Citation Nr: 21021264 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 17-00 041A DATE: April 12, 2021 ORDER Entitlement to service connection for a left testicular disability, to include left testicular cancer, is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s testicular disability began during active service or is otherwise related to service. CONCLUSION OF LAW The criteria for an award of service connection for a testicular disability have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from December 1970 to November 1972. He also had service in the Army National Guard from February 1976 to June 1987. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. This case was previously before the Board in November 2018 and December 2020. On both occasions, it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. There has been at least substantial compliance with Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a left testicular disability The Veteran contends that he has a left testicular disability that was caused by service. Specifically, he contends that he developed left testicular cancer due to exposure to contaminated water at Camp Lejeune, North Carolina. Alternatively, he suggests that his testicular disability is the result of an injury he sustained to his groin when he fell off of a tank in service. 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 active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 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). 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 38 C.F.R. § 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 38 C.F.R. § 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). Of note, testicular cancer is not a disease subject ot the rebuttable presumption under 38 C.F.R. § 3.307(d). 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; (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 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). There is no material dispute that the Veteran was diagnosed with a testicular disability, in this case testicular cancer. What is not indicated by the record is that the Veteran served at Camp Lejeune during active service or as a reservist. The record reflects that he began civilian employment at Camp Lejeune around February 1973. During a February 1992 VA examination, he indicated that he had worked at Camp Lejeune from February 1973 to February 1992 as a wastewater operator. Additionally, medical records reflect that he underwent physical therapy at Camp Lejeune from June 1987 to November 1987. The record does not establish that the Veteran served at Camp Lejeune in an “active duty” capacity. See April 2015 Report of General Information. However, presumptive service connection for disabilities associated with exposure to contaminants in the water supply at Camp Lejeune applies to veterans and former reservists and members of the National Guard. In his May 2015 Notice of Disagreement (NOD), the Veteran stated he was “stationed” at Camp Lejeune. In addition, the AOJ’s November 2016 statement of the case, found that he “served at Camp Lejeune, so exposure to chemicals [was] plausible.” In light of these ambiguities, the Board remanded the matter in December 2020 to afford the Veteran the opportunity to clarify whether he was ever officially assigned to, or otherwise served at, Camp Lejeune as part of his Federal service in the Army or Army National Guard, separate and apart from his presence on the base as a civilian employee; and, if so, to provide the approximate date(s) of his service there. No response was received. The record, as it currently stands, lacks confirmation that the Veteran served more than 30 days at Camp Lejeune during the requisite period either in active service or in his capacity as a reservist. As such, he is not presumed to have been exposed to contaminants in the water supply while serving at Camp Lejeune. Moreover, even if it was established that he had presumptively been exposed to contaminants in the water supply, the list of presumed diseases associated with exposure does not include testicular cancer. 38 C.F.R. § 3.307(a)(7), 3.309(f). As such, service connection on a presumptive basis is not warranted. The key issue before the Board, then, is whether the Veteran’s testicular disability can otherwise be linked to service. In that regard, the Board finds that the preponderance of the evidence is against the claim. First, the Veteran’s service treatment records (STRs) are silent as to any complaints, treatment, or diagnoses related to testicular cancer during service. He was seen for a groin injury following a tank accident in February 1972. Additionally, warts were observed on his lower abdomen and testicles in May 1979, during his service in the Army National Guard. Second, he was diagnosed with testicular cancer many years after service. Third, the claims file does not contain any competent and probative evidence (including, but not limited to, medical opinions, medical treatises, or treatment records) which indicates that his testicular disability is associated with his service, to include as due to exposure to contaminated water at Camp Lejeune. In September 2020, the Veteran underwent a VA examination in connection with his claim. He reported an in-service tank incident which resulted in blunt trauma to his left lateral thigh and lumbosacral spine. The examiner noted that there was evidence of tenderness in the muscles of left thigh, but no evidence of testicular injury. The examiner also acknowledged service treatment records indicating that the Veteran had problems with hygiene, and that a service department physician in August 1972 recommended a circumcision. The examiner further noted that warts were observed on the Veteran’s lower abdomen and testicles in May 1979, after active service. Ultimately, the examiner concluded that the claimed testicular disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that although the examination was consistent with testicular cancer, status post orchiectomy, the record did not support that the Veteran sustained a testicular injury during service and there was no evidence of testicular cancer during service. See September 2020 VA Examination. The Veteran underwent an orchiectomy in 2004, years after service, and medical examinations performed in January 1980 and December 1984 made no mention of testicular complaints. Furthermore, an January 1987 exit examination from the National Guard also made no mention of testicular complaints. Inasmuch as the examiner’s opinion was based on an accurate understanding of the facts, and articulated reasons for the conclusion reached, the Board finds the opinion probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Board has considered the Veteran’s statements in this regard. However, there is nothing in the record to establish that he has the specialized training or experience necessary to render a competent opinion with respect to medically complex matters relating to the etiology of a testicular disability as it relates to injury or episodes of treatment decades earlier. In any event, the Board finds the September 2020 VA examiner’s opinion the most probative piece of evidence on the matter. In view of the foregoing, the Board must find that the preponderance of the evidence is against the Veteran’s claim. The evidence does not establish that a testicular disability can be presumptively connected to exposure to contaminated water at Camp Lejeune, and none of the competent, credible, and probative evidence indicates that the current disability had its onset in or is otherwise related to service. The Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Although the Board is appreciative of the Veteran’s faithful and honorable service, given the record before it, the Board must find that his testicular disability is not shown to be etiologically related to any disease or injury during service. The appeal is denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph T. Leonard, 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.