Citation Nr: 21077459 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 15-16 365 DATE: December 29, 2021 ORDER Service connection for right foot disorder is denied. REMANDED Entitlement to service connection for a skin disorder, to include as due to exposure to herbicide agents, is remanded. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam (RVN) from May 28, 1970, to December 3, 1970, and, thus, his exposure to herbicide agents is presumed. 2. A right foot disorder, diagnosed as plantar fasciitis, did not have its onset in service and is not otherwise related to service, to include exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for a right foot disorder have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from October 1969 to October 1973, with service in the RVN from May 28, 1970, to December 3, 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 2010 by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Veteran testified before one of the undersigned Veterans Law Judge and, in March 2019, he testified before another of the undersigned Veterans Law Judges regarding the issues on appeal. Transcripts of both hearings are of record. Thus, as the issues on appeal were addressed at two separate Board hearings by different Veterans Law Judges, these issues must be decided by a panel of three Veterans Law Judges, including the two who conducted hearings in the matter. In a November 2020 letter, the Veteran was notified that he had the option of testifying at a third hearing before a third Veterans Law Judge and, if he did not respond within 30 days, the Board would presume he did not want such a hearing. Arneson v. Shinseki, 24 Vet. App. 379 (2011). No response has been received and, as such, the Board will proceed with the adjudication of his appeal. In March 2021, the Board remanded the issues on appeal, as well as a claim for service connection for a left foot disorder, to the Agency of Original Jurisdiction (AOJ) in order to obtain VA medical opinions addressing the etiology of the Veteran's right foot and skin disorders, which were obtained in May 2021. Thereafter, in an August 2021 rating decision, the AOJ granted service connection for left foot plantar fasciitis, which is a full grant of the benefit sought on appeal with regard to such claim and, thus, it is no longer before the Board. The remaining claims now return for further appellate review. 1. Entitlement to service connection for a right foot disorder, to include as due to exposure to herbicide agents. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Additionally, the law provides a presumption of service connection for certain diseases associated with exposure to herbicide agents, and that become manifest within a specified time period, even if there is no record of evidence of such disease during the period of service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6). As relevant, veterans who, during active military, naval, or air service, served in the RVN during the period beginning on January 9, 1962, and ending on May 7, 1975, are presumed to have been exposed to herbicide agents. Id. In the instant case, the record reflects that the Veteran served in RVN from May 28, 1970, to December 3, 1970, and, thus, is presumed to have been exposed to herbicide agents coincident with such service. For those veterans who have been exposed to herbicide agents, certain diseases are acknowledged to be presumptively related to such exposure. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. § 3.309 (e). However, the Veteran's diagnosed right foot plantar fasciitis is not one of the disease that has been acknowledged to be presumptively related to herbicide exposure. Thus, service connection on a presumptive basis under the provisions of 3.309(e) is not warranted. Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability of service connection, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994), reversing in part, Combee v. Principi, 4 Vet. App. 78 (1993). The Veteran seeks service connection for a right foot disorder. He maintains that his right foot disorder is the result of an in-service injury when a trailer ("water buffalo") fell onto his legs, is resulted to strenuous in-service duties, or is due to his acknowledged in-service exposure to herbicide agents, rather than an October 1970 motor vehicle accident that was determined to be the result of willful misconduct. However, after carefully reviewing the evidence of record, the Board finds that the preponderance of the evidence is against service connection for a right foot disorder. As an initial matter, the Board notes that the evidence shows that the Veteran has been diagnosed with plantar fasciitis of the right foot. See January 2020 VA examination report. However, his service treatment records (STRs) are negative for any complaints, treatment, or diagnosis referable to plantar fasciitis (as such only show treatment for an ingrown toenail in November 1972), and the October 1973 separation examination report reflects that the Veteran's feet were clinically evaluated as "normal." Notwithstanding the absence of any right foot disorder during service, the Veteran is competent to report an in-service injury to his right foot and the nature of his in-service duties. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, the Veteran's claim for service connection for a right foot disorder, diagnosed as plantar fasciitis, turns on whether such is related to any aspect of his military service, to include his presumed in-service exposure to herbicide agents. In this regard, in VA opinions dated in January 2020 and May 2021, VA examiners provided unfavorable medical opinions. Specifically, the January 2020 VA examiner opined that it was less likely as not that the Veteran's right foot plantar fasciitis was incurred in or caused by his military service as such disorder was unrelated to his acknowledged in-service exposure to herbicide agents. In May 2021, the VA examiner acknowledged the Veteran's treatment for a cut of the foot in November 1971 (the actual date as noted in the STRs was November 1972), which she noted was the reported result of an injury to the foot when a heavy object fell on it, but the report did not indicate which foot. As noted by the examiner, because the Veteran had stipulated in a March 2010 statement to VA that he has sustained an injury to the left ankle at such time, it was less likely than not that his right foot plantar fasciitis was related to military service, to include the in-service foot injury. As the examiners provided rationale consistent with the record, the Board finds that these opinions to be adequate. The record is absent of any medical opinion that establishes an etiological link between the Veteran's right foot plantar fasciitis and his military service, to include his presumed exposure to herbicide agents. The Board has also considered the Veteran's assertions that his right foot plantar fasciitis is directly related to his military service, to include in-service exposure to herbicide agents. However, he, as a lay person, is not competent to provide evidence of a nexus between the diagnosis of right foot plantar fasciitis and any aspect of his military service. In this regard, the etiology of a foot disorder involves a medical subject concerning a podiatric physical process extending beyond an immediately observable cause-and-effect relationship, and may not be addressed by lay evidence. Thus, the Veteran's own opinion is not competent and is afforded no probative weight. Therefore, the preponderance of the evidence is against the Veteran's claim for service connection for right foot plantar fasciitis, to include as due to exposure to herbicide agents. Consequently, there is no doubt to be resolved and such claim must be denied. REASONS FOR REMAND 2. Entitlement to service connection for a skin disorder, to include as due to exposure to herbicide agents. In March 2021, the Board remanded the claim to have a VA examiner provide an opinion as to the etiology of the Veteran's skin disorder, diagnosed as contact dermatitis, to include whether such was related to in-service clinical findings of a questionable rash on his penis/testicles and small "lesions" on his left arm in March 1973. In May 2021, a VA examiner found that it was less likely as not that the Veteran's skin disorder was incurred in or caused by his military service as such disorder was unrelated to his acknowledged in-service exposure to herbicide agents. However, the VA examiner did not provide an opinion addressing whether the Veteran's skin disorder was related to any other aspect of his military service, to include the March 1973 treatment for a questionable rash on his penis/testicles and small "lesions" on his left arm. As such, an addendum opinion must be obtained on remand. The matter is REMANDED for the following action: Obtain a medical opinion addressing the etiology of the Veteran's claimed skin disorder. If the Board's question cannot be answered without a physical examination, such should be scheduled. Based on a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran's skin disorder, currently diagnosed as contact dermatitis, had its onset in, or is otherwise related to his military service, to include his in-service treatment for a questionable rash on his penis/testicles and small "lesions" on his left arm in March 1973? Why or why not? MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals A. JAEGER Veterans Law Judge Board of Veterans' Appeals S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carole Kammel, 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.