Citation Nr: 1214175 Decision Date: 04/18/12 Archive Date: 04/27/12 DOCKET NO. 94-32 375 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for oligospermia (infertility), to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Kirscher Strauss, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1964 to July 1967, from July 1968 to April 1972, and from April 1973 to August 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1993 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for oligospermia, claimed as sterility due to exposure to Agent Orange (herbicides). The Veteran disagreed with the decision. In August 2007 and February 2010 the Board remanded the claim for further development. The development has been completed, and the case is before the Board for final review. In correspondence received in August 2011, the Veteran requested an increased evaluation for his service connected diabetes mellitus, and also requested "service connection" for erectile dysfunction. The Board notes the Veteran is already service connected for erectile dysfunction, has a combined rating of 100 percent, and is in receipt of special monthly compensation at the housebound rate and for loss of use of a creative organ. As his current claims pertaining to diabetes and erectile dysfunction have not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over them, and they are referred to the AOJ for clarification and action if necessary. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam while on active duty; therefore, exposure to an herbicide agent is presumed. 2. The Veteran's oligospermia is a congenital defect that was not subject to a superimposed disease or injury during military service. CONCLUSION OF LAW The criteria for establishing service connection for oligospermia, to include as due to exposure to herbicides, have not been met. 38 C.F.R. §§ 1110, 1111, 1116, 1131, 1137, 1153, 1154(b), 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.304(d), 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. The Veteran was provided VCAA notice in an August 2004 letter, which was resent in December 2004. The letter advised the Veteran of what information and evidence is needed to substantiate his claim for service connection and notified the Veteran as to what information and evidence must be submitted by him and what information and evidence will be obtained by VA. Letters dated in March 2006 and April 2007 advised him of how disability ratings and effective dates are assigned, and the type of evidence that impacts those determinations. The case was last adjudicated in May 2011. The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his service treatment records, service personnel records, VA and private treatment records, VA examination and medical opinion reports, birth certificates, and lay statements. The Board also notes that actions requested in the prior remands have been undertaken. Here, the Veteran was notified in May 2009 of the latest determinations regarding infertility and exposure to certain herbicides, including Agent Orange, as described in 72 Federal Register 32395, June 12, 2007. Also, in April 2009 a VA genitourinary examination was conducted and an opinion obtained following a review of the entire claims file, subjective history obtained from the Veteran, and physical examination. The Board required additional medical information after the 2009 examination and took action to obtain an additional medical opinion from the same urologist who conducted the 2009 examination. The opinion obtained in April 2010 addressed the Board's additional questions and included a rationale consistent with the record. Thus, the Board finds that the remand directives have been substantially complied with, and a decision on the merits can proceed. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). VA has considered and complied with the VCAA provisions discussed above. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. The Veteran was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). 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 disability was incurred in service. 38 C.F.R. § 3.303(d). Congenital or developmental defects are not diseases or injuries within the meaning of the applicable law and regulations for VA compensation purposes. 38 C.F.R. § 3.303(c). A defect is a structural or inherent abnormality or condition which is more or less stationary in nature. VAOPGCPREC 82-90. A disease may be defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. Id. Service connection may be granted for diseases of congenital, developmental, or familial origin, but not for defects, unless such defect was subject to superimposed disease or injury during military service. Id. Such a disease, by its very nature, preexists a claimant's military service, and typically, entitlement to service connection turns on the question of whether manifestations of the disease in service constituted "aggravation" of the condition. Id. Under the governing criteria, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by service. 38 U.S.C.A. § 1111 (West 2002). If a disorder was not noted on entering service, the government must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness for wartime service under section 1111. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the preexisting condition." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153. If the government fails to rebut the section 1111 presumption, the claim is one for service connection, not aggravation. Id. The Board acknowledges that in the case of any veteran who engaged in combat with the enemy in active service, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). A veteran may be entitled to a presumption of service connection if he is diagnosed with certain enumerated diseases associated with exposure to certain herbicide agents if he served in the Republic of Vietnam during a prescribed period. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. Further, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307 (2011). Regulations further provide, in pertinent part, that if a Veteran was exposed to an herbicide agent (such as Agent Orange) during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); Type II diabetes mellitus, soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease. 38 C.F.R. § 3.309(e) (2011). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. Further, VA 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 certain diseases including fertility problems. See 75 Fed. Reg. 81332 (Dec. 27, 2010). The Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service treatment records show that oligospermia was not noted on the Veteran's entrance examinations. In August 1977 during his last period of service he underwent a suprainguinal ligation of the left spermatic vein. The admission and discharge diagnosis was oligospermia. He subsequently was given Teslac in June 1979, underwent bilateral testicular biopsy in July 1979, had several semen analyses, and was given Clomid in August 1981. Separation examination reports dated in June 1967, April 1972, and August 1986 from each period of service listed normal genitourinary system on clinical evaluation, and there were no identifying testicular marks or scars noted. Birth certificates show that he fathered children in 1981 and 1987. Service personnel records show that the Veteran served in the Republic of Vietnam during each of his three periods of active duty. Service in Vietnam has been verified from September 1966 to January 1967, from March 1969 to March 1970, and from July 1971 to April 1972. Thus, he is presumed to have been exposed to herbicides. In addition, his DD Form 214 from his second period of service reflects that he was awarded the Combat Infantry Badge. His specialty during his first period of service was light weapons infantryman, post office clerk during his second period of service, and administrative of accounting specialist during his final period of service. Post-service VA and private medical records also show that the Veteran was diagnosed with oligospermia. The issue in this case is whether the Veteran's oligospermia is related to service. In January 1990 the Veteran claimed entitlement to service connection for sterility due to exposure to Agent Orange. In an August 1992 statement, he suggested numerous possible causes of his infertility, including exposure to toxic substances in Vietnam. Following the June 1993 denial of service connection for oligospermia, he reiterated his contention in October 1993 and subsequently that his oligospermia was the result of exposure to Agent Orange. He also described an in-service injury. In a VA psychiatry note dated in October 1997, he stated that during his second tour in Vietnam between 1969 and 1970, he fell on a bamboo stick and injured his left scrotal area. He reported that he was treated in the field and refused the offer of being medically evacuated. The note adds that "later on this was apparently pinpointed as the cause of his infertility," though the psychiatrist noted that the Veteran fathered two children after he was tried experimentally on fertility pills. The Veteran was afforded a VA genitourinary examination by a urologist in April 2009. The examiner indicated that he reviewed the entire claims file, obtained a subjective history from the Veteran, and performed a physical examination. The Veteran described a history that included three tours in Vietnam with exposure to Agent Orange during that time. The urologist opined that it is impossible to tell whether the Veteran's oligospermia was caused by exposure to Agent Orange, explaining that the majority of oligospermia patients have idiopathic causes and that oligospermia is not listed in any of the manuals concerning Agent Orange exposure. The examiner added that the Veteran was just as likely to have had oligospermia prior to military service. The urologist also addressed the specific questions outlined by the Board in August 2007. He stated that the Veteran has oligospermia, opined that oligospermia was most likely caused by or a result of congenital causes, and opined that oligospermia was not caused by or a result of Agent Orange exposure or injury incurred in or aggravated in service. The Veteran was afforded a VA genitourinary examination in July 2009 in connection with his claim for service connection for prostate cancer due to exposure to herbicides. The Veteran denied a history of trauma to the genitourinary system. In an April 2010 report, the same VA urologist who performed the April 2009 VA genitourinary examination provided additional medical opinions in response to the questions outlined in the Board's February 2010 Remand. The urologist opined that the Veteran's oligospermia is clearly congenital in nature. He explained that the Veteran's initial semen analysis and evaluation for infertility was oligospermia, he had no history of testicular injury, exposure to radiation, exposure to high temperatures, or exposure to chemotherapeutics prior to his initial semen exam. The urologist also identified the Veteran's oligospermia as a congenital defect, which is idiopathic, i.e., it is not due to Klinefelter's syndrome or a part of any other known syndrome, and which was not subject to superimposed disease or injury during military service. The urologist reasoned that oligospermia is a common condition of unknown etiology that was present on the Veteran's initial semen analyses, and infertility evaluations did not reveal any causative factors. In correspondence dated in April 2010, the Veteran expressed dissatisfaction with "the last [VA] doctor's exam," calling it "fruitless" and stating that the examiner's "attitude, demeanor, and etc. are at a below zero rating." Similarly, in November 2010, the Veteran's representative reiterated the contention that the Veteran's oligospermia was associated with exposure to herbicides and asserted that the VA examiner's opinion that oligospermia was "clearly congenital" was based on speculation. The representative argued that there is "a compelling relationship in the book 'Getting Pregnant' by Robert Jansen" between herbicide exposure and oligospermia. He provided a photocopy of an unidentified article or publication (presumably an excerpt from "Getting Pregnant") that discussed inherited oligospermia and environmentally caused oligospermia and drew arrows beside a sentence regarding Agent Orange, which "has been implicated in oligospermia." In correspondence dated in December 2010, the Veteran stated that he was walking while on patrol in November 1966 and some bamboo came into his testicles. He reported that he continued to lead for several yards before stopping and having the medic look at the injury. The platoon leader recommended medical evacuation, but the Veteran refused. He also highlighted his exposure to Agent Orange. In a July 2011 statement the Veteran argued that his condition could not be a congenital abnormality because he "would/could not have been born". The Board has considered the medical and lay evidence of record, but finds that service connection for oligospermia, to include as due to exposure to herbicides, is not warranted, and the claim must be denied. Despite the Veteran's assertions that oligospermia is associated with exposure to herbicides, oligospermia, in fact, is not included in the list of diseases associated with exposure to herbicides. See 38 U.S.C.A. § 1116 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309. Therefore, although service records reflect that the Veteran served in the Republic of Vietnam during each of his three periods of service, entitlement to service connection for oligospermia is not warranted on a presumptive basis due to herbicide exposure. 38 C.F.R. § 3.307. Also, the Board considered the excerpt provided by the Veteran's representative in November 2010 stating that Agent Orange "has been implicated in oligospermia," but did not find that evidence to be compelling as suggested. The excerpt, the source of which was not clearly identified, provided no information regarding Agent Orange and oligospermia other than the bare statement that Agent Orange has been implicated in oligospermia. Considering the claim on a direct basis, the Board finds that the opinions of the April 2009 and April 2010 VA examiner are persuasive and probative evidence against the claim for oligospermia because they are based on a review of the claims file, subjective history from the Veteran, and physical examination, and they are supported by an articulated medical rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). In fact, based on a review of the claims file, subjective history from the Veteran, and physical examination, the examining urologist concluded that the Veteran's oligospermia was an idiopathic, congenital defect that was not worsened by military service because infertility evaluations did not reveal any causative factors. The Board also considered the Veteran's statements made in October 1979 and December 2010 that he suffered a testicular injury due to falling on a bamboo stick. The Board acknowledges that such an injury may be consistent with the circumstances, conditions, or hardships of combat service and the Veteran's military occupational specialty of light weapons infantryman during his first period of service. However, the Board finds that the Veteran's current contentions regarding the alleged injury are not credible because he provided several conflicting statements. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006) (Board can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility). Again, in October 1997 he described an injury that happened during his second Vietnam tour between 1969 and 1970, in July 2009 he denied any history of trauma to the genitourinary system, and in December 2010 he said that he had a testicular injury in November 1966. Moreover, the fact that he never reported such an injury during the course of multiple urology or genitourinary consultations to address and treat his oligospermia during service, and the fact that none of these reports or any of his three separation examinations noted any perceptible genitourinary abnormalities, marks, or scars, tends to weigh against his claim of an injury causing his oligospermia. Accordingly, the Board finds that the April 2010 VA urologist's conclusions that the Veteran's oligospermia was not worsened by military service and that infertility evaluations did not reveal any causative factors are supported by and consistent with the evidence of record, including the Veteran's contemporaneous lay statements made during the course of receiving treatment for oligospermia during service. Incidentally, the Board notes that as a result of treatment in service, the Veteran was able to father children in 1981 and 1987. See Verdon v. Brown, 8 Vet. App. 529 (1996) (If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service.). The Board also acknowledges the April and November 2010 contentions of the Veteran and his representative, respectively, that the April 2009 VA examination and April 2010 VA addendum opinions were inadequate, but finds that the arguments are without merit. The April 2009 report shows that the urologist reviewed the entire claims file, gave the Veteran the opportunity to provide additional subjective history, and conducted an examination. Contrary to the assertion that the urologist's opinions were based on speculation, the Board finds that while he explained that the majority of oligospermia patients have idiopathic causes, he nevertheless considered and ruled out other possible causes, including injury, radiation, high temperatures, or chemotherapeutics. The Board finds that the April 2009 examination report and April 2010 opinions do not reflect bias, improper judgment, or speculation by the examiner, and the reports are adequate for VA purposes. To the extent that the Veteran himself believes that his oligospermia is related to herbicide exposure and is not a congenital defect, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. Accordingly, his opinion as to the diagnosis and etiology of oligospermia is not competent medical evidence, as such questions require medical expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Similarly, while he has submitted a purported excerpt from an article or book suggesting Agent Orange has been implicated in oligospermia, this evidence is general in nature, provides no scientific support for the statement, and has not been specifically related to the Veteran by a competent medical professional. See Sacks v. West, 11 Vet. App. 314, 317 (1998) ("This is not to say that medical article and treatise evidence are irrelevant or unimportant; they can provide important support when combined with an opinion of a medical professional."). Here, the most probative medical evidence demonstrates that the Veteran's oligospermia is a congenital defect that was not caused or aggravated by service. The Board finds the medical evidence to be of greater probative value than the Veteran's lay contentions or the article/book excerpt. For the reasons set forth above, the Board finds that the Veteran's oligospermia is a congenital defect that was not aggravated by service, was not caused by service, and may not be presumed to be incurred or aggravated by service as a result of herbicide exposure. Accordingly, service connection for oligospermia (infertility) is denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for oligospermia (infertility), to include as due to exposure to herbicides, is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs