Citation Nr: 1123085 Decision Date: 06/16/11 Archive Date: 06/28/11 DOCKET NO. 08-34 779 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for testicular cancer, to include as due to Agent Orange exposure. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to October 1970. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a January 2008 rating decision of the VA Regional Office (RO) in San Diego, California that denied service connection for testicular cancer and glaucoma. The Veteran was afforded a personal hearing at the RO in July 2009. The transcript is of record. During the hearing, the issue of entitlement to service connection for glaucoma was withdrawn from appellate consideration. Following review of the record, the appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran asserts that developed testicular cancer as the result of service, to include from exposure to Agent Orange, for which service connection should be granted. Review of the record discloses that on service entrance examination in June 1966, the Veteran stated that prior to active duty, he injured himself in the scrotum and was treated in Proctor Hospital in January 1965. The genitourinary system was evaluated as normal. He was seen in October 1966 for a painful left scrotum after having been kicked in it by another sailor. A diagnosis of contusion, left inguinal region, was provided and a left varicocele was noted. He was admitted for bed rest and treatment. Physical examination also disclosed an enlarged tender area in the left inguinal region. It was reported that the cord and surrounding tissues were very tender and swollen. On examination in September 1970 for discharge from active duty, left variocele was recorded in the summary of defects. Post service, records from Kaiser Permanente medical facility dated in January 1996 reflect that the Veteran was seen for a left testicle mass that was felt to be malignant. An assessment of left testicle neoplasm was rendered for which surgery was planned. In April 1998, it was recorded that he had a history of testicular cancer that had resolved. Review of the record thus reflects that the Veteran was treated for scrotal injury in service and was noted to have a left variocele at service discharge. He subsequently developed a left testicular mass that was found to be malignant. He has not had a VA examination to determine whether there is any relationship between the two events. Consequently, the Board does not have the requisite information to grant or deny service connection at this time. The VA adjudicator is not free to substitute his or her own judgment for that of an expert, and the Board is prohibited from making conclusions based on its own medical judgment. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Under the circumstances, VA is obligated to provide an examination where the record contains competent evidence that the claimant has a current disability, signs or symptoms might be associated with active service, and the record does not contain sufficient information to make a decision on a claim. The Court of Appeals for Veterans Claims (Court) held in McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) that the threshold for getting an examination under the VCAA is low. See also Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a genital examination by an appropriate clinician to determine whether testicular cancer is related to service. All indicated tests and studies should be performed and findings should be reported in detail. The claims folder must be made available to the examiner for review in conjunction with the examination. The examination report should include a discussion of the Veteran's documented clinical history and assertions. Following examination, the examiner must provide an opinion as to whether it is at least as likely as not testicular cancer was related to scrotal injury/left varicocele in service, or was more likely of post service onset and unrelated to active duty. It is requested that the examiner determine whether there is a relationship between the Veteran's cancer and Agent Orange exposure. The rationale for the conclusions reached must be provided in the clinical report. 2. The AOJ (hearing officer) shall make a determination as to whether the appellant was in-country (Viuetnam). 3. After taking any further development deemed appropriate, the RO should re-adjudicate the claim. If the benefit is not granted, the appellant and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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 appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2010).