Citation Nr: 21031655 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-19 070 DATE: May 24, 2021 ORDER Entitlement to service connection for residuals of right testicular seminoma is denied. Entitlement to an increased rating for erectile dysfunction is denied. Entitlement to a higher level of special monthly compensation (SMC) for loss of use of a creative organ is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's right testicular seminoma and residuals thereof were caused by or incurred in service, to include as due to exposure to contaminated water at Camp Lejeune. 2. For the entire appellate period, the Veteran's erectile dysfunction is without objective findings of deformity of the penis. 3. The Veteran is already in receipt of the maximum level of special monthly compensation (SMC) for loss of use of a creative organ. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for residuals of right testicular seminoma have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for entitlement to an increased rating for erectile dysfunction have not been met. 38 U.S.C. §§ 1114(k), 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.10, 4.14, 4.31, 4.115b, Diagnostic Code 7522. 3. The criteria for entitlement to a higher level of special monthly compensation (SMC) for loss of use of a creative organ have not been met. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from June 1981 to June 2002, to include service at Camp Lejeune. This case comes on appeal of a December 2011 rating decision. In perfecting his appeal to the Board, the Veteran initially requested to testify at a Board videoconference hearing. However, in June and July 2019 written correspondence, the Veteran and his representative both withdrew the hearing request. The Board also notes that in November 2019, the Veteran perfected a legacy appeal for the issues of entitlement to increased ratings for left and right knee disabilities. In doing so, the Veteran requested to testify before the Board on these issues. Although the appeal has been certified to the Board, the Veteran has not yet had the opportunity to testify at a hearing. Accordingly, the Board will not address those issues in this decision. 1. Entitlement to service connection for residuals of right testicular seminoma Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Notably, the Veteran has contended that his right testicular seminoma and subsequent residuals are causally related to exposure to contaminated water during the Veteran's service at Camp Lejeune. A Veteran 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 the contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. 38 C.F.R. § 3.307(a)(7). If a Veteran served at Camp Lejeune during the specified timeframe, the diseases listed under 38 C.F.R. § 3.309(f) shall be presumed to be causally related to service, even if there is no record of such disease during service. Testicular cancer is not among the diseases enumerated under 38 C.F.R. § 3.309(f). However, the absence of a disease from the presumptive list does not preclude a Veteran from otherwise proving that the disability resulted from exposure to contaminated water at Camp Lejeune. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection may still be granted on a direct basis. The evidence demonstrates that the Veteran underwent a right radical orchiectomy, secondary to a mass in the testicle, in December 2006. The final pathology showed the mass to be a seminoma and that the tumor was confined to the organ. The Board first notes that there is no evidence of an in-service onset of right testicular cancer. The Veteran underwent a left orchiectomy during service, secondary to left testicular pain, but there is no evidence that this pain was related to a cancer diagnosis. The Veteran filed the present claim in May 2010. In June 2011, the Veteran underwent a VA examination. There, the examiner opined that it was less likely than not that the right testicular seminoma and subsequent orchiectomy were caused to any degree by the Veteran's exposure to contaminated drinking water at Camp Lejeune. By way of rationale, the examiner explained that, although TCEa chemical found in the drinking water at Camp Lejeunehad been shown to cause testicular tumors in laboratory animals, the current medical literature did not support a cause and effect relationship between this exposure and human testicular cancer or other testicular conditions in humans. The examiner further explained that the same was true for other chemical contaminants in the Camp Lejeune drinking water. The agency of original jurisdiction (AOJ) then obtained a new medical opinion in March 2014. After review of the record, the examining provider once again opined that it was less likely than not that right testicular seminoma was caused by exposure to contaminated water at Camp Lejeune. The examiner reported an extensive review of medical literature and was not able to identify credible medical evidence showing an association between exposure to contaminated water at Camp Lejeune and testicular cancers. Instead, the examiner found that the Veteran had other, more likely risk factors associated with that type of cancer. In February 2016, the AOJ then obtained an additional opinion from a subject matter expert examiner. There, the examiner explained that the water supply at Camp Lejeune was contaminated with tetrachloroethylene (PERC), trichloroethylene (TCE), benzene (BZ), and vinyl chloride (VC). According to the examiner, a search of the scientific literature found no studies that reported an increased incident in testicular cancer related to exposure to one or more of PERC, TCE, benzene, or vinyl chloride. The examiner acknowledged that there had been reports associating the solvent dimethylformamide (DMF) with an increase in testicular cancer, but this solvent was not known to have been in the drinking water at Camp Lejeune, and the relationship between DMF and testicular cancer was not yet certain. The examiner then noted that a review of the United States Environmental Protection Agency's Integrated Risk Information System's Health Hazard Assessments for the four solvents in question also failed to reveal any studies showing evidence that there may be a link between exposure and an increased risk of developing testicular cancer. The examiner also reported that the Institute of Medicine had conducted an extensive review of the literature, which looked at solvent exposure and an increased risk of various health effects. The National Research Council (NRC) of the National Academies published a study in 2009, which looked at the potential health effects of exposure to contaminated groundwater at Camp Lejeune. The Agency for Toxic Substances and Disease Registry established a website on health effects linked with solvent exposure at Camp Lejeune. Yet, the examiner observed, none of these three sources mentioned seminoma or testicular cancer as being related to exposure to the solvents they addressed. The examiner further explained that testicular cancer, especially seminomas, had been occurring at increasing rates in the United States and many other countries for many years. Although the cause of this increase had not been identified, there were several known risk factors for the development of testicular cancer. These known risk factors included racewith an increased frequency of testicular cancer in Caucasian menand height. Moreover, classical seminomas usually occurred in men between 25 and 45 years of age. Therefore, based upon the available scientific literature reviewed, the Veteran's age of 43 at diagnosis, the Veteran's height of 74 inches, the Veteran's race, and the pathology of the testicular cancer being a seminoma, the examiner opined to a reasonable degree of medical certainty that the Veteran's right testicular cancer was not related to exposure to contaminated water at Camp Lejeune. In support of his contentions, the Veteran submitted letters from his private physician, Dr. M.K.S. In the first, from April 2010, Dr. M.K.S. wrote that it was his understanding that the Veteran was exposed to benzene, which according to the Centers for Disease Control is a known cancer-causing agent. In the second, from January 2012, Dr. M.K.S. wrote, "It is felt that many of [the Veteran's] medical conditions are related to his military service and potential chemical and toxic exposures related to that service. I concur with that statement." The Board notes that in the April 2010 letter, Dr. M.K.S. did not actually offer an opinion stating that the Veteran's testicular cancer was caused by his exposure to contaminated water at Camp Lejeune. Even if the Board were to infer such an opinion from Dr. M.K.S.'s letter, Dr. M.K.S. did not indicate a degree of certainty as to the causal relationship. Moreover, Dr. M.K.S. did not provide any medical rationale to explain why he believed the Veteran's specific cancer was caused by in-service chemical exposure, as Dr. M.K.S. only addressed a link between benzene and cancer generally. In the January 2012 letter, Dr. M.K.S. was even more vague. There, Dr. M.K.S. did not specify which of the Veteran's medical conditions was related to potential toxic exposures. Further, Dr. M.K.S. once again did not provide any indication of a degree of certainty, nor did he support the opinion with any medical rationale whatsoever. In contrast, the VA examiner opinions were well-supported by medical rationale. In particular, the February 2016 opinion documented multiple scientific and medical studies showing that there had been no demonstration of a causal link between the chemicals in the drinking water at Camp Lejeune and testicular cancer. This examiner also identified other potential risk factors the Veteran had at the time of his testicular cancer diagnosis to show why an alternative etiology was more likely. Thus, the Board holds the opinions of the VA examiners to have significantly more probative value than the letters from Dr. M.K.S. The Board also notes that, although the Veteran has submitted multiple statements sharing his belief that his right testicular seminoma was caused by exposure to contaminants at Camp Lejeune, as a layperson, the Veteran is not competent to make such assertions. Accordingly, the preponderance of the evidence is against a finding that the Veteran's right testicular cancer and subsequent residuals were caused by or incurred in service, to include exposure to contaminated water at Camp Lejeune. As the preponderance of the evidence is against this finding, the "benefit of the doubt" rule is not applicable and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board also observes that in his December 2011 notice of disagreement, the Veteran expressed the view that VA had not made considerations of a scar on his right scrotum, secondary to his right orchiectomy. As service connection for residuals of the right seminoma is not warranted, service connection is likewise not warranted for the scar secondary to surgery for that condition. Increased Rating 2. Entitlement to an increased rating for erectile dysfunction The Veteran seeks a compensable rating for erectile dysfunction, currently rated under Diagnostic Code 7599-7522. The Board notes that there is no specific diagnostic criterion for erectile dysfunction. See 38 C.F.R. § 4.115b, Ratings of the Genitourinary System, Diagnostic Codes 7500-42. When a veteran is diagnosed with an unlisted disease, the condition must be rated under an analogous diagnostic code. 38 C.F.R. §§ 4.20, 4.217. Here, the AOJ has rated the Veteran's erectile dysfunction under Diagnostic Code 7599-7522, which represents an unlisted genitourinary disability evaluated by analogy to penis deformity with loss of erectile power. See 38 C.F.R. § 4.115b, Diagnostic Code 7522. Pursuant to Diagnostic Code 7522, a 20 percent rating is warranted for deformity of the penis with the loss of erectile power. This is the only schedular rating provided under this diagnostic code. The Board notes that, in every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. No other schedular criteria are applicable to erectile dysfunction. Importantly, the AOJ has separately awarded special monthly compensation (SMC) based upon loss of use of a creative organ under 38 U.S.C. § 1114(k). This compensation is for impotence, and may be awarded even if the Veteran can achieve erection and penetration with the use of medication. A compensable rating under Diagnostic Code 7522 is not warranted in the absence of deformity. The Board notes that in Williams v. Wilkie, 30 Vet. App. 134 (2018), the Court defined "deformity," according to the definition Dorland's Illustrated Medical Dictionary (Dorland's), as a "distortion of any part or general disfigurement of the body," and held that "deformity" under Diagnostic Code 7522 therefore meant "a distortion of the penis, either internal or external." Meanwhile, Dorland's defines "distortion" as "the state of being twisted out of normal shape or position." The Veteran underwent VA male reproductive system examinations in June 2011 and November 2017. At each examination, the examiner reported no abnormalities upon physical examination of the penis. Medical treatment records identify regular complaints and treatment related to erectile dysfunction, however there are no indications of any penile deformity. Moreover, neither the Veteran nor his representative have alleged any penile deformity at any point during the appeal. As noted above, the Veteran has been awarded special monthly compensation based on loss of use of a creative organ due to his erectile dysfunction. However, the preponderance of the evidence is against a finding that the Veteran's erectile dysfunction is manifested by deformity of the penis so as to warrant a compensable percent rating by analogy under Diagnostic Code 7522. As the preponderance of the evidence is against this finding, the "benefit of the doubt" rule is not applicable and a compensable schedular rating for erectile dysfunction is not warranted. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to a higher level of special monthly compensation (SMC) for loss of use of a creative organ If a veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs he or she is entitled to special monthly compensation (SMC) payable at the rate defined under 38 U.S.C. § 1114(k). Loss of a creative organ will be shown by acquired absence of one or both testicles (other than undescended testicles) or ovaries or other creative organ. 38 C.F.R. § 3.350(a)(1). By way of background, the Veteran filed a claim of entitlement to service connection for a left orchiectomy as he was separating from service. In January 2003, the AOJ granted entitlement to service connection for a left orchiectomy effective July 1, 2002, the first month after the Veteran's separation. At the same time, the AOJ granted entitlement to SMC based on anatomical loss of a creative organ as due to the loss of the left testicle. In May 2010, the Veteran filed the claim for service connection for residuals of the right testicular seminoma, as is addressed above. In December 2011, the AOJ issued a rating decision that granted entitlement to service connection for erectile dysfunction, as the issue had been raised by the record. At that time, the AOJ also granted an additional award of SMC for loss of use of a creative organ. In his December 2011 notice of disagreement, the Veteran stated, "I'm also not quite sure how you can just ignore my Erectile Dysfunction concern." As the December 2011 rating decision had awarded service connection for erectile dysfunction, it appears that the AOJ interpreted this statement as a disagreement both with the evaluation of erectile dysfunction, as well as a request for a higher level of SMC for loss of use of a creative organ. Accordingly, in its March 2016 statement of the case (SOC), the AOJ addressed the issue of entitlement to a higher level of SMC. In his substantive appeal to the Board, the Veteran appealed all the issues listed on the March 2016 SOC, therefore the issue of entitlement to a higher level of SMC was appealed to the Board at that time. Notably, in a December 2017 rating decision, the AOJ recognized that it had erroneously granted two separate awards of SMC for loss of use of a creative organ. Thus, in that decision, the AOJ proposed to discontinue the second SMC award as it represented clear and unmistakable error. The AOJ then issued a November 2018 rating decision discontinuing the second award of SMC as proposed, effective February 1, 2019. The Veteran did not file a notice of disagreement with that decision within one year. Therefore, to the extent there may have been any due process errors in the discontinuance of the second award of SMC, the Board does not have jurisdiction over that issue. The only issue that is presently before the Board is whether a higher level of SMC based on loss of use of a creative organ is warranted. Here, that claim must be denied as a matter of law. Both the underlying law and its applicable regulation are clear: a single award of special monthly compensation under 38 U.S.C. § 1114(k) is payable for the loss of "one or more" creative organs. Thus, the loss of the Veteran's left testicle plus the loss of use of the penis as due to erectile dysfunction do not warrant multiple awards of SMC. Even if the Board had determined above that service connection was warranted for residuals of the right testicular seminoma, this would not warrant an additional award of SMC. Accordingly, there is no basis on which to award additional SMC and the claim must be denied. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Giaquinto, 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.