Citation Nr: 18155142 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 13-30 739 DATE: December 4, 2018 ORDER Entitlement to service connection for lipomas, to include parotid tumor (lipoma), is denied. FINDINGS OF FACT 1. The Veteran did not participate in a radiation-risk activity during service. 2. There is no competent evidence the Veteran was otherwise exposed to ionizing radiation in service, nor that he has a radiogenic disease. 3. The Veteran’s lipomas are not the result of an in-service disease or injury. CONCLUSION OF LAW The requirements for entitlement to service connection for lipomas, to include parotid tumor (lipoma), have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.311 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1997 to July 1998. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). On his October 2013 substantive appeal, the Veteran requested a hearing before the Board in Washington, D.C. Pursuant to his request, a hearing was scheduled for him in April 2014. In March 2014, the Veteran asked to reschedule the hearing, as he was unable to travel after being hospitalized. A new hearing was then scheduled for June 2014, and the Board informed the Veteran that this hearing would not be rescheduled again, absent a showing of good cause why it should be rescheduled. In May 2014, the Veteran notified the Board that he would not be able to attend the new hearing. He did not offer any good-cause explanation for his anticipated absence or request that the hearing be rescheduled. Thus, the Veteran’s request for a Board hearing was deemed withdrawn. 38 C.F.R. §§ 20.702(d). In June 2014, the Board remanded this matter for a VA examination and opinion, as well as to obtain VA treatment records since 1999. It was remanded again in August 2017 because the requested actions were not undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). The Board also requested an addendum opinion in the August 2017 remand in light of the additional records. The Board finds that the Agency of Original Jurisdiction (AOJ) has substantially complied with the orders in the August 2017 remand and no further action is necessary in this regard. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). Entitlement to service connection for lipomas, to include a parotid tumor (lipoma), is denied. The Veteran seeks entitlement to service connection for lipomas. He asserts his lipomas, including parotid gland lipoma, sialoadenitis and salivary gland calculi are the result of exposure to radiation during his service in the Army Rangers. In particular, he states that while he was in the Weapons Squad he used night vision optics on his rifle and small radiation leaks in the equipment were the cause. Service connection for conditions claimed to be due to exposure to radiation in service can be established in any of three different ways. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are diseases that are presumptively service-connected in radiation-exposed veterans under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d). Second, service connection can be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is a radiogenic disease. Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Under the first approach, a “radiation-exposed veteran” is defined by 38 C.F.R. § 3.309(d)(3)(i) as a veteran who while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. “Radiation-risk activity” is defined to mean onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945 through July 1, 1946. 38 C.F.R. § 3.309(d)(3)(ii). Diseases presumptively service-connected for radiation-exposed veterans under the provisions of 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d)(2) are: leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin’s disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of the salivary glands, cancer of the urinary tract, bronchiolo-alveolar carcinoma, cancer of the bone, cancer of the brain, cancer of the colon, cancer of the lung, and cancer of the ovary. 38 U.S.C. § 1112(c)(2); 38 C.F.R. § 3.309(d)(2). The second approach to substantiate a radiation exposure related service connection claim is under 38 C.F.R. § 3.311. To consider a claim under § 3.311, the evidence must show: (1) the veteran was exposed to ionizing radiation in service; (2) subsequently developed a radiogenic disease; and (3) such disease became manifest within a period specified by the regulation. 38 C.F.R. § 3.311(b). If any of these three requirements are not met, service connection for a disease claimed as a result of exposure to ionizing radiation cannot be granted under 38 C.F.R. § 3.311. 38 C.F.R. § 3.311(b)(1)(iii). For purposes of 38 C.F.R. § 3.311, the term “radiogenic disease” means a disease that may be induced by ionizing radiation. 38 C.F.R. § 3.311(b)(2). The regulation lists specific diseases that are considered radiogenic. Id. Section 3.311(a) calls for the development of a radiation dose assessment where it is established that a radiogenic disease first became manifest after service, where it was not manifest to a compensable degree within any applicable presumptive period specified in either 38 C.F.R. § 3.307 or § 3.309, and where it is contended that the disease is a result of ionizing radiation in service. The duty to obtain dose estimates and an advisory opinion under 38 C.F.R. § 3.311 not only applies to radiogenic diseases listed in 38 C.F.R. § 3.311(b)(2), but also to any other disorder when a claimant cites or submits competent scientific or medical evidence that the claimed disease “may be induced by ionizing radiation” under 38 C.F.R. § 3.311(b)(4). See 67 Fed. Reg. 6,870 (Feb. 14, 2002). This provision was added to the regulation effective September 1, 1994, in response to the Federal Circuit’s decision in Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994), that determined VA was not authorized to establish an exclusive list of radiogenic diseases for which a claimant might establish entitlement to direct service connection. 60 Fed. Reg. 9,627 (Feb. 21, 1995). The pertinent regulation, 38 C.F.R. § 3.311 (b)(4), now states, “If a claim is based on a disease other than one of those listed in paragraph (b)(2) of this section, VA shall nevertheless consider the claim under the provisions of this section provided that the claimant has cited or submitted competent scientific or medical evidence that the claimed condition is a radiogenic disease.” Therefore, the provisions that require VA to request dose information under § 3.311 will apply to those diseases that fall under the scope of § 3.311(b)(4) even if they are not listed as radiogenic diseases under § 3.311(b)(2). Under the third approach and Combee, VA must not only determine whether a veteran has a disability recognized by VA as being etiologically related to radiation exposure, but must also determine whether the disability was otherwise the result of active service. In other words, the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing service connection by way of proof of actual direct causation. Here, the preponderance of evidence is against a finding that the Veteran is a “radiation-exposed veteran” under 38 C.F.R. § 3.309(d)(3). The definition of a “radiation-risk activity” outlined in 38 C.F.R. § 3.309(d)(3)(ii) does not include the use of night vision optic devises; therefore, he did not participate in a “radiation-risk activity” and cannot be considered a “radiation-exposed veteran” for the purposes of presumptive service connection under 38 C.F.R. § 3.309. Furthermore, lipomas, including parotid lipomas, sialoadenitis and salivary gland calculi, are not diseases presumptively service-connected for radiation-exposed veterans under the provisions of 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d)(2). Thus, service connection cannot be granted under the first approach. The Board finds the special development procedures in the second approach under 38 C.F.R. § 3.311 are unnecessary because lipomas are not listed under the list of radiogenic diseases acknowledged in 38 C.F.R. § 3.311(b)(2). Furthermore, although the Veteran has submitted web articles pertaining to salivary gland diseases and parotid tumors, the Board notes that the Court of Appeals for Veterans Claims has held that a medical article or treatise “can provide important support when combined with an opinion of a medical professional” if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least “plausible causality” based upon objective facts rather than on an unsubstantiated lay medical opinion. Wallin v. West, 11 Vet. App. 509 (1998). In the present case, the articles submitted by the Veteran are simply articles regarding salivary gland disorders and do not establish that the claimed conditions are radiogenic diseases. In addition, the articles are not combined with an opinion of a medical professional; therefore, they are less probative medical evidence. Finally, under the third approach, service connection cannot be granted because the evidence does not establish that any previous or current lipomas were incurred in service. Under 38. C.F.R. § 3.303(d), the Board must consider all the evidence of record and make appropriate determinations of competency, credibility, and weight. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). A March 2018 addendum opinion, which included a review of records dating back to 1999, reaffirms an August 6, 2014 direct service connection medical opinion. It states that the “Veteran’s sialoadenitis and sialolithaisis [sic] of the LEFT parotid gland are not incurred or caused by his military service,” and they “are not salivary gland cancer and are not caused by use of military night vision optics.” The opinion further clarifies that “[m]ilitary night vision devices [NVDs] do not emit mutagenic or carcinogenic radiation” and “[a]ny carcinogenic materials in the NVDs is encased inside the device and not in contact with the user of the NVD.” It also notes that the Veteran has not provided any evidence that the NVDs he used were defective in any way, nor has he alleged any other in-service injuries other than the use of the NVDs. The examination concluded that the Veteran’s lipomas are “less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness.” The Board acknowledges that the Veteran has a current diagnosis of lipomas and the use of the NVDs are consistent with his service. It also acknowledges the statements of the lay witnesses in support of his claim. Although lay witnesses are competent to provide testimony or statements relating to symptoms or facts that they observed and are within the realm of their personal knowledge, they are not competent to establish that which would require specialized knowledge or training, such as medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Moreover, the Board finds the Veteran is not competent to provide nexus opinions because he does not have the required medical expertise to answer these complex medical questions. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). In sum, the record establishes the Veteran did not engage in a “radiation-risk activity” in service. As such, he cannot be considered a “radiation-exposed veteran” with regard to the presumptive provisions relating to exposure to radiation. There is no competent evidence that establishes the Veteran has a radiogenic disease, nor is there competent evidence that indicates he was otherwise exposed to radiation in service, or that lipomas are otherwise related to service. As his lipomas manifested after his separation from service and have not otherwise been attributed to an in-service disease or injury, the Board finds service connection for lipomas must be denied. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Ariasaif, Associate Counsel