Citation Nr: 18147125 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-40 503 DATE: November 2, 2018 ORDER Entitlement to service connection for epididymitis is granted. STAYED ISSUE Entitlement to service connection for prostate cancer is stayed. FINDING OF FACT The Veteran’s epididymitis was manifest during service. CONCLUSION OF LAW The criteria for entitlement to service connection for epididymitis have been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1965 to December 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of November 2012 and May 2014. A rating decision of December 1999 denied service connection for epididymitis. The denial was continued by rating decisions of April 2000 and August 2001. The Veteran again filed a service-connection claim for epididymitis in May 2011, which was denied by a November 2012 rating decision on the basis of a lack of a connection between current disability and in-service disease or injury. In March 2013, prior to the expiration of the one-year appeal period, the Veteran filed a private positive nexus opinion. Because new and material evidence was received in March 2013 before the appeal period had expired, the November 2012 rating decision did not become final, and a subsequent rating decision of May 2014 (also denying service connection for epididymitis) relates back to the May 2011 claim. 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011). The Veteran again sought service connection claim for epididymitis by a claim of April 2013, which was denied by the May 2014 rating decision. Entitlement to service connection for epididymitis. Service connection will be granted for a current disability that resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, service connection requires a present disability, an in-service incurrence or aggravation of a disease or injury, and a nexus 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). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The claimant will be given the benefit of the doubt as to any issue material to the determination of a matter when there is an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran has epididymitis. See March 2013 record of Dr. R. B. A history of recurrent epididymitis is noted in the VA treatment records. See VA treatment record of April 2011. In November 2012, VA made a formal finding of the unavailability of the Veteran’s service treatment records. Under the circumstances, VA has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Russo v. Brown, 9 Vet. App. 46 (1996). No presumption arises from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). The Veteran asserts that he was treated for epididymitis during service in June 1966 and July 1967. See Veteran’s filing of April 2013. He is competent to report a contemporaneous medical diagnosis, and the Board finds him to be credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Furthermore, although the service treatment records are not available, the rating decision of August 2001 (which continued the denial of service connection for epididymitis) listed the service medical records from 1965 to 1968 as being of record at that time, and further found that such records showed that the Veteran had been treated twice during service for epididymitis, once in June 1966 and again in July 1967. There is a positive nexus opinion. In a March 2013 record, Dr. R. B. states his opinion that the Veteran’s current epididymitis is a chronic condition that dates from an in-service incurrence of epididymitis. The Board may not disregard a medical opinion solely because it is based on a history given by a veteran. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). Here the Board finds the Veteran to be competent and credible in his report of in-service treatment for epididymitis and his recurrent symptoms to the present. Dr. R. B.’s positive nexus opinion, which is implicitly based on the Veteran’s competent and credible history, is entitled to significant probative weight. There is no contrary medical opinion of record. With the three elements of Shedden having been established, service connection is warranted. REASONS FOR STAY Entitlement to service connection for prostate cancer. In April 2013, the Veteran filed a service-connection claim for prostate cancer as secondary to exposure to Agent Orange. The claim was denied by a rating decision of May 2014, and the Veteran appealed. See notice of disagreement of December 2014; VA Form 9 of August 2016. The Veteran served in the Navy from December 1965 to December 1968. He alleges that he his vessel, the USS Sioux, dropped anchor in several Vietnamese ports and that he went ashore several times. See appellate brief of September 2016; VA Form 9 of August 2016. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to an herbicide agent if a listed chronic disease becomes manifest to a degree of 10 percent disabling or more, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service. These diseases include prostate cancer. 38 U.S.C. § 1116(a); 38 C.F.R. § 3.309(e). 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). The United States Court of Appeals for the Federal Circuit has held that 38 C.F.R. § § 3.307(a)(6)(iii) was reasonably interpreted by VA as requiring that a service member actually set foot within the land borders of Vietnam in order to be entitled to statutory presumptions of herbicide exposure and service connection. See Haas v. Peake, 525 F.3d 1168 (2008), cert denied, 129 S. Ct. 1002, 173 L. Ed. 2d 315 (2009). On August 16, 2018, the Federal Circuit ordered the appeal of Procopio v. Wilkie, No. 17-1821 (U.S. Fed. Cir.). The order stated that the questions before the Federal Circuit include the following: “Does the phrase ‘served in the Republic of Vietnam’ in 38 U.S.C. § 1116 unambiguously include service in offshore waters within the legally recognized territorial limits of the Republic of Vietnam, regardless of whether such service included presence on or within the landmass of the Republic of Vietnam?” As of the date of this decision, Procopio is pending. As the Veteran’s claim of entitlement to service connection for prostate cancer may be affected by the resolution of Procopio, the Board will stay or postpone action on this matter. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steven D. Najarian, Counsel