Citation Nr: 0809975 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 05-39 660 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for embryonic testicular cancer, status post radiation therapy (XRT), right orchiectomy, and chemotherapy; with metastasis to the brain, bone, liver, and lymph nodes [testicular cancer]. 2. Entitlement to service connection for cerebrovascular accident (CVA) and right carotid artery stenosis (claimed as stroke) [CVA], as secondary to testicular cancer. 3. Entitlement to service connection for residuals of a subdural hematoma, as secondary to CVA. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The veteran served on active duty from September 1972 to May 1976. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision from the Reno, Nevada, Department of Veterans Affairs (VA) Regional Office (RO). A videoconference hearing was held before an Acting Veterans Law Judge in September 2006 who is no longer employed at the Board. In a December 2006 letter, the Board informed the veteran that the individual who presided at the September 2006 hearing, who would ordinarily have participated in making the final determination of the claim, was no longer employed by the Board and that the veteran had the right to a hearing before another Member of the Board. In a February 2007 response, the veteran declined an additional hearing. The case has, accordingly, been reassigned. In May 2007, the Board requested medical advisory opinions from the Veterans Health Administration (VHA) regarding the etiology of the veteran's bladder cancer. See 38 U.S.C.A. § 7109; 38 C.F.R. § 20.901(a). The opinions were prepared in August 2007 and January 2008. In February 2008, the Board provided the veteran a copy of the medical expert opinion and provided him an additional opportunity to submit or identify pertinent evidence or argument, and he has done so. He also waived his right to have the new evidence first considered by the agency of original jurisdiction (AOJ). FINDINGS OF FACT 1. The preponderance of the veteran demonstrates that the veteran's testicular cancer became manifest within one year of separation from service. 2. The preponderance of the evidence demonstrates that his CVA was caused by XRT used to treat his service-connected testicular cancer. 3. The preponderance of the evidence demonstrates that his subdural hematoma was caused by his service-connected CVA. CONCLUSIONS OF LAW 1. The criteria for service connection for testicular cancer have been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2007). 2. The criteria for service connection for CVA, as secondary to service-connected testicular cancer, have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.310(a) (2007). 3. The criteria for service connection for subdural hematoma, as secondary to service-connected CVA, have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.310(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Direct service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. In addition, service connection may be granted for a chronic disease, including cancer, if manifested to a compensable degree within one year following service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Radar equipment emits microwave-type non-ionizing radiation, which is not subject to review under the ionizing radiation statute and regulations. Rucker v. Brown, 10 Vet. App. 67, 69-72 (1997) citing The Microwave Problem, Scientific American, September 1986; Effects upon Health of Occupational Exposure to Microwave Radiation (RADAR), American Journal of Epidemiology, Vol. 112, 1980; and Biological Effects of Radiofrequency Radiation, United States Environmental Protection Agency, September 1984. The veteran had active service from September 1972 to May 1976. His service personnel records show that he operated tracking radar and associated equipment. His service medical records are negative for diagnosis of any form of a malignant tumor or CVA. In February 1978, the veteran presented to his private physician with complaint of a swollen right testicle. He first noted the condition three or four weeks previous and had a little pain at the time. He was diagnosed with embryonic cell carcinoma of the right testis with metastasis to his brain, bones, liver and lymph nodes. He underwent right radical orchiectomy, chemotherapy, and radiation therapy. An August 1978 hospital discharge summary noted that the veteran had a history of right testicle swelling in November 1977. In February 1998, the veteran presented at a hospital emergency room and was diagnosed with cerebrovascular accident. A cerebral arteriogram and arch arteriogram diagnosed a stenosis of the right juxtosellar internal carotid artery. A magnetic resonance angiography (MRA) report noted a heterogeneous mass involving the frontal bone, and given the veteran's clinical history, a radiation-induced osteosarcoma or a treated metastatic lesion should be considered as sources of the mass. His medical summaries noted that a UCLA consultant felt the veteran's stenosis was most likely irradiation fibrosis of the vessel. A March 1998 discharge summary included a diagnosis of old right middle cerebral infarct secondary to right distal carotid radiation fibrosis. A June 1998 neurology consultation concurred in these assessments. In December 2000, the veteran was hospitalized for an early chronic subdural hematoma in the left hemisphere of the brain, which was surgically removed in 2001. In a letter dated in October 2001, Lawrence H. Einhorn, M.D., stated that he saw the veteran on June 14, 1978, and diagnosed a widespread metastatic testicular carcinoma with metastatic disease to the brain, liver, and retroperitoneal lymph nodes. He also stated that the veteran noticed a swelling in his right testicle in November 1977, and opined that it is possible that the veteran may have had a mass in his testicle for six to nine months prior to the actual diagnosis. In a letter dated in April 2004, Dr. Einhorn opined that it was likely that the veteran had a mass in his testicle nine months prior to the actual diagnosis. In letters dated in April and May 2005, Dr. Einhorn stated that the veteran noticed a swelling in his right testicle in November 1977, and that it was most likely that the tumor was present six to nine months prior to the veteran's first symptoms. A VHA urologist, in an August 2007 report, opined that it was at least as likely as not that the veteran manifested symptoms of testicular cancer within one year of separation from service. A VHA radiation oncologist, in a January 2008 report, stated that blood vessel stenosis is a known side effect of therapeutic radiation if direct to that site, but it is not known to be caused by nonionizing radiation such as radar or microwave radiation. Several physicians have stated that, even though the veteran was not diagnosed with testicular cancer within one year of separation from service, he manifested symptoms within that one-year period. Therefore, service connection for testicular cancer is granted on a presumptive basis. Several physicians have also attributed the veteran's CVA and subdural hematoma to XRT to the head used in treating brain cancer which originated from his service-connected testicular cancer. Therefore, service connection for CVA and subdural hematoma are granted on a secondary basis. Service connection for all three disabilities at issue is being granted. This is the greatest benefit the veteran can receive under the circumstances. Any failure to notify or assist him pursuant to VA law and regulation are therefore, at most, no more than harmless error. See Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER Service connection for testicular cancer is granted. Service connection for a CVA, as secondary to testicular cancer is granted. Service connection for subdural hematoma, as secondary to CVA, is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs