Judge (VLJ); a hearing transcript has been associated with the record. In correspondence dated in February 2021, the Veteran was informed that the VLJ who conducted his August 2016 hearing was no longer employed by the Board and advised of his right to request another optional Board hearing. In March 2021, the Veteran responded that he did not wish to appear at another Board hearing. As such, the Board will proceed with the claims accordingly. The Veteran seeks entitlement to higher initial ratings for his service-connected vesicular tinea pedis as well as entitlement to service connection for a back disability, right lower extremity neuropathy (claimed as secondary to low back disability), left lower extremity neuropathy (claimed as secondary to low back disability), and a headache disability. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. With respect to the claim of entitlement to higher initial ratings for vesicular tinea pedis, the Board remanded the matter for additional development in its December 2019 decision. At that time, the Board emphasized that previous VA examination reports dated in August 2018 and February 2019 were inadequate for multiple reasons. First, the Board found that no attempts were made to schedule the examination of the Veteran’s feet during an active stage of his condition, as stipulated by a previous remand; to the contrary, the August 2018 VA examination report stated that the examination was being conducted during a “dry cycle” of the condition. Additionally, the Board had specifically directed that the VA examiner indicate whether, at any point since March 2, 2011, the evidence showed that the Veteran's skin condition of the feet had increased in severity, and, if so, the approximate date(s) of any such change(s), and the extent of severity of disability at each stage. While the February 2019 examination report reflected increased severity based on the need for light therapy, neither report specifically addressed approximate date(s) of any change(s) in severity. Finally, the Board emphasized that the Veteran had described having significant severity of his skin disability of the feet during active phases, including bleeding, pain, and infections of the interspaces between his toes; however, the examination reports of record did not thoroughly describe the Veteran’s functional impairment as a result of service-connected disability, to include with respect to addressing potential rating criteria for other foot disabilities. Cf. 38 C.F.R. § 4.118, Diagnostic Code 7819. As such, the Board remanded the matter for an adequate examination in December 2019. Pursuant to the Board’s December 2019 Remand, the Veteran was provided with an additional VA examination in September 2020, at which time he was diagnosed as having tinea pedis. However, the examiner stated that: The vesicular tinea pedis is an established condition; as such, the examination will focus on the current symptoms, treatment, and impact. Claimant states he was diagnosed with tinea pedis while serving in Viet Nam in 1968. Current symptoms: Small laceration between first and second toes (in the web) on the right foot, but other than this the condition is much improved since the past several years due to UV light treatment and a steroid cream. Current treatment: UV light treatment; steroid cream (Clobetasol) Impact: The claimant states that when the condition flares, walking becomes difficult due to pain; claimant states that he is unable to live or work in a humid climate due to this condition. Thereafter, the VA examiner noted that the Veteran’s tinea pedis only affected less than five percent of his total body area and none of his exposed area upon current examination. Finally, the examiner opined that the Veteran’s skin condition impacted his ability to work because ambulation could be impacted due to pain when the condition flared. Again, the Board finds that the September 2020 VA examination is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA has provided an examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place); see also Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Crucially, the prior Board remand explicitly requested that the examiner indicate whether, at any point since March 2, 2011, the evidence showed that the Veteran's skin condition of the feet had increased in severity, and, if so, the approximate date(s) of any such change(s), and the extent of severity of disability at each stage. However, the September 2020 examiner instead only focused on the current symptoms, treatment, and impact of the Veteran’s tinea pedis. Moreover, the examination report was ambiguous as to the progression of the Veteran’s disability. Indeed, the examination report implied that the examination was not conducted during a period of flare-up, as it described more severe symptoms (such as foot pain severe enough to alter ambulation) which were not present at the time of the examination. See Ardison v. Brown, 6 Vet. App. 405 (1994) (when evidence indicates that a disability has a history of remission and recurrence, the duty to assist requires that any examination be given during an active stage of the condition). However, elsewhere in the examination report, the examiner indicated that there was no plantar involvement either impairing ambulation or not impairing ambulation, which seemingly contradicted his conclusion regarding foot pain severe enough to alter ambulation during flare ups. Additionally, the examiner asserted that the overall disability had improved in the past several years as a result of ultraviolet (UV) light treatment. As such, it is not clear as to whether the examiner was referring to an improvement inclusive or exclusive of the documented flare-ups, and whether the flare ups themselves had decreased in frequency and/or severity as a result of the UV light treatment. Furthermore, although the VA examiner indicated that tinea pedis only affected less than five percent of the Veteran’s total body area and none of his exposed area upon current examination, it is not clear as to whether these percentages referred to an active stage of the disability (i.e., during a flare up), an inactive stage of the disability, or both. On remand, the examiner must provide a more detailed recitation of the Veteran’s tinea pedis progression, to include the frequency and severity of flare ups, from March 2011 to the present (as requested in the previous Board Remand). If the evidence demonstrates that the Veteran’s tinea pedis had increased or decreased in severity, then the approximate date(s) of any such change(s), and the extent of severity of disability at each stage should be documented. Additionally, the examiner is asked to complete a separate VA Foot Conditions examination report to detail the impact of the Veteran’s service-connected tinea pedis on the function of his bilateral feet (i.e., whether the disability can be considered moderate, moderately severe, or severe for purposes of Diagnostic Code 5284, pertaining to other foot injuries). Additionally, the Board acknowledges that a November 2020 addendum opinion was obtained from the September 2020 VA examiner in which he opined that, “The claimant's skin condition, diagnosed as tinea pedis, has not increased in severity since 2011; in fact, as we documented in the examination, in contrast it has improved. We stated in the report that while the claimant does have a small laceration between the first and second toes (in the web) on the right foot, the tinea pedis condition is ‘much improved since the past several years due to UV light treatment and a steroid cream,’ the latter which is documented as the claimant's current treatment.” However, the Board emphasizes that a November 2020 VA podiatry treatment note suggested that the Veteran’s skin disability had not steadily improved as a result of UV light treatment. To the contrary, the VA podiatry note acknowledged that the Veteran received UV light treatment at the University of New Mexico from Dr. J. Durkin as it was not offered through VA, but indicated that erythrasma would improve and then reoccur. It was also indicated that the Veteran would continue with UV therapy, but that systemic treatment with methotrexate would also be considered. The Board notes that treatment records from Dr. Durkin were last received in January 2020. As this suggests a worsening of the Veteran’s service-connected symptomatology, these records also must be reviewed and considered by the examiner. With respect to the Veteran’s service-connection claims, the Veteran was examined in September 2020 for his claimed headaches, back and lower extremity neuropathy issues. For the Veteran’s headaches, the VA examiner diagnosed the Veteran with tension headaches, but in opinions rendered in September 2020 and November 2020, opined that they were less likely than not incurred in or caused by service, to include exposure to solvents or excessive heavy lifting and physical work. The examiner did not, however, address the Veteran’s contentions that his headaches onset in service and have continued since that time. The examiner’s failure to address the Veteran’s lay statements about the onset of his headache symptoms in service is not in substantial compliance with the Board’s prior remand. As such, remand is required. Stegall v. West, 11Vet. App.268, 271 (1998). In addition, the Veteran, through his representative in February 2021 Post-Remand Brief, specifically contends that his disabilities are a direct or secondary result of active duty service and disabilities incurred. As such, the Veteran has set forth a new theory of entitlement to service connection; that being, as secondary to his service-connected disabilities. On remand, additional VA opinions should be obtained as to the likelihood that the Veteran’s back disability, right lower extremity neuropathy, left lower extremity neuropathy, and/or headaches were caused or aggravated by any of his service-connected disabilities, to include any abnormal gait and/or ambulation caused by the pain associated with this service-connected tinea pedis. See El-Amin v. Shinseki, 26 Vet. App. 136, 140–41 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Ask the Veteran to identify and provide authorization to obtain any outstanding, relevant private medical records, to include any outstanding treatment records for treatment of tinea pedis from dermatologist J. Durkin, MD, FAAD, at the University of New Mexico in Albuquerque, New Mexico, reflecting treatment by Dr. Durkin after January 16, 2020. After securing the necessary authorization, these records should be requested. Make two requests for the authorized records from the private facilities identified by the Veteran unless it is clear after the first request that a second request would be futile. If any records are not available, then the Veteran should be notified. 3. After the above development has been completed, arrange for the Veteran to undergo a VA examination of his feet by an appropriate clinician. To the extent possible, attempts should be made to schedule the Veteran’s examination during an active stage of his disability, particularly since skin conditions by their very nature tend to have active versus inactive stages. The contents of the entire claims file, to include a complete copy of this Remand, must be made available to the designated physician, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should identify and describe all symptoms and functional impairment associated with the skin disability, to include bleeding and pain, and infections of the interspaces between his toes. The nature and severity of such symptomatology should be described in detail. Following examination, the examiner should render specific clinical findings as to the percentage of the total area of the body affected by the service-connected skin disability, as well as the exposed areas affected. If the examination must take place during an inactive stage of disability, separate percentages based on a review of the record and the Veteran’s description of his symptoms during a period of exacerbation should be provided. The examiner must explicitly state the percentage of the body affected during an active stage of the disability (i.e., during a flare-up) versus during an inactive stage of the disability. The examiner should also indicate whether the Veteran’s disability requires treatment with systemic therapy such as corticosteroids or other immunosuppressive drugs and should identify the total duration of such required treatment during the relevant time period. Based on review of all pertinent evidence and lay assertions, the examiner should also indicate whether, at any point since March 2, 2011, the effective date of the award of service connection, the Veteran's service-connected disability has increased in severity, and, if so, the approximate date(s) of any such change(s), and the extent of severity of disability at each stage, to include required use of systemic therapy. In providing these opinions, the examiner must specifically review and comment upon the November 2020 VA podiatry note which indicated that erythrasma would improve and then reoccur, and that systemic treatment with methotrexate would also be considered in addition to UV light treatment; the examiner must also consider and address the final treatment report from Dr. Durkin dated January 16, 2020 that describes the Veteran’s UVA phototherapy. Additionally, the examiner is asked to complete a separate VA Foot Conditions examination report to detail the impact of the Veteran’s service-connected tinea pedis on the function of his bilateral feet (i.e., whether the disability can be considered moderate, moderately severe, or severe for purposes of Diagnostic Code 5284, pertaining to other foot injuries). All examination findings/testing results, along with complete, clearly-stated rationales for the conclusions reached, must be provided. 4. Obtain a VA opinion from an appropriate provider to determine the etiology of the Veteran’s lumbar spine disability and any associated neuropathy of the bilateral lower extremities. The examiner should review the file and provide a complete rationale for all opinions expressed. If it is determined that an additional examination of the Veteran is necessary to provide this opinion, then one should be scheduled. The examiner is asked to provide an opinion as to the following: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s back disorder and any associated neuropathy of the lower extremities was caused by his service-connected disabilities, to specifically include any altered gait and/or ambulation produced during flare ups of his service-connected tinea pedis. b. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s back disorder and any associated neuropathy of the lower extremities was aggravated by his service-connected disabilities, to specifically include any altered gait and/or ambulation produced during flare ups of his service-connected tinea pedis. The opinions should specifically address the September 2020 VA examination report indicating that ambulation could be impacted due to pain when the Veteran’s tinea pedis flared. In providing the opinions, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. A complete rationale must be provided for the opinions offered. The examiner should note that a finding that a disability is "not due to," "not caused by," and "not related to" a service-connected disability is insufficient to address the question of aggravation. 5. Obtain a VA opinion from an appropriate provider, to determine the etiology of the Veteran’s headache disability. The examiner should review the file and provide a complete rationale for all opinions expressed. If it is determined that an additional examination of the Veteran is necessary to provide this opinion, then one should be scheduled. The examiner is asked to provide an opinion as to the following: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s headache disorder onset in service or is otherwise medically-related to service. b. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s headache disorder was caused or aggravated by his service-connected disabilities, to specifically include any pain associated with flare ups of his service-connected tinea pedis. c. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s headache disorder was caused aggravated by his service-connected disabilities, to specifically include any pain associated with flare ups of his service-connected tinea pedis. The opinions should specifically address the September 2020 VA examination report indicating that the Veteran’s tinea pedis flares were productive of pain severe enough to alter his ambulation. In providing the opinions, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms, including the Veteran’s reports to the September 2020 VA examiner that he first experienced headaches in 1968 and has had “chronic headaches” ever since. A complete rationale must be provided for the opinions offered. The examiner should note that a finding that a disability is "not due to," "not caused by," and "not related to" a service-connected disability is insufficient to address the question of aggravation. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.