Blue Water Navy

JR was sent a copy of this last night so should be on the website as soon as he can get it up. This is from the RO that we go to. Sorta ironic.


Citation Nr: 0819173
Decision Date: 06/11/08 Archive Date: 06/18/08

DOCKET NO. 04-21 553 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama


THE ISSUE

Entitlement to service connection for testicular cancer,
status post right radical orchiectomy with sterility.


REPRESENTATION

Appellant represented by: The American Legion


ATTORNEY FOR THE BOARD

S. Coyle, Associate Counsel






INTRODUCTION

The veteran served on active duty from July 1967 to November
1968.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 2003 rating decision by the
Montgomery, Alabama, Regional Office (RO) of the Department
of Veterans Affairs (VA), which denied entitlement to the
benefit currently sought on appeal.

The case was referred for a VHA opinion in October 2007, and
now again returns to the Board.


FINDINGS OF FACT

1. The veteran served in the Republic of Vietnam, where he
is presumed to have been exposed to herbicides.

2. Testicular cancer is not presumptively linked to
herbicide exposure.

3. Resolving all doubt in the veteran's favor, testicular
cancer status post right radical orchiectomy with sterility
is related to the veteran's service.


CONCLUSION OF LAW

Testicular cancer, status post right radical orchiectomy with
sterility, was incurred in service. 38 U.S.C.A. §§ 1110,
5103-5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102,
3.159, 3.303 (2007).





REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

As a preliminary matter, the Board notes that the RO has a
duty to notify and assist the veteran under 38 U.S.C.A. §
5103 and 38 C.F.R. § 3.159. As will be discussed below, the
Board finds that service connection for testicular cancer,
status post right radical orchiectomy with sterility, is
warranted; therefore, a full discussion of whether VA met
these duties is not needed. Additionally, as the Board is
granting the claim for service connection, the agency of
original jurisdiction will be responsible for addressing any
notice defect with respect to the rating and effective date
elements when effectuating the award. Therefore, it is not
prejudicial to the appellant for the Board to proceed to
finally decide the issue discussed in this decision. See
Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004);
Quartuccio, 16 Vet. App. 183; Sutton v. Brown, 9 Vet. App.
553 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993);
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see
also 38 C.F.R. § 20.1102 (2007) (harmless error).

Presumptive Service Connection

For purposes of establishing service connection for a
disability resulting from exposure to a herbicide agent, a
veteran who, during active military, naval, or air service,
served in the Republic of Vietnam between January 1962 and
May 1975, shall be presumed to have been exposed during such
service to a herbicide agent, absent affirmative evidence to
the contrary demonstrating that the veteran was not exposed
to any such agent during service. 38 U.S.C.A. § 1116(f). In
this case, the record reflects that the veteran served in the
Republic of Vietnam during the relevant time period.
Therefore, he is presumed to have been exposed to herbicides.

The Agent Orange Act of 1991 (in part) directed the Secretary
of VA to enter into an agreement with the National Academy of
Sciences (NAS) to review and summarize the scientific
evidence concerning the association between exposure to
herbicides used in support of military operations in the
Republic of Vietnam during the Vietnam Era and each disease
suspected to be associated with such exposure. The
Secretary's determination must be based on consideration of
NAS reports and all other sound medical and scientific
information and analysis available to the Secretary. See 38
U.S.C.A. § 1116 (b) and (c). As a result of this ongoing
research, certain diseases have been found to be associated
with exposure to herbicide agents and will be presumed by VA
to have been incurred in service even though there is no
evidence of such disease during such period of service. 38
C.F.R. §§ 3.307(a), 3.309(e).

The Secretary of the Department of Veterans Affairs has
determined that a presumption of service connection based on
exposure to herbicides used in the Republic of Vietnam during
the Vietnam era is not warranted for testicular cancer. See
Notice, 72 Fed. Reg. 32395-32407 (2007). It was specifically
indicated that the National Academy of Sciences, after
reviewing pertinent studies, did not feel that the evidence
warranted altering its prior determination that there was
inadequate or insufficient evidence of an association between
exposure to herbicide agents and the subsequent development
of testicular cancer. See Notice, 67 Fed. Reg. 42604 (2002).
Thus, it may not be presumed that the veteran's testicular
cancer, status post right radical orchiectomy with sterility,
is linked to herbicide exposure.

A presumption also exists for certain chronic diseases that
become manifest to a compensable degree within one year
following active service. 38 C.F.R. §§ 3.307, 3.309.
Malignant tumors do qualify as one of the enumerated chronic
diseases. 38 C.F.R. § 3.307(a)(3); 38 C.F.R. § 3.309(a).
However, the first diagnosis of the veteran's testicular
cancer was in April 1977, almost ten years after his
separation, and therefore was not manifest to a degree of ten
percent or more within one year from his date of separation
from service. Accordingly, the Board finds no basis for
granting service connection under this provision.

Direct Service Connection

Although the evidence does not support a presumptive link
between the veteran's testicular cancer and his active
service, the United States Court of Appeals for the Federal
Circuit has determined that an appellant is not precluded
from establishing service connection with proof of actual
direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed.
Cir. 1994).

In general, service connection will be granted for disability
resulting from injury or disease incurred in or aggravated by
active military service. 38 U.S.C.A. §§ 1110, 1131; 38
C.F.R. § 3.303. If a condition noted during service is not
determined to be chronic, then generally a showing of
continuity of symptomatology after service is required for
service connection. 38 C.F.R. § 3.303(b). Service
connection may also be granted for any disease 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).

There must be medical evidence of a current disability,
medical or lay evidence of in-service incurrence or
aggravation of a disease or injury, and medical evidence
linking the current disability to that in-service disease or
injury. Pond v. West, 12 Vet. App. 341, 346 (1999); Hickson
v. West, 12 Vet. App. 247, 253 (1999).

Once the evidence has been assembled, it is the Board's
responsibility to evaluate the record. 38 U.S.C.A. §
7104(a). When there is an approximate balance of evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving such issue shall be given to the claimant. 38
U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski,
1 Vet. App. 49, 53 (1990), the United States Court of Appeals
for Veterans Claims stated that "a veteran need only
demonstrate that there is an 'approximate balance of positive
and negative evidence' in order to prevail." To deny a
claim on its merits, the evidence must preponderate against
the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996),
citing Gilbert, 1 Vet. App. at 54.

The veteran's service medical records are negative for
testicular complaints. His separation examination makes no
mention of cancer or testicular ailments. Post-service
medical evidence also makes no mention of treatment for
cancer until April 1977, at which point embryonal cell
carcinoma of the right testicle was diagnosed. A right
radical orchiectomy was performed, and there has been no
evidence of recurrence of the veteran's cancer.

In May 2003, the veteran's treating physician, Dr. C.L.,
indicated that the veteran's testicular cancer was the result
of herbicide exposure during his Vietnam service. In July
2003, Dr. C.L. submitted the results of his research on a
link between testicular cancer and herbicide exposure. He
presented a study conducted by an Australian medical team
that "seems to indicate there is some association,"
however, he did note that the low number of cases studied
made it difficult to reach a solid conclusion.

In view of Dr. C.L.'s opinion and supporting research, the
Board submitted the matter to the Veterans Health
Administration (VHA) for the opinion of a specialist in
oncology. In January 2008, a response was received from Dr.
L.M.S., chief of oncology at VA Western New York Healthcare
System, who had reviewed the claims folder.

On the question of whether the veteran's testicular cancer
and subsequent right radical orchiectomy was related to his
herbicide exposure, Dr. L.M.S. cited two references
supporting a potential nexus between testicular cancer and
herbicide exposure. One of these studies showed that, out of
33,000 studied pesticide applicators, the risk of testicular
cancer was 2.48, a "significantly elevated risk" according
to the study's authors. A second study found that Navy
veterans serving in the Republic of Vietnam had an increased
risk of testicular cancer. Based on these findings, the
physician found that "it is as likely as not that the
veteran's testicular cancer is etiologically related to his
presumed in-service herbicide exposure."

On review of the evidence, including the opinions of Drs.
C.L. and L.M.S. and their supporting research, the Board
finds that the evidence is at least in equipoise on the
matter of direct service connection for testicular cancer,
status post right radical orchiectomy with sterility. The
Board is also required to resolve all reasonable doubt in
favor of the veteran. See 38 U.S.C.A. § 5107; 38 C.F.R. §
3.102. Accordingly, service connection for testicular cancer,
status post right radical orchiectomy with sterility, is
granted.




ORDER

Entitlement to service connection for testicular cancer,
status post right radical orchiectomy with sterility, is
granted.




____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs