Citation Nr: 19155486 Decision Date: 07/18/19 Archive Date: 07/17/19 DOCKET NO. 16-18 102 DATE: July 18, 2019 ORDER Entitlement to service connection for testicular cancer due to herbicide agent exposure is granted. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as secondary to testicular cancer, is granted. Entitlement to service connection for right lower extremity peripheral neuropathy, to include as secondary to testicular cancer, is granted. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran’s favor, the Veteran’s testicular cancer was due to herbicide agent exposure during active duty service in Vietnam. 2. Resolving all reasonable doubt in favor of the Veteran, the Veteran’s left lower extremity peripheral neuropathy is proximately due to his service-connected testicular cancer. 3. Resolving all reasonable doubt in favor of the Veteran, the Veteran’s right lower extremity peripheral neuropathy is proximately due to his service-connected testicular cancer. CONCLUSIONS OF LAW 1. The criteria for service connection for testicular cancer due to herbicide agent exposure have been met. 38 U.S.C. §§ 1110, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for left lower extremity peripheral neuropathy, to include as secondary to testicular cancer, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.159, 3.310. 3. The criteria for service connection for right lower extremity peripheral neuropathy, to include as secondary to testicular cancer, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.159, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Army from July 1970 to January 1972. The Veteran’s awards and decorations include the Vietnam Service Medal, the Vietnam Campaign Medal, the Army Commendation Medal with “V” Device, and the Bronze Star Medal. In March 2019, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. A copy of the hearing transcript has been associated with the claims file. 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; 38 C.F.R. § 3.303(a). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In addition to the foregoing service connection principles, 38 C.F.R. § 3.309(e) identifies specific diseases that shall be service-connected for those veterans who were exposed to an herbicide agent during active military, naval, or air service, even in the absence of any record of such disease occurring during service, provided that certain requirements under 38 C.F.R. § 3.307(a)(6)(iv) are met, and provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. The diseases listed under 38 C.F.R. § 3.309(e) do not include testicular cancer. Subject to the foregoing, and absent affirmative evidence to the contrary, there is an additional presumption of exposure to herbicide agents (to include Agent Orange) for veterans who served in Vietnam between January 9, 1962 and May 7, 1975. 38 C.F.R. § 3.307(a)(6)(iii). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. Secondary service connection generally requires (1) a current disability; (2) a service-connected disability; and (3) a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). 1. Entitlement to service connection for testicular cancer due to herbicide agent exposure. The Veteran asserts that his testicular cancer is due to his exposure to herbicide agents during his active duty service. In August 2012, the Veteran’s private oncologist, M.C., M.D., submitted a letter stating that the Veteran has a diagnosis for non-seminoma germ cell tumor type testicular cancer. The Veteran’s private oncologist added that he cannot discount that Agent Orange may have played a role in the Veteran’s development of this cancer, particularly as it occurred at such an atypical age. See August 2012 Oncologist Letter. In August 2012, the Veteran also received a right radical orchiectomy to treat his testicular cancer diagnosis. See August 2012 Procedure Summary. The Veteran’s military personnel records confirm that the Veteran served in the Republic of Vietnam during the enumerated statutory time period, and therefore, he is presumed to have been exposed to herbicides. See 38 C.F.R. § 3.307(a)(6)(iii). With respect to the Veteran’s allegation that his testicular cancer may be related to his exposure to herbicides in service, the Board is cognizant that there is no VA herbicide presumption for service connection for testicular cancer. See 38 C.F.R. § 3.309(e) (listing those diseases associated with exposure to certain herbicide agents). However, even though the Veteran is not entitled to a presumption of service connection for testicular cancer based on exposure to herbicides, he is not otherwise precluded from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007). In January 2013, the Veteran’s medical records were reviewed by a staff physician. Following this review, the staff physician concluded that it was less likely than not that the Veteran’s right radical orchiectomy for non-seminoma germ cell tumor type for testicular cancer was caused by his active duty service. The staff physician explained that the Veteran’s testicular cancer is not a soft tissue sarcoma presumptive to herbicide exposure, but instead a non-seminoma germ cell tumor. The staff physician added that the Veteran’s non-seminoma germ cell tumor is pathologically different than the soft tissue sarcomas that are presumptive of herbicide exposure. However, in a May 2013 letter, the Veteran’s private oncologist, M.C., M.D., stated that it is as likely as not that the Veteran’s testicular cancer is etiologically related to the Veteran’s herbicide exposure, to include Agent Orange. This conclusion was supported by the private oncologist’s review of medical studies linking testicular cancer and herbicide exposure, as well as his ongoing treatment of the Veteran. The oncologist also stated that the Veteran’s development of testicular cancer in his 60’s is atypical, and leads him to suspect that that the Veteran’s herbicide exposure was involved. At the March 2019 video conference hearing, the Veteran submitted a May 1990 study by Admiral E.R. Zumwalt, Jr. on the association between exposure to Agent Orange and its adverse health effects. The conclusion in this report was that it is at least as likely as not that there is a relationship between exposure to Agent Orange and testicular cancer, among many other health problems. An August 1990 report from the VA titled “Agent Orange Review” was also submitted. This VA report notes that there was an Agent Orange Specific Task Force that concluded in a May 1990 study that evidence suggests that there is an association between exposure to Agent Orange and diseases of the testis, to include cancer. A report from April 1995 titled “The Dogs of War” was also submitted. This report analyzed the health outcomes for Vietnam servicemembers compared to the military working dogs that also served in Vietnam. This report found that Vietnam Veterans were about twice as likely to have testicular cancer compared to Veterans who did not serve in Vietnam. Another report from October 2011 titled “Testicular Cancer” was submitted. This report notes that there is an increased risk of testicular cancer among individuals exposed to exogenous toxins like Agent Orange. Although a negative nexus opinion was provided in January 2013, the rationale for this medical opinion was limited to a discussion about whether the Veteran’s testicular cancer was presumptive to herbicide exposure in Vietnam. The May 2013 positive nexus opinion from the Veteran’s private oncologist, however, is based on a thorough understanding of the Veteran’s service and medical history, as well as the scientific development of the Veteran’s testicular cancer. This positive nexus opinion is further supported by the probative reports the Veteran submitted concerning the medical link between testicular cancer and herbicide agent exposure. As a result, the Board finds that the competent evidence is at least in relative equipoise as to whether the Veteran’s testicular cancer is directly due to his exposure to herbicide agents. Accordingly, resolving reasonable doubt in his favor, the Board concludes that service connection for testicular cancer is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 2. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as secondary to testicular cancer. 3. Entitlement to service connection for right lower extremity peripheral neuropathy, to include as secondary to testicular cancer. The Veteran maintains that his left lower extremity peripheral neuropathy and right lower extremity peripheral neuropathy are due to his service-connected testicular cancer. The Veteran has a diagnosis for left lower extremity peripheral neuropathy and right lower extremity peripheral neuropathy that was induced by chemotherapy the Veteran received for his testicular cancer. See October 2016 Visit Summary; September 2017 Peripheral Nerves Conditions Disability Benefits Questionnaire. The Veteran required chemotherapy to treat cancer in his body that developed as a consequence of his testicular cancer. See November 2012 Oncology Letter. The Board has granted service connection for testicular cancer in the above decision. As a result, the Board finds that secondary service connection for left lower extremity peripheral neuropathy and right lower extremity peripheral neuropathy is warranted. Thus, the Board concludes that the probative evidence is for these claims, and the benefit of the doubt doctrine has been applied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Voight, 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.