Citation Nr: 21070682 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 18-29 056 DATE: November 24, 2021 ORDER Entitlement to service connection for prostate condition is denied. Entitlement to service connection for right testicle disorder is denied. Entitlement to service connection for a left testicle disorder is denied. Entitlement to service connection for a brain disorder, to include meningioma, (claimed as brain tumor) is denied. FINDINGS OF FACT 1. The preponderance of the probative evidence of record is against finding that the Veteran has had a prostate condition at any time during or approximate to the pendency of the claim. 2. The preponderance of the probative evidence of record is against finding that the Veteran has had a right testicle disorder at any time during or approximate to the pendency of the claim. 3. The preponderance of the probative evidence of record is against finding the Veteran's left testicle disorder is linked to his active duty service to include presumed exposure to herbicide agents. 4. The preponderance of the evidence is against finding that a brain disorder, to include meningioma, and any residual dizziness occurred during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for right testicle disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a left testicle disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a brain disorder, to include meningioma, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1969 to December 1971. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Establishing service connection generally requires competent, credible evidence (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus, or link, between the current disability and in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). VA regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. The Veteran served from June 1969 to December 1971, and his DD 214 confirms service in Vietnam. Accordingly, he is presumed to have been exposed to herbicide agents during service. The Board observes that in Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994), reversing in part Combee v. Principi, 4 Vet. App. 78 (1993). The United States Court of Appeals for Veterans Claims has specifically held that the provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). 1. Entitlement to service connection for prostate disorder. 2. Entitlement to service connection for right testicle disorder. 3. Entitlement to service connection for a left testicle disorder. The VA received these claims for service connection in October 2014. The Veteran reports that he has these disorders are due to herbicide agent exposure he experienced during active duty in Vietnam. The service treatment records are silent as to any complaints of, diagnosis of or treatment for a testicular disorder or a prostate disorder. The Veteran does not allege that he was treated for the disorders or symptoms during active duty. He does not allege that the disorders were due to any injury or disease other than exposure to herbicide agents. There is no competent evidence of the presence of a right testicle disorder during the appeal period. The post service medical records are silent as to complaints of, diagnosis of or treatment for right testicle problems. At his June 2021 hearing, the Veteran denied having problems with the testicle and reported he was scare about the right testicle after having the left testicle removed. Service connection is not warranted for a right testicle disorder. There is competent evidence of the presence of a left testicle disorder or its residuals during the appeal period. The clinical records refer to the removal of the left testes and the Veteran has testified that this procedure was conducted. He is competent to do so. There is no competent evidence of record linking a left testicle disorder to the Veteran's presumed exposure to herbicide agents. VA medical records reveal that the left testicle removed in 1998 was non-cancerous. The Veteran testified that, while originally thought to be cancerous, his left testicle was removed due to calcium deposits. He has not submitted any competent evidence linking any left testicle disorder to his presumed exposure to herbicide agents and the disorder is not one for which service connection may be granted on a presumptive basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). There is no competent evidence of the presence of a prostate disorder during the appeal period. A review of the clinical records reveals sporadic references to "prostate ca" as being in the Veteran's prior medical history. However, details regarding any specific diagnosis have not been provided in the medical record or by the Veteran. Other records indicate a history of cancer was denied. Moreover, the Veteran testified at his Board hearing that he has never had a diagnosis of prostate cancer or any specific prostate disorder and was just nervous that he did have a disorder after his testicle removal surgery. When he was specifically questioned about any problems with his prostate, he said "[y]ou can probably just drop that [claim] because my, my PSAs are pretty good." The Board acknowledges that the Veteran has not yet been afforded VA examinations for these claims. Consistent with the VA's duty to assist, under McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), a VA medical examination must be provided when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). In the current case, there is no evidence demonstrating the current existence of a prostate disorder or a right testicle disorder nor any evidence linking a left testicle disorder to the Veteran's presumed exposure to herbicide agents. 2. Entitlement to service connection for meningioma (claimed as brain tumor) is denied. The VA received this claim for service connection in October 2014. The Veteran generally contends that he is entitled to service connection for a brain mass that has caused residual dizziness. He states that it is due to his exposure to herbicide agents. Private medical records confirm the Veteran underwent numerous MRIs of his brain from 2005 to 2011. A November 2010 MRI reported meningioma and double vision were indicated. These medical records also indicate the Veteran underwent radiation treatment in 2005 for this brain disorder. The Veteran testified that he went to the doctor after experiencing dizziness and was diagnosed with his brain disorder. More recently, the Veteran testified that he began to have this dizziness, again, a year prior to his Board hearing. The Veteran is competent to testify as to symptoms he experiences, including dizziness. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence. As such, a current disability of dizziness has been established, and the first Shedden element is met. The Veteran does not contend, neither do his inservice medical records establish that the Veteran experienced this dizziness during service. At his Board hearing, the Veteran testified that he did not experience these symptoms during service. There is no evidence linking a brain disorder to active duty on a direct basis. The Veteran's diagnosed disorder of meningioma is not one for which service connection may be granted on a presumptive basis based on exposure to herbicide agents. The Veteran has not submitted any evidence documenting any type of link between meningioma and his presumed exposure to herbicide agents. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). The Veteran is competent to describe symptoms such as dizziness. See Jandreau, supra. However, he is not a medical professional who is competent to determine matters such as etiology. The question of whether his brain disorder and residual dizziness are etiologically related to service is a complex medical issue. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). For this reason, the Veteran's statements do not carry any probative weight with regard to whether his dizziness is linked to active duty to include exposure to herbicide agents. The Board acknowledges the Veteran has not undergone a VA examination for this claim. As it relates to this claim, the first two elements of McLendon are met. There is a current disorder of residual dizziness, and the Veteran has been found to be exposed to herbicide agents inservice. As to the third element, the Court has held that the requirement that a disability "may be associated" with service is a "low threshold" standard. McLendon, 20 Vet. App. at 83. "The types of evidence that 'indicate' that a current disability 'may be associated' with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation." Id. The Veteran has not indicated that he had had the dizziness during active duty for or many years thereafter nor has he submitted any evidence to indicate any sort of possible link between the disorder and his active duty service or exposure to herbicide agents. The Board, thus, finds that the Veteran's claim fails to satisfy the requirements of McLendon, and the Board will not remand for further examination of the claimed brain disorder disability. McLendon v. Nicholson, 20 Vet. App. 79, 82-83 (2006); 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159(c)(4). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Wade 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.