Citation Nr: 21028094 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 11-09 824 DATE: May 10, 2021 ORDER Entitlement to service connection for bilateral foot skin rash is granted. REMANDED Entitlement to service connection for bilateral foot disability, other than skin rash, is remanded. FINDING OF FACT The evidence is evenly balanced as to whether the Veteran's current bilateral foot skin rash had its onset in service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for bilateral foot skin rash are met. 38 U.S.C. §§ 1110, 5107(b); 38 U.S.C. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1972 to April 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for a feet condition. The Veteran timely appealed. In December 2013 and January 2015, the Board remanded the claim to the agency of original jurisdiction (AOJ) for further development. The case was returned to the Board in February 2016, when the Board denied the claim. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (the Court). In January 2017, the Court granted a Joint Motion for Partial Remand (JMPR), which vacated the Board's denial and remanded the claim in order to afford the Veteran an adequate VA examination. Most recently, in January 2021, the Board remanded the claim to the AOJ to obtain an addendum medical opinion. The matter has now been returned to the Board for further appellate consideration. Briefly, the Board notes that the issue of nonservice-connected pension benefits cited in the December 2016 JMPR was addressed in a December 2016 Board decision, and it is no longer on appeal. The Board has recharacterized the claim as reflected on the title page. The recharacterization is appropriate because of the complex medical background and allowance for the instant grant. Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) (characterization of a claim generally is within VA's discretion). I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The claims are also subject to the December 2016 JMPR as well as the subsequent Board remands from April 2017, October 2019, July 2020, and January 2021. The instant decision is fully favorable to the Veteran and further discussion of notification, assistance or remand compliance is not necessary at this juncture in the appeal. II. Entitlement to service connection for a bilateral foot skin rash Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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(b); 38 C.F.R. § 3.102. In this case, service treatment records (STRs) include a September 1971 enlistment physical examination. The Veteran's feet were clinically examined and deemed normal. However, on the accompanying medical history report, the Veteran endorsed having a history of foot trouble. He described it as Athlete's foot. STRs dated in May 1972 included treatment for right foot folliculitis. Although the handwritten text is not entirely readable, it appears the clinician prescribed a pad to wear. An entry two days later showed that the clinician recommended continuing the previous treatment. In March 1974, the Veteran had a separation examination. His feet were clinically examined and deemed normal. Private medical records from November 2002, October 2003 and March 2004 showed that the Veteran had his feet evaluated as part of routine diabetes care. The physical findings showed his feet to be warm and with good color and sensation to fine touch. Vibratory sense was intact. No blisters, sores or ulcerations were found. Nails were normal without onychomycosis. The physician advised the Veteran to regularly inspect his feet for dermatological problems and sores. However, private medical records from November 2009, May 2010, August 2011, and January 2012 appear to note onychomycosis. Otherwise, clinical evaluation reported both feet to be warm and with good color and sensation to fine touch. Vibratory sense was intact. No blisters, sores or ulcerations were found. In an August 2010 statement in support of the claim, the Veteran reported that he ran every morning as part of basic training. He developed blisters on the top of his feet. He sought medical attention and was told to wear thick cotton for treatment. Ever since then, he had to wear thick cotton with his boots. In his April 2011 substantive appeal (VA Form 9), the Veteran reported that the May 1972 treatment for folliculitis affected his left foot as well as his right foot. He received padding for both boots. The clinician informed him that he needed to apply for medical disability for both feet since he would not be able to wear boots without the prescribed foot pads. He forgot to do so two years later at separation. He also stated that whenever his feet hurt, he received time off. In April 2011, the Veteran had a VA skin disease examination. He reported that in 1972 he developed prolonged pain one day after running. The pain was attributable to blisters affecting both feet. The blister affecting his right foot was more severe than the one affecting his left foot. He was treated for an infection and given a thick cotton pad to wear in his boots for protection. He also received special boots and wore the cotton pad in his boots for the remainder of his military career. Following service, he had folliculitis recurrence only if he wore leather boots without cotton bandages and thick cotton socks. He used ointment as needed but never sought medical attention. The associated skin symptoms were described as painful blisters on the top of the feet. Clinical evaluation did not show any current evidence of blisters, pustules, infection, folliculitis, or rash involving either foot. The examiner diagnosed folliculitis right foot, resolved. She furnished a negative medical opinion. However, as her opinion has been deemed inadequate for adjudication purposes, it will not be considered further. In May 2011, the Veteran reported that he knew when he left the military that wearing boots was not good for him. He appears to reference thick cotton pad use to prevent blisters from developing on the top of his feet. He stated that there were residual marks or scars on the top of his feet that did not respond to topical medication. He did not seek medical attention since he knew how to self-treat the condition. VA treatment records from May 2011 showed that a diabetic foot examination was completed. The clinician reported dry scaly skin, callouses between toes and mycosis of the great toes. She was unable to palpate pulses in either leg. Monofilament testing was abnormal. VA diabetic foot examinations dated in September 2013 and September 2014 did not show any dermatological disorder for either foot, to specifically include callouses, mycosis, skin color change, or skin breakdown. Pulses were normal. In April 2014, the Veteran had a VA foot examination. The examiner diagnosed venous insufficiency, 4th toes degenerative joint disease (DJD) and calcaneal spurs for both feet. The Veteran stated that his symptoms started during 1972 basic training. He was unable to wear boots without protection because of blistering and swelling. Clinical findings were reported, including an X-ray study showing DJD and calcaneal spur for both feet. The examiner furnished a negative medical opinion but since it is inadequate for adjudication purposes it will not be considered further. In September 2014, the Veteran reported that he developed blisters on both feet during service. He visited sick call and received medication as well as thick cotton to insert in his boots. Later during service, while on guard duty in Germany, he had severe coldness with unbearable pain in his feet. He treated his feet with Epsom salt and an illegible type of foot therapy with success. Ever since service, he used some type of foot treatment. In October 2002, he started diabetes treatment. However, he reported that his foot problems existed prior to the diabetes diagnosis and he disagreed with the examiner who said his foot problems did not exist in service. Private medical records dated in October 2015 reported that the Veteran had an open wound after stepping on a nail and needed to be evaluated for an infection. Clinical evaluation showed onychomycosis affecting all toes. A two by two centimeter ulcer was found on the right plantar foot and treated. The physician assessed grade II ulcer right foot stable, diabetes with neuropathy and chronic osteomyelitis. Private hospitalization records dated in July 2016 showed that the Veteran was treated for osteomyelitis of the finger, left hand, diabetic foot ulcer and uncontrolled diabetes with neurological manifestations. Private medical records dated in January 2017 reported that the Veteran had a chronic right foot wound. It was treated about a year ago with nearly two months of intravenous (IV) medication. However, three months ago, the Veteran noticed increased bleeding on his right foot. Over the past week, he had developed increased pain and pus drainage. X-ray was abnormal, and the Veteran was treated for cellulitis. Bone scan was concerning for apparent osteomyelitis. For treatment, the Veteran had right foot 2nd to 5th toe amputations. The physician noted poorly controlled diabetes. VA medical opinions were obtained in May 2017, November 2017, and June 2019. However, these examination reports and medical opinions either do not include relevant supplementary information or are inadequate for adjudication purposes. They will not be considered further. In September 2020, the Veteran had a VA skin disease examination. The examiner diagnosed onychomycosis of the left foot, all toes. He noted that the Veteran's onychomycosis affecting both toes with an onset in the 1970s. The Veteran reported being diagnosed with a rash on his foot in service. Since he had a right below the knee amputation, only his left foot was currently affected. Clinical evaluation revealed onychomycosis of the left foot, described as yellowish/ brown toenails. Another VA medical opinion was obtained. However, it has been deemed inadequate for adjudication purposes and will not be considered further. In January 2021, a VA-contract medical opinion based upon review of the claims folder was obtained for folliculitis of the right foot, bilateral DJD, bilateral calcaneal spurs, amputation of right toes, and bilateral onychomycosis. For folliculitis of the right foot, the clinician reported that the May 1972 STRs indicated this disorder was self-limited and resolved in service. He reported that folliculitis was caused by bacteria and once treated it was self-limited. He cited medical literature. For the four other disorders, STRs did not show treatment, and these disorders appeared after service. He noted that the Veteran only served for two years and it would take many years to develop DJD and calcaneal heel spurs. He reported that DJD was due to aging and cited supporting medical literature. He reported that the amputation was related to 2015 trauma, with diabetes as a complication. He cited the private hospital records as supporting post service injury and diabetes as the causes. For the left foot DJD and calcaneal heel, he attributed it to daily walking over the course of many years. He stated that it had been greater than 30 years when these conditions presented, and it would be expected to have shown up in service if it were an acute condition then. For left foot onychomycosis, he characterized it as a fungal infection attributable to poor nail grooming, immunosuppression with diabetes and advanced age. He stated that onychomycosis was more common in diabetic patients due to impaired immune function and cited a medical study. For the following reasons, the Board finds that the evidence is at least evenly balanced as to whether the Veteran has had skin rashes on both feet since service, and service connection for bilateral foot skin rash is warranted. As a preliminary matter, the Veteran is entitled to the presumption of soundness with respect to his feet. 38 C.F.R. § 3.304(b). The September 1971 enlistment physical examination did not find any abnormality for either foot. The presumption of soundness attaches to the condition of the Veteran's feet at entrance into service. The Veteran's medical history report about Athlete's foot is vague, and there is no other report suggesting a preexisting foot disorder. By itself, the enlistment medical history report is insufficient to meet the clear and unmistakable evidentiary standard to rebut the presumption of soundness. Id. The primary evidence supporting the claim is the Veteran's reports. He reports developing blisters or rash type skin disorders affecting both feet in service and having similar symptoms since then. He is competent to report about a rash or a skin disorder affecting his feet since these are readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007). For an in-service event, the Veteran's reports about bilateral foot rashes or blisters associated with shoe or boot wear is probative evidence. He is competent to make these reports. Id. The reports are plausible and consistent with his Army service. The May 1972 STRs for right foot folliculitis provide corroborating medical evidence to his reports. Therefore, an in-service event is shown. For a current disability, the Veteran's reports are also probative. The Court has held that a current disability includes any manifestations during the claims period as well as pain affecting a body part that results in functional impairment of earning capacity. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim); Saunders, 886 F.3d at 1364-65. This claim was filed in August 2010. All the left foot symptoms since then and right foot symptoms preceding the January 2017 right foot amputation are for consideration as a current disability. There is no evidence that the Veteran is not sincere in his report about experiencing intermittent skin rashes on his feet during the claims period. The Board accepts the Veteran's reports that the bilateral foot skin rashes have manifested during the claims period and that the associated skin irritation posed occupational impairment. A current disability is established. See id. For a relationship to service, the Veteran reports continuous symptoms since service for bilateral foot skin rashes. 38 C.F.R. § 3.303(a), (d). Since he is competent to report about the skin disorder and its history, the Board must consider the credibility of his reports with the additional evidence of record. In August 2010, April 2011, May 2011, and September 2014 statements, the Veteran reported that he had blisters or foot pain in each foot following the in-service right foot folliculitis diagnosis. He regularly used either cotton pad shoe inserts or ointment as preventive treatment. At the April 2011 and April 2014 VA examinations, the Veteran provided similar reports dating his foot blisters to service. As to supporting medical evidence, May 1972 STRs corroborate the Veteran's reports about skin irritation on his right foot and use of pad inserts for treatment. Then, May 2011 VA treatment records note skin irritation of the feet. In weighing the Veteran's reports, particular consideration must be given to the transitory nature of skin rashes and the Veteran's reports of preventative measures to avoid flare-ups. McClain, 21 Vet. App. at 321; Id. His reports about recurrent skin rashes following service may not be rejected based upon the absence of contemporaneous medical evidence alone. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Although the Veteran has not sought medical treatment, his reports about continuing symptoms and self-care or preventative treatment are plausible. The Board points out that in many cases skin rashes are transitory and responsive to conservative care measures. The Veteran is not otherwise shown to be an unreliable historian. With these considerations, the Board finds that the Veteran is credible in his reports about bilateral foot rash symptoms starting in service. His reports are entitled to probative weight to show a relationship to service. The Board must also consider the probative value of the additional evidence concerning a relationship to service. VA skin examination reports from April 2011 and September 2020 did not find evidence of current folliculitis or rash affecting the feet. VA and private medical records from November 2002 to September 2014 reflect that the Veteran's feet were clinically examined on several occasions and not found to have any dermatological abnormality. Since these reports include clinical evaluation of the Veteran's feet, the Board may infer that a skin disorder was not present at that time. Molitor v. Shulkin, 28 Vet. App. 397, 410 (2017) ("The absence of evidence only tends to prove the nonexistence of a fact if the fact would ordinarily have been recorded"). However, as explained above, a current disability is established, and these reports are not inconsistent with intermittent manifestations. The Board finds these reports have limited probative value in weighing against a relationship to service. The January 2021 VA-contract medical opinion weighs against a relationship to service for right foot folliculitis. The clinician found that the documented in-service right foot folliculitis was a transitory fungal disorder and cited the absence of treatment in subsequent medical records as supporting evidence. The clinician's supporting rationale is problematic since it relies on an absence of medical treatment to reject any reports about continuing symptoms. Buchanan, 451 F.3d at 1337 ("the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). It does not directly address the Veteran's reports about self-management for continuing symptoms following service. For these reasons, the Board attaches limited probative weight to the January 2021 VA-contract medical opinion for right foot folliculitis. There is no adequate medical opinion concerning left foot skin rash. In sum, the probative weight of the evidence is evenly balanced as to whether the Veteran's current bilateral skin rash symptoms started in service. Id. at 1335 (competent lay evidence may be sufficient in and of itself to substantiate a service connection claim). As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral foot skin rash is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for bilateral foot disability, other than skin rash, is remanded. Although the Board regrets the delay, clarification of the January 2021 VA-contract medical opinion is needed to ensure substantial compliance with the prior remand instructions. The January 2021 remand directed that the clinician furnish medical opinions for bilateral degenerative joint disease, bilateral calcaneal spurs, and bilateral onychomycosis and advised that each condition must be addressed even if no longer present. The clinician's rationale in the January 2021 VA-contract medical opinion specifically refers to degenerative joint disease, calcaneal heel, and onychomycosis of the left foot and does not otherwise reflect consideration of these disorders affecting the right foot prior to the January 2017 amputation. The Board is unable to make an inference of a typographical labelling error since the clinician repeatedly refers to the left foot and this inference would result in a medical determination. Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012). Then, the Board notes the Veteran made a September 2014 report about in-service bilateral foot pain associated with cold exposure, and this report must be considered in the medical opinion as well. Another medical opinion is needed to comply with the January 2021 Board remand and address the right foot disorders of degenerative joint disease, calcaneal spurs, and onychomycosis present prior to the January 2017 right foot amputation as well as the September 2014 report of bilateral foot pain associated with cold exposure. See McClain, 21 Vet. App. at 321. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Eastern Oklahoma VA Health Care System (dated to December 2020) and the Central Arkansas Veterans Healthcare System (dated to October 2013). Any VA treatment records are within VA's constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. This matter is REMANDED for the following action: 1. Obtain the Veteran's outstanding VA treatment records from the Eastern Oklahoma VA Health Care System for the period since December 2020; the Central Arkansas Veterans Healthcare System for the period since October 2013; and all such relevant records from any other sufficiently identified VA facility. 2. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, contact the January 2021 VA-contract clinician, or if he is unavailable, another appropriate clinician, for an addendum medical opinion. The claims file must be reviewed, and such review should be noted in the report. The clinician is asked to address the following: (a) Is it at least as likely as not (50 percent probability or greater) that the claimed right foot disabilities of degenerative arthritis, calcaneal heel spur, and onychomycosis that preexisted the January 2017 right foot amputation (1) began during service; (2) manifested within one year after discharge from service (in the case of arthritis); OR (3) are otherwise related to service, to include skin rash and cold injury episode? (b) Is it at least as likely as not (50 percent probability or greater) that the claimed left foot disabilities of degenerative arthritis, calcaneal heel spur, and onychomycosis (1) began during service; (2) manifested within one year after discharge from service (in the case of arthritis); OR (3) are otherwise related to service, to include skin rash and cold injury episode? The clinician must consider the Veteran's competent and credible lay reports about foot skin rash symptoms starting in service and his September 2014 report about a cold injury episode. (CONTINUED ON NEXT PAGE) All opinions must be accompanied by adequate reasons and bases with consideration to the lay reports. Brian J. Elwood Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. D. Simpson, 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.