Citation Nr: 21025864 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 17-42 464 DATE: April 29, 2021 REMANDED Entitlement to service connection for a skin condition, including eczema, is remanded. Entitlement to service connection for a bilateral foot disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from November 1995 to November 2000. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The matter was before the Board in November 2020, when the issues of service connection for a back disability, eczema, and a bilateral foot disability were remanded for further development. In a March 2021 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for lumbosacral strain. Therefore, that issue is no longer before the Board. The Board will discuss the AOJ’s compliance with the November 2020 remand directives below. 1. Entitlement to service connection for a skin condition, including eczema The Veteran contends that he has a skin condition that is related to his military service. A December 2019 VA examiner determined that the Veteran has no current disability of the skin. However, the requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319 (2007). This matter extends to December 2014, when the claim was filed, and VA treatment records contain findings of eczema affecting his legs and acanthosis of the neck shown in April 2015. In its November 2020 remand, the Board directed that the Veteran be afforded an addendum opinion on whether he has any current skin disability during the pendency of this appeal. Further, the examiner was directed to opine as to whether it is at least as likely as not that any such disability had its onset in or is otherwise related to active service. The Board specifically called the examiner’s attention to records showing treatment for findings of eczema affecting his legs and acanthosis of the neck shown in April 2015 and any other evidence that might show a current skin disorder since the claim was filed. The Veteran was afforded a new VA examination in January 2021. The examiner noted that the separation examination did not indicate any skin condition or concerns at the time of discharge. The examiner acknowledged that the Veteran stated that he has dry skin around his ankles and heels which started in service, and he was given some kind of ointment/cream for it during service. The examiner also noted that the Veteran sought treatment for this condition in 2001-2002, and that this condition persists. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. In so finding, the examiner stated that “review of the [service treatment records] STRs and current exam showed no evidence of complaint, treatment, and disability related to foot, feet or skin to include eczema; incidental findings on day of exam of xerosis of the skin that is not indicated in STRs during active duty; a nexus has not been established.” Although the Board regrets the additional delay in this case, because there was not substantial compliance with the remand directives, another remand is necessary to afford the Veteran an addendum opinion. See Stegall v. West, 11 Vet. App. 268 (1998). Specifically, the November 2020 remand asked the VA examiner to consider medical records showing treatment for findings of eczema affecting his legs and acanthosis of the neck from April 2015. The examiner’s rationale does not explicitly address these medical records, and solely relies on the fact that the Veteran’s STRs are silent regarding a bilateral foot condition. The fact that a disability is not mentioned or diagnosed in treatment records cannot serve as the sole basis for a negative finding. Therefore, an addendum opinion is warranted. 2. Entitlement to service connection for a bilateral foot disability The Veteran contends that he has a bilateral foot disability that is related to his military service. In a December 2019 VA examination, the examiner determined that the Veteran did not have a current disability of the feet. The requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain, 21 Vet. App. 319. This matter extends to December 2014 when the claim was filed. VA treatment records reflect issues pertaining to the feet, including December 2015 treatment for left foot pain with an ingrown toenail, metatarsalgia, and Morton’s neuroma. The ingrown toenail was repeatedly treated in April 2016 and noted in a June 2018 problem list. Further, the presence of bilateral foot issues is suggested by a November 2017 prosthetics orthotics note indicating that the Veteran was issued new insoles. In its November 2020 remand, the Board directed that the Veteran be afforded an addendum opinion on whether he has any current disability of the foot or feet during the pendency of this appeal. Further, the examiner was directed to opine as to whether it is at least as likely as not that any such disability had its onset in or is otherwise related to active service. Specifically, the examiner was instructed to consider the Veteran’s reports of pain and other symptoms during service while continuing (and gradually worsening) to the present day. The examiner’s attention was directed to a September 2001 Report of Medical History, medical records showing that the Veteran was treated for foot pain with an ingrown toenail from December 2015, April 2016, and June 2018. The examiner was also instructed to review a November 2017 prosthetics orthotics note. The examiner was also directed to consider the Veteran’s lay statements regarding a “limp” that he has had since service and reports of pain in his feet during service. The Veteran was afforded a new VA examination in January 2021. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. In so finding, the examiner stated that “review of STRs and current exam show no evidence of complaint, treatment, and disability related to foot, feet or skin to include eczema; incidental findings on day of exam of xerosis of skin that is not indicated in STRs during active duty; a nexus has not been established.” Another remand is necessary to afford the Veteran an addendum opinion. See Stegall, 11 Vet. App. 268. Specifically, the November 2020 remand directives pointed the examiner’s attention to medical records as well as the Veteran’s lay statements regarding his bilateral foot disability. The examiner’s rationale does not explicitly address the specified medical records or the Veteran’s lay statements, and solely relies on the fact that the Veteran’s STRs are silent regarding a bilateral foot condition. The fact that a disability is not mentioned or diagnosed in treatment records cannot serve as the sole basis for a negative finding. Therefore, an addendum opinion is warranted. The matters are REMANDED for the following actions: 1. Provide the Veteran’s claims folder to an appropriate clinician for an addendum opinion for his skin condition, to include eczema. The entire claims file and a copy of this remand must be available for the examiner to review. An examination (physical or telehealth) is only required if deemed necessary by the examiner. The examiner must provide opinions as to whether it is at least as likely as not (a probability of 50 percent or greater) that any current skin condition, to include eczema, began in service, was caused by service, or is otherwise related to the Veteran’s active service. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the medical records showing treatment for findings of eczema affecting his legs and acanthosis of the neck shown in April 2015 and any other evidence that might show a current skin disorder since the December 2014 claim was filed. The rationale for any opinion expressed should be provided. Note the fact that a disability is not mentioned or diagnosed in treatment records cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 2. Provide the Veteran’s claims folder to an appropriate clinician for an addendum opinion for his bilateral foot disability. The entire claims file and a copy of this remand must be available for the examiner to review. An examination (physical or telehealth) is only required if deemed necessary by the examiner. The examiner must provide opinions as to whether it is at least as likely as not (a probability of 50 percent or greater) that any current foot disability began in service, was caused by service, or is otherwise related to the Veteran’s active service. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: a. The Veteran’s reports of pain and other symptoms during service while continuing (and gradually worsening) to the present day. b. The Veteran’s lay statements regarding a “limp” that he has had since service, and reports of having pain in his feet during service. See November 2015 Notice of Disagreement. c. A September 2001 Report of Medical History in which the in which the Veteran checked that he has had “foot trouble” in the past. d. Medical records from December 2015 when the Veteran was treated for left foot pain with an ingrown toenail, metatarsalgia and Morton’s neuroma diagnosed. The ingrown toenail was treated again in April 2016 and noted in a June 2018 problem list. e. A November 2017 prosthetics orthotics note indicating he was issued new insoles. f. Any other evidence that might show a current foot disorder since the December 2014 claim was filed. The rationale for any opinion expressed should be provided. Note the fact that a disability is not mentioned or diagnosed in treatment records cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 3. Readjudicate the claims. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. DeVerter, 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.