Citation Nr: 21041469 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 15-01 245 DATE: July 9, 2021 REMANDED Entitlement to service connection for skin condition of the right foot is remanded. Entitlement to service connection for skin condition of the left foot is remanded. REASONS FOR REMAND The Veteran had active service from June 1982 to June 1985. 1. Entitlement to service connection for skin condition of the right foot is remanded. 2. Entitlement to service connection for skin condition of the left foot is remanded. The Veteran contends that he developed bilateral foot fungus during active service that has persisted to the present. The Veteran is of the opinion that he was exposed to oily, contaminated water aboard ship resulting in foot fungus. See January 2016 brief. The Board previously remanded this issue for a medical examination and opinion. In April 2021, the RO obtained a medical examination and opinion for the Veteran's foot condition. In the opinion, the examiner stated that the Veteran's service treatment records show yeast infection of the foot and that the Veteran has a current yeast infection. However, the examiner declined to connect the in-service condition with the present foot condition because the recurrence of foot fungus in some adults is linked to a genetic condition wherein the person's body does not adequately fight off such fungus. The Board must remand for an opinion on the nature of this genetic condition as explained below. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran is not competent to determine the etiology or diagnosis of a skin condition, he would be capable of observing changes to the skin on his feet. Layno v. Brown, 6 Vet. App. 465, 469 (1994); 38 C.F.R. § 3.159(a)(2). Congenital or developmental defects are not considered "diseases or injuries" within the meaning of applicable legislation and, hence, do not constitute disabilities for VA compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9; O'Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014); Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009). However, the sole fact that a disorder is congenital or hereditary in origin does not preclude service connection. See O'Bryan, 771 F.3d at 1380; Quirin, 22 Vet. App. at 395. Only congenital "defects," as opposed to congenital "diseases," are excluded from the types of disabilities that may be service connected, as congenital defects are not considered diseases or injuries under VA law. O'Bryan, 771 F.3d at 1380. Congenital defects are by definition static in nature. O'Bryan, 771 F.3d at 1380 (observing that a hereditary condition that cannot change is a "defect" and is not subject to the presumption of soundness under 38 U.S.C. § 1111. By contrast, congenital diseases are progressive in nature, and as such are capable of improvement or deterioration. O'Bryan, 771 F.3d at 1380 ("[A] congenital or developmental condition that is progressive in nature-that can worsen over time-is a disease rather than a defect," even if it ceases to progress). A veteran is presumed to have been sound upon entry into the military, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). The Veteran's entrance medical examination in July 1981 does not note any skin condition on the feet. A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). The matter is REMANDED for the following action: 1. Obtain an addendum medical opinion for skin condition of the feet from a qualified medical examiner that replies to the following questions: (a.) Please reference specifically where the Veteran's service treatment records note a foot yeast infection as stated in the April 2021 medical examination. (b.) Is the Veteran's diagnosed foot fungus condition congenital? (c.) Whether the diagnosed foot fungus condition is due to a congenital defect that is static in nature: The examiner is asked to explain whether the Veteran's diagnosed foot skin condition represents a congenital defect that is static in nature, meaning that it is incapable of improvement or deterioration. See the April 2021 VA examination. (d.) Whether the diagnosed foot fungus condition is due to a congenital disease: The examiner is asked to explain whether the Veteran's diagnosed foot fungus condition represents a congenital disease, meaning that it is a condition that is capable of change, i.e., it could improve or deteriorate. (e.) If the examiner finds that the Veteran's diagnosed foot fungus condition is a congenital disease within the parameters above, the examiner must opine whether the Veteran's diagnosed foot fungus condition is at least as likely as not aggravated by service, including the Veteran's contentions that it resulted from exposure to contaminated water in service, to include reference to the Veteran's statements and medical treatment records and opinions. (f.) If the examiner finds that the Veteran's diagnosed foot fungus condition is not congenital, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran's contentions that it resulted from exposure to contaminated water in service, to include reference to the Veteran's statements and medical treatment records and opinions. (g.) Did the Veteran's foot fungus condition exist prior to entry into service based on clear and convincing evidence? (h.) If the Veteran's foot fungus condition pre-existed service, was any increase during service consistent with the natural progression of the condition? DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Miller, 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.