Citation Nr: 1203509 Decision Date: 01/31/12 Archive Date: 02/07/12 DOCKET NO. 07-21 239 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES Entitlement to service connection for hypogonadism. REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran served on active duty from September 1991 to September 1995 and from March 2005 to April 2006, with additional periods of Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In May 2009, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims folder. In June 2011, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA). The requested opinion was received in August 2011. In September 2011, the Board informed the Veteran that it had requested a specialist's opinion in conjunction with the adjudication of his appeal, provided him a copy of that opinion and indicated that he was entitled to submit additional evidence or argument provided within 60 days of the date of that letter. No further evidence or argument was received within those 60 days. Accordingly, the Board will proceed with the consideration of his case. FINDING OF FACT Competent medical evidence establishes that the Veteran's current hypogonadism is not related to his military service, to include anthrax vaccinations that he received. CONCLUSION OF LAW Hypogonadism was not incurred in or aggravated by active military service. 38 U.S.C.A. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2011). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Notify & Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in a letter sent in June 2006 prior to the initial rating decision. This letter included notice of the type of evidence necessary to establish a disability rating or effective date for the issues under consideration, pursuant to the recent holding in Dingess/Hartman v. Nicholson, 19 Vet App 473 (2006). VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO obtained his service treatment records and VA and private treatment records. The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf. The Veteran has also been afforded a VA examination and the Board sought out a medical opinion from a VA specialist. The Veteran was also afforded a hearing before a Veterans Law Judge (VLJ) during which he presented oral argument in support of his service connection claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2011) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issue on appeal during the hearing, although he did not specifically note basis of the prior determination and the element(s) of the claim that were lacking to substantiate the claim for benefits. The VLJ asked specific questions, however, directed at identifying whether the Veteran met the criteria for service connection. The VLJ also did not specifically seek to identify any pertinent evidence not currently associated with the claims file. This was not necessary, however, because the Veteran volunteered his treatment history and his symptoms since service. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Finally, in September 2009, the Board remanded the claim for additional development. There has been full compliance with the remand directives. Analysis The Veteran asserts that his hypogonadism is related to military service and has set forth three main contentions in support of his claim. First, he contends that hypogonadism developed during his first period of active duty service from September 1991 to September 1995. Second, he contends that the hypogonadism is related to the anthrax vaccinations he received during Reserve service. As to this contention, the Veteran alleges that he was called to active duty during the Reserves for the specific purpose of receiving the vaccinations. Third, and finally, he contends that the hypogonadism, which pre-existed his second period of active duty service from March 2005 to April 2006, was aggravated as a result of such service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2011). The term "active military service" includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 C.F.R. § 3.6(a) (2011). ACDUTRA includes full time duty in the Armed Forces performed by Reserves for training purposes, while INACDUTRA includes duty (other than full-time duty) prescribed for Reserves, as well as duty (other than full-time duty) performed by a member of the National Guard of any State. § 3.6(c), (d). Thus, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or from an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1131 (2011). Establishing service connection generally requires medical or, in certain circumstances, lay 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table). The second and third elements may be established by showing continuity of symptomalogy. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Service treatment records from the Veteran's first period of service, from 1991 to 1995, do not show findings of hypogonadism. A service record of all immunizations and vaccinations received between 1998 and 2006 reflect that the Veteran received anthrax vaccinations on January 3, 2000, February 26, 2000, March 11, 2000, and March 23, 2000. Service personnel records do not show the Veteran was on active duty, active duty for training, or inactive duty for training during the dates of these vaccinations. Private treatment records show that the Veteran was evaluated for suspected hyperprolactinemia and hypogonadism as early as March 2004 based on his reported symptoms of depression, irritability, and generalized fatigue. He was later referred to a private endocrinology clinic. A letter dated in July 2004, from an endocrinologist at the clinic, shows that the Veteran was determined to have hypogonadism. The cause of the Veteran's hypogonadism was thought to either be stress-induced or a microprolactinoma that was beyond the resolution limits of an MRI. In an addendum, the endocrinologist stated that if the hypogonadism was present, it was very mild. In August 2004, in preparation for active duty deployment, the Veteran was instructed to continue using his topical testosterone treatment on a daily basis. Service treatment records from the Veteran's second period of active service, which began in March 2005, reflect ongoing treatment for hypogonadism. His symptoms were primarily stress and fatigue. In May 2005, the Veteran reported an increase in his worry and anxiety for three months related to his testosterone levels. In June 2005, the Veteran reported that his stress and anxiety levels increased and his energy levels decreased when he took testosterone supplements. He was initially assessed with genetic Klinefelter's syndrome. He was placed on injectable testosterone therapy as was directed by his endocrinologist. In October 2005, based upon testicular examination and laboratory studies, as well as the Veteran's history of fertility, the cause of his hypogonadism was considered most likely due to depression and anxiety. Klinefelter's syndrome was ruled out. In December 2005, he reported ongoing insomnia and fatigue. There were no abnormal physical symptoms and testicular examination was normal. He was assessed as being overweight and was encouraged to begin low-level exercise in order to progress towards annual physical fitness training standards. On April 2006 evaluation, in preparation for release from active duty, his main abnormality was recorded as low testosterone levels for the previous two years. His libido was good. He was continued on testosterone supplements. Post-service treatment records dated from 2006 to 2010 reflect that the Veteran continued to take testosterone gel and patch supplemental therapy and reported feeling fatigued if he stopped taking it. These records also show diagnoses of idiopathic hypogonadism and hypogonadism of unknown etiology. The Veteran has submitted articles in support of his contention that the anthrax vaccine has caused adverse effects, including hypogonadism. He also submitted copy of testimony of another Veteran who testified that he developed hypogonadism as a direct result on the anthrax vaccination, as well as a copy of a pleading filed by various service members seeking an injunction against the U. S. military's practice of involuntary anthrax vaccinations. The Veteran was afforded a VA examination in February 2010. Following a clinical examination and a comprehensive review of the Veteran's pertinent medical history, the examiner opined that with respect to the diagnosis of hypogonadotropic hypogonadism, the Veteran did not have a testicular disorder in 2001 when his first daughter was conceived and, the acquisition of his very low-grade hypogonagotropic hypogonadism would have followed his induction into service in 1991 and also the anthrax immunizations in 2000. The examiner also stated that he could not provide an opinion as to whether the Veteran's endocrinology problem was related to the anthrax immunization without resorting to mere speculation. In an addendum provided in July 2010, the examiner indicated that he had once again reviewed the evidence in the claims file. The examiner indicated that the evidence for a finding of current hypogonadism was slightly subnormal testosterone levels on six occasions. The examiner noted, however, that during these time periods the Veteran experienced a number of testosterone stressors, such as domestic issues, filing for bankruptcy, working a night shift, and heavy drinking, as shown in previous VA treatment records. Evidence against significant hypogonadism was the conception of a child in 2002 and again in 2008. With regard to whether the Veteran's second period of active service aggravated the pre-existing hypogonadism, the examiner stated that he could not provide a comment because the available records indicated a stable, slightly subnormal testosterone level at all times tested, except when the Veteran was documented to be on testosterone replacement therapy. In June 2011, the Board sought a VA specialist opinion as to the likelihood that the Veteran's hypogonadism is related to the series of three anthrax vaccinations he received in February and March 2000 and also the likelihood that the Veteran's hypogonadism (which pre-existed his second period of active service) had been aggravated by that period of service. In August 2011, a specialist in endocrinology reviewed the evidence in the claims file and opined that it is extremely unlikely that the Veteran's hypogonadism was related to the series of anthrax vaccinations he received in February and March 2000. The specialist explained, in part, that hypogonadism developing after anthrax vaccination has only been mentioned in five vaccine adverse event reports submitted to the Food and Drug Administration (FDA) out of 6,914 events reported. The specialist also noted that during his own research on Medline, he found no other published reports that suggested any possible causal connection or association of central hypogonadism with the anthrax vaccination. The specialist also discussed the testimony of another Veteran, which was submitted by the Veteran in support of this claim. He distinguished the case of that gentleman (who had primary testicular failure) from that of the Veteran (who has possible central hypogonadism), and determined that the anecdote cited by the Veteran is not relevant to his particular situation. Finally, he pointed out that the fact that the Veteran was able to father a child in 2002 and 2008 is strong argument for him having normal testicular function. The specialist further opined that he was not very confident that the Veteran had hypogonadism prior to his second period of service. He explained, in part, that the Veteran's diagnosis was based on a single serum testorerone level of 235 ng/dl and serum free testosterone level of 7.7 that was measured late in the afternoon and there is a substantial diurnal variation in testosterone levels and normal ranges are based on morning levels. He also pointed out that subsequent tests were performed while the Veteran was on testosterone replacement intermittently (which results in an iatrogenic suppression of testicular function), so the results are difficult to interpret. The specialist further opined that if the Veteran did indeed have pre-existing hypogonadism that manifested as ongoing symptoms of fatigue and stress, then the testosterone replacement therapy should have resolved those ongoing symptoms. He therefore concluded that the likelihood that any pre-existing hypogonadism was aggravated during the Veteran's second period of service was extremely unlikely. Turning to the elements necessary to establish service connection on a direct basis, the element of a current disability (hypogonadism) is established. The preponderance of the evidence, however, shows that hypogonadism did not initially manifest during a period of active service. As shown, the service records do not reflect diagnosis and/or treatment for hypogonadism during the period of active duty service from September 1991 to September 1995. Rather, the initial diagnosis of hypogonadism was made in 2004 during Reserve service and is not shown to be attributable to any periods of ACDUTRA. There also is no medical evidence linking the Veteran's currently diagnosed hypogonadism to his initial period of active duty service, or to any of the anthrax vaccinations that he received in 2001 while in the Reserves. A VA examiner, who is an endocrinologist, determined that the current very low-grade hypogonadotropic hypogonadism would have been acquired subsequent to the Veteran's service that began in September 1991, and also subsequent to the anthrax immunizations received in 2000 as he did not have a testicular disorder in 2001 when his first daughter was conceived. In addition, a VA specialist, who has a specialty board certification in endocrinology and metabolism, has opined that it extremely unlikely that the Veteran's hypogonadism is related to the series of anthrax vaccinations he received in service. The Board finds that the medical opinions are probative as these endocrinologists carefully reviewed the pertinent documented and self-reported medical history of the Veteran and provided clear opinions that included detailed discussion of the pertinent clinical findings with supporting analyses. The February 2010 examiner also conducted a physical examination. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There are no medical opinions to the contrary. The Veteran has provided literature and written testimony of another Veteran in support of his claim. However, none of this evidence refers to the Veteran himself, nor is specific to the particular circumstances and events with respect to his condition. Generic medical literature, which does not apply medical principles regarding causation or etiology to the facts of an individual case, does not provide competent evidence to satisfy the nexus element for an award of service connection. See Sacks v. West, 11 Vet. App. 314 (1998). There is no other medical evidence of record, specific to the Veteran's case, which links his hypogonadism to either of his periods of active duty service, including the anthrax vaccination he received. The only other evidence in support of the claim is the Veteran's lay opinion on an etiological relationship between his hypogonadism and military service. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a) (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In this case, however, the Veteran is not considered competent to identify or diagnose hypogonadism as this disorder requires clinical testing. He is also not competent to provide a medical opinion as to the etiology of his current hypogonadism. Moreover, even if he were competent to provide such an opinion, his lay opinion is outweighed by the VA medical opinions that were based on an examination, a review of the claims folder, medical expertise in the field of endocrinology, and supported with detailed rationales. Finally, there also is no indication that the hypogonadism, which existed upon entrance to the Veteran's second period of active service from March 2005 to April 2006, was permanently aggravated by that period of active service. The law provides that a Veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed to be in sound condition when he or she entered into military service, except for conditions noted on the entrance examination. 38 U.S.C.A. §§ 1111, 1132 (West 2002). Here, VA cannot presume that, at service entry, the Veteran was not sound with respect to the hypogonadism as there is no record of an entrance examination in March 2005. VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (2003), 69 Fed. Reg. 25,178 (2004); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). VA amended 38 C.F.R. § 3.304(b), effective May 4, 2005, to reflect a change in the interpretation of 38 U.S.C.A. § 1111 by the Federal Circuit and VA's General Counsel, and the regulation now provides that to rebut the presumption of soundness, VA must establish by clear and convincing evidence both that the disability existed prior to service and that it was not aggravated by service. See 70 Fed. Reg. 23,027, 23,029 (2005). Consistent with the Veteran's statements and the overwhelming medical evidence of record discussed supra, the evidence clearly and unmistakably shows that hypogonadism existed prior to the period of service which began in March 2005. The evidence also clearly and unmistakably reflects that the hypogonadism was not aggravated by such service. The Board observes that the symptoms described by the Veteran prior to active service in March 2005 (i.e. irritability, fatigue, low testosterone, and depression) were nearly identical to the symptoms complained of during service and were no greater in frequency and/or severity than prior to service. Moreover, a VA specialist has concluded that the likelihood that any pre-existing hypogonadism was aggravated during the Veteran's second period of service is extremely unlikely. The August 2011 specialist's opinion is probative as he carefully reviewed the pertinent documented and self-reported medical history of the Veteran, as well as additional evidence submitted by the Veteran, and provided a clear opinion with supporting analyses. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no other medical opinion to the contrary. The Board has considered the applicability of the benefit of the doubt doctrine; however, the preponderance of the evidence is against the claim and that doctrine is thus, inapplicable. Accordingly, service connection for hypogonadism is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for hypogonadism is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs