Citation Nr: 21024739 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 09-42 378 DATE: April 26, 2021 ORDER Entitlement to service connection for body aches, to include degenerative changes in the hips and neck as due to herbicide exposure, is denied. FINDING OF FACT The Veteran’s claimed body aches of the hips and neck are not etiologically related to herbicide exposure. CONCLUSION OF LAW The criteria for service connection for body aches, to include degenerative changes in the hips and neck as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to March 1979. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The file was subsequently transferred to the RO in Winston-Salem, North Carolina. In April 2011 and August 2012, the appeal was remanded to the RO for further development. Then in March 2016, the appeal was remanded for a hearing before a Veterans’ Law Judge (VLJ), which was held before the undersigned in October 2016. A transcript of the hearing is of record. The matter was again remanded by the Board in June 2017, February 2020, and June 2020. It has now returned for further appellate review. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a Veteran 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Further, 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. For purposes of the presumption, “herbicide agents” are 2,4-D, 2,4,5-T, and its contaminant TCDD, cacodylic acid, and picloram. 38 C.F.R. § 3.307 (a)(6)(i). As relevant to the instant case, Veterans who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, are presumed to have been exposed to herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6). For those Veterans who have been exposed to herbicide agents, certain diseases, to include early onset peripheral neuropathy, are acknowledged to be presumptively related to such exposure. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. § 3.309 (e). In this regard, such must have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307 (a)(6)(ii). Notwithstanding the foregoing presumption, a Veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In relevant part, 38 U.S.C. § 1154 (a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability or death benefits. 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, (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.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis.  Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for body aches, to include degenerative changes in the hips and neck as due to herbicide exposure, The Veteran is seeking service connection for body aches of the hips and neck, which he contends is etiologically related to presumed herbicide exposure while on active duty. As an initial matter, the Board notes that body aches are not a condition presumed to be caused by exposure to herbicide agents under 38 C.F.R. § 3.309. Accordingly, the question before the Board is whether the Veteran is entitled to service connection for his claimed body aches, to include degenerative changes of the hips and neck as due to herbicide exposure on a direct service connection basis. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). A review of VA treatment records shows that the Veteran receives treatment for neck and back pain. Accordingly, the Board finds that the Veteran does have a present disability. Pursuant to the June 2020 Board remand, the Veteran received a VA examination to determine the nature and etiology of his claimed body aches in February 2021. The examiner opined that the Veteran’s claimed condition was less likely than not incurred in or caused by an in-service event, injury, or illness. The examiner stated that in regards to the Veteran’s complaints of body aches of the lower back the Veteran experiences bilateral sciatic radiculopathy of the lower extremities and radiculopathy of the left femoral lower extremity and that no opinion was warranted because the Veteran is already service connected for these back conditions. The examiner also stated that regarding the Veteran’s complaints of neck pain, the Veteran had a noted pulled muscle in the right side of the neck in June of 1973, but that the condition likely resolved as there were no further complaints or treatment for the neck found in the records. The examiner found that the Veteran does have a present diagnosis of degenerative disc disease of the cervical spine, but that there is no evidence that the Veteran’s current diagnosis of cervical degenerative disc disease was incurred in service or related to agent orange exposure. The examiner went on to opine that “the Veteran does not meet the criteria for fibromyalgia or a muscle condition, but there is objective evidence of DJD and DDD of the Lumbar Spine and DDD of the Cervical Spine and exam findings are consistent with pain being due to these conditions.” Similarly, in a March 2020 VA examination report, the examiner noted the Veteran’s symptoms of pain and numbness of the lower back and legs related to the Veteran’s service-connected lumbar spine condition with bilateral lower extremity radiculopathy. The March 2020 examiner opined that the Veteran’s symptoms “are that of previously service-connected degenerative arthritis and not inflammatory arthritis.” The Veteran also received VA examinations in May 2011, December 2012, and September 2013, which were found to be inadequate for determining entitlement to service connection by the Board in the February 2020 remand decision. Therefore, the Board will not address these exams and opinions in this decision. The Board finds that the February 2021 and March 2020 VA examination reports are highly probative for purposes of determining entitlement to service connection for body aches, because they address the Veteran’s relevant medical records, theories of entitlement, and relevant medical research. The record does not include competent evidence demonstrating that the Veteran’s disabilities were incurred in or due to his active duty service. The only competent and probative opinions of record are those of the February 2021 and March 2020 VA examiners, which are negative to the Veteran’s claims. To the extent that the Veteran asserts that his disabilities were incurred in or due to his active duty service, the Board finds his lay assertions as to the presence of lay observable symptoms (for example, pain) are considered competent evidence. However, as a lay person, the Veteran has not shown that he has specialized training sufficient to render etiological opinions, especially in the presence of other possibilities (i.e., post-service occupation, aging, or obesity). Accordingly, his assertions on such matters are not competent evidence because such questions require medical expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply. Accordingly, service connection for body aches is not warranted.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Gorum, Associate 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.