Citation Nr: 21006301 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 16-54 166 DATE: February 3, 2021 ORDER Entitlement to service connection for testicular cancer is denied. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities is denied. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is denied. FINDINGS OF FACT 1. The Veteran’s testicular cancer did not manifest during his service or in the first post-service year, and the preponderance of the evidence is against finding that it is related to his service, to include exposures in Saudi Arabia. 2. The Veteran’s peripheral neuropathy of the bilateral upper extremities did not manifest during his service or in the first post-service year, and the preponderance of the evidence is against finding that it is related to his service, to include exposures in Saudi Arabia. 3. The Veteran’s peripheral neuropathy of the bilateral lower extremities did not manifest during his service or in the first post-service year, and the preponderance of the evidence is against finding that it is related to his service, to include exposures in Saudi Arabia. CONCLUSIONS OF LAW 1. The criteria for service connection for testicular cancer have not been met. 38 U.S.C. §§ 1110, 1112, 1117, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.317. 2. The criteria for service connection for peripheral neuropathy of the bilateral upper extremities have not been met. 38 U.S.C. §§ 1110, 1112, 1117, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.317. 3. The criteria for service connection for peripheral neuropathy of the bilateral lower extremities have not been met. 38 U.S.C. §§ 1110, 1112, 1117, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1989 to March 1993, including service in Saudi Arabia. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from a November 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran provided testimony at an August 2019 videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims folder. The claims were previously before the Board in June 2020 at which time they were remanded for additional development. The Board finds there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To substantiate a claim of service connection, there must be evidence of: a present disability (for which service connection is sought); incurrence or aggravation of a relevant disease or an injury in service; and a causal relationship between the claimed disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on analysis of all the evidence of record and an evaluation of its competency and credibility to, in turn, determine its ultimate probative value in relation to other relevant evidence. Baldwin v. West, 13 Vet. App. 1 (1999). Certain chronic diseases, including cancer and organic diseases of the nervous system, may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time post service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. Service connection may be also warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or that became manifest to a degree of 10 percent or more not later than December 31, 2016. 38 C.F.R. § 3.317(a)(1). The Veteran is considered a Persian Gulf War Veteran. For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. 38 C.F.R. § 3.317(a)(4). The Board observes that in this case, some of the Veteran’s service treatment records are unavailable (see April 30, 2004 Memorandum re: Formal Finding of Service Record Unavailability). In a case such as this, where service treatment records are unavailable, there is a heightened obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether instead a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as to the claims 1. Entitlement to service connection for testicular cancer The Veteran asserts that his testicular cancer is related to his active military service. For the reasons discussed below, the Board finds that service connection for a testicular cancer is not warranted. According to the January 2004 Gul War Registry Examination, the Veteran reported that he was diagnosed with testicular cancer in 1995. VA examination reports in 2015 and 2020 reflect that the Veteran was diagnosed with testicular cancer in 1994. However, these dates appear to be based on the Veteran’s statements as a private treatment report reflects the Veteran presented with a left testicular mass and in November 1996 underwent a left radical orchiectomy and was then found to have a classic seminoma. He started radiation therapy in December 1996. There is no competent evidence that the Veteran’s symptoms are a part of an undiagnosed illness. As indicated in the Veteran’s left testicular mass was diagnosed as a classic seminoma, which precludes service connection of the claimed disorder on the basis of an undiagnosed illness. 38 C.F.R. § 3.317. The Board has also considered whether the Veteran is entitled to service connection for his diagnosed testicular cancer on a direct basis. The Veteran’s service treatment records are negative for any symptoms of testicular cancer. However, as noted above, only some of his service treatment records are available. As there is no evidence that the Veteran’s testicular cancer manifested in service, service connection testicular cancer on the basis that such disabilities became manifest in service and persisted is not warranted. In addition, service connection for testicular cancer on a presumptive basis (as a chronic disease under 38 U.S.C. §§ 1112, 1137) is not warranted as private treatment records reflect testicular cancer was diagnosed in 1996. What remains then is the question of whether, in the absence of a showing of onset in service and continuity since, or applicability of the chronic disease presumptions, the Veteran’s testicular cancer may somehow otherwise be related to his service. That is a medical question that requires medical expertise. See Jandreau v. Nicholson, 492 F.3d, 1372, 1377 (Fed. Cir. 2007) According to the October 2020 VA opinion, the examiner determined that there was no objective evidence of a connection to active duty military service, or service injury or incurrence. He stated that there is no objective evidence of exposure to carcinogens during the Veteran service in Southwest Asia as the etiology of the Veteran testicular cancer as due to Gulf War environmental hazards/undiagnosed illness. He also noted that the Veteran served in Saudi Arabia, but that there are no records of his treatment or complaints of testicular disease or cancer during military service. It was also observed that testicular cancer in males has been gradually increasing with the peak incidence occurring between the ages of 15 and 34 and noted that the Veteran’s age statistically falls within the years noted for occurrence. The examiner indicated that the claims file has no documentation of lump, enlargement of either testicle, feelings of heaviness in the scrotum or dull ache in abdomen or groin for the Veteran during military service. The examiner also observed that the testicular cancer is not a presumptive condition for service in Southwest Asia. Thus, the examiner concluded that it is not likely that the Veteran testicular cancer was incurred during or caused by active service or exposures while he served in Saudi Arabia. The only competent (medical) evidence in the record that directly addresses the matter of a nexus between the Veteran’s disabilities and his service, including exposures in Southwest Asia is in the October 2020 VA opinion, which is against the Veteran’s claim. The physician provided a clear explanation of rationale for his opinion that the Veteran’s testicular cancer is less likely than not related to service, including exposures in Southwest Asia. He reviewed the record, identified and addressed the critical evidence, and cited to pertinent medical literature that indicated there is insufficient evidence to associate the Veteran’s service and testicular cancer. The Board acknowledges that the Veteran submitted a letter from his private physician however, he did not furnish an opinion on the etiology of the Veteran’s testicular cancer. While the Board has no doubt that the Veteran is sincere in his belief that his disabilities are causally related to his exposures in Southwest Asia, he is a layperson, and therefore not competent to provide a probative opinion in this matter. The etiologies of testicular cancer are medical questions beyond the scope of lay observation; it requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There is no competent evidence of a nexus between his service, to include his exposures in Southwest Asia, and his testicular cancer. In view of the foregoing, the preponderance of the evidence is against the claim. The benefit-of-the-doubt doctrine consequently does not apply; the appeal of the claim must be denied.   2. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities 3. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities The Veteran asserts that his peripheral neuropathy is also related to his active military service. Specifically, he reported that numbness of hands and feet began in Gulf War. For the reasons discussed below, the Board finds that service connection for bilateral upper and lower extremity peripheral neuropathy is not warranted. There is no competent evidence that the Veteran’s symptoms are a part of an undiagnosed illness. As indicated, the Veteran’s diagnosed peripheral neuropathy precludes service connection of the claimed disorder on the basis of an undiagnosed illness. 38 C.F.R. § 3.317. The Board has also considered whether the Veteran is entitled to service connection for his diagnosed peripheral neuropathy on a direct basis. The Veteran’s service treatment records are negative for any symptoms of peripheral neuropathy. However, as noted above, only some of his service treatment records are available. The Veteran was afforded VA examinations regarding his peripheral neuropathy in 2015 and 2020 at which time he stated that his symptoms began as early as 1990. The October 2020 VA examiner indicated that the claims file does not reflect shoulder, elbows, wrists or finger injuries during military service or Gulf War deployment to Saudi Arabia. The October 2020 VA examiner also noted that the Veteran reported he worked as HVAC technician from 1993 till the present time. The array of work done by the veteran in installation, repair and maintenance of Heat and Air components involves daily repetitive use of his arms, shoulders, upper extremities, and fingers while using an array of tools to complete assembly installation and maintenance. In the course of his daily work as HVA technician, the Veteran reported he stands and walks “8 to 9 hours daily.” The examiner opined that it appears his post military service discharge employment (involving repetitive motions and use of his right and left upper extremities including wrists and fingers is the cause of the current tingling, numbness and pain in his bilateral upper extremities. Additionally, the Veteran reported that he walks for long hours with periods of extensive standing in his various roles, daily; causing strain to his feet. Thus, the examiner further opined that it is not likely that the Veteran’s bilateral upper or lower neuropathies were incurred or caused by military or service in Saudi Arabia. Rather, the examiner remarked that the Veteran’s choice of employment post military service appears have contributed to the strain, numbness and stinging pain he reports. In another October 2020 VA opinion, the examiner noted that the claims file does not show records or treatment for peripheral neuropathy for the bilateral lower extremities 12 months through or post military service separation of March 28, 1993 that was incurred in or caused by active duty service to include service in Saudi Arabia. He noted that the claims file has no records of exposures that caused peripheral neuropathy; or complaints of; or treatment of the bilateral lower extremities for the condition of peripheral neuropathy that happened during active duty service to include service in Saudi Arabia during service. It is not likely, he concluded, that the Veteran’s diagnosis of peripheral neuropathy of the bilateral lower extremities was incurred in or caused by the active duty service to include service in Saudi Arabia. Although the examiner noted the Veteran’s reports of symptoms beginning in in 1990, the October 2020 opinion indicates the absence of a showing of onset in service and continuity since. Therefore, chronic disease presumptions are not applicable. Whether the Veteran’s peripheral neuropathy may somehow otherwise be related to his service is a medical question that requires medical expertise. See Jandreau v. Nicholson, 492 F.3d, 1372, 1377 (Fed. Cir. 2007) The only competent (medical) evidence in the record that directly addresses the matter of a nexus between the Veteran’s disabilities and his service, including exposures in Southwest Asia is in the October 2020 VA opinion, which is against the Veteran’s claim. The physician provided a clear explanation of rationale for his opinion that the Veteran’s peripheral neuropathy is less likely than not related to service, including exposures in Southwest Asia. He reviewed the record, identified and addressed the critical evidence, and indicated that there is insufficient evidence to associate the Veteran’s service and peripheral neuropathy. The Board acknowledges that the Veteran submitted a February 2020 letter from his private physician regarding his feet, however, he did not furnish an opinion on the etiology of the Veteran’s peripheral neuropathy. Rather the statement indicated service-connected was warranted for his now service-connected plantar fasciitis. Of note regarding the Veteran’s claimed lower extremity peripheral neuropathy, the Veteran reported having foot pain for many years subsequent to his active service. According to a March 1999 private treatment report, he reported having foot pain for 7 years. Diagnoses regarding his foot pain have varied. An October 1999 x-ray of his feet showed normal left foot and early degenerative joint disease of the right first metatarsophalangeal joint. According to a July 2002 private treatment report, the impression included possible early tarsal tunnel syndrome or nerve entrapment syndrome. In the following August 2002 private treatment report, the Veteran was noted to have gout and neuritis in both heels and arches in August 2002. Subsequent private and VA treatment records reflect diagnoses of bilateral plantar fasciitis. The January 2004 VA Gulf War Registry examination includes assessment of plantar fasciitis as well as peripheral neuropathy. Service connection for a bilateral foot disability, to include plantar fasciitis and pes planus has been granted separate from the current claim. While the Board has no doubt that the Veteran is sincere in his belief that his disabilities are causally related to his military service, he is a layperson, and therefore not competent to provide a probative opinion in this matter. The etiology of peripheral neuropathy is a medical question beyond the scope of lay observation; it requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There is no competent evidence of a nexus between his service, to include his exposures in Southwest Asia, and his peripheral neuropathy of the bilateral upper and lower extremities.   In view of the foregoing, the preponderance of the evidence is against these claims. The benefit-of-the-doubt doctrine consequently does not apply; the appeal of these claims must be denied. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Williams, 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.