Citation Nr: 21026380 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 11-05 520 DATE: April 30, 2021 REMANDED Entitlement to service connection for a skin disability of the feet (claimed as chronic foot infections) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1952 to January 1955. This matter comes before the Board on appeal from a July 2008 Regional Office (RO) rating decision. In January 2020, the Board denied the Veteran’s claim of entitlement to service connection for a skin disability of the feet, claimed as chronic foot infections. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In February 2021, the Court granted the January 2021 Joint Motion for Remand filed by representatives for both parties, vacating the Board’s decision and remanding the claim to the Board for further proceedings consistent with the Joint Motion. The Board notes that service connection is in effect for left foot bunions, right foot bunions, and bilateral metatarsalgia. Service connection was denied for residuals of cold weather exposure in a May 2017 Board decision that was not appealed. Thus, the current claim does not contemplate any current disability or symptoms of disability that are related to bunions, metatarsalgia, or cold weather injury. 1. Entitlement to service connection for a skin disability of the feet (claimed as chronic foot infections) is remanded. The Veteran contends that he currently experiences infections of the feet that have recurred ever since his service. The Board notes that the Veteran’s service treatment records are unavailable for review. Development actions have led to the conclusion that the Veteran’s records were destroyed in a 1973 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri. VA and the Veteran have undertaken all available steps to attempt to obtain or reconstruct these records, but these efforts have all been unsuccessful. The measures that have been taken are outlined in memoranda of record dated in July 2008 and June 2010. Under such circumstances, where service records have been lost or destroyed through no fault of the veteran, the Court has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to carefully consider the benefit-of-the-doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). It is noted, however, that the 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 of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). The January 2020 Board decision denied the Veteran’s claim based on a Finding of Fact that “The weight of the evidence is against a finding that the Veteran has a current disability manifesting as a skin disability of the feet and/or chronic foot infections.” The Joint Motion states that the record contains lay statements and medical evidence that were either not considered or not adequately discussed in the January 2020 Board decision. Specifically, the Joint Motion determined that the Board had not adequately discussed the Veteran’s lay accounts of his medical history and current symptoms, as well as the findings that were made in June 2016 and August 2017 VA examination reports. The Board’s own review of the record reflects that the Veteran’s pertinent lay contentions appear in the June 2016 and August 2017 VA examination reports. The Veteran reported at his June 2016 VA examination that he experiences “repeated blisters on his toes, which occurs about once every month or two. He does not recall exactly when the blisters began but it has been many years (but not decades). He treats them with some type of OTC salve/ointment.” The VA examiner noted that “The examination of the foot also revealed inflamed, but healing blisters on the great toes bilaterally, which were not draining and not tender, along and around the nailbed. This finding has unknown etiology.” The August 2017 VA examination report diagnoses tinea pedis and intermittent recurrent cellulitis, both with diagnosis dates in the 1950s. At that time the Veteran reported that his chronic foot infections had their onset “around 1953 time frame while returning from Korea and returning to New Mexico.” The Veteran reported that “he started to develop scabs and blisters on both feet. He self-treated with topical medication, before he was evaluated by [doctors] in New Mexico. The infected skin on the feet were removed and treated with wraps and bandages.” It was noted that, “After getting out of service around 1955 every couple months especially in the summer time he states blisters would re-develop on both feet. He states he has been evaluated for the condition even after service, but states no treatment was done because [] his feet weren’t breaking out at the time.” It notes that the Veteran reported that “he self treats during the breaks out where he dips his feet in Epson salt to dry out the skin, and remove the dead skin from his feet from the blisters.” He reported that “The condition has gotten better over time.” The Veteran reported that he had treated himself with Epson salt baths for blistering on both feet less than six weeks earlier. The Veteran had not undergone any additional treatments or procedures in the past twelve months. On physical examination, there was no dermatitis, eczema, bullous disorder, psoriasis, skin infection, cutaneous manifestations of collagen-vascular disease, or papulosquamous disorder. The Veteran did not have acne, chloracne, vitiligo, alopecia, or hyperhidrosis. There were no other pertinent physical findings. The examiner noted that the Veteran’s intermittent recurrent cellulitis was quiescent and affected 0 percent of exposed areas and 0 percent of his total body surface area. The Veteran’s tinea pedis affected 0 percent of exposed areas and less than 5 percent of the full body surface area. Pursuant to the Joint Motion, a remand is necessary to obtain an opinion that discusses the above lay testimony and examination reports. The Joint Motion also raises a question with respect to whether there had been substantial compliance with the Board’s August 2019 remand order. Specifically, it notes that “The Board’s August 2019 remand order instructed the examiner to provide an opinion that ‘addresses the Veteran’s lay reports of in-service and continuing post-service symptomatology of the foot disorder’ and informed the examiner that the ‘absence of contemporaneous medical documentation of a bilateral disorder, alone, is an inadequate rationale for a negative nexus opinion.’” It notes that September 2019 examiner found that “‘Medical record review did not reveal current objective evidence for chronic treatment of tinea pedis or cellulitis.” However, it notes that “The September 2019 VA examination did not address Appellant’s prior lay report that his skin condition is recurrent, with active and inactive stages, and that he has self-treated his feet during the active stages since he was in the military.” It notes that “Although the Board found that the August 2019 remand directives had been substantially complied with, it failed to reconcile its finding with the September 2019 examiner’s lack of discussion of Appellant’s subjective assertions regarding his condition and symptoms as well as explicit reliance on the absence of contemporaneous medical documentation.” These concerns will be address in the new opinion that is obtained on remand. Separate from the Joint Motion, the Board notes that service connection is in effect for bunions of the left foot, bunions of the right foot, and bilateral metatarsalgia. The June 2019 rating decision increased the ratings for left foot bunions from 0 percent to 10 percent and characterizes the disability as “bunions, left foot (claimed as pain, blisters).” On remand, the examiner should address whether the any of the symptoms that have been reported by the Veteran are symptoms of, or secondary to, any of his service-connected foot disabilities. Finally, the Board notes that the Veteran underwent a VA cold injury protocol examination in September 2009. The Veteran has requested on multiple occasions that VA provide him with information concerning whether the examiner who performed this examination “has completed VHA’s own requisite trainings to be able to render his opinion. VHA directives are very clear that examiners shall complete the training package designed to educate them on signs / symptoms of CWIs.” (See February 2011 substantive appeal.) This argument has been raised as recently as February 2021. The Board has considered whether to request that such information be developed while this case is on remand. The Board notes, however, that current appeal does not include the issue of whether service connection is warranted for residuals of cold weather injury. The Veteran’s original requests for this information were made prior to the resolution of the issue of entitlement to service connection for bilateral foot residuals of cold weather exposure. However, this issue has been resolved, and the question of whether the VA examiner was properly educated on the signs and symptoms of cold weather injuries is not relevant to the issue at hand. Thus, the Board finds that it is not necessary to expend VA resources to determine whether the September 2009 VA examiner had undergone the proper cold weather injury training. The matters are REMANDED for the following action: 1. Obtain all relevant VA and private treatment records not currently associated with the claims file, to include any VA medical records that were created since the Veteran’s records were last obtained. 2. Send the claims file to a qualified examiner to render an opinion with respect to whether it is at least as likely as not (a 50 percent probability or greater) that any current skin disability of the feet (claimed as recurrent skin infections) began during or are otherwise related to service or a service-connected disability. In providing this opinion, the examiner should discuss whether any current skin disability of the foot is consistent with the history, symptoms, and treatment that the Veteran has described at his June 2016 and August 2017 VA examinations. The examiner should specifically discuss whether any blistering is at least as likely as not a symptom of or otherwise associated with the Veteran’s service-connected bunions of the left foot, bunions of the right foot, and bilateral metatarsalgia. In providing this opinion, the examiner should pay heightened attention to and should discuss the Veteran’s lay statements, as his service treatment records are unavailable through no fault of his own. For purposes of this opinion, the examiner should consider the Veteran’s statements to be credible. Specifically, the Veteran has stated the following: (a) The Veteran reported at his June 2016 VA examination that he experiences “repeated blisters on his toes” every month or two. “He does not recall exactly when the blisters began but it has been many years (but not decades). He treats them with some type of OTC salve/ointment.” (b) The Veteran reported at his August 2017 VA examination that he started to develop chronic foot infections on his feet in service around 1953 when he was returning from Korea to New Mexico. He reported that he started to develop “scabs and blisters on both feet.” He reported that he self-treated with topical medication, before he was evaluated by [doctors] in New Mexico. The infected skin on the feet were removed and treated with wraps and bandages.” (c) He further reported at his August 2017 VA examination that, after getting out of service in 1955, blisters would develop on his feet every few months. He reported that he self-treats with Epsom salts to dry out the blisters and remove the dead skin. The examiner should also discuss the following evidence from the June 2016 and August 2017 VA examination reports: (a) The June 2016 VA examination report notes that “The examination of the foot also revealed inflamed, but healing blisters on the great toes bilaterally, which were not draining and not tender, along and around the nailbed. This finding has unknown etiology.” (b) The August 2017 VA examination report diagnoses tinea pedis and intermittent recurrent cellulitis and lists diagnosis dates in the 1950s. (c) The August 2017 VA examination report notes that the Veteran had treated his feet with Epson salt baths for blistering on both feet less than six weeks earlier. (d) The August 2017 VA examination report notes that the Veteran’s intermittent recurrent cellulitis was quiescent and affected 0 percent of exposed areas and 0 percent of his total body surface area. The Veteran’s tinea pedis affected 0 percent of exposed areas and less than 5 percent of the full body surface area. For purposes of this opinion, the examiner should accept the following: (a) That the Veteran has current diagnoses of tinea pedis and intermittent recurrent cellulitis. (b) That the Veteran periodically treats his feet with Epsom salt baths and has done so since service. Any opinion must contain a complete rationale that includes discussion of the facts of the case and pertinent medical principles. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided.  TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Elizabeth Jalley, 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.