Citation Nr: 22013149 Decision Date: 03/08/22 Archive Date: 03/08/22 DOCKET NO. 17-49 570 DATE: March 8, 2022 ORDER Entitlement to service connection for testicular cancer and residuals is denied. FINDING OF FACT The balance of the evidence is persuasively against a finding that the appellant's testicular cancer, and subsequent residual symptoms, is related to his exposure to contaminated water at United States Marine Corps Base Camp Lejeune or Marine Corps Air Station in El Toro, California. CONCLUSION OF LAW The criteria for service connection for testicular cancer and residuals are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty in the United States Marine Corps from February 1968 to December 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied the claim for service connection for testicular cancer. This decision was appealed in a notice of disagreement (NOD) received by VA in April 2016. A Statement of the Case (SOC) was issued by VA in December 2017. VA received the appellant's Substantive Appeal (Form 9) requesting a hearing by live videoconference in January 2018, perfecting the appeal. The appellant appeared before the undersigned Veterans Law Judge for a hearing in February 2020. A transcript of that hearing is of record and was reviewed in the adjudication of this claim. This claim was previously remanded by the Board in a March 2020 decision to obtain a VA medical opinion regarding whether the appellant's testicular cancer was caused by his exposure to chemical contaminants at United States Marine Corps Base Camp Lejeune (Camp Lejeune) in North Carolina or at the Marine Corps Air Station in El Toro, California. A Supplemental Statement of the Case (SSOC) was issued by VA in November 2021. 1. Entitlement to service connection for testicular cancer is denied. The appellant contends that his testicular cancer, diagnosed and treated via orchiectomy in 1979, and resulting residuals are due to his exposure to chemical contaminants in the water at Camp Lejeune in North Carolina or at the Marine Corps Air Station in El Toro, California. He asserts that, while testicular cancer is not on the list of diseases which are presumptively related to exposure at Camp Lejeune, his development of testicular cancer was related to his presumed exposure at Camp Lejeune and his claimed actual exposure at the Marine Corps Air Station in El Toro, California. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service' the so-called nexus' requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain diseases may be established on a presumptive basis for veterans, former reservists, and members of the National Guard who served at Camp Lejeune, North Carolina. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(7), 3.309(f). Entitlement to service connection under this law requires sufficient exposure to the water supply at Camp Lejeune and a diagnosis of one of the diseases listed in 38 C.F.R. § 3.309(f). Sufficient exposure to trigger the presumptive regulation is at least 30 total days, consecutive or nonconsecutive, of service at Camp Lejeune between August 1, 1953, and December 31, 1987. 38 C.F.R. § 3.307(a)(7)(iii). Claimants who meet the location and duration requirements are presumed to have been exposed to contaminants in the water supply at Camp Lejeune, to include the organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene, and vinyl chloride. 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. 38 C.F.R. § 3.307(a)(7)(iii). Exposure described in paragraph (a)(7)(iii) of this section is an injury under 38 U.S.C. § 101(24)(B) and (C). If an individual described in paragraph (a)(7)(iii) of this section develops a disease listed in § 3.309(f), VA will presume that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval, or air service. 38 C.F.R. § 3.307(a)(7)(iv). The diseases listed at 38 C.F.R. § 3.309(f) 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). Despite the presumptive regulations, a claimant may establish service connection based on exposure to contaminants in the water supply at Camp Lejeune with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997). Additionally, the Board notes that the record contains evidence that the Environmental Protection Agency (EPA) has also identified Marine Corps Air Station El Toro as a "Superfund Site" due in part to findings showing the presence of TCE in the groundwater there. There is no dispute that the appellant had testicular cancer, treated via orchiectomy in 1979, which is clearly established by his medical treatment records. As such, even though he does not have active cancer, he does have cancer-related residuals, which constitute a current disability for VA purposes. 38 C.F.R. § 3.303. There is also no dispute that the appellant had sufficient service at Camp Lejeune to trigger the provisions establishing presumed exposure to the contaminants in the water supply at Camp Lejeune. 38 C.F.R. § 3.307(a)(7)(iii). His service personnel records show at least 56 days of service at this location, and as such, he is presumed to have been exposed to the contaminants in the water supply at Camp Lejeune. Despite the appellant's presumed exposure though, testicular cancer is not one of the disabilities listed as presumptively due to exposure to contaminants in the water supply at Camp Lejeune. 38 C.F.R. § 3.309(f). While the list does include several different specific cancers and all cancers affecting various parts of the genitourinary system, such as the kidneys and bladder, testicular cancer is not included on the list. However, as noted above, this is not fatal to the appellant's claim, as he may still establish service connection on a direct basis with evidence showing that it is approximately as likely as not that his testicular cancer is related to his presumed exposure to the contaminants in the water supply at Camp Lejeune. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). On the question of direct causation, the appellant cited to an article form the Center for Disease Control's (CDC) website indicating that there is some evidence that exposure to TCE, one of the main chemicals found at both Camp Lejeune and El Toro, induced testicular cancer in rats. In developing this claim, VA obtained a medical opinion in December 2020 which determined that the appellant's testicular cancer was not at least as likely as not due to his exposure to contaminants in the water supply at Camp Lejeune. However, the Board notes that this opinion seemed to rely on the fact that testicular cancer is not on the list of diseases presumed to be due to exposure to contaminants at Camp Lejeune as its primary rationale. The examiner's additional rationale seemed to be based on a review of an article that called into question whether any disabilities should be presumed to be due to exposure to contaminants in the water at Camp Lejeune, without specifically addressing testicular cancer. Considering all this, the Board finds the opinion inadequate and has not afforded it any probative weight. VA obtained a second medical opinion on this question of whether there is a link between exposure to contaminants in the water at Camp Lejeune and testicular cancer in August 2021. The examiner noted that testicular cancer generally develops for unknown causes between the ages of 20 to 35 years of age. The examiner noted higher incidences of testicular cancer in white men than in Black or Asian men, although he did note evidence that while Black men experience a lower rate of this type of cancer, those that are diagnosed tend to present with higher-grade disease and have a much worse prognosis. The examiner noted some correlation between having an immediate family member with a history of any type of cancer and the development of testicular cancer. However, ultimately the examiner noted that the epidemiological evidence does not consistently support any specific risk factors for testicular cancer. The examiner then went on to review several medical studies which examined populations of men with exposure to TCE, PCE, benzene, or vinyl chloride, and found that there was no evidence of higher incidence of development of testicular in populations with exposure than populations without exposure. Based on this, the examiner explained that in her opinion, this showed no significant association between TCE, PCE, benzene, or vinyl chloride and the development of testicular cancer in humans. As such, the examiner opined that as the appellant developed his testicular cancer within the normal, predominant age-range for development of testicular cancer and the lack of medical evidence over large statistical studies showing a correlation between exposure to TCE, PCE, benzene, or vinyl chloride, and development of testicular cancer, it was her opinion that the appellant's testicular cancer was not as likely as not due to his presumed exposure to these chemicals. In November 2021, VA obtained an addendum opinion from the same medical examiner to address the findings of the CDC study mentioned by the appellant in the pursuit of this claim. The examiner reviewed that study and stated that, those findings notwithstanding, she would still afford greater probative weight to the several studies in humans that showed no correlation than a single study in a non-human species. The Board affords the August 2021 VA medical opinion and November 2021 VA medical opinion addendum significant probative weight, as they considered a range of medical literature on this topic and provided a well-reasoned analysis and explanation of the question presented. They were offered by a clinician with the requisite training and experience to render an opinion on this matter and were based on a survey of the relevant medical literature. See Nieves - Rodriguez v. Peake, 22 Vet. App. 295 (U.S. 2008) (explaining that most of the probative value of a medical opinion comes from its reasoning). While the Board affords some weight to the medical article from the CDC submitted by the appellant, the persuasive weight of the evidence is against a finding that the appellant's testicular cancer is due to his presumed exposure to contaminants in the water supply at Camp Lejeune. The bulk of the medical research evidenced referenced in this case shows no correlation between development of testicular cancer and exposure to contaminants found in the water at Camp Lejeune. And while, there was some evidence of a link in testing on rats, the Board accepts the rationale of the November 2021 VA medical opinion that several studies in humans have significantly more probative value than a single study in a non-human species. The Board acknowledges that it is the appellant's sincerely held belief that his testicular cancer developed as a result of his presumed exposure to contaminants in the water supply at Camp Lejeune or at El Toro. While the appellant is competent to report symptoms he experiences or to opine on topics within his personal knowledge, the evidence of record does not establish that he has the necessary knowledge, training, or experience to provide a competent opinion as to the cause of his testicular cancer. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board notes that the development of testicular cancer is an internal process involving unobservable pathologies and the science behind diagnosing and determining the cause of any particular diagnosis of cancer requires significant medical training and experience. As such, the Board affords significantly more probative weight to the medical opinions of record in this case than to the appellant's lay opinion. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). (Continued on the next page) The Board has considered the claimed exposure to chemicals which were the same as those at Camp Lejeune at the Marine Corps Air Station El Toro in this decision. However, the rationale against this theory of entitlement is the same. Even supposing exposure at El Toro, the evidence is persuasively against exposure to TCE, PCE, benzene, and/or vinyl chloride being a cause for testicular cancer. Considering all this, the Board finds that the evidence is persuasively against there being a link between exposure to contaminants in the water at Camp Lejeune and the development of the appellant's testicular cancer. In addition, the Board also notes that the evidence does not show, nor has the appellant contended, that testicular cancer had its inception during active duty or was manifest to a compensable degree within one year of discharge from active duty. As such, the Board concludes that the criteria for service connection are not met for this claim and the claim is denied. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kleponis, 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.