Citation Nr: 1326974 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 12-02 473A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for cancer of the right testicle, to include as due to asbestos exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty with the Army from March 1979 to December 1981. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which denied the claim. In April 2012, the Veteran requested a hearing before a Veterans Law Judge (VLJ) at the RO. The Veteran testified before the undersigned VLJ at a March 2013 Travel Board hearing at the RO. The hearing transcript is of record. In May 2013, the Board remanded the case to the RO for additional evidentiary development. As discussed in more detail below, the Board finds there was substantial compliance with its remand orders and that it may therefore proceed with a determination of the issue on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). The RO continued the denial of the claim as reflected in the June 2013 supplemental statement of the case (SSOC) and returned this matter to the Board for further appellate consideration. The Board notes that the Veteran's initial claim was for entitlement to service connection for cancer of the right testicle. However, during the March 2013 Travel Board hearing, the Veteran's representative raised the issue of in-service exposure to asbestos. Therefore, the claim has been recharacterized as entitlement to service connection for cancer of the right testicle, to include as due to asbestos exposure, as styled on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). A review of the Virtual VA paperless claims processing system reveals potentially relevant treatment records from the Boston VA Medical Center (VAMC) dated July 2011 to May 2013 and the Veteran's March 2013 Travel Board hearing transcript. FINDING OF FACT The Veteran's cancer of the right testicle was first diagnosed many years after service and is not etiologically related to exposure to asbestos, or any other disease or injury incurred during active duty service. CONCLUSION OF LAW Cancer of the right testicle was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Compliance with Prior Board Remand The Board observes that this case was previously remanded in May 2013 in order to obtain the Veteran's Social Security Administration (SSA) disability records and updated Boston VA Medical Center (VAMC) treatment records. Upon remand, SSA records were obtained, along with updated Boston VAMC medical treatment records from July 2011 to May 2013. It appears there was substantial compliance with the prior remand order and the Board may continue with its determination. Stegall, 11 Vet. App. at 271; see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). II. VA's Duties To Notify And Assist The VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). See also Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). Appropriate notice was provided in August 2009 and November 2009 letters. As for the duty to assist, the Veteran's service treatment records (STRs), VA treatment records, and private medical records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Additionally, the RO associated the Veteran's SSA disability records with the claims file. 38 C.F.R. § 3.159 (c)(2). There is no indication that there are any outstanding relevant medical records that need to be obtained and associated with the Veteran's file. The Board finds that a medical opinion on the question of service connection for cancer of the right testicle is not required because opinions are only necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: (1) competent evidence of diagnosed disability or symptoms of disability; (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period; and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); see McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, as described in detail below, there is insufficient evidence establishing that the Veteran's cancer of the right testicle is related to his service, including exposure to asbestos. Furthermore, the information and evidence of record, specifically from the Boston VAMC, contains sufficient competent medical evidence to decide the claim. Consequently, given the standard of the regulation, the Board finds that VA did not have a duty to assist that was unmet. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. III. Service Connection The Veteran contends he has cancer of the right testicle that is related to his military service. Specifically, the Veteran claims he was exposed to asbestos during service and his right testicular cancer was misdiagnosed during service as epididymitis. See, e.g., Veteran's Statement in Support of Claim, August 2009; see also Veteran's Hearing Transcript, pg. 2, March 2013. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the nexus between service and testicular cancer, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Therefore, medical evidence will be required to establish a medical diagnosis of the Veteran's right testicular cancer and to address the question of whether in-service injury or disease caused his testicular cancer. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, 128 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to a veteran). A review of the Veteran's STRs shows no treatment for, or diagnosis of, testicular cancer. The Veteran's March 1979 entrance examination showed his endocrine and genito-urinary (G-U) systems were normal. In June 1980, the Veteran was admitted to the Cutler Army Hospital with a complaint of right scrotal pain. During the Veteran's 11 day hospital stay, his right epididymis was twice normal size and tender. The diagnosis in July 1980 was epididymitis, acute right scrotum. As a result of the Veteran's continued pain in his right scrotum, a medical board hearing was conducted in October 1981. The medical board examination found the Veteran's endocrine system to be normal, but his G-U system was abnormal due to his right epididymis being locally tender and firm but not swollen. The medical board diagnosis was chronic right epididymitis. As a result of this condition, the Veteran was discharged. An April 1982 VA examination found, among other things, that the Veteran had right epididymitis. A June 1982 rating decision granted the Veteran service-connection for chronic right epididymitis at a 10 percent disability rating effective December 12, 1981. In July 2007, the Veteran was provided a VA urology examination due to complaints of pain and swelling in his right testis "all his life." The Veteran described a history of scrotal swelling that goes up and down. The examiner found the Veteran's right testis slightly larger than the left with mild tenderness in the post aspect. The diagnosis was recurrent right epididymitis. The Veteran's Boston VA Medical Center (VAMC) records show that in 2008, a renal mass was found and he was diagnosed with right kidney cancer. The Veteran then underwent surgery to remove his entire right kidney. Further, the Veteran was consistently diagnosed with right epididymitis from May 2009 to August 2009. In May 2009, a Boston VAMC treatment note stated the Veteran's right epididymis was enlarged with increased vascular flow and a follow-up examination was recommended. An ultrasound conducted in May 2009 showed an enlarged right epididymal body with increased vascular flow that seemed consistent with epididymitis. Due to continued pain, in July 2009, the Veteran underwent an epididymectomy. The findings from this procedure found the Veteran's pathology was consistent with "[r]ecent" metastatic disease to the epididymis. As a result of this finding, the Veteran's entire right testicle was surgically removed in August 2009. The biopsy of the right testicle showed a malignant tumor with morphology identical to the Veteran's prior malignant right kidney tumor. The impression was metastatic highly aggressive carcinoma of the right kidney, found also in the right epididymis. The record documents that the Veteran's right kidney carcinoma then metastasized in his lungs and he has undergone chemotherapy treatment for his renal cell cancer. During the Veteran's March 2013 Travel Board hearing, he testified that the first cancer he experienced was renal cell carcinoma, followed by testicular cancer. He stated that after his right kidney was removed, he began to have constant trouble with his right scrotum. The Veteran further testified that doctors at the Boston VAMC discovered his renal cell carcinoma had metastasized in his right testicle. Based on a review of the evidence, the Board concludes that service connection for cancer of the right testicle is not warranted, to include as being due to in-service asbestos exposure. Although the Veteran has been diagnosed with right testicular cancer post-service, the evidence fails to show that it is related to his military service. Initially, the Board finds the record establishes the presence of a current disability. Records of treatment from the Boston VAMC document that the Veteran was diagnosed with cancer of the right testicle in August 2009. See Boston VAMC Primary Care Progress Note, August 2009. The Veteran contends that his right testicular cancer is due to in-service asbestos exposure. See Veteran's Hearing Transcript, pg. 2, March 2013. There is no specific statutory guidance concerning asbestos claims, nor has the VA Secretary promulgated any regulations in regard to such claims. However, the VA Adjudication Procedure Manual provides information concerning claims for service connection for disabilities resulting from asbestos exposure. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 9. VA must analyze an appellant's claim for service connection for asbestosis or asbestos-related disabilities under the appropriate administrative guidelines. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432-33 (1993). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the Veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9(h). In assessing the evidence, the relevant factors discussed in the manual must be considered and addressed by the Board. See VAOPGCPREC 4-2000. VA regulations also provide the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9(f) (emphasis added). The Veteran's service records show that he was a light wheel vehicle and power generator mechanic in the Army. Additionally, the record contains competent and credible statements from the Veteran's representative that part of the Veteran's duties as a mechanic was to service the brakes of vehicles and that these brakes contained asbestos material. See Veteran's Hearing Transcript, pg. 2, March 2013. Based on this evidence, the guidelines provided by VA regulations and the known circumstances of the Veteran's service, the Board finds that the Veteran had exposure to asbestos during service. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, Paragraph 9. However, even considering the Veteran's exposure to asbestos during service, the evidence does not establish a nexus between the Veteran's currently diagnosed cancer of his right testicle and his military service. As discussed above, the Boston VAMC treatment records document that the Veteran's right testicular cancer was caused by metastatic, highly aggressive carcinoma of his right kidney, not exposure to asbestos during service. Additionally, the Veteran's STRs do not show that he had any kidney issues in-service nor was he diagnosed with kidney cancer or testicular cancer in-service. Except for his diagnosis of right epididymitis, the Veteran had no other complaints, treatment or diagnoses related to his right testicle while in service. The Veteran was first diagnosed with right kidney cancer in 2008 and right testicular cancer in 2009, approximately 28 years post-service. Although the Veteran complains of continuous right testicular pain since separation from service, he has been service-connected for this issue, right epididymitis, since December 12, 1981. See Veteran's VA Form 9, April 2012. The Veteran claims he was misdiagnosed in-service with epididymitis and instead he should have been diagnosed with testicular cancer. See Veteran's Statement in Support of Claim, August 2009. As discussed above, the Veteran is not competent to diagnose his right testicular cancer. See Jandreau, 492 F.3d at 1377 n.4 (lay persons not competent to diagnose cancer). Additionally, the Veteran has been consistently diagnosed with right epididymitis, not right testicular cancer. See Cutler Army Hospital, Clinical Record, July 1980; see also VA Medical Board Proceedings, September 1981; see also VA Examinations, April 1982 and July 2007; see also Boston VAMC treatment records, August 2009. The Veteran's August 2009 treatment records also clearly state that the metastasis of his right kidney carcinoma to his right testicle was "recent." See Boston VAMC Primary Care Progress Note, August 2009. Therefore, the record does not support a finding that the Veteran's right testicular cancer existed in-service but was misdiagnosed as epididymitis. Without evidence of the onset of right testicular cancer in service or competent evidence of an association between right testicular cancer and the Veteran's active duty, service connection for right testicular cancer is not warranted. The evidence shows the Veteran's right testicular cancer was caused 28 years after service by his right kidney cancer, not in-service asbestos exposure. As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for cancer of the right testicle, including as due to asbestos exposure, is denied. See 38 U.S.C.A §5107 (West 2002 & Supp. 2012). ORDER Entitlement to service connection for cancer of the right testicle, to include as due to asbestos exposure, is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs