Citation Nr: 1313203 Decision Date: 04/19/13 Archive Date: 05/02/13 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 exposure to herbicides. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1966 to October 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. When this case was most recently before the Board in June 2011, it was remanded for additional development. The case has since been returned to the Board for further appellate action. In July 2009, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO. A transcript of this proceeding is of record. Historically, the Veteran perfected an appeal as to claims for entitlement to service connection for testicular cancer and glaucoma. During the July 2009 DRO hearing, the Veteran withdrew his appeal as to glaucoma. See DRO Hearing Tr. at 6. As such, the issue of entitlement to service connection for testicular cancer is the only remaining issue before the Board at this time. In a March 2011 written submission, the Veteran's representative indicated that the Veteran was withdrawing his Travel Board hearing request, originally made in his November 2008 substantive appeal (VA Form 9). The Veteran has not submitted a request for another Board hearing since that time. As such, the Veteran's hearing request is deemed withdrawn. 38 C.F.R. § 20.704 (2012). The Board notes that there was evidence received by the agency of original jurisdiction (AOJ) in November 2012 that was associated with the claims file after the transfer of the record to the Board in February 2013, to include copies of portions of the Veteran's existing claims file and two written submissions from the Veteran, one requesting rescheduling of the VA examination, and another providing argument essentially duplicative of the existing evidence of record. A waiver from the Veteran is not of record. In any event, the Veteran received the requested VA examination in January 2013; the findings of such were considered in the most recent supplemental statement of the case issued that same month. Moreover, as a review of the remainder of this evidence shows that it is either duplicative and/or not pertinent to the issue on appeal (i.e., does not have a bearing on the outcome of the appellate issue), remand for review of these records by the AOJ in the first instance is not necessary. 38 C.F.R. §§ 19.37(b); 20.1304(c). The Board also notes that, in addition to the paper claims file, there is a Virtual VA paperless claims processing system (Virtual VA) electronic file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue decided herein. FINDINGS OF FACT 1. Testicular cancer is not a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309(e). 2. The Veteran has been shown to have testicular cancer, diagnosed many years after service that did not manifest in service or within one year of separation, and is unrelated to service. CONCLUSION OF LAW Testicular cancer was not incurred in or aggravated by service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided prior to an initial unfavorable RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (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. This notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The Veteran was provided all required VCAA notice in a December 2007 letter, prior to the initial adjudication of the claim in January 2008. The VCAA also requires VA to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record reflects that all pertinent available service treatment records (STRs) and all available post-service medical evidence identified by the Veteran has been obtained. The Veteran's written statements are also of record. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. In addition, the Veteran was afforded an appropriate VA examination in connection with his claim. The Board finds that the examination was adequate, in that the exam was conducted by a medical professional who reviewed the claims file, solicited history from the Veteran, and performed a thorough examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that even if not statutorily obligated to do so, if VA provides the veteran with an examination in a service connection claim, the examination must be adequate); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In addition, the June 2011 remand instructions directed the AOJ to make a determination as to whether the Veteran served in Vietnam. While the AOJ did not make a specific finding in this regard, the Board notes that in-country service and resulting Agent Orange exposure was presumed for the purposes of providing both the VA and private opinions of record, and will be so presumed for the purposes of this discussion. Indeed, while not materially altering the outcome of this case, this consideration is to the Veteran's benefit in the adjudication of this decision. As such, the Board finds that the Veteran was not prejudiced by the actions of the AOJ, and the AOJ substantially complied with the Board's remand instructions, making further remand unnecessary. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) ("substantial compliance, not absolute compliance" required under Stegall) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). In sum, the Board finds that VA has complied with its duty to assist the Veteran. Based on the foregoing, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Principles Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established for a chronic disease as enumerated for VA compensation purposes, to include malignant tumors, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including malignant tumors, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. A veteran who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 shall be presumed to have been exposed during such service to Agent Orange, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.307(d). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e). 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6)(ii). In addition, VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not appropriate for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See, e.g., Notice, 72 Fed. Reg. 32395, 32407 (June 12, 2007). When a claimed disability is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997) (applying principle to Agent Orange exposure). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis The Veteran contends that his testicular cancer is a result of his active service, specifically his exposure to Agent Orange and asbestos. As an initial matter, the Board notes that record does not reflect, and the Veteran does not contend that he engaged in combat with the enemy. Therefore, the provisions of 38 U.S.C.A. § 1154(b) are not applicable. In addition, as discussed in detail above, while the AOJ did not make a specific finding as to whether the Veteran served in Vietnam during a time in which exposure to Agent Orange is presumptive; however, for the purposes of this discussion only, the Board acknowledges such exposure, as presumed by both medical doctors in providing the medical opinions discussed herein. Nevertheless, testicular cancer is not included in the diseases subject to presumptive service connection due to herbicide exposure for veterans who served in Vietnam during the Vietnam Era. In fact, VA has specifically determined that a presumption of service connection is not warranted based on exposure to Agent Orange for testicular cancer. See, e.g., Notice, 72 Fed. Reg. 32395, 32407 (June 12, 2007); Notice 77 Fed. Reg. 47924, 47927 (August 10, 2012) (Update 2010). Therefore, although the Board acknowledges the Veteran's assertions of Agent Orange exposure during service, service connection for testicular cancer on this presumptive basis is not warranted. Therefore, the remaining consideration before the Board is whether service connection may be warranted on a direct basis, or a presumptive basis for a malignant tumor manifest within one year after service. A review of the Veteran's service treatment records shows no in-service complaints, treatment, or diagnosis for testicular cancer or a testicular tumor. During the June 1966 entrance examination, the Veteran reported a history of hitting himself in the scrotum with a suitcase in January 1965 but denied a history of rupture/hernia, tumor, growth, cyst, or cancer; on examination, the genitourinary system was found to be "normal." An October 1966 service treatment record and corresponding narrative summary show that the Veteran complained of a painful left scrotum due to being kicked during a scuffle with another sailor. On examination, the doctor noted a left varicocele, with an enlarged tender area in the left inguinal region and cord and surrounding tissues very tender and swollen. The diagnosis was contusion of the left inguinal region. The Veteran was treated with bed rest and ice packs and was discharged to duty as asymptomatic two days later, noted to be as early as possible. During the September 1970 separation examination, the genitourinary system was found to be "normal"; however, a left varicocele was noted under the summary of defects and diagnosis. A review of the post-service medical evidence shows the earliest diagnosis of testicular cancer (left testicular tumor) in 1996 private treatment records, for which the Veteran underwent a left radical orchiectomy in February 1996. In his August 2007 claim, the Veteran indicated that his cancer began in February 1996, due to Agent Orange exposure. He indicated that he was exposed to asbestos as well, but listed "NA" for a resulting disability. In an August 2007 written submission, the Veteran stated that his previous doctor told him that his form of cancer was so unusual for a man his age that he could be in a medical journal, as testicular cancer is a "young man's disease." He noted that he did not have a family history of testicular cancer. The Veteran has consistently referred to this statement from his previous doctor as the basis for his belief that his disorder is related to service throughout the course of the appeal. In a September 2007 written submission, the Veteran's current private doctor (Dr. Barrozo) noted the Veteran's service history, including some time onshore near potential Agent Orange exposure. The doctor stated that given the potential of a causal link between various medical conditions, including testicular cancer, and Agent Orange, the doctor requested that the Veteran be considered for VA compensation. In a subsequent December 2007 written submission, the Veteran's private doctor stated that while environmental and congenital reasons may certainly contribute to the onset of testicular cancer, it is reasonable to assume that there is a link between the cancer and his Agent Orange exposure. The doctor further stated that although he could not attest to certain causation, it was his medical opinion that the Agent Orange exposure did contribute to the onset of this medical diagnosis. In the March 2008 notice of disagreement, the Veteran stated that his claim should be granted on a presumptive basis for testicular cancer as related to prostate cancer. During the July 2009 DRO hearing, the Veteran indicated that cancer could be related to his in-service Agent Orange exposure, despite the passage of time between service and the 1996 diagnosis, as cancer may lay dormant over time. See DRO Hearing Tr. at 8. In response to the Board's June 2011 remand, the Veteran was afforded a VA examination in January 2013 during which the examiner noted the Veteran's diagnosis and treatment (orchiectomy and radiation treatment) for cancer of the left testis in February 1996. The examiner opined that it was less likely than not that the Veteran's testicular cancer was incurred in or caused by the claimed in-service injury, event, or illness. In so opining, the examiner noted that the disorder, treated 27 years post-service was unrelated to active duty, including the scrotal injury/left varicocele noted in service or Agent Orange exposure. As rationale, the examiner noted both that: (1) cancer of the testis is not associated with Agent Orange exposure in Vietnam, based on a study conducted by the VA; and (2) the risk factors for development of testicular cancer are undescended testicle, family history, infertility, and testicular atrophy. In a written submission dated in October 2012, the Veteran again noted the usual circumstances of the onset of his testicular cancer due to his age. He noted his belief that his exposure to asbestos while on a ship and Agent Orange in country caused his cancer. The Board also notes that the Veteran submitted two internet publications in support of his claim, including an article on Agent Orange and cancer and an article reporting a higher incidence of testicular cancer in working dogs serving in Vietnam versus those serving in the states, indicating a link between dioxin exposure and damage to reproductive organs. Upon careful review of the record, the Board finds that service connection for testicular cancer is not warranted. The Veteran does have a diagnosis of status-post left radial orchiectomy, with a diagnosis and treatment for testicular cancer in 1996. Furthermore, the Board acknowledges the Veteran's in-service Agent Orange exposure for the purposes of this decision only. However, the weight of the evidence is against a finding linking the Veteran's current disorder to service. With regard to the medical evidence of record, there are two competent opinions addressing the etiology of the Veteran's testicular cancer. In evaluating the individual opinions, the Veteran's private doctor stated that while environmental and congenital reasons may contribute to the onset of testicular cancer, it was reasonable to assume a link between the disorder and Agent Orange exposure, without further rationale. While the doctor stated that he could not attest to certain causation, he opined that the Agent Orange exposure did contribute to the onset of the cancer. The Board notes that this opinion attributes at least some causation to Agent Orange exposure, and is therefore supportive of the claim. However, the opinion is speculative and conclusory in nature. Such factors diminish the probative value of the opinion. The January 2013 VA examiner's opinion determined that the Veteran's testicular cancer was not due to his in-service Agent Orange exposure or in-service testicular injury/left varicocele, a finding which weighs against the claim. The Board finds that this opinion is highly probative, as the examiner reviewed the claims file and took a history from the Veteran. With the available information, the examiner concluded that the Veteran's testicular cancer was less likely than not related to service, citing to a study regarding Agent Orange exposure and testicular cancer, as well as providing risk factors for testicular cancer, silent as to Agent Orange exposure or the presence of a varicocele. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Board has also considered the Veteran's lay statements of record, to include his contention that due to the unusual circumstances of the onset of his cancer, the disorder was related to his in-service Agent Orange and asbestos exposure. The Veteran is certainly competent to report as to the observable symptoms he experiences, such as an onset of his testicular cancer symptoms, and their history. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Similarly, the Veteran is also competent to report information conveyed to him by his physician, such as a contemporaneous medical diagnosis or opinion. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau and Buchanan). However, competence must be distinguished from probative weight. To the extent the Veteran based his theory of a claimed link on his former doctor telling him that it was unusual that he was diagnosed with testicular cancer at an older age, the record does not reflect that this doctor provided an opinion on etiology, verbally or otherwise. Such a statement, without more, does not support a claimed link on this basis. To the extent that he is aware of the statements of Dr. Barrozo, the Veteran's lay recounting of such statements is of no greater probative weight than Dr. Barrozo's submitted opinion, which lacks reasoning and is of diminished probative value, as previously discussed. Moreover, the Veteran's statements of record do not establish an in-service onset or continuity of symptoms since service; the record shows that the Veteran is keenly aware that his symptoms did not begin until many years after service. In addition, the question of whether Agent Orange or other in-service chemical exposure could cause testicular cancer many years after service is a complex medical matter as to an internal medical process that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-309 (lay testimony is competent to establish the presence of varicose veins); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); 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); Jandreau, 492 F.3d at 1377, n.4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). As such, while the Board again acknowledges the Veteran's contentions as to a claimed link, the Board finds that these statements are of less probative value than the determination of the medical professionals of record, and are in conflict with the VA examiner's opinion afforded significant probative weight, as discussed above. The Board has also considered the Veteran's assertions as to his exposure to asbestos (August 2007 claim; October 2012 written submission) and a link between testicular and prostate cancer (March 2008 notice of disagreement), as well as the internet articles discussing the effects of dioxin exposure. In regard to the Veteran's statements, the Board finds that there is no evidence of record, competent or otherwise, to support these general statements. In regard to the articles, one is based on canine exposure to dioxins and other chemicals, with suggested implications in humans similarly situated during service, and the other states that there is inadequate/insufficient evidence to determine whether an association exists between testicular cancer and Agent Orange exposure. While the Board acknowledges these submissions, there is no competent evidence of record showing that these general statements of a potential link apply to the Veteran's specific case. In addition, the second article tends to support the findings of the January 2013 VA examiner as to the lack of a medical etiological link. As such, the Board affords limited probative value to these statements on the issue of a claimed etiology, to the extent the Veteran alleges such a link exists. In regard to service connection on a presumptive basis for a malignant tumor, there is no competent lay or medical evidence showing the manifestation of such a disease within one year of separation from service. In fact, as noted above, the medical evidence reveals that the Veteran was not diagnosed with testicular cancer until 1996 - nearly 26 years following service. Likewise, while indicating that cancer may lay dormant for a time, the lay statements of record do not allege manifestation within one year of separation. Thus, service connection is not warranted on a presumptive basis. Considering the record in sum, the Board finds that evidence in this case weighs against the Veteran's claim for service connection for testicular cancer. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. 49, 53. ORDER Entitlement to service connection for testicular cancer, to include as due to exposure to herbicides is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs