Citation Nr: 21029043 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 14-26 813 DATE: May 12, 2021 ORDER Service connection for onychomycosis of the left hand is granted. Service connection for onychomycosis of the right hand is granted. REMANDED Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for pseudofolliculitis barbae is remanded. Entitlement to an initial compensable disability rating for the service-connected onychomycosis of the bilateral feet is remanded. FINDINGS OF FACT 1. The Veteran's onychomycosis of the left hand began during active service. 2. The Veteran's onychomycosis of the right hand began during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for onychomycosis of the left hand are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for onychomycosis of the right hand are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1992 to January 2001. This matter comes before the Board of Veterans' Appels (Board) on appeal from a January 2012 rating decision of a Department of Veterans Affairs (VA), Regional Office (RO). This matter was previously before the Board in July 2019 at which time, in pertinent part, the issue of an increased disability rating for the service-connected onychomycosis of the bilateral feet was denied, and the issues of service connection for onychomycosis of the left and right hands, a left shoulder disability, a low back disability, and pseudofolliculitis barbae were remanded for additional development. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the Court granted a Joint Motion for Partial Remand that vacated and remanded that portion of the July 2019 Board decision that denied the Veteran's claim for an increased rating for his service-connected onychomycosis of the bilateral feet. These issues are now returned to the Board. The issues on appeal had also included entitlement to service connection for a right ankle disability. During the pendency of this appeal, by rating action dated in October 2020, service connection was granted. As this represents a complete grant of the benefit sought on appeal with respect to the service connection claim for a right ankle disability, the issue is no longer on appeal before the Board. Service Connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In order to prevail on the issue of service connection for a disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for onychomycosis of the left hand. 2. Entitlement to service connection for onychomycosis of the right hand. The Veteran asserts that he has onychomycosis of the fingernails of the left and right hands that was first manifested during his period of active service. He has described that he has had intermittent manifestations ever since. A review of the Veteran's service treatment records reveals that in August, October, and November 1995, he was treated for a fungal infection of the left thumb nail bed. In December 1995, he was treated for a build up of hard skin and slight pain on the right index finger. The assessment was mild infection, changed to status post possible foreign body of the index finger of the right hand. In March 1996, the left thumb infection had spread to the left index finger. The assessment was dystrophic nails of unknown etiology. In May 1996, it was indicated that there were three fingernails impacted. He had follow-up treatment in July 1996. In March 1998, he was said to have a history of fingernail fungus, currently manifested in the first digit of the right hand. In November 1998, he was being treated with medication for onychomycosis. A report of medical assessment dated in November 2000 shows that he reported his health had worsened, in part, as a result of fingernail fungus. Following service, a VA examination report dated in September 2011 shows that the Veteran reported a 10-year history of onychomycosis of both hands. He indicated that the skin disease involved the fingernails. The disease was said to have resulted in crusting fingernails. He had no exudation, ulcer formation, itching, or shedding. The symptoms described were said to occur constantly. He added that in the preceding 12 months, he was treated with a topical corticosteroid three times daily as needed. He had not experienced any side effects from this medication. He had not used type B ultraviolet (UVB), intensive light therapy, psoralen and ultraviolet A radiation (PUVA), or electron beam therapy for this condition. He added that he did not experience any overall functional impairment from this condition. Physical examination revealed onychomycosis of all toenails but not the hands. A diagnosis of the hands was not given as there was no active pathology seen on examination. The examiner added, however, that the Veteran had been treated in service, and that fungal infections were most often a chronic condition as documented in the medical record. A VA skin diseases examination report dated in August 2020 shows that the Veteran was given a diagnosis of onychomycosis and post-inflammatory hyperpigmentation. The discoloration was said to impact the nails of both thumbs, and right fourth and left third fingers. The examiner opined that the Veteran's claimed conditions were less likely than not incurred in or caused by the skin condition during service. The examiner explained that there was no objective evidence to support a separate diagnosis for the claimed skin condition of the right or left hand. Nail hyperpigmentation was said to be a known consequence of nail fungal infections, especially if the infection is chronic. The hyperpigmentation of the left thumbnail was said to be a continuation of the findings in the service treatment records. Therefore, the hyperpigmentation of the left thumbnail was at least as likely as not incurred in or caused by the active duty service, to include the in-service treatment for nail symptomatology. There was no evidence to support a nexus to the post inflammatory hyperpigmentation of the thumb, fourth or third fingers of the right hand. Therefore, the post inflammatory hyperpigmentation of the thumb, fourth or third fingers of the right and left hands was less likely than not incurred in or caused by active duty service, to include the in-service treatment for nail symptomatology. The examiner added that the Veteran did not have a current skin disorder of the right or left hands manifested by crusting fingernails. The fingernails were discolored, which should be considered a residual of the previous infection which occurred while he was on active duty. There was no crusting beneath the nails of his hands on examination. Therefore, there was no objective evidence of current nail infection of his hands. Having carefully considered the evidence of record, the Board concludes that the Veteran has a chronic disability manifested by onychomycosis of the left and right hand fingernails that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service treatment records confirm diagnoses of onychomycosis of various fingers during active service. During the September 2011 VA examination, the Veteran reported a 10-year history of intermittent symptoms that were being treated with a topical corticosteroid. While a diagnosis involving the hands was not given as there was no current pathology, the examiner noted that fungal infections were most often a chronic condition as documented in the medical record. Similarly, while the August 2020 VA examiner indicated that there were no crusted fingernails, the discoloration should be considered a residual of the previous infection which occurred while he was on active duty. In light of the foregoing, the Veteran's symptoms involving the fingernails of the left and right hands have reoccurred periodically since active service, with a waxing and waning of intensity, but never a full remission. As such, the evidence is at the very least in relative equipoise as to whether the Veteran's in-service onychomycosis of the fingernails of both hands have continued intermittently since then. Accordingly, after resolving all doubt in favor of the Veteran, service connection for onychomycosis of the left and right hands is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a left shoulder disability. The Veteran asserts that he has left shoulder disability that is manifested as a result of his period of active service. A review of his service treatment records reveals that in March 1999, he reported an eight-day history of left shoulder pain not brought on by trauma. The assessment was impingement syndrome. In August 1999, he reported shoulder pain after slamming into a wall while playing racquetball. Range of motion was said to be limited in the left shoulder secondary to pain. The impression was acromioclavicular joint ligament strain. In a November 2000 report of medical history, he indicated that he had experienced an impact injury of the shoulder six months earlier at the Navy gym. Following service, a VA examination report dated in September 2011 shows that the Veteran reported a 10-year history of left shoulder symptoms that occurred over time. He described weakness, stiffness, giving way, lack of endurance, and fatigability. He endorsed daily flare-ups of varying intensity. The examiner concluded that there was no pathology to render a diagnosis. Private chiropractic treatment records from Positively Chiropractic & Dynamic Kinesiology, dated from December 2015 show intermittent treatment for left shoulder symptoms. A private medical record from A. Nida, D.C., dated in February 2020, shows that the Veteran was said to have degenerative joint disease of the left shoulder that was as likely as not directly and causally related to active service. An August 2020 VA examination report shows that the Veteran had a diagnosis of left shoulder impingement syndrome. The examiner was unable to ascertain the status of pain between 1999 and 2016 as there had been no mention in the records. The Veteran was said ot have seen a chiropractor in 2016 and shoulder pain had resolved. It was said to have recurred after he was involved in a motor vehicle accident in February 2017. Repeat chiropractic treatment did not help. The examiner opined that as there was no evidence of treatment from 1999 to 2016, there was insufficient evidence to support a nexus and the left shoulder impingement was less likely than not incurred in or caused by active service. In an Appellant's Post-Remand Brief, dated in March 2021, the Veteran's representative argued that the VA examiner makes multiple reference noting the Veteran's pain had resolved following chiropractic treatment, but reoccurred following a motor vehicle accident. The examiner did not indicate that there was actual injury caused by the motor vehicle accident, and if so, what those injuries were. Also, the examiner did not specify whether the reoccurrence of pain was consequential or coincidental to the motor vehicle accident. The Board agrees with the arguments of the Veteran's representative and finds that an additional medical opinion is required. When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 2. Entitlement to service connection for a low back disability. The Veteran asserts that he has a low back disability that is manifested as a result of his period of active service. A review of his service treatment records reveals that in November 1996, he was treated for low back pain after slipping down some steps. The assessment was mild back strain. In February 1998, he was treated for reported low back pain following a motor vehicle accident after being rear-ended by another vehicle. The assessment was low back strain post motor vehicle accident. In a November 2000 report of medical history, he indicated that he had experienced back pains as a result of an auto accident with occasional lower back pains in the early morning and evening. Following service, private chiropractic treatment records from Positively Chiropractic & Dynamic Kinesiology, dated from February 2017 show intermittent treatment for low back symptoms. An August 2020 VA examination report shows that the Veteran had a diagnosis of lumbosacral strain. Onset was said to be in 1998 with reoccurrence after motor vehicle accident in February 2017. The examiner referenced the service treatment records as set forth above and added that the recurrent back pain listed on the separation report was a consequence of the in-service lower back strain. According to the chiropractor's report, the low back pain had resolved but recurred after the Veteran was involved in a motor vehicle accident in 2017. The examiner concluded that since the pain had resolved, the current lumbar strain was less likely as not incurred in or caused by the service to include low back strain and recurrent back pain during service. As indicated above, in the March 2021 Appellant's Post-Remand Brief, the Veteran's representative argued that the VA examiner made multiple references noting the Veteran's pain had resolved following chiropractic treatment, but reoccurred following a motor vehicle accident. The examiner did not indicate that there was actual injury caused by the motor vehicle accident, and if so, what those injuries were. Also, the examiner did not specify whether the reoccurrence of pain was consequential or coincidental to the motor vehicle accident. The Board agrees with the arguments of the Veteran's representative and finds that an additional medical opinion is required. When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin, 1 Vet. App. at 175; Hatlestad, 3 Vet. App. at 216; see also Barr, 21 Vet. App. at 311. 3. Entitlement to service connection for pseudofolliculitis barbae. The Veteran asserts that he has pseudofolliculitis barbae that is manifested as a result of his period of active service. A review of his service treatment records reveals that in February 1996, he was treated for mild pseudofolliculitis barbae. A private medical record from A. Nida, D.C., dated in February 2020, in pertinent part, shows that the Veteran was said to have dermatosis manifested by chronic maculopapular dermatitis appearing on the face and hands. The onset of the dermatitis was said to have been during active service. It was said to be as likely as not be directly and causally related to active service. However, it is not clear whether the facial "dermatitis" is pseudofolliculitis barbae, particularly given that the same diagnosis was provided for dermatitis on the hands. The August 2020 VA examination report reveals that the examiner opined that the Veteran did not currently have any symptoms of pseudofolliculitis barbae. Therefore, the claimed condition was less likely than not incurred in or caused by the service, to include 1996 diagnosis of pseudofolliculitis barbae during service. This opinion is found to be of limited probative value as it does not consider that pseudofolliculitis barbae is by its nature a disorder that may reoccur periodically, with a waxing and waning of intensity. As such, consideration should have been given to the Veteran's competent reports of a continuity of symptoms, to include any manifested at any period during the pendency of this appeal. See Dalton v. Nicholson, 21 Vet. App. 23 (2007); see also McLain v. Nicholson, 21 Vet. App. 319 (2007) (the current disability requirement is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved). Additionally, the examiner failed to consider the 2020 opinion from Dr. Nida diagnosing dermatitis of the hands and face. As such, an additional medical opinion is required. When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin, 1 Vet. App. at 175; Hatlestad, 3 Vet. App. at 216; see also Barr, 21 Vet. App. at 311. 4. Entitlement to an initial compensable disability rating for the service-connected onychomycosis of the bilateral feet. The Veteran asserts that his service-connected onychomycosis of the bilateral feet is more disabling than reflected by the currently assigned noncompensable disability rating. In the August 2020 Joint Motion for Partial Remand, the parties agreed that during an April 2017 VA skin examination, the Veteran had reported that he used oral, anti-fungal medication "6 weeks or more during the last 12 months," but the examiner noted there was "no objective evidence of prescription for and treatment with an oral, anti-fungal medication in the claims file." The parties determined that given the Veteran's reports at the examination, and the examiner's notation that records of prescription medication were not found in the file, there may be outstanding treatment records that have not yet been associated with the Veteran's claims file. As such, on remand an effort must be undertaken to ensure that any outstanding treatment records are obtained and associated with the claims file. See Massey v. Brown, 7 Vet. App. 204 (1994); see also, 38 C.F.R. § 3.159(e)(2). The matters are REMANDED for the following action: 1. Ask the Veteran to identify all VA and non-VA health care providers, other than those already associated with the Veteran's claims file, that have treated him since service for his service-connected onychomycosis of the bilateral feet. This shall specifically include updated treatment records from VA. The aid of the Veteran in securing these records, to include providing necessary authorization(s), should be enlisted, as needed. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran informed in writing. The Veteran may submit medical records directly to VA. 2. Schedule the Veteran for a VA examination for his asserted left shoulder disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to opine as to whether the Veteran's diagnosed left shoulder disability had its onset in service, was manifested by arthritis in the year immediately following active service, or is otherwise the result of a disease or injury in service? In so doing, the examiner is requested to expand on the opinion of the March 2021 VA examiner that the symptoms had resolved but reoccurred following a motor vehicle accident. The examiner is requested to identify any actual injury caused by the motor vehicle accident. The examiner must also specify whether the reoccurrence of pain was consequential or coincidental to the motor vehicle accident. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. 3. Schedule the Veteran for a VA examination for his asserted low back disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to opine as to whether the Veteran's diagnosed low back disability had its onset in service, was manifested by arthritis in the year immediately following active service, or is otherwise the result of a disease or injury in service? In so doing, the examiner is requested to expand on the opinion of the March 2021 VA examiner that the symptoms had resolved but reoccurred following a motor vehicle accident. The examiner is requested to identify any actual injury caused by the motor vehicle accident. The examiner must also specify whether the reoccurrence of pain was consequential or coincidental to the motor vehicle accident. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. 4. Schedule the Veteran for a VA examination for his asserted pseudofolliculitis barbae. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to opine as to whether the Veteran's asserted pseudofolliculitis barbae had its onset in service, or is otherwise the result of a disease or injury in service? In so doing, the examiner is requested to consider the February 2020 opinion from Dr. Nida regarding dermatosis of the face and hands. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Orfanoudis, 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.