BVA9501694 DOCKET NO. 92-08 009 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for residuals of a tumor of the left testis. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD James L. March, Associate Counsel INTRODUCTION The veteran had periods of active duty from June 1988 to August 1988 and from November 25, 1990, to May 3, 1991. This appeal comes to the Board of Veterans' Appeals (Board) from a November 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The veteran subsequently moved and his file was transferred to the Muskogee, Oklahoma, RO. In June 1993 and July 1994, the Board remanded the case for further development. The July 1994 remand instructed the RO to provide the veteran with a supplemental statement of the case which referred to all of the evidence submitted subsequent to the statement of the case. The RO attempted to do so; however, the veteran apparently moved and left no forwarding address. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his testicular tumor was aggravated by his active duty service. He alleges that the tumor was not found until he injured himself while undergoing rigorous training exercises. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for service connection for residuals of a tumor of the left testis. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. No genitourinary pathology was noted during the veteran's first period of active service. 3. The veteran's left testicular tumor existed prior to his second period of active duty. 4. The tumor of the left testicle underwent no pathological increase in severity beyond natural progression during the veteran's second period of active duty. CONCLUSION OF LAW The veteran's tumor of the left testis was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.306 (1992). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board finds that the veteran's claim for service connection for a tumor of the left testis is plausible and capable of substantiation, and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a). When a veteran submits a well-grounded claim, VA must assist him in developing facts pertinent to that claim. 38 U.S.C.A. § 5107(a). The Board is satisfied that all relevant evidence has been obtained regarding the veteran's claim, and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may 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). A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C.A. § 1111. In determining whether service connection is warranted for a disability, 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 a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The veteran's Marine Corps Reserve enlistment medical examination report dated in November 1987 is of record. There is no evidence of a genitourinary disability, and specifically no evidence of a tumor of the left testis. Similarly, an August 1988 Reserve medical examination showed no evidence of a tumor of the left testis. On November 23, 1990, the veteran reported for a physical examination prior to his activation for Operation Desert Shield. He complained of tenderness and swelling of the left testicle for the previous two months, with gradual increase in difficulty. He denied any trauma or preceding infection. Physical examination revealed a hardened area about one pole of the left testicle. There was no evidence of hernia or any other abnormality. The impression was left testicular mass, rule out neoplasm, and the veteran was referred to a urologist. On December 5, 1990, the veteran was admitted for a radical orchiectomy. He provided a six week history of the left testicular mass. The diagnosis was embryonal cell carcinoma, immature teratoma, seminoma. Following the radical orchiectomy, it was recommended that a retroperitoneal lymph node dissection would be the best method of management; however, the veteran declined further surgery. A Medical Board determined that the refusal of surgery was reasonable. Because of the tumor, in March 1991, the veteran was deemed unfit for duty by a Physical Evaluation Board (PEB). The PEB also determined that the veteran's tumor existed prior to entry to active duty and was not aggravated thereby. In his Notice of Disagreement, the veteran alleged that the cancer was not found until he was injured during a training exercise while on active duty. He contended that the tumor was aggravated beyond its normal progression by the training session. The veteran's representative argues that the veteran passed a physical examination at the time of activation and had started extensive training exercises before the tumor was discovered. The evidence of record simply does not support the contentions of the veteran and his representative. The tumor was discovered during an examination on November 23, 1990; the veteran was not activated until November 25, 1990. It was discovered during a routine screening examination, and not following a training injury as alleged by the veteran. Further, at the time of the screening examination, the veteran reported a two month history of the mass. The Board further finds that the veteran's contention that the tumor was aggravated by active duty is not supported by the record. The veteran alleges that he was injured during active duty, which led to the discovery of the tumor. However, as indicated, the tumor was discovered before he was activated, and shortly thereafter, he was scheduled for ameliorative surgery. There is no medical evidence that the tumor was aggravated during service. The veteran's own unsubstantiated opinion that aggravation of the preexisting cancer occurred during service is not sufficient. Thus, the Board finds that the preponderance of the evidence is against the claim, and service connection for residuals of a tumor of the left testis is not warranted. ORDER Service connection for residuals of a tumor of the left testis is denied. ROBERT E. SULLIVAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.