Citation Nr: 20021408 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 17-22 102A DATE: March 25, 2020 ORDER Entitlement to service connection for growths on the neck, claimed as due to exposure to herbicide agents, is denied. FINDING OF FACT The Veteran’s neck growths were not incurred during active duty and are not otherwise related to military service, to include as a result of presumed herbicide agent exposure therein. CONCLUSION OF LAW The criteria for entitlement to service connection for growths on the neck are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1969 to August 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Board remanded the claim on appeal for further development. 1. Entitlement to service connection for growths on the neck, claimed as due to exposure to herbicide agents, is denied. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam 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, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). Diseases presumptively associated with herbicide agent exposure include soft tissue sarcoma. Here, as there is no diagnosis of soft tissue sarcoma of record during or just prior to the appeal period, presumptive service connection is not available. See October 2019 VA examination report. Even if a veteran is found not to be entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The evidence of record does not establish that the Veteran is currently diagnosed with a neck growth. However, the October 2019 VA examiner identified two painful neck scars causing decreased lateral moment of the neck, secondary to the surgical removal of growths in March 2006 and January 2009, demonstrative of current disability based on functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (2018). Therefore, the first element of service connection is satisfied. Turning to the second element, in-service incurrence of a disease or injury, while the Veteran reports going to sick by for his issues, his service treatment records do not identify any complaints, treatment for, or diagnosis of a neck growth or symptoms indicative of the same, and the Board affords more probative value to this more contemporaneous evidence. However, an injury in the form of exposure to herbicide agents during his service in Vietnam is presumed. As such, element two is also met. Regarding the final element, nexus, the only competent opinion of record is against the claim. Specifically, the October 2019 VA examiner opined that it was less likely than not that the Veteran’s neck growths were related to service, to include his presumed exposure to herbicide agents therein. The examiner, who acknowledged consideration of the Veteran’s history, found no evidence to support any causal association between in-service exposure to herbicide agents and his neck growths, and noted that the Veteran was diagnosed with a branchial cleft cyst on the right side of neck and a lipoma on the posterior neck. In support of his opinion, the examiner explained that the former was congenital in nature with no other known causes, while the etiology of the latter was unknown with a tendency to be familial and determined neither neck growth was a soft tissue sarcoma. Also, based on a current review of medical literature, the examiner emphasized that there was no evidence that such conditions were related to herbicide agent exposure. Contrary to the assertions of the Veteran’s representative, this opinion is highly probative as it was rendered based on an interview and physical examination of the Veteran, considers the pertinent medical history, and contains a thorough rationale and well-reasoned explanations. There is no competent opinion to the contrary. To the extent that the Veteran asserts that his neck growths are due to herbicide agent exposure in service, the Board finds that he is not competent to do so, as the determination as to the etiology of such a condition in relation to chemical exposures is a complex medical question that is beyond the ken of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the preponderance of the evidence is against the claims of entitlement to service connection for growths of the neck. As such, the benefit of the doubt doctrine is not for application, and service connection must be denied. See 38 U.S.C. § 5107(b). S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.S. Mahoney 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.