Citation Nr: 1331814 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 09-50 978 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for residuals of testicular cancer, claimed as secondary to herbicide exposure. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from June 1970 to January 1972. Service in the Republic of Vietnam is indicated by the record. He is the recipient of the Combat Infantry Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the Veteran's claim. In June 2013, the Veteran presented sworn testimony during a personal hearing in Cleveland, Ohio, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND A review of the claims file demonstrates that the Veteran has asserted entitlement to service connection for residuals of testicular cancer as secondary to in-service herbicide exposure (Agent Orange). See, e.g., the June 2013 Board hearing transcript. For the reasons expressed below, the Board finds that this claim must be remanded for further development. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Initially, the Board observes it is undisputed that the Veteran served in the Republic of Vietnam. Therefore, the Veteran's exposure to herbicides (Agent Orange) is presumed. See 38 C.F.R. § 3.307(a)(6)(iii) (2013). With respect to current disability, the medical evidence of record demonstrates that the Veteran was diagnosed with testicular cancer in February 1991. See the private treatment records dated February 1991. Pathology confirmed seminoma of the right testis; treatment included a radical right orchiectomy and postoperative radiation therapy. The last record of treatment was on March 12, 1991. The Veteran has submitted personal testimony indicating that he currently experiences residuals of testicular cancer. See, e.g., the June 2013 hearing transcript. To this end, the Board recognizes that the Veteran is competent to testify as to observable symptoms. See Barr v. Nicholson, 21 Vet. App. 303 (2007), citing Layno v. Brown, 6 Vet. App. 465, 467-69 (1994), (lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witness' personal knowledge). However, to the extent that the Veteran has asserted that he suffers from residuals of testicular cancer, it is unclear what specific residuals he is claiming. See, e.g., the June 2013 Board hearing transcript; see also the Veteran's claim dated June 2008. With respect to medical nexus, none of the medical records currently associated with the Veteran's VA claims file offer an opinion as to a possible causal relationship between the Veteran's claimed residuals of testicular cancer and his in-service herbicide exposure. Thus, there remain questions as to diagnosis and etiology of this claimed disability. See Charles v. Principi, 16 Vet. App. 270 (2002); see also 38 C.F.R. § 3.159(c)(4) (2013) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim); see also Colvin v. Derwinski, 1 Vet. App. 191 (1999) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). A remand for a VA examination should therefore be accomplished in order to address these outstanding questions with respect to the Veteran's claimed residuals of testicular cancer. Accordingly, the case is REMANDED for the following action: 1. VBA should schedule the Veteran to be examined by a medical professional with appropriate expertise for the purpose of determining the existence, nature, and etiology of the Veteran's claimed residuals of testicular cancer. The Veteran's VA claims file, including a copy of this remand, must be made available to the examiner. The examiner should either diagnose or rule out residuals of testicular cancer. Any diagnostic testing deemed to be necessary by the examiner should be accomplished. If any such disability is diagnosed, the examiner should then render an opinion, with supporting rationale, as to whether it is at least as likely as not (e.g. a 50/50 probability) that the Veteran's residuals of testicular cancer are related to his military service, to include herbicide exposure while in the Republic of Vietnam. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction (AOJ) should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 2. Thereafter, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response before the case is returned to the Board. The Veteran 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 or by the United States Court of Appeals for Veterans Claims (the Court) 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). _________________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2013).