Citation Nr: 21032419 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-40 673A DATE: May 27, 2021 ORDER The claim for service connection for tinea pedis is granted. The claim for service connection for diabetes mellitus type II is denied The claim for service connection for neuropathy of the left foot, to include as secondary to diabetes mellitus is denied. The claim for service connection for neuropathy of the right foot, to include as secondary to diabetes mellitus is denied. The claim for service connection for arthritis of the left hand is denied. The claim for service connection for arthritis of the right hand is denied. The claim for service connection for hypertension (claimed as high blood pressure) is denied. REMAND Entitlement to service connection for a low back disability is remanded. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether tinea pedis is related to service. 2. The Veteran's diabetes mellitus did not manifest in service or withing the first post service year; and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 3. The Veteran's neuropathy of the left foot did not manifest in service; and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 4. The Veteran's neuropathy of the right foot did not manifest in service; and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 5. The Veteran's arthritis of the left hand did not manifest in service or within the first post service year; and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 6. The Veteran's arthritis of the right hand did not manifest in service or within the first post service year; and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 7. The Veteran's hypertension did not manifest in service or within the first post service year; and is not shown to be causally or etiologically related to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for tinea pedis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for diabetes mellitus type II have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for neuropathy left foot have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for neuropathy right foot have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for arthritis left hand have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for arthritis right hand have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for hypertension claimed as high blood pressure have not been 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 November 1960 to November 1962. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in January 2018 and July 2020 when it was remanded for further development. It has now returned to the Board for additional appellate action. Service Connection Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by active military service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). A grant for service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ( nexus ) between the present disability and the in-service event, injury, or disease. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including the evidence pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis, diabetes mellitus, and hypertension, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303 (b). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a) (2012); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for tinea pedis is granted. The Veteran has been diagnosed with dermatophytosis/tinea pedis. See July 2019 and February 2021 VA examinations. On July 2019 VA examination, the Veteran reported a history of his tinea pedis beginning in the 1960's. Service treatment records including November 1960 entrance and October 1962 separation reports of medical history and examination are negative for any complaints, treatment, or diagnoses relating to tinea pedis. In July 2019, the VA examiner opined that 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. The examiner reasoned that a review of the military medical records showed that during active duty, the Veteran was not treated for any medical condition that possibly could have caused the currently diagnosed tinea pedis or Athlete's foot. In July 2019, the VA examiner also opined that the claimed conditions, which clearly and unmistakably existed prior to service, were clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner reasoned that a review of the military medical records showed that during active duty, the Veteran was not treated for any medical condition that possibly could have caused the current tinea pedis. In February 2021, the VA examiner opined that the Veteran's tinea pedis condition was at least as likely as not caused by military service. The examiner based his opinion on the Veteran's statement indicating that his onset of tinea pedis was during active duty in the 1960s. The examiner found that the Veteran's skin condition originated during military service and was at least as likely as not a continuation. The examiner reasoned that the Veteran's medical history was consistent with a chronic skin condition and medical literature showed skin conditions were often a chronic condition. The disputed issue is whether the current tinea pedis is related to service. As to the lay evidence, dermatological abnormalities affecting the feet are readily observable, and the Veteran is competent to report about the history of his symptoms. Jandreau, 492 F.3d at 1377 n.4. Service treatment records do not show treatment for this disability, but the Veteran indicated that this disorder started in service and progressed to the current disability. There is no other report reflecting that the current tinea pedis had a post service cause. Given this background, the Veteran's lay reports about continuous symptoms for tinea pedis beginning in service are entitled to probative weight to show a relationship to service. Caluza, 7/ Vet. App. at 511. The conflicting evidence consists of the July 2019 VA examination report and opinions. In July 2020, the Board determined that the VA opinions provided by the July 2019 VA examiner were clearly inadequate. The examiner provided two conflicting opinions for each claimed disabilityincluding an opinion that each condition clearly and unmistakably existed prior to service despite the complete absence of evidence indicating the pre-existence of the disabilities. Additionally, with respect to the opinions rendered regarding direct service connection, the July 2019 VA examiner's conclusions were based solely on the absence of treatment during service without reference to any other evidence in the claims file. The opinions were not accompanied by an appropriate rationale, were unclear and inconsistent, and were therefore not adequate. Therefore, the Board does not find the July 2019 VA examination report probative to weigh against the claim. Id. For the reasons set forth above, the Board finds that the evidence is evenly balanced as to whether the Veteran's current bilateral tinea pedis is related to service. See id. at 1335 (lay evidence may be sufficient in and of itself to substantiate a service connection claim). Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for bilateral tinea pedis. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to service connection for diabetes mellitus type II is denied. Entitlement to service connection for neuropathy of the left foot, to include as secondary to diabetes mellitus is denied. Entitlement to service connection for neuropathy of the right foot, to include as secondary to diabetes mellitus is denied. Entitlement to service connection for arthritis of the left hand is denied. Entitlement to service connection for arthritis of the right hand is denied. Entitlement to service connection for hypertension is denied. The Veteran has been diagnosed with hypertension, diabetes mellitus, peripheral neuropathy of the bilateral lower extremities, and degenerative arthritis of the bilateral hands. See July 2019 and February 2021 VA examinations. The Board notes that the term hypertension means that the diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (2016). The Veteran claims that these disabilities are related to service. During his February 2021 VA hand examination, he reported that while he was in Germany in 1963, there was a very cold weather. He worked as a mechanic with freezing tools all the time. Since then, he had increasing pains in both hands and stiffness, particularly when it was cold outside or in cold water. Upon review of the record, the Board concludes that service connection is not warranted. Additionally, as service connection for diabetes mellitus is being denied herein, there is no need to discuss secondary service connection between neuropathy of the bilateral foot and diabetes mellitus. Service treatment records including November 1960 entrance and October 1962 separation reports of medical history and examination are negative for any complaints, treatment, or diagnoses relating to diabetes mellitus, peripheral neuropathy of the lower extremities/feet, arthritis of the hands, and/or hypertension. Although the Veteran's blood pressure was reported as 142/70 at induction, a clinical evaluation was normal. At separation, a sugar test was negative, and his blood pressure was reported as 118/74. An August 1962 chest x-ray report for separation was normal and specifically noted that the Veteran had no hypertension or heart disease. On separation report of medical history, he denied having or ever having swollen or painful joints; pain or pressure in chest; high or low blood pressure; cramps in legs; arthritis or rheumatism; bone, joint, or other deformity; foot trouble; neuritis; or frequent or painful urination Although the Veteran indicated that arthritis in his hands began in 1961, the record does not reflect that the Veteran had any hand related issues until he filed his claim in July 2013 for which he was diagnosed with arthritis on February 2019 VA examination. The record reflected that the Veteran was diagnosed with hypertension in 1980 and diabetes mellitus in 1983 or 1985. See September 2013 claim and July 2019 VA examinations. On July 2019 VA peripheral nerves examination, the Veteran reported 1995 as the year he began to experience numbness in the feet and the year 2009 on February 2021 VA examination. He was diagnosed with peripheral neuropathy in 2011. See February 2021 VA examination. Overall, the record shows that the Veteran was diagnosed with his claimed conditions many years after his discharge from service in November 1962. In July 2019, the VA examiner opined that claimed conditions were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that a review of the military medical records showed that during active duty, the Veteran was not treated for any medical condition that possibly could have caused the currently diagnosed diabetes mellitus, type II; right and left foot neuropathy-diabetic; and hypertension. The examiner also reasoned that a review of the military medical records showed that during active duty, the Veteran was not treated for any medical condition that possibly could have caused aggravation to the currently diagnosed left hand condition or caused the current right hand condition. In July 2019, the VA examiner also opined that the claimed conditions, which clearly and unmistakably existed prior to service, were clearly and unmistakably not aggravated beyond their natural progression by an in-service injury, event, or illness. The examiner reasoned military medical records showed that during active duty, the veteran was not treated for any medical condition that possibly could have caused or aggravated diabetes mellitus, right and left foot peripheral neuropathy, hypertension. The examiner also reasoned that a review of the military medical records showed that during active duty, the Veteran was not treated for any medical condition that possibly could have caused the current bilateral hand conditions. In July 2020, the Board determined that the VA opinions provided by the July 2019 VA examiner were not accompanied by an appropriate rationale, are unclear and inconsistent, and are therefore not adequate. The claims were remanded to obtain adequate opinions. On February 2021 VA examination, the examiner opined that the Veteran's diabetes mellitus, peripheral neuropathy of the right and left feet, and degenerative joint disease of the right and left hands condition were less likely due to an in-service injury, event, or disease. The examiner reasoned that a military medical record review showed no complaints, treatment, or diagnosis of claimed conditions. The separation examination showed no chronic conditions related to diabetes mellitus, peripheral neuropathy, or a hand condition and the examination was normal. The Veteran was not seen for diabetes mellitus, peripheral neuropathy, and a hand condition for several years following military separation. Therefore, the examiner found that the Veteran's diabetes mellitus, peripheral neuropathy of the right and left feet, and degenerative joint disease of the right and left hands were not at least as likely as not caused by military service. The examiner added that the Veteran served from November 1960 to November 1962. The examiner also commented that there was no record that Veteran served in Vietnam; therefore, service connection based on presumption due to herbicide exposure used in Vietnam was not warranted. Regarding hypertension, in a February 2021 opinion, the VA examiner opined that the Veteran's hypertension was less likely than not due to military service. The examiner reasoned that a military medical record review showed no complaints, treatment, or diagnosis of claimed condition. The separation examination dated in October 1962 showed no chronic conditions related to hypertension and the examination and blood pressure were normal. Furthermore, the Veteran was not seen for hypertension for several years following military separation. Therefore, the examiner found that the Veteran's hypertension was not at least as likely as not caused by military service. Based on the foregoing medical opinions, particularly the most recent February 2021 medical opinions, it is not shown that the Veteran's current hypertension, diabetes mellitus, peripheral neuropathy of the right and left feet, and degenerative joint disease of the right and left hands condition had its onset in service or were otherwise caused by his service. Although the Veteran indicates his hypertension, diabetes mellitus, peripheral neuropathy of the right and left feet, and degenerative joint disease of the right and left hands condition are related to service, the in-service and post service treatment records show that he denied at the time of his service separation he denied having or ever having swollen or painful joints; pain or pressure in chest; high or low blood pressure; cramps in legs; arthritis or rheumatism; bone, joint, or other deformity; foot trouble; neuritis; or frequent or painful urination. At separation, a sugar test was negative, and his blood pressure was reported as 118/74. An August 1962 chest x-ray report for separation was normal and specifically noted that the Veteran had no hypertension or heart disease. Also, he did not require treatment or indicate that he had claimed problems until many years following his separation from service. Moreover, these statements and the Veteran's reported history were considered by the February 2021 VA examiner in rendering the medical opinions. While the Veteran is competent to report having experienced symptoms of hypertension, diabetes mellitus, peripheral neuropathy of the right and left feet, and degenerative joint disease of the right and left hands since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his current hypertension, diabetes mellitus, peripheral neuropathy of the right and left feet, and degenerative joint disease of the right and left hands as the Veteran has not demonstrated the necessary medical expertise. Additionally, to the extent the Veteran believes his current hypertension, diabetes mellitus, peripheral neuropathy of the right and left feet, and degenerative joint disease of the right and left hands are related to his military service, he is not competent to provide a nexus opinion regarding these issues. The questions to be resolved in this case involve medical matters and are not capable of resolution through lay observation. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). In conclusion, the Board finds that there is no probative evidence to warrant service connection for hypertension, diabetes mellitus, peripheral neuropathy of the right and left feet, and degenerative joint disease of the right and left hands. The Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not applicable. Service connection for hypertension, diabetes mellitus, peripheral neuropathy of the right and left feet, and degenerative joint disease of the right and left hands is denied. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49, 55-57 (1990). REMAND Entitlement to service connection for a low back disability is remanded. The Board finds remand is warranted for additional development. In July 2020, the Board determined that the VA opinions provided by the July 2019 VA examiner regarding the nature and etiology of the Veteran's back condition were not accompanied by an appropriate rationale, were unclear and inconsistent, and were therefore not adequate. The claim was remanded to obtain an adequate opinion. In response, in February 2021, a VA examiner opined that the Veteran's back condition was at least as likely as not caused by the injury from jumping off a truck during service. The examiner reasoned that a review of the military record showed that the Veteran injured his back from jumping off a truck while in service. His medical history and examination were consistent with a chronic back condition. However, service treatment records including November 1960 entrance and October 1962 separation reports of medical history and examination are negative for any complaints, treatment, or diagnoses relating to any low back condition or any injury/treatment from jumping off of the back of a truck. He denied currently having or ever having recurrent back pain at the time of separation. Additionally, in contrast to the provided opinion, during the examination, the examiner specifically noted that the military medical record showed no complaints, treatment, or diagnosis of any back conditions and the October 1962 separation examination showed no chronic conditions related to the back. The examiner also noted that the Veteran was not seen for the claimed condition for several years following military service. Therefore, after review of the evidence, the Board finds that remand is again necessary because the February 2021 VA medical opinion is predicated on an inaccurate medical history. See West v. Brown, 7 Vet. App. 70, 77-78 (1994); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that medical opinions premised on inaccurate facts are entitled to no probative weight). The matters are REMANDED for the following action: Return the claims file to the VA examiner who provided the February 2021 opinion, if available, for an addendum opinion. The need for another examination is left to the discretion of the examiner providing the opinion. The examiner is requested to review all pertinent records associated with the file, including the Veteran's service treatment records, post-service medical records, and lay statements. Thereafter, the examiner should address the following. 1. Identify all current low back disabilities. The examiner should note that the Veteran has been diagnosed with lumbosacral strain and intervertebral disc syndrome. See July 2019 and February 2021 VA examinations. 2. Please provide best estimates as to dates of onset for each low back disability. Please discuss what in the record helps inform the provided estimate. 3. For each identified low back disability, the examiner should opine whether it was as least as likely as not (50 percent or greater probability) incurred in, or otherwise related to, the Veteran's active military service. 4. The examiner should address that on July 2019 and February 2021 VA examination, the Veteran reported that he injured his back while jumping off of the back of a truck in 1961. Also, service treatment records including November 1960 entrance and October 1962 separation reports of medical history and examination are negative for any complaints, treatment, or diagnoses relating to any low back condition or any injury/treatment from jumping off of the back of a truck. He denied currently having or ever having recurrent back pain at the time of separation. 5. Provide rationale for each provided opinion. If there is medical reason to call into question the Veteran's report of having suffered a low back injury from jumping off of the back of a truck in 1961, please indicate as much and explain. Joshua Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Crohe, 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.