Decision Date: 08/28/95 Archive Date: 01/16/96 DOCKET NO. 93-13 301 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for postoperative residuals of seminoma of the left testicle. 2. Entitlement to service connection for infertility. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mark J. Swiatek, Counsel INTRODUCTION The veteran was born in August 1947 and served on active duty from July 1966 to December 1969 and from December 1971 to November 1975. This appeal comes before the Board of Veterans’ Appeals (Board) from March and August 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The appeal was received and docketed at the Board in June 1993. The appeal has been referred to the undersigned Member of the Board for further consideration. The veteran contends, in essence, that his left testicle seminoma in 1989 was related to the cumulative effect of “high densities” of (nonionizing) microwave radiation exposure during military duty as a radar operator from 1972 to 1975 and that the infertility may be related to the radiation exposure. The representative has asserted, in essence, that the claim is plausible as the testicles are known to be highly sensitive to radiation and that recently a study of law enforcement personnel with testicular cancer and a history of radar operation has been undertaken. Regarding infertility, the veteran asserts, in essence, in the alternative, that the defect was initially found during service and that any testicular disorder found to have preexisted service increased in severity of disability during service beyond natural progress and was manifested by infertility. Service medical records show that the veteran was evaluated for infertility in 1974 and 1975 and that on a May 1975 evaluation he reported “radar exposure in military” in response to a question concerning any toxic or radiation exposure. In 1974, it was reported that he has had mumps at age four and a right orchioplexy at age eleven. In May 1975, an examiner suspected primary testicular failure probably secondary to dysgenic testes. A VA examiner in October 1992 considered mumps and dysgenic testes as possible causes for the veteran’s infertility. The Board notes that the service medical records are incomplete. The medical examinations performed for service entry in July 1966 and for separation in December 1969 are not on file, and the entry and separation examinations for his second period of active service are absent as well. At the present time, there has been no verification from the service department of the veteran’s claimed nonionizing microwave (radar) radiation exposure or the extent of that exposure. The veteran, in October 1990, reported that he completed radar operations training in February 1972 and was thereafter assigned to mobile radar “407L” units in California and Germany that used primarily a AN/TPS-44 radar set. He claimed that he was required to be in close proximity to the radar antenna during active operation of the antenna. The personnel records on microfiche do not include a record of the veteran’s duty assignments during his second period of active service. In addition, the Board observes that the medical records regarding the confirmation of left testicle seminoma appear to be incomplete. The inpatient records from the veteran’s October 1989 admission to Multicare Medical Center for left radical orchiectomy refer to an earlier medical examination by a Dr. DePalma which led to further evaluation and the confirmation of seminoma. A VA examiner in October 1992 considered “improbable” a relationship of radar exposure to seminoma “occurring fourteen years later”. The examiner, however, did not provide any rationale supporting that determination. In addition, service medical records document examinations in September 1976, October 1977, June 1980, December 1981, January 1982 and August 1985, apparently for Reserve service, but the clinical examination portion of the examination in each case is not on file. These records or copies thereof would be helpful in determining the initial onset of seminoma. In Earle v. Brown, 6 Vet.App. 558, 561-62 (1994), the United States Court of Veterans Appeals held, essentially, that all possible sources of evidence must be developed in determining the occurrence in service of exposure to ionizing radiation. In view of the facts of this case, and the decision of the United States Court of Veterans Appeals in Crowe v. Brown, 7 Vet.App. 238 (1994), the Board finds that additional development is desirable. Accordingly, this appeal is remanded to the RO for the following actions: 1. The RO should contact the National Personnel Records Center and request that a search be conducted to determine if additional medical records are available for the veteran. In addition, the RO should request a copy of the veteran’s military personnel file for his second period of service verifying his duty assignments. The service department should also be asked to provide information as to whether the veteran’s duties reported to have been as a radar operator at the 84th Tactical Control Flight (TCF), George Air Force Base, California and 621st TCF, Buttbach/Weisbaden, West Germany, involved exposure to non-ionizing radiation and if so, to what extent. All attempts to obtain such records through official channels should be documented in the claims folder. 2. The veteran should be contacted and asked to provide the names of any VA or non VA health care providers who have treated him for any testicular disorder, including seminoma or infertility since his separation from active service. After obtaining the appropriate release for medical information, the RO should request copies of all records which have not previously been obtained. This should include, to the extent possible, copies of all available records of the veteran’s treatment from a Dr. Arthur E. DePalma, 301 South 320th Street, Federal Way, Washington 98003; his 1989 hospitalization at Multicare Medical Center; copies of all available treatment records from Arthur Gordon Klose, M.D., 124 Tacoma Avenue South, Tacoma, Washington 98402; and a complete record of VA treatment since service discharge. At the same time, he should be afforded the opportunity to submit any additional evidence that might serve to show that his seminoma of the left testicle or his infertility is the result of exposure to non-ionizing microwave (radar) radiation during active service. 3. Thereafter, the veteran should be scheduled for a VA urology examination. The examiner is requested to review the claims folder and provide an opinion regarding the following questions: (1) Did the veteran have a testicular disorder prior to entering service in 1971? If so, what was it? (2) Did the infertility reported in service represent a pathological worsening of a preexistent testicular disorder during active service; and, if so, was any such increase clearly due to the “natural progress” of the disorder? The examiner should provide the rationale for all opinions and conclusions expressed. The claims file should be made available to the examiner prior to the examination, if possible. 4. The RO should then readjudicate the issues of entitlement to service connection for seminoma of the left testicle and infertility due to exposure to non-ionizing radiation, to include readjudication under 38 C.F.R. § 3.303(d) and consideration of Crowe v. Brown. (CONTINUED ON NEXT PAGE) If any benefit certified on appeal is not granted to the satisfaction of the appellant, or if a timely Notice of Disagreement is received with respect to any other matter, a Supplemental Statement of the Case should be issued for all issues in appellate status and the appellant and his representative provided the applicable period in which to respond. Thereafter, the case should be returned to the Board for further consideration, if in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is notified by the RO. SAMUEL W. WARNER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994). - 2 -