Citation Nr: 19190872 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 16-48 537 DATE: December 3, 2019 ORDER The previously denied claim of entitlement to service connection for depression is reopened; to this limited extent, the appeal is granted. The previously denied claim of entitlement to for service connection for posttraumatic stress disorder (PTSD) is reopened; to this limited extent, the appeal is granted. The previously denied claim of entitlement to service connection for residuals of testicular cancer and removal of lymph nodes is reopened; to this limited extent, the appeal is granted. Service connection for an acquired psychiatric disorder, to include depression and PTSD, is denied. Service connection for residuals of testicular cancer and removal of lymph nodes is denied. FINDINGS OF FACT 1. By a decision entered in January 2008, the Board denied service connection for depression and PTSD. 2. New evidence received since the time of the Board’s January 2008 decision, when considered with the evidence previously of record, relates to an unestablished fact necessary to substantiate the Veteran’s claim for service connection for depression and/or PTSD and raises a reasonable possibility of substantiating the claim. 3. By a decision entered in November 2010, the Board denied service connection for residuals of testicular cancer and removal of lymph nodes. 4. New evidence received since the time of the Board’s November 2010 decision, when considered with the evidence previously of record, relates to an unestablished fact necessary to substantiate the Veteran’s claim for service connection for residuals of testicular cancer and removal of lymph nodes and raises a reasonable possibility of substantiating the claim. 5. The Veteran served at U.S. Marine Corps Base Camp Lejeune, North Carolina (Camp Lejeune) from October 1972 to November 1974 ; thus, he is presumed to have been exposed to contaminated water during his active military service. 6. None of the competent and probative evidence indicates that the Veteran has an acquired psychiatric disorder that may be associated with service. 7. None of the competent and probative evidence indicates that the Veteran has residuals of testicular cancer and removal of lymph nodes that may be associated with service. CONCLUSIONS OF LAW 1. The Board’s January 2008 decision denying service connection for depression is final. 38 U.S.C. §§ 7104, 7252; 38 C.F.R. § 20.1100. 2. New and material evidence has been received to reopen the claim for service connection for depression. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The Board’s January 2008 decision denying service connection for PTSD is final. 38 U.S.C. §§ 7104, 7252; 38 C.F.R. § 20.1100. 4. New and material evidence has been received to reopen the claim for service connection for PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The Board’s November 2010 decision denying service connection for residuals of testicular cancer and removal of lymph nodes is final. 38 U.S.C. §§ 7104, 7252; 38 C.F.R. § 20.1100. 6. New and material evidence has been received to reopen the claim for service connection for residuals of testicular cancer and removal of lymph nodes. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. The criteria for service connection for an acquired psychiatric disorder, to include depression and PTSD, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 8. The criteria for service connection for residuals of testicular cancer and removal of lymph nodes have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Marine Corps from June 1972 to June 1976. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a April 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. New and Material Evidence 1. The previously denied claims of entitlement to service connection for depression, PTSD, and residuals of testicular cancer and removal of lymph nodes are reopened. By a decision entered in January 2008, the Board denied service connection for depression and PTSD. The evidence of record at the time included the Veteran’s service treatment records (STRs) and post-service medical records. The Board found that the Veteran did not have depression or PTSD that was causally or etiologically related to his active service. By a decision entered in November 2010, the Board denied service connection for residuals of testicular cancer and removal of lymph nodes. The evidence of record at the time included the Veteran’s service treatment records (STRs) and post-service medical records. The Board found that the Veteran did not have residuals of testicular cancer and removal of lymph nodes that was causally or etiologically related to his active service or herbicide exposure during service. The Veteran did not appeal the Board’s decision to the United States Court of Appeals for Veterans Claims (Court), and reconsideration has not been ordered by the Chairman of the Board. The Board’s decision, therefore, was and remains final. 38 C.F.R. § 20.1100. Accordingly, the claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. “New and material evidence” can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened. 38 C.F.R. § 3.156(a). For purposes of determining whether new and material evidence has been received, the credibility of the evidence is to be presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Here, the evidence received since the time of the Board’s January 2008/November 2010 decisions includes the Veteran’s February 2014 Statement. The Veteran stated, in essence, that his conditions are due to his exposure to contaminated water during his time at Camp Lejeune. Additionally, the Veteran stated that he was exposed to herbicides after inspecting vehicles that had returned from Vietnam. The Board concludes that this evidence is new, in that it was not before the Board when the Veteran’s claim was previously denied. It is also material in that it relates to an unestablished fact necessary to substantiate the claim (i.e., that his conditions are related to his inservice exposure to contaminated water and that he was exposed to herbicides), and, presuming its credibility for new and material evidence purposes, raises a reasonable possibility of substantiating the claim. See, e.g., Shade v. Shinseki, 24 Vet. App. 110 (2010). It is therefore new and material. The claims for service connection for depression, PTSD, and residuals of testicular cancer and removal of lymph nodes are reopened. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the time he files his claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). The term “disability” as used for VA purposes contemplates functional impairment resulting in loss of earning capacity. See 38 C.F.R. § 4.1; Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases—including malignant tumors—to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under applicable law, a Veteran who served on active duty in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed to an herbicide agent, absent affirmative evidence to the contrary. See 38 C.F.R. § 3.307(a)(6)(iii). VA regulations further provide that service connection is warranted for certain diseases as presumptively due to herbicide exposure. 38 C.F.R. § 3.309(e). An acquired psychiatric disorder and testicular cancer are not included in the list of such diseases. During the pendency of this appeal, effective March 14, 2017, VA amended its regulations relating to presumptive service connection. Under current regulations, a veteran or former reservist or member of the National Guard who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987, shall be presumed to have been exposed during such service to contaminants in the water supply, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(7)(iii). For purposes of this presumption, “contaminants in the water supply” means the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride, that were in the on-base water-supply systems located at United States Marine Corps Base Camp Lejeune, during the period beginning on August 1, 1953, and ending on December 31, 1987. 38 C.F.R. § 3.307(a)(7)(i). “Service at Camp Lejeune” means any service within the borders of the entirety of the United States Marine Corps Base Camp Lejeune and Marine Corps Air Station New River, North Carolina, during the period beginning on August 1, 1953, and ending on December 31, 1987, as established by military orders or other official service department records. Id. If a veteran, or former reservist or member of the National Guard, was exposed to contaminants in the water supply at Camp Lejeune during military service and the exposure meets the requirements of § 3.307(a)(7), the following diseases shall be service-connected even though there is no record of such disease during service, subject to the rebuttable presumption provisions of § 3.307(d): kidney cancer; liver cancer; non-Hodgkin’s lymphoma; adult leukemia; multiple myeloma; Parkinson’s disease; aplastic anemia and other myelodysplastic syndromes; and bladder cancer. 38 C.F.R. § 3.309(f). Provided, however, that such disease shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(7)(ii). In the present case, the Veteran’s service personnel records demonstrate that the Veteran was stationed at Camp Lejeune on active duty from October 1972 to November 1974. However, an acquired psychiatric disorder and testicular cancer are not included in the list of diseases of presumptive diseases linked to contaminants in the water supply at Camp Lejeune. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff’d sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran’s present condition (e.g., whether the Veteran’s present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Service connection for an acquired psychiatric disorder, to include as due to exposure to contaminated water, is granted. The Board finds that the Veteran is not entitled to service connection for his acquired psychiatric disorder. As an initial matter, the Board notes that it is not entirely clear whether the Veteran has a current acquired psychiatric disorder. Although the record reflects that he has been diagnosed with major depressive disorder in the past, the record indicates that the Veteran’s depression has currently been found to be in remission. Furthermore, in August 2013 the Veteran tested negative for PTSD and in December 2015 the Veteran tested negative for depression. Even assuming for purposes of argument that the Veteran has current, cognizable acquired psychiatric disorder, none of the competent and probative evidence establishes that any such disorder may be associated with service. There are no recorded findings of psychiatric complaints, to include at the time of his pre-induction or separation examinations. Significantly, the Veteran’s November 1971 enlistment examination and report of medical history are negative for complaints, treatment, or diagnosis of a psychiatric disability. His June 1976 separation examination was also negative for complaints, treatment, or diagnosis of anxiety, depression or excessive worry, or nervous trouble of any sort. There is no medical evidence linking a current acquired psychiatric disorder to service and no evidence of an acquired psychiatric disorder becoming manifest to a degree of 10 percent or more within one year of service. As noted above, acquired psychiatric disorders are not among the diseases presumed to be service connected to herbicide or contaminated water exposure. Moreover, as a lay person, the Veteran is not shown to have the medical training or specialized experience necessary to otherwise offer a competent opinion with respect to nexus. In the absence of any competent and probative evidence indicating that an acquired psychiatric disorder may be associated with service, the Board must conclude that the preponderance of the evidence is against the claim. In arriving at these conclusions, the Board acknowledges that the Veteran has not been afforded a VA examination for an acquired psychiatric disorder. However, in the absence of any competent and probative evidence indicating that the claimed disorder “may be associated” with service, no examination is required. See 38 C.F.R. § 3.159(c)(4). In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b). The appeal of this issue must be denied. 3. Service connection for residuals of testicular cancer and removal of lymph nodes is denied. The Board finds that the Veteran is not entitled to service connection for residuals of testicular cancer and removal of lymph nodes. As an initial matter, the Board notes that it is not entirely clear whether the Veteran has any residuals of testicular cancer and removal of lymph nodes. The Veteran’s records reflect that he has stated that he was treated for testicular cancer in 1986. VA treatment providers have found this to be subjective and without any followup. Even assuming for purposes of argument that the Veteran has current, cognizable residuals of testicular cancer and removal of lymph nodes, none of the competent and probative evidence establishes that any such residuals may be associated with service. There are no recorded findings of genitourinary system complaints, to include at the time of his pre-induction or separation examinations. There is no medical evidence linking a current acquired psychiatric disorder to service and no evidence of residuals of testicular cancer and removal of lymph nodes becoming manifest to a degree of 10 percent or more within one year of service. The Veteran has claimed that he underwent surgery in 1986, which would have been 10 years after his service ended. As noted above, residuals of testicular cancer and removal of lymph nodes are not among the diseases presumed to be service connected to herbicide or contaminated water exposure. In March 2015, a VA examiner provided a negative nexus between testicular cancer and exposure to compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride. A search of the scientific literature finds no studies that report an increased incident in testicular cancer related to exposure to one or more of PERC, TCE, benzene or vinyl chloride. The examiner found the Veteran’s age and race, at the time of the claimed testicular cancer, to be related to testicular cancer rather than exposure to contaminated water. Furthermore, as a lay person, the Veteran is not shown to have the medical training or specialized experience necessary to otherwise offer a competent opinion with respect to nexus. In the absence of any competent and probative evidence indicating that residuals of testicular cancer and removal of lymph nodes may be associated with service, the Board must conclude that the preponderance of the evidence is against the claim. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence is against the claims, that doctrine is not applicable. 38 U.S.C. § 5107(b). The appeal of this issue must be denied. APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Gandhi, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.