Citation Nr: 1011007 Decision Date: 03/24/10 Archive Date: 03/31/10 DOCKET NO. 06-31 311 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a chronic right epididymitis, claimed as residual to testicular cancer. 2. Whether new and material evidence has been received to reopen a service connection claim for bladder cancer, claimed as a result of exposure to ionizing radiation. 3. Whether new and material evidence has been received to reopen a service connection claim for residual scars secondary to basal cell carcinoma of the nose and right cheek, claimed as a result of exposure to ionizing radiation. 4. Whether new and material evidence has been received to reopen a service connection claim for right kidney cancer, claimed as a result of exposure to ionizing radiation. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Associate Counsel INTRODUCTION The Veteran had active duty service in the Marine Corps from January 1947 to February 1947 and in the Air Force from October 1947 to July 1970. The Veteran also served in the Republic of Vietnam from May 1962 to October 1962 and from November 1965 to June 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran's Notice of Disagreement (NOD), received in March 2006, raised a claim for service connection for metastatic prostate cancer. This issue has not been adjudicated by the RO and is referred to the RO for appropriate action. The Veteran testified before the undersigned Acting Veterans Law Judge at an October 2009 RO (Travel Board) hearing. A copy of that hearing transcript has been associated with the claims file. In April 2009, subsequent to the issuance of the February 2006 statement of the case, additional evidence was received. A waiver of RO consideration was not submitted. However, the evidence is not pertinent to the issues on appeal and such a waiver is therefore not required. 38 C.F.R. § 20.1304 (2009). Review of the file shows an unappealed rating decision in March 2004 denied service connection for bladder cancer, for cancer of the right kidney, and for scars of the scars of the nose and right cheek residual to basal cell carcinoma, all claimed as due to exposure to ionizing radiation. The rating decision stated there was no evidence of exposure to radiation in service. However, service treatment records include a NEAC Form 85 (Record of Exposure to Ionizing Radiation) showing the Veteran was exposed to ionizing radiation at Hickam Air Force Base during the period March 1960 through August 1961. The Board refers to the RO the question of whether the denial of service connection in March 2004 for the disorders claimed as due to exposure to radiation was clearly and unmistakably erroneous. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Board's decision on the issue of entitlement to service connection for chronic right epididymitis is set forth below. The other issues as characterized on the title page are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. The Veteran was exposed to gamma radiation during service. 2. There is no medical evidence of record associating the Veteran's chronic right epididymitis with testicular cancer and no evidence the Veteran has a radiogenic genitourinary disease. 3. There is no evidence of record showing that an association between a current genitourinary disorder and active service, to include exposure to ionizing radiation during service. CONCLUSION OF LAW The criteria for entitlement to service connection for a genitourinary disorder to include as consequent to exposure to ionizing radiation are not met. 38 U.S.C.A. §§ 1110, 1112, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2009). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice in a new and material evidence claim must notify a claimant of the evidence and information (1) that is necessary to reopen the claim and (2) that is necessary to establish entitlement to the underlying benefit. The VCAA requires, in the context of a claim to reopen, that VA look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Therefore, the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied. Failure to provide this notice is generally prejudicial. Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran was provided with pre-adjudication VCAA notice in a September 2005 letter. This letter informed him of the evidence required to substantiate his service connection claims for skin cancer, renal kidney cancer, testicular cancer and bladder cancer. This letter informed him of what evidence VA would obtain, what evidence he was expected to provide, and of what assistance VA could provide in obtaining evidence. In addition, this letter informed him that he should submit any information relevant to his claims. This letter met the duty to notify the Veteran in accordance with Pelegrini. The January 2005 letter also informed the Veteran that his claims to establish service connection for bladder cancer and kidney cancer had been previously denied. This letter informed him of the need for new and material evidence to reopen this claim, provided regulatory definitions of "new" and "material" and informed him of the bases for the prior denials. This letter met the duty to notify the Veteran in accordance with Kent with regard to his service connection claims for bladder cancer and kidney cancer. The Veteran was not sent specific VCAA notice as specified in Kent with regard to his request to reopen his service connection claim for skin cancer. The Veteran did receive information that should have put him on notice as to what was required. First, he received a copy of the March 2004 rating decision telling him of the reasons for the denial; he also received the February 2006 rating decision and the August 2006 statement of the case that again told him the bases for the prior denial, and that the evidence received since the prior denial did not pertain to the bases for that denial. A procedural or substantive error is prejudicial when the error affects a substantial right that a statutory or regulatory provision was designed to protect. See McDonough Power Equip. v. Greenwood, 464 U.S. 548, 553 (1984). Such an error affects the essential fairness of the adjudication. Id.; see Parker v. Brown, 9 Vet. App. 476 (1996); see also Intercargo Ins. Co. v. United States, 83 F.3d 391 (Fed.Cir.1996). Accordingly, if the error does not affect the "essential fairness" of the adjudication by preventing a claimant's meaningful participation in the adjudication of the claim, then it is not prejudicial. McDonough, supra; Overton v. Nicholson, 20 Vet. App. 427, 435-7 (2006). As the Veteran received the necessary information and had months or years to submit additional evidence and argument and the opportunity to request a hearing, he had a meaningful opportunity to participate in the adjudication of the claim. The Veteran has substantiated his status as a veteran. The second and third elements of proper Dingess notice were provided in the September 2005 letter. The remaining elements of proper Dingess notice were provided in the March 2006 letter, after the initial adjudication of the Veteran's claim. VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini, supra. This timing deficiency was cured by the readjudication of these claims in an August 2006 statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The VCAA requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim(s). 38 U.S.C.A. §5103A; 38 C.F.R. §3.159 (c), (d). This duty to assist contemplates that VA will help a claimant obtain records relevant to his claim(s), whether or not the records are in Federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has no duty to provide an examination or obtain a medical opinion prior to reopening a claim that has been finally denied in a prior decision. 38 C.F.R. § 3.159(c)(4)(iii). VA has met the duty to assist the Veteran in the development of his claim. The Veteran's service treatment records, portions of his service personnel records, his VA treatment records, his Tricare treatment records and various private treatment records have been obtained. A July 2005 response from Brooke Army Hospital indicated that all of the requested treatment records had been forwarded to another Army medical center and those Tricare treatment records are located in the claims file. As the Veteran has not been diagnosed with a genitourinary condition that is a radiogenic disease, the required development described in 38 C.F.R. § 3.311 need not be conducted. The Veteran has not been afforded VA examinations for his bladder cancer, residual scarring secondary to basal cell carcinoma and kidney cancer claims. As these claims are not being reopened, VA examinations are not required. 38 C.F.R. § 3.159(c)(4)(iii). A VA genitourinary examination has not been conducted for the Veteran's service connection claim for testicular cancer. As detailed below, because there is no in- service injury or disease, no chronic symptoms in service, and no continuous symptoms after service, a VA examination and opinion is not necessary to decide this claim because there is no in-service injury or disease to which an opinion could relate the current genitourinary condition to service, and there is no factual basis of chronic symptoms in service or continuous symptoms after service to support such an opinion. Any such opinion requested on the facts in this case would be merely speculative, so would not aid in substantiating the claim for service connection. As neither the Veteran nor his representative have indicated that there is any outstanding pertinent evidence to be obtained, the Board may proceed with the consideration of the Veteran's claims. Legal Criteria - Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. §§ 3.303(d), 3.307, 3.309. Service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established in any of three different ways, which have been outlined by the Court. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Ruker 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.A. § 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 Combee, VA must not only determine whether a Veteran had a disability recognized by VA as being etiologically related to exposure to ionizing radiation, but must also determine whether the disability was otherwise the result of active service. Diseases presumptively service connected for radiation- exposed veterans under the provisions of 38 U.S.C.A. § 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.A. § 1112(c)(2); 38 C.F.R. § 3.309(d). Under 38 C.F.R. § 3.311, "radiogenic disease" means a disease that may be induced by ionizing radiation and includes all forms of cancer. 38 C.F.R. § 3.311(b)(2). 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. Dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing and in claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. 38 C.F.R. § 3.311(a)(2). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis A January 1947 Marine Corps entrance examination and a February 1947 discharge examination were negative for any relevant abnormalities. His remaining service treatment records for this period of service were negative for any complaints, treatments or diagnoses of any testicular cancer or other testicular condition. An October 1947 Air Force entrance examination was negative for any relevant abnormalities. A February 1970 discharge examination was negative for any relevant abnormalities and the Veteran denied any significant medical or surgical history not disclosed during the discharge examination. His remaining service treatment records for this period of service were negative for any symptoms, treatments or diagnoses of testicular cancer or other testicular condition. An undated Record of Exposure to Ionizing Radiation indicated that the Veteran was exposed to gamma radiation from March 1960 to August 1961 while serving at the Hickam Air Force Base. His dosage total was "+15." An April 2005 VA Tricare treatment note indicated that a right orchiectomy was performed following the Veteran's complaints of tenderness to the right scrotum. Physical examination noted marked induration as well as testicular fixation to the scrotal wall. His right testicle was noted to have marked redness and be tender to palpation. An assessment of right refractory epididymitis and comprise to the right testicle was made. During his October 2009 hearing, the Veteran testified that he had loaded retrograde cargo from Johnson Island for transport to Johns Hopkins Hospital in Minnesota in 1955. This cargo had not been used in the testing but had been left over. He transported this cargo on four or five occasions while serving with the Military Airlift Command and had used a dosimeter. The Veteran personally believed that bilateral removal of the testicles was due to radiation exposure, but no physician had ever confirmed that to him. The Veteran has show medical evidence of right refractory epididymitis; the first element of service connection has been met. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). In order for the Veteran's current genitourinary condition to be recognized as service connected, the competent medical evidence of record must establish a link between this condition and an in-service injury or disease. 38 U.S.C.A. §§ 1110, 1131; Shedden and Hickson, both supra. The competent medical evidence of record is insufficient to establish service connection for the Veteran's currently diagnosed genitourinary condition. His February 1970 discharge examination was negative for any relevant abnormalities. A continuity of symptomatology has not been demonstrated by the evidentiary record and has not been alleged by the Veteran. No competent medical opinion has been submitted suggesting a nexus between this condition and service. Although the Veteran claims to suffer from testicular cancer, there is no indication in the record that he had ever had such a diagnosis, or that the refractory epididymitis is residual to such a diagnosis. Also, refractory epididymitis is not a condition for which service connection is presumed due to ionizing radiation exposure nor is it a radiogenic disease. 38 C.F.R. §§ 3.309(a), 3.311. The Veteran is not competent to opine as to the etiology of his current genitourinary condition. While a layperson can provide evidence as to some questions of etiology or diagnosis, the question of a medical relationship between his genitourinary condition and service, which would require more than direct observation to resolve, is not in the category of questions that lend themselves to resolution by lay observation. Cf. Jandreau and Barr, both supra; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). Thus, the Veteran is not competent to opine on this question, and his statements asserting a relationship between his current genitourinary condition and service are not probative as to this question. As the evidence is against finding a nexus between a genitourinary condition and service, reasonable doubt does not arise and the claim is denied. 38 U.S.C.A. §5107(b). In 1991, he began having blood in his urine and was subsequently diagnosed with bladder cancer. He does not contend that this condition was caused by herbicide exposure. The Veteran's service connection claim for bladder cancer had been previously denied as the competent medical evidence of record did not establish a nexus between that condition and service. As such, competent medical evidence establishing such a nexus is required to reopen this claim. No such evidence has been received. The additional evidence submitted by the Veteran is essentially duplicative of evidence previously submitted and does not establish the missing element of a nexus between the current diagnosed condition and service. His reports regarding an on-going symptomatology and treatment were considered in the previous decisions. He has provided additional detail regarding his purported in-service radiation exposure, however, this purported exposure had been considered in the previous rating decision. As the additional evidence received since the March 2004 denial does not establish a nexus between the currently diagnosed bladder condition and service, it does not have a reasonable possibility of substantiating the claim. The service connection claim for a bladder cancer is therefore not reopened and the appeal must be denied. 38 U.S.C.A. § 5015(b). ORDER Entitlement to service connection for a genitourinary condition to include chronic right epididymitis is denied. REMAND The February 2006 rating decision on appeal denied the Veteran's claim for service connection for bladder cancer based in part on a finding the Veteran was not shown to be involved in a radiation risk activity or subjected to ionizing radiation on active duty. The same rating decision denied the Veteran's request to reopen claims for service connection for scars of the nose and right cheek residual to basal cell carcinoma and service connection for urothelial carcinoma of the right kidney based on a finding new and material evidence had not been received to reopen the claim for service connection previously denied in March 2004; the earlier decision in March 2004 had similarly denied service connection for those disorders based on a finding that there was no exposure to radiation in service. As noted above, the Veteran's service treatment record includes an undated Record of Exposure to Ionizing Radiation indicated that the Veteran was exposed to gamma radiation from March 1960 to August 1961 while serving at the Hickam Air Force Base. His dosage total was "+15." Accordingly, exposure to ionizing radiation to at least some degree is shown, and the claim must be developed in accordance with the provisions of 38 C.F.R. § 3.311 and the provisions of VA's Adjudication Procedure Manual, M21-1MR, are binding. See Patton v. West, 12 Vet. App. 272, 282 (1999) (holding that the Board failed to comply with the duty to assist requirement when it failed to remand the case for compliance with evidentiary development called for by the M21-1MR). Accordingly, the claims are remanded to the RO, via the AMC, for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. The RO should submit to the Service Department a request for a copy of the Veteran's DD Form 1141 and any other documentation regarding the Veteran's exposure in service to radiation. See 38 C.F.R. § 3.311(a). 2. Then, the RO should provide appellant's file to the Undersecretary for Health for preparation of a dose estimate, to the extent feasible based on available methodologies. See 38 C.F.R. § 3.311(b). 3. The RO should thereafter provide Veteran's file to the VA Undersecretary for Benefits for a determination as to whether it is at least as likely as not that the Veteran's claimed disorders are consequent to exposure to radiation in service. See 38 C.F.R. § 3.311(c). 4. The VA Undersecretary for Benefits, after conducting review and appropriate outside consultation, will notify RO of the determination of causation, upon which RO should re-adjudicate Veteran's claim. To ensure compliance with all notice and the duty-to-assist provisions, RO should conduct a de novo review of all evidence of record as to this issue. 5. Thereafter, to the extent the benefits sought are not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case, and afforded a reasonable opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. . By this remand, the Board intimates no opinion as to any final outcome warranted No action is required of the Veteran until he is otherwise notified, but he has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ JOHN H. NILON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs