Citation Nr: 1318724 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 09-35 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a testicular disorder, to include as due to exposure to radiation during service. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012). The Veteran served on active duty from December 1951 to December 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, that denied service connection for sexual dysfunction, based on the Veteran's original claim that he had been rendered infertile by radiation in service. The Veteran subsequently expanded his claim to include atrophy of the testes and erectile dysfunction. The Board has accordingly recharacterized the issue as shown on the title page. In his substantive appeal, received in September 2008, the Veteran requested a hearing before a Member of the Board by videoconference from the RO. However, in September 2011 he requested in writing that his previous request for a hearing before the Board be withdrawn. The Veteran's request for a hearing before the Board is accordingly deemed to be withdrawn. See 38 C.F.R. § 20.704(e) (2012). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The Veteran has advanced two theories for service connection. First, he contends that he was exposed to radiation during service when tubes containing a radioactive material fell and shattered in the stock room in which he was working as a supply clerk. See the Veteran's detailed statement in June 2006. Second, he contends he had "some sort of testicular procedure" done in service that caused a traumatic injury. See statement by a Physician's Assistant in February 2008. A DD Form 877 dated in August 1967 shows that the Veteran underwent testicular biopsies at Keesler Air Force Base Clinic in November 1955. The Veteran does not claim service connection for a radiogenic disease as defined by 38 C.F.R. § 3.309(d)(2) and he did not participate in a radiation risk activity as defined by 38 C.F.R. § 3.309(d)(3). Given nature of the Veteran's reported exposure to radiation (a single exposure to unidentifiable materials that were marked as "radioactive") it is not feasible to obtain a dose estimate per 38 C.F.R. § 3.311(a). However, no attempt has been made to obtain a medical opinion as to whether the Veteran's claimed disability may be etiologically related to service. The Veteran's service treatment records (STRs) are not available, except for his entrance and separation examinations and his dental record. Attempts to obtain the November 1955 records from Keesler Air Force Base Clinic have been unsuccessful. The National Personnel Records Center (NPRC) has indicated that the Veteran's complete STRs were likely destroyed by fire in 1973, and that reconstruction of those records is impossible. Where service medical records were destroyed, the veteran is competent to report about factual matters about which he had firsthand knowledge, including experiencing pain during service, reporting to sick call, and undergoing treatment. Washington v. Nicholson, 19 Vet. App. 362 (2005). Case law also heightens VA's duty to assist the claimant in developing his claim. Ussery v. Brown, 8 Vet. App. 64 (1995). On remand, the Veteran should be afforded an appropriate VA examination to obtain a medical opinion as to whether the Veteran's claimed disability may be etiologically related to service. In addition, his treatment records from Dr. Adamo should be obtained. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the Veteran's complete treatment records from Dr. Adamo at Heights Hospital and Clinic, dated since December 1955, to specifically include any treatment provided in 1957. 2. Thereafter, the Veteran should be afforded an examination by an examiner qualified to provide etiology of any current testicular disorder, to include infertility, atrophy and erectile dysfunction. The claims folder should be made available to and reviewed by the examiner, and any indicated studies should be performed. The examiner should consider the Veteran as being competent and credible in describing the nature of his claimed exposure to a radioactive substance and his testicular procedure during service (e.g., testicular biopsies in November 1955), as well as his observable symptoms since discharge from service. Based on examination of the Veteran and review of the claims file, the examiner should opine with respect to any currently testicular disorder, to include infertility, testicular atrophy and/or erectile dysfunction, as to whether it is at least as likely as not (i.e., at least 50 percent probable) that such disorder is etiologically related to or had its onset in service. The rationale for all opinions expressed should be provided, and if it is not possible to provide an opinion without resort to speculation, the reason that is so should be explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 3. Next, review the medical examination report obtained to ensure that the remand directives have been accomplished, and return the case to the examiner if all questions posed are not answered. 4. Finally, readjudicate the claim on appeal. If the benefits remain denied, the Veteran should be provided with a supplemental statement of the case (SSOC), and the case should be returned to the Board. By this remand, the Board intimates no opinion as to any final outcome warranted. 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 has been advanced on the Board's docket and 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. 2012). _________________________________________________ P.M. DILORENZO 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) (2012).