Citation Nr: 21003371 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 11-05 365A DATE: January 21, 2021 ORDER Entitlement to service connection for the removal of the left testicle, to include as secondary to depleted uranium exposure, is denied. Entitlement to service connection for gastroesophageal reflux disease (GERD) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran’s left testicle removal was caused by service, or is otherwise related to an in-service injury, event, or disease. 2. The preponderance of the evidence is against a finding that the Veteran’s GERD began during active service, or is otherwise related to an in-service injury, disease, or is related to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the removal of the left testicle, to include as secondary to depleted uranium exposure, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for GERD have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1998 to November 2000. The Veteran’s claims were previously before the Board in March 2018. At that time, the Board determined that there was additional development required, including new VA examinations. That development having been completed, the Veteran’s claims are before the Board once again and will be adjudicated below. 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). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury or that service-connected disease or injury has chronically worsened (aggravated) the disability for which service connection is sought. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for the removal of the left testicle, to include as secondary to depleted uranium exposure The Veteran contends that the removal of his left testicle is due to service when he was exposed to depleted uranium. Specifically, the Veteran has provided that he served as a combat engineer and was required to explode unexploded ammunition, including ammunition that contained depleted uranium. See June 2009 Medical Treatment Record. At the outset, the Board notes that the Veteran has provided medical documentation confirming the removal of his left testicle. In addition, the Veteran’s record confirms that he served as a combat engineer. The remaining question for the Board is whether the removal of the Veteran’s left testicle was due to his time in service as a combat engineer. January 2009 medical records from Kaiser Foundation Hospital confirm that the Veteran underwent surgery to remove his left testicle. In a clinical laboratory report dated February 2009, the data reflect that standardized uranium was present in the Veteran’s system at an amount of 0.003. The Veteran has submitted a letter from a Dr. A.H. dated June 2009. Dr. A.H. indicated that he reviewed the Veteran’s history, and was aware of his time in service as a combat engineer with job requirements which included exploding unexploded ordinance, including ammunition that contained depleted uranium. At the time of the Veteran’s service, he reported that there were mock garments to wear, but he was not given any. He also noted that badges were available, but not given to the men in the combat engineering group that he was with at the time. Dr. A.H. opined that without a depleted uranium exposure badge, the Veteran was left at a loss for the kind of evidence that would have clearly shown detrimental exposure. He went on to state that in the present case, the reasonable possibility threshold was met. Dr. A.H. cited his history and experience with uranium exposure and provided historical data. Ultimately, he opined that the Veteran’s reading of 0.003 was an important part of making a diagnosis of cancer in the Veteran at 18 years old, who had a surgical procedure done and the removal of his left testicle when he was 28 years old. The doctor explained that this time frame was usual for the development of cancers of the kind the Veteran had. The doctor reasoned that the half-life of depleted uranium is equivalent to 50,000 years or more and the urine excretion was merely a marker. Therefore, the doctor explained, it is up to the clinician to use the research literature, medical acumen, and record review to arrive at the probable diagnosis based on likely etiology, likely pathogenesis, and likelihood of carcinogenesis from the particular patient’s exposure 10 years earlier. The doctor concluded that he had performed over 3,000 evaluations from several wars, with several cases based on exposure to atomic radiation. It was his opinion and firm conviction that any troop exposed to such high levels of depleted uranium should have an automatic presumption that the cancers are related to serving their country. Dr. A.H. clarified that in the Veteran’s case, he did not rely on presumption but instead on factual data exposed in research and the chain of events leading not only to the seminoma but to the patient’s depression, anxiety, and stress from losing a testicle. In a September 2009 letter in response to Dr. A.H.’s findings, Dr. M.M. opined that Dr. A.H. had incorrectly concluded that the Veteran had abnormal levels of uranium in his system. Dr. M.M. explained that Dr. A.H. had used isotopic ratio ranges to interpret the total uranium result. Dr. M.M. explained that in the case of the Veteran, there was not enough total uranium in his sample to determine if the uranium was from natural sources or depleted. She also provided that testicular cancer is the most common cancer found in men ages 18-35, and that there has been no evidence found that exposure to uranium, natural or depleted, is a predisposing factor for testicular cancer. In January 2010, Dr. A.H. submitted an additional letter. Dr. A.H. took issue with Dr. M.M.’s opinion determining that the Veteran’s testicular cancer was not caused by uranium, or service. Dr. A.H. pinpointed several medical and scientific flaws he found in Dr. M.M.’s opinion. In August 2019, the Veteran underwent a VA examination. The examiner determined that the Veteran’s testicular cancer was less likely than not incurred in or caused by an in-service injury, event, or disease. The examiner reasoned that there is no known cause of testicular cancer; however, no one knows how long exposure to depleted uranium causes what. So far, inhaling or ingesting depleted uranium can cause kidney disease, not cancer. The examiner noted that he reviewed the UN 2003 treatise on depleted uranium and it provided that the risk is insignificant. Despite Dr. A.H.’s opinion, there appears to be no risk for cancer. The examiner listed excerpts from another article below his opinion. The Board places high probative weight on the August 2019 VA examination, as the examiner reviewed the Veteran’s medical records, lay statements, medical research, and provided an adequate rationale for the opinion that the removal of the Veteran’s left testicle was less likely than not incurred in or caused by an in-service injury, event, or disease. The Board acknowledges that the Veteran has submitted a positive nexus opinion from Dr. A.H. regarding the relationship between his testicular cancer, and subsequent testicle removal, and his time in service. The Board finds that this opinion is probative, but outweighed by the bulk of the evidence of record. In response to Dr. A.H.’s opinion, Dr. M.M. opined that Dr. A.H. had incorrectly reached his conclusion regarding the Veteran’s depleted uranium exposure and subsequent cancer. Dr. M.M. explained that testicular cancer is the most common cancer found in men ages 18-35, and that there has been no evidence found that exposure to uranium, natural or depleted, is a predisposing factor for testicular cancer. As Dr. A.H.’s opinion has been placed into controversy, and a VA examination has been performed and espoused negative results, the probative weight is low. When the medical evidence is taken as a whole, the preponderance of the evidence is against a finding that the Veteran’s testicle cancer, and left testicle removal, are related to service, to include uranium exposure. The Board also acknowledges the lay statements made by the Veteran that his testicular cancer and related testicle removal are related to service. The Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (i.e., experiencing symptoms either in service or after service). See, e.g., Barr v. Nicholson, 21 Vet. App. 303; Washington v. Nicholson, 19 Vet. App. 362. However, to the extent that the Veteran asserts that his cancer was caused by service, the Board does not find these statements to be probative, as the Veteran does not have the expertise to provide such an opinion. The probative evidence of record weighs against the Veteran’s assertion that his left testicle removal is related to service. The most probative evidence shows that the Veteran’s condition was less likely than not caused by uranium exposure. Although grateful for the Veteran’s honorable service, the Board concludes that the preponderance of the evidence is against the claim for service connection and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 2. Entitlement to service connection for GERD The Veteran contends that his GERD is secondary to medication used to treat his service-connected left iliotibial band syndrome. See November 2017 Board Hearing. The Veteran’s medical records confirm that he was diagnosed with GERD in 2008. Medical treatment notes from May 2015 indicate that the Veteran was continuing to suffer from GERD symptoms. In August 2019, the Veteran underwent a VA examination. The examiner was able to determine the baseline severity of the Veteran’s GERD. The examiner described the baseline as according to the Veteran: the baseline occurred after service in November 2008. The Veteran also had additional complaints of reflux, and had on and off symptoms of heartburn over the past two years. The examiner determined that the current severity of the Veteran’s GERD was not greater than the baseline severity, and as such, did not opine to any aggravation by the Veteran’s service-connected left iliotibial band syndrome. The examiner opined that the Veteran’s GERD was not incurred in or caused by service. The examiner reasoned that the Veteran denied in-service GERD, and stated that it occurred after service. The examiner continued, noting that the Veteran claimed knee pain was treated with Motrin which can cause GERD. The examiner noted that the Veteran did receive Motrin in October 1998 for knee pain, but mostly Tylenol which would not cause GERD. The examiner explained that the use of Motrin for arthritis had only 2.7% CV events in the precision trial done. The examiner also opined that the Veteran’s GERD was less likely than not proximately due to or the result of the Veteran’s service-connected left iliotibial band syndrome. The examiner reasoned that ilial tibial band syndrome is from running and has no relationship to GERD, and there was a single note in October 1998 of the Veteran receiving Motrin which would not have long term sequalae. The examiner also noted that the Veteran’s records showed that he was simultaneously taking Prilosec which would nullify the Motrin he was also taking. The examiner explained that the Veteran’s CV and GU complaints would not be impacted by Motrin. The Board places high probative weight on the August 2019 VA examination, as the examiner reviewed the Veteran’s medical records, lay statements, and provided an adequate rationale for the opinion that the removal of the Veteran’s GERD was less likely than not incurred in or caused by an in-service injury, event, or disease, or service-connected disability. The Board notes that there is no competent evidence to the contrary. The Board acknowledges the lay statements made by the Veteran that his GERD is related to his service-connected left iliotibial band syndrome. The Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (i.e., experiencing symptoms either in service or after service). See, e.g., Barr v. Nicholson, 21 Vet. App. 303; Washington v. Nicholson, 19 Vet. App. 362. However, to the extent that the Veteran asserts that he his GERD was caused by medication used to treat his service-connected left iliotibial band syndrome, the Board does not find these statements to be probative, as the Veteran does not have the expertise to provide such an opinion. The probative evidence of record weighs against the Veteran’s assertion that his current GERD condition is related to service, or to any service-connected disability. The VA examiner found no medical evidence to support that the Veteran’s GERD was incurred in service, or was caused by Motrin used to treat his service-connected left iliotibial band syndrome. Although grateful for the Veteran’s honorable service, the Board concludes that the preponderance of the evidence is against the claim for service connection and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vosburgh, 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.