Citation Nr: 18156083 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 11-33 477 DATE: December 6, 2018 ORDER Entitlement to service connection for a skin disorder of the feet is granted. Entitlement to service connection for a thyroid disorder, to include a hemithyroidectomy, is denied. FINDINGS OF FACT 1. The Veteran’s skin disorder of the feet was incurred during active duty service and is related to service. 2. The Veteran served on active duty in the Republic of Vietnam and is presumed to have been exposed to herbicide agents. 3. A diagnosis for a thyroid disorder is not currently shown. 4. A benign adenomatoid thyroid nodule is a laboratory finding without symptoms, and is not a disorder for which service connection may be granted. CONCLUSION OF LAW The criteria for entitlement to service connection for a skin disorder of the feet have been met. 38 U.S.C. §§ 1110, 1154 (b), 5107; 38 C.F.R. §§ 3.303, 3.304. The criteria for entitlement to service connection for a thyroid disorder, to include a hemithyroidectomy, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 4.1, 4.10. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Marine Corps from May 1966 to April 1970, including a tour of duty in the Republic of Vietnam. This appeal was remanded by the Board in May 2017 for further development and is now ready for adjudication. 1. Entitlement to Service Connection for a Skin Disorder The Veteran asserts that his skin disorder is related to active duty service. Specifically, he states that he experienced the skin on his heels become dry, cracked, and peel while serving in the Republic of Vietnam where he stood and marched in mud and also slept in muddy trenches. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Additionally, the Court has held that a lay person, such as the Veteran, may be capable of diagnosing physically observable non-complex disorders, such as a skin disorder. McCartt v. West, 12 Vet. App. 164, 167-68 (1999) (implying that allegations of a skin disorder of boils, blotches, rash, soreness, and itching since service was the type of condition lending itself to lay observation and could satisfy the nexus requirement). Essentially, when a disorder may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of in-service incurrence and continuity of symptomatology sufficient to establish service connection. Barr v. Nicholson, 21 Vet. App. 303 (2007). Based on the evidence of record, the Board determines that service connection is warranted for the Veteran’s skin disorder of the feet. Initially, the Board notes that the Veteran’s service treatment records (STRs) do not exhibit symptoms of a skin disorder of the feet or treatment for a skin disorder of the feet. During his May 1966 entrance examination and March 1970 separation examination, there are no indications of the symptoms of a skin disorder of the feet. In May 2009, 39 years after his discharge from the Marines Corps, the first finding regarding a skin disorder of the feet is noted in the Veteran’s private treatment records. In support of the Board’s finding, the Veteran has provided competent and credible lay evidence. In the Veteran’s VA Form 21-4138 received in October 2009, he stated that he slept in muddy trenches no matter the season. Additionally, in the Veteran’s Form 9 received in November 2011, he stated that in the combat environment he experienced, not all illnesses and conditions were documented, and that his skin disorder of the feet began when he was in environments for lengthy periods of time with standing water, in which he performed activities such as standing and marching. Furthermore, in a letter submitted in May 2009, the Veteran’s wife, whom he married shortly after discharge from active duty, stated that the Veteran’s feet were terrible when he came home from Vietnam, that he has since used creams to treat his feet when they get raw, and that the skin of his feet has consistently continued to peel. This competent, credible, and highly probative lay evidence supports a finding of in-service incurrence and continuity of symptomatology sufficient to establish a nexus for service connection. Additionally, the Board notes that the Veteran participated in active combat and was awarded the Vietnam Service Medal, the Vietnam Campaign Medal, and Combat Action Ribbon. Thus, the combat presumption for combat-related injuries or diseases, under which a veteran’s lay statements alone regarding service incurrence must generally be presumed credible if consistent with the circumstances, conditions or hardships of such service (absent clear and convincing evidence to the contrary). 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). Under the combat presumption, the Veteran’s competent and credible lay statements satisfy the criteria required to meet the presumption that the Veteran’s skin disorder of the feet was incurred during active duty service. Additionally, in the Veteran’s May 2009 private treatment records, he reported to his treating physician that he suffered from a rash on his feet that had been present since returning from active duty. This detailed and consistent evidence corroborates the Veteran’s assertions that his skin disorder of the feet was incurred while he served on active duty. The evidence of record includes two negative opinions provided in the December 2014 and August 2017 VA examinations, which denied service connection for the Veteran’s skin disorder of the feet based on the fact that it was not treated or diagnosed during service. However, these opinions are not sufficient to rebut the competent and credible lay evidence. Both opinions did not take the highly probative lay evidence into consideration. Further, in the May 2017 remand, the Board gave directives for a VA examiner to provide an addendum opinion that took the combat presumption into consideration. The Board specifically instructed that the examiner should concede in-service incurrence of a skin disorder of the feet in the opinion. However, the August 2017 addendum opinion did not include combat presumption in its rationale nor did it concede in-service incurrence. Thus, the addendum opinion is inadequate under the holding in Stegall v. West, 11 Vet. App. 268 (1998). As the Board is granting the underlying claim for the Veteran’s skin disorder of the feet, any failure on VA’s part to ensure an adequate examination constitutes harmless error. Therefore, the probative value of the negative opinions is outweighed by the highly probative lay evidence. Considering the competent and credible lay statements regarding in-service incurrence and a nexus relationship, the presumption of in-service incurrence under the combat presumption, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the weight of the evidence supports service connection. Therefore, service connection for a skin disorder of the feet is granted. 2. Entitlement to Service Connection for a Thyroid Disorder The Veteran has claimed entitlement to service connection for a thyroid disorder, to include a hemithyroidectomy, as due to herbicide exposure while serving in the Republic of Vietnam. VA regulations state that a Veteran who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, 2,4-Dichlorophenoxyacetic acid or 2,4,5-Trichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6). Service connection is warranted for a Veteran who has been exposed to an herbicide agent during active military service (subject to the requirements of 38 C.F.R. § 3.307(a)) for various diseases. Service connection is warranted even if these disorders were not shown during active duty. 38 C.F.R. § 3.309(e). Here, however, the Board finds that service connection is not warranted for the Veteran’s thyroid disorder, to include a hemithyroidectomy. As an initial matter, the Veteran’s DD-214 and medical records establish that he served in the Republic of Vietnam, and as noted above, the Veteran received medals and ribbons for his combat service in Vietnam. Therefore, it is clear that he served in the Republic of Vietnam, and he is thus presumed to have been exposed to herbicide agents while on active duty. However, the Veteran has not been diagnosed with a disease listed under 38 C.F.R. § 3.309(e), and moreover thyroid nodules and thyroid disorders are not contained among this list. Further, the medical evidence indicates that the Veteran does not have a diagnosed thyroid disorder for which service connection may be granted within the context of VA regulations. As an initial matter, the Veteran’s STRs do not exhibit symptoms of a thyroid disorder or treatment for a thyroid disorder. Specifically, during his entrance and separation examinations, there are no indications of the symptoms of a thyroid disorder. Next, in October 2008, 38 years after the Veteran’s discharge from active duty, his private treatment records show that a nodule was found on his thyroid, which his treating physicians suspected may be cancerous and recommended a hemithyroidectomy for removal. Following the eventual hemithyroidectomy in February 2009, the thyroid nodule was found to be not cancerous. Since surgery, he has experienced normal thyroid function and does not require medication for a thyroid disorder. Thus, the Board concludes that while the Veteran underwent a hemithyroidectomy for a suspected cancerous thyroid nodule, the nodule was not cancerous and the Veteran does not suffer from a diagnosed thyroid disorder. Additionally, in a December 2014 VA examination, the examiner noted that the Veteran had a suspected cancerous nodule removed in a hemithyroidectomy and that the nodule was determined to be benign. The examiner found that the Veteran did not require medication for a thyroid disorder, his thyroid function was normal, and that the Veteran was asymptomatic for a thyroid disorder. Further, in a September 2017 VA examination, the VA examiner noted that a hemithyroidectomy was recommended to remove a suspected cancerous nodule, however, the pathology showed that it was benign. The examiner again found that the Veteran was asymptomatic for a thyroid disorder. Therefore, these highly probative VA examinations support the Board’s finding that the Veteran does not have a diagnosed thyroid disorder. In sum, it appears to the Board that the Veteran’s hemithyroidectomy was a procedure that was undertaken due to an abundance of caution. The fact that he underwent this procedure foes not, however, indicate that he had a disorder for which service connection could be granted. Degmetich v. Brown, 104 F.3d 1328, 1333 (1997). In making the above determinations, the Board has also considered the statements made by the Veteran relating his thyroid disorder to his active service and, more specifically, to his herbicide exposure, to include Agent Orange. The Court of Appeals for the Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his thyroid disorder. Jandreau, 492 F.3d at 1377, n.4 (“Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). Because a thyroid disorder is not diagnosed by unique and readily identifiable features, it does not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the Veteran’s purported thyroid disorder are found to lack competency.   In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. Accordingly, entitlement to service connection for a thyroid disorder, to include hemithyroidectomy, is denied. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Page-Nelson, Associate Counsel