Citation Nr: 21021267 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 20-00 436 DATE: April 12, 2021 ORDER Entitlement to service connection for dry mouth is denied. Entitlement to service connection for a heart disability, other than hypertension, is denied. Entitlement to residual scarring, status post removal of parotid gland, is denied. FINDINGS OF FACT 1. The Veteran was exposed to ionizing radiation during service. 2. Dry mouth, including as a residual of a right parotidectomy, was not manifested during service and is not shown to be related to active service, including the Veteran’s exposure to ionizing radiation. 3. Heart disease, other than hypertension, was not manifested during service or within one year after service and is not shown to be related to active service, including the Veteran’s exposure to ionizing radiation. 4. Residual scarring, status post removal of parotid gland, was not manifested during service, and is not shown to be related to active service, including the Veteran’s exposure to ionizing radiation. CONCLUSIONS OF LAW 1. The criteria for service connection for dry mouth have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.311. 2. The criteria for service connection for a heart disability, other than hypertension, have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.311. 3. The criteria for service connection for residual scarring, status post removal of parotid gland, have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.311. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from February 1956 to February 1960. Historically, a June 2011 Board decision denied service connection for hypertension, claimed as due to exposure to ionizing radiation, but noted that service connection for a heart disorder had been raised by the record but not yet adjudicated by the RO. A March 2016 Board of Veterans’ Appeals (Board) decision found that the Veteran was a radiation exposed veteran but denied service connection for residuals of right parotidectomy, to include lower jaw pain, abscessed teeth, and facial numbness, claimed as due to exposure to ionizing radiation; and denied service connection for a psychiatric disorder, to include anxiety disorder, claimed as due to residuals of right parotidectomy. A claim for service connection for an eye disorder, claimed as due to exposure to ionizing radiation, was remanded. The Board also noted that service connection for a heart disability was raised at the March 2011 Travel Board hearing, and that service connection for a residual scar disability and a disability manifested by dry mouth have been raised by the record in an October 2012 statement. Subsequently, a January 2018 rating decision granted service connection for bilateral cataracts, claimed as vision problems, and assigned an initial 20 percent evaluation, all effective October 30, 2008. This is the Veteran’s only service-connected disorder. The Veteran did not appeal either the initial disability rating assigned or the effective date and, as these are independent downstream issues, these matters are not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). This matter comes before the Board of Veterans’ Appeals (Board) from a February 2017 rating decision which denied the claims referenced in the March 2016 Board decision. After initiating an appeal by filing VA Form 21-0958, Notice of Disagreement (NOD), and the issuance of a statement of the case (SOC) in November 2019, the appeal was perfected by filing a VA Form 9, Appeal to the Board, in December 2019 in which the Veteran requested a videoconference at the Department of Veterans Affairs (VA) Regional Office (RO). By RO letter of June 2020, the Veteran was informed that a hearing at the RO was scheduled for July 2020. In an August 2020 letter, the Veteran’s attorney waived the request for a Board hearing and requested that the appeal be stayed for 90 days to allow the opportunity to submit additional evidence and argument. In September 2020, the Veteran’s attorney submitted a letter from the Veteran, with waiver of initial RO consideration of that evidence. In that letter the Veteran referred to illnesses of his daughter and two grandchildren which he asserts are due to his inservice exposure to ionizing radiation. He sought “compensation for my daughter and grandchildren.” As to this, to the extent that he may seek VA compensation on the basis of having a helpless child, he should consult his attorney and it must be noted that any claim for VA benefits must be filed on the appropriate claim form (as was explained in a September 10, 2020 RO letter). In an October 2020 letter the Deputy Vice Chairman of the Board granted the requested 90 days. However, prior to the expiration of the requested 90 days, in a September 2020 letter the Veteran’s attorney stated that there was nothing further to be submitted and request that the Board “close the record and make a decision based on the evidence of record.” Additionally, the Board notes that a June 2011 Board decision denied service connection for hypertension, claimed as due to exposure to ionizing radiation. Subsequently, the Veteran was notified by an RO letter of April 2020 of a March 2020 rating decision which denied reopening of a claim for service connection for hypertension. In August 2020, VA received VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), in which a hearing with a Veterans Law Judge was requested, along with the opportunity to submit additional evidence within 90 days after that hearing. An October 2020 Board letter informed the Veteran and his attorney that his appeal had been placed on the Hearing docket and he would be informed when his hearing was scheduled. The Board notes that based on the date of the rating decision, the Veteran’s claim is automatically part of the AMA appeal system; accordingly, the matter of whether new and relevant evidence has been submitted to reopen a claim for service connection for hypertension will be addressed at a later date in a separate Board decision. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be also 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). A disability may also be found to be service connected on a secondary basis if the claimant demonstrates that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310. Certain chronic diseases, such as cardiovascular-renal disease, and an organic disease of the nervous system, will be presumed related to service, absent an intercurrent cause, if shown as chronic in service; or, if manifested to a compensable degree within a presumptive period following separation from service; or, if noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. See Hilkert v. West, 11 Vet. App. 284, 289 (1998). First, if a veteran exposed to radiation during active duty later develops one of the diseases listed in 38 C.F.R. § 3.309(d)(2), a rebuttable presumption of service connection arises. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. These diseases are ones in which the VA Secretary has determined that a positive association with radiation exposure exists. Second, service connection may be established if a radiation-exposed veteran develops a “radiogenic disease” (one that may be induced by ionizing radiation, either listed at 38 C.F.R. § 3.311(b)(2) or established by competent scientific or medical evidence to be a radiogenic disease), if the VA Undersecretary for Benefits determines that a relationship in fact exists between the disease and the Veteran’s exposure in service. See 38 C.F.R. § 3.311. Third, service connection may be established by competent evidence establishing the existence of a medical nexus between the claimed condition and exposure to ionizing radiation during active service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board notes that the three alternative methods defined by Hilkert for establishing service connection all share a common threshold: that the veteran has, in fact, been shown to have been exposed to ionizing radiation. A “radiation exposed veteran” is defined by 38 C.F.R. § 3.309(d)(3) 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 include onsite participation in a test involving the atmospheric detonation of a nuclear device. 38 C.F.R. § 3.309(d)(3)(ii)(A). At the outset, the Board acknowledges the Veteran’s onsite participation in tests involving the atmospheric detonation of a nuclear device. In this regard, he has alleged participating in such tests at the Nevada Test Site and the record shows that he was temporarily assigned to Mercury, Nevada (which is located on the Nevada Test Site) from April to at least July 1957 (which is during the time of the tests). Thus, exposure to ionizing radiation during service is conceded. The Board notes that cancer of the salivary glands is recognized by VA as specific to radiation-exposed veterans. See 38 C.F.R. §§ 3.309(d)(2)(xiv), 3.311(b)(2)(xiv). However, the Veteran’s right parotid gland adenoma/benign Warthin’s tumor with benign metaplastic changes of the epithelial component, which led to the right parotidectomy with facial nerve dissection diseases, is not recognized by VA as due to radiation exposure. Accordingly, the provisions of § 3.309(d) and § 3.311(b) are not applicable. The United States Court of Appeals for the Federal Circuit in Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994), determined that the Veteran’s Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98- 542, § 5, 98 Stat. 2725, 2727-29 (1984) did not preclude a Veteran from establishing service connection for a disease alleged to be due to radiation exposure with proof of actual direct causation. Combee, 34 F.3d at 1039. Reasonable doubt will be favorably resolved but if the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001). Background In a February 1956 Medical History questionnaire at service entrance the Veteran reported having had mumps. The January 1960 examination for service discharge noted that the Veteran had a history of childhood mumps. His blood pressure readings during service were within normal limits. In an October 2008 letter, the Veteran reported having parotid gland surgery in December 2002 with residual right-sided facial numbness. Treatment records from December 2002 show that the Veteran developed a right parotid mass that he noticed a few years earlier, which had gradually increased in size, but he denied other problems. In a review of his cardiovascular system he denied any problems. He underwent a right parotidectomy with facial nerve dissection for removal of a right parotid mass. The final pathological diagnosis was “Wartin’s tumor (benign); benign metaplasia of epithelial component; focal interstitial fibrosis of gland.” A January 2003 clinical note states that as a follow-up the surgical area was well healed and facial functions were normal. An October 2008 VA outpatient treatment (VAOPT) record shows that the Veteran had a right parotid scar. There was an assessment that he had hypertension and was to begin taking medication for hypertension. He was told that his being overweight put him at risk for, in part, the development of heart disease and hypertension. In an October 2010 letter, the Veteran reported that VA clinicians told him that he had a heart blockage. At a March 2011 travel Board hearing in conjunction with an earlier appeal, the Veteran testified that his right parotidectomy had caused him to develop “dry mouth.” See page 8 of that transcript. VA clinicians performed a cardiac evaluation [at an unspecified time] and wanted to perform a cardiac catheterization. See pages 9 and 10. His hypertension developed after service. See pages 18 and 19. An August 2011 VAOPT record noted a history of an abnormal stress test in 2010. On VA neurology examination in February 2012, the Veteran was found to have a postoperative right parotidectomy scar that was not painful or unstable. A March 2012 addendum to a February 2012 VA dental examination noted that the Veteran’s chief complaint was dry mouth which had started in the 1970s, prior to starting blood pressure medication. It was noted that, from the examiner’s research, the parotid gland accounted for 20 percent to 25 percent of salivary flow into the oral cavity. On examination, the Veteran had fairly good salivary flow, but it was noted that he had been chewing “biotene” gum and using a spray. The examiner conducted testing of salivary flow and found that the Veteran’s unstimulated flow rate was abnormal, although his stimulated rate was normal. Because the parotid gland accounted for only 20 percent to 25 percent of salivary flow and the Veteran had not had the parotid gland removed (the Veteran having reported that only a tumor was removed from that gland), there might be another reason for the abnormal salivary flow, such as something systemic. In an October 2012 letter, the Veteran’s attorney stated he was claiming service connection for a scar and dry mouth due to removal of the parotid gland. On VA neurology examination in April 2015, the Veteran reported having dry mouth as well as facial swelling after he had surgery on his right parotid gland. On examination, he had moderately decreased salivation. He had a postoperative right parotidectomy scar, which was not painful or unstable. On VA dental examination in April 2015, the Veteran reported that his dry mouth symptoms started in the 1970's. On examination, his unstimulated salivary flow was normal. A May 2015 VAOPT record noted a computerized problem list which included diabetes mellitus, type II, and chronic kidney disease, stage 3. In a November 2017 statement from Dr. F. M., it was reported that the Veteran had a skin lesion on his right ear. He had no difficulty eating but reported having chronic dry mouth since removal of a parotid tumor in “2000.” SERVICE CONNECTION 1. Entitlement to service connection for dry mouth It is neither contended nor shown that the Veteran had dry mouth during service or until many years after service. To the extent that it may be implicitly claimed that the Veteran’s dry mouth may be due to his conceded inservice ionizing radiation exposure, there is no competent evidence of such a nexus and the Veteran lacks the education, training, and expertise to render a competent medical opinion as to such a nexus because such a nexus is a complex medical question and falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).” Otherwise, the Veteran contends that his dry mouth is due to the tumor which developed in his right parotid gland or due to the surgery, many years after service, for excision of a tumor from that gland. However, he is not service-connected for a tumor of the right parotid gland or for any residuals stemming from the postservice surgery at a private medical facility. The Veteran now seeks to claim service connection for dry mouth as a manifestation of the tumor of the right parotid gland or as a residual of that surgery, separate and distinct from the specific symptoms addressed in the March 2016 Board denial of service connection for residuals of right parotidectomy, to include lower jaw pain, abscessed teeth, and facial numbness. However, underlying that Board decision was a determination that the actual tumor which necessitated the surgery of the right parotid gland was not a cancer due to inservice ionizing radiation. No additional evidence has been submitted to change that conclusion. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim for service connection for dry mouth and, so, the benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not applicable. 2. Entitlement to service connection for a heart disability, other than hypertension As previously noted, the matter of whether new and relevant evidence has been received to reopen a claim for service connection for hypertension since the June 2011 Board decision denied service connection for hypertension, claimed as due to exposure to ionizing radiation, will be the subject of a separate Board decision. As to service connection for a heart disability other than hypertension, the Veteran’s service records are negative for any heart disease, nor is any form of heart disease (other than hypertension) shown within one year after military service. In fact, there is no postservice diagnosis of any heart disease other than hypertension. Further, while various forms of cancer are associated with the Veteran’s inservice ionizing radiation exposure, no form of heart disease is presumptively due to or associated with such exposure. See 38 C.F.R. §§ 3.309(d) and 3.311(b)(2). The clinical evidence otherwise simply fails to establish that the Veteran has any form of heart disease, other than hypertension, which is in any way related to his military service or inservice ionizing radiation exposure. His lay assertions of having some form of heart disease other than hypertension are not competent because he lacks the expertise to make a diagnosis as to such a complex matter. Jandreau, Id. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim for service connection for a heart disability, other than hypertension, and, so, the benefit of the doubt rule set forth in 38 U.S.C. § 5107(b) is not applicable. 3. Entitlement to residual scarring, status post removal of parotid gland It is undisputed that the Veteran has residual postoperative scarring in the right parotid region due to his postservice surgery in 2002 to remove a tumor from the right parotid gland. However, as found by the Board in 2016, service connection is not in effect for the residuals of the right parotidectomy, because the preponderance of evidence indicates that the underlying tumor necessitating that surgery was not due to inservice exposure to ionizing radiation. (Continued on the next page)   In sum, it is not otherwise contended or shown that the Veteran’s residual postoperative scarring in the right parotid region is related to his military service. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim for service connection for residual scarring, status post removal of parotid gland, and, so, the benefit of the doubt rule in 38 U.S.C. § 5107(b) is not applicable. L. ANDERSEN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fussell, 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.