Citation Nr: 1335288 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 09-36 031 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for testicular cancer, status post right orchiectomy, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from June 1967 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of June 2007. In a decision dated in March 2012, the Board denied the issue of entitlement to service connection for chronic granulomatous lung disease; accordingly, that issue is no longer before the Board. The remaining issue of service connection for post-operative testicular cancer residuals was remanded for further development. The case has now been returned to the Board. A claim for service connection for hearing loss and tinnitus was received in February 2013, but does not appear to have been adjudicated by the Agency of Original Jurisdiction (AOJ), according to information available to the Board. Therefore, the Board does not have jurisdiction over the claim, and it is referred to the AOJ for appropriate action. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT Right testicular cancer, first shown more than 10 years after service, was not due to any incident of service including Agent Orange or other dioxin-containing herbicide exposure during service in Vietnam. CONCLUSION OF LAW Right testicular cancer, status post orchiectomy, was not incurred in or aggravated by active service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in February 2007 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in June 2007. Nothing more was required. VA also has a duty to assist the Veteran by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c). Service treatment records have been obtained. VA and identified private treatment records were obtained. No outstanding evidence has been identified that has not otherwise been obtained. A VA examination was provided in April 2012. The examination involved a physical examination, interview, and review of the claims file. An August 2013 supplemental opinion addressed additional questions raised on appeal. Rationale was provided for the opinions rendered. Taken together, the April 2012 examination report and the August 2013 supplemental opinion are more than adequate to decide this appeal. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further, as the August 2013 satisfied the directives in the March 2012 Board remand, and the July 2013 Board remand, there has been compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (Board remand instructions are neither optional nor discretionary, and compliance is required); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (the Veteran is entitled to substantial compliance with the Board's remand directives). Thus, the Board finds that all necessary notification and development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). No further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, such as malignant tumors, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); malignant tumors and/or cancers are qualifying chronic disease. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a result, service connection via the demonstration of continuity of symptomatology is applicable in the present case. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Post-service medical evidence shows that although the Veteran does not currently have active testicular cancer, he has residuals of testicular cancer, including a right orchiectomy, which was diagnosed and treated surgically in September 1980. Thus, current disability is shown. Service treatment records do not show the presence of testicular cancer during service. Further, outside of being treated rash in the groin area on one occasions, the records make no reference to any type of genitourinary system disorder. Moreover, at the time of his service discharge examination, his genitourinary system was described as normal. The Veteran, however, contends that he developed testicular cancer as a result of herbicides and chemicals including Agent Orange, to which he was exposed while in Vietnam. A veteran, who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicides such as Agent Orange. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. §§ 3.307, 3.309. The Veteran had active service in the Vietnam during the Vietnam era. Thus, the Veteran is presumed to have been exposed to herbicides during service, which he claims is the in-service injury resulting in testicular cancer. To that extent, the second element, in-service incurrence, is met. As to the third element, a nexus between the two, testicular cancer is not a disease presumptively associated with Agent Orange exposure. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). The presumptive diseases are selected by VA based on periodic review and evaluation by the National Academy of Sciences (NAS) of the available scientific evidence regarding associations between diseases and exposure to dioxin and other chemical compounds in herbicides. See Agent Orange Act, Feb. 6, 1991, P.L. 102-4, § 3, 105 Stat. 13; Aug. 14, 1991, P.L. 102-86, Title V, § 503(a), (b)(1), 105 Stat. 424, 425. A disease is considered presumptively associated with Agent Orange exposure if there is a positive statistical association shown by analysis of medical and scientific evidence; an association is considered positive if the credible evidence for the association is equal to or outweighs the credible evidence against the association. See 38 U.S.C.A. § 1116(b); 38 C.F.R. § 1.17(d)(1). NAS published its initial findings in 1993, and then, beginning in 1996, has published biannual reviews, and, after reviewing this and other information, VA has periodically updated its regulations. In addition, VA has published notice, in the Federal Register, of diseases determined to be not associated with exposure to herbicide agents on several occasions, most recently in December 2010, based on the findings in the NAS Update 2010. See 75 Fed. Reg. 81,332 (Dec. 27, 2010). Cancers of the reproductive organs, including the testes, have been found to be not associated with herbicide exposure. This does not preclude direct service connection for the condition based on exposure to Agent Orange, which is particularly important when there is an approximate balance of positive and negative evidence in an appellant's particular case because a claimant is entitled to the benefit of the doubt. Stefl v. Nicholson, 21 Vet. App. 120 (2007). However, establishing "[a]ctual causation carries a very difficult burden of proof." See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In this case, there is no medical evidence linking testicular cancer to service, including to presumed herbicide exposure. Evidence from the Veteran's private physician, Dr. Fuller, shows that in July 1980, the Veteran was seen with a two-day history of an inflamed right testicle. There was no discharge or injury, and the testicle was non-tender. The impression was epididymitis. However, the testicle was still inflamed when the Veteran returned for follow-up in September 1980. At the time, the Veteran stated that 3 months ago, he first noted enlargement of the right testicle. He was referred for a consultation and admitted to Rockford Memorial Hospital due to the strong possibility of testicular tumor. The Veteran underwent a radical orchiectomy of the right testicle, and the pathology report showed pure seminoma. Later in September 1980, the Veteran was referred to J. Busse, M.D., for a consultation concerning post-operative treatment. Dr. Busse reported that the Veteran said that the right testicle had always been swollen for as long as he could remember, but that in the beginning of July, 1980, he had noticed a sudden enlargement or the right testicle. Dr. Busse recommended radiation therapy. On a VA outpatient treatment evaluation in April 2006, the Veteran stated that he had received adjunctive radiation treatment after his orchiectomy. On a VA examination in April 2012, the Veteran was diagnosed as having right orchiectomy due to testicular cancer. The examiner concluded that the condition was less likely than not (less than 50 percent probability) incurred in or caused by Agent Orange exposure. He explained that there has been no medical evidence available to indicate any association between testicular cancer and Agent Orange. In an addendum dated in August 2013, the examiner further concluded that the testicular cancer less likely than not (less than 50 percent probability) had its onset in service or within one year thereafter. He explained that although the medical evidence showed that the Veteran said that his right testicle had been swollen for as long as he could remember, he did not have the sudden right testicular enlargement until July 1980. It was less likely than not that the Veteran had testicular cancer for almost 10 years (from 1970 until it was diagnosed in 1980) because testicular cancer did not progress that slowly. He concluded that it was more likely than not that the Veteran had right testicular cancer only for a short period of time prior to its diagnosis. The examiner also reiterated his previous opinion, that testicular cancer was less likely than not etiologically related to Agent Orange exposure. He opined that it was less likely than not that the Veteran's exposure to Agent Orange caused or aggravated (temporarily or permanently) his testicular cancer, noting that no such association had been medically known to occur. Thus, the medical evidence does not show that testicular cancer was present in service or for several years thereafter. The Veteran does not contend that the condition was present in service, nor has he claimed continuity of symptomatology since service. Consideration has been given to the September 1980 note wherein the Veteran reported that his right testicle had always been swollen. However, even if the Veteran were to have experienced testicular swelling since service, which the Veteran is competent to state but not necessarily argued, the fact remains that the VA examiner clearly stated that the onset of the testicular cancer was contemporaneous to the sudden swelling and diagnosis that occurred in 1980. The VA examiner again opined that the cancer had only been present for a short time prior the diagnosis in 1980. Consideration has been given to the Veteran's personal assertion that his testicular cancer is due to his active service, to include presumed herbicide exposure. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a genitourinary system disorder, including 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). Testicular cancer is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that biopsies and other specific findings is needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). That is, although the Board readily acknowledges that Veteran is competent to report symptoms such as testicular swelling, there is no indication that the Veteran is competent to etiologically link his post-service diagnosis of testicular cancer to his active service, to include his exposure to herbicides. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating genitourinary system disorders or cancers. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. Thus, the Board finds that there is no competent evidence in support of the veteran's claim for service connection for right testicular cancer, either on a direct basis or as secondary to Agent Orange exposure, and establishing a connection is beyond his competence as a layperson. In reaching this determination, the Board is mindful that all reasonable doubt is to be resolved in the Veteran's favor. However, the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for right testicular cancer, status post orchiectomy, is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs