Citation Nr: 21039887 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 13-08 738A DATE: July 1, 2021 ORDER Entitlement to service connection for residuals of a superficial parotidectomy with 7th nerve dissection, claimed as mass on right side of face, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's residuals of a superficial parotidectomy, claimed as mass on right side of face, were incurred in or caused by service, including exposure to herbicide agents. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of a superficial parotidectomy with 7th nerve dissection, claimed as mass on right side of face, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1965 to September 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at an RO hearing in December 2012. A transcript of this hearing has been associated with the claims file. In February 2018, the Board remanded this matter for additional development. Entitlement to service connection for superficial parotidectomy The Veteran seeks service connection for residuals of a superficial parotidectomy, which he asserts is the result of a parotid gland tumor that was caused by exposure to herbicide agents during service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, to prove service connection there must be: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). As an initial matter, the Board finds that the Veteran has current residuals of a right parotid tumor and parotidectomy. Post-service treatment records reveal the Veteran underwent a parotidectomy for a benign right parotid mass in May 2003 and a biopsy of a large tumor superficial lobe left parotid in March 2010. For purposes of establishing service connection for a disability resulting from exposure to herbicide agents, a veteran who had active service in the Republic of Vietnam during the Vietnam Era, beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during that service, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f); 38 C.F.R. §§ 3.307(a), 3.309(e). Additionally, the U.S. Court of Appeals for the Federal Circuit held that the phrase "service in the Republic of Vietnam" under 38 U.S.C. § 1116 includes the territorial seas of the Republic of Vietnam extending 12 nautical miles from the shores of that nation. See Procopio v. Wilkie, 913 F.3d. 1371 (2019); see also Blue Water Navy Vietnam Veterans Act of 2019 (Pub. L. No. 116-23, 133 Stat. 966). The applicable criteria provide that a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e), will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). VA has determined that there is no positive association between exposure to herbicide agents and any other condition for which it has not specifically been determined that a presumption of service connection is warranted. As parotid gland tumors are not listed among the diseases enumerated under 38 C.F.R. §§ 3.309(e), the herbicide agents' presumptive provision of 38 C.F.R. § 3.307 do not apply as to that disability. Nevertheless, the United States Court of Appeals for the Federal Circuit has determined that a claimant who suffers from a disability that is not listed among those for which presumptive service is afforded based on exposure to herbicide agents is not precluded from establishing service connection for such disability as due to herbicide agent exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In this regard, there is no evidence that the Veteran was diagnosed with a parotid gland tumor during service or within one year following discharge from service. The Veteran's service treatment records do not show complaints, treatment, or a diagnosis of a parotid gland tumor during service. Although the Veteran believes that his residuals of parotidectomy, claimed as a mass right side of face, are related to service, specifically his exposure to herbicide agents during service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. 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 or etiology). In this regard, the diagnosis and etiology of parotid gland tumors are matters not capable of lay observation and require medical expertise to determine. Thus, the Veteran's statements regarding the etiology of his parotid gland tumor are not competent evidence. The Board acknowledges that the Veteran has not been afforded a VA examination on this issue. However, a remand for a VA examination is not warranted. Although the record contains competent evidence of a current disability, the weight of the evidence does not demonstrate the disability may be associated with the Veteran's service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is no evidence of an inservice injury or symptoms, and the Veteran's conclusory and generalized lay statements as to the etiology of his current hypertension are insufficient to trigger the VA's duty to assist by providing the Veteran with an examination. See 38 U.S.C. § 5103(d); McLendon, 20 Vet. App. at 83; Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (a conclusory generalized lay statement suggesting a nexus between a current disability and service does not suffice to warrant a VA examination). In addition, the Board acknowledges the Veteran's representative's contentions that studies cited in the May 2021 informal hearing presentation are purported to find a higher incidence of salivary gland cancers in Vietnam veterans. However, as the evidence indicates that the Veteran's parotid tumor was benign, the cited studies regarding salivary gland cancers have limited relevance and are insufficient to trigger the VA's duty to assist by providing the Veteran with an examination. Id. Furthermore, the representative's reference to an article indicating that herbicides can injure DNA cells, which may lead to abnormal growths or tumors is insufficient to trigger the VA's duty to assist by providing the Veteran with an examination, as the referenced findings are both generalized and speculative in nature. The representative's arguments that these studies and article indicate that the Veteran's parotid tumors are related to his herbicide exposure are conclusory and generalized lay statements as to the etiology and are insufficient to trigger the VA's duty to assist by providing the Veteran with an examination. Id. In sum, the Board finds that the preponderance of the evidence is against the claim, and service connection for residuals of a superficial parotidectomy with 7th nerve dissection, claimed as mass on right side of face, is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claims, the doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Megan R. Thomas Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lance, 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.