Citation Nr: 1301867 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 07-21 063 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for reproductive dysfunction claimed as due to bromide pills and/or undiagnosed illness. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1990 to December 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision by the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case in December 2010 and April 2012 to afford the Veteran due process. It returns now for appellate consideration. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDING OF FACT The best evidence of record does not relate the Veteran's reproductive dysfunction to his active service; to include as to bromide pills and/or undiagnosed illness. CONCLUSION OF LAW The criteria for service connection for reproductive dysfunction have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed all of the evidence in the claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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) (2012). Under 38 C.F.R. § 3.317, a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability may be service-connected, provided that such a disability became manifest either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2011, and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. See also Extension of the Presumptive Period for Compensation for Gulf War Veterans, 71 Fed. Reg. 75, 699-75, 672 (December 18, 2006). A "qualifying chronic disability" has been defined to mean a chronic disability resulting from any of the following (or any combination of the following): (1) an undiagnosed illness; (2) medically unexplained chronic multisymptom illness that are defined by a cluster of signs or symptoms (specifically chronic fatigue syndrome, fibromyalgia, irritable bowel syndrome, or any other illness the Secretary determines meets the criteria of a medically unexplained chronic multisymptom illnesses); or (3) any diagnosed illness that the Secretary determines warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2)(i). The Veteran contends that he has reproductive dysfunction, diagnosed as male factor infertility, as a result of pyridostigmine-bromide (PB) pills he took prior to being deployed to the Middle East during the first Gulf War. The Veteran's service treatment records are silent for any complaints of or treatment for infertility. Additionally, there is no documentation in his service treatment records that the Veteran was treated with bromide pills. However, based on the well documented use of PB by the United States Military as an anti-nerve gas agent during the first Gulf War, and the nature of the Veteran's active service, the Board finds no reason to doubt the Veteran's reports that he did in fact take BP pills while on active service. The critical question is whether this fact has any reasonable connection with the disability at issue. March 2001 private treatment records from the Cooper Reproductive Laboratory show that the Veteran was seen for a semen analysis. Analysis results showed sperm motility of 52 percent and strict morphology of 9 percent. June 2003 private treatment records from the Center for Assisted Reproduction show the Veteran was seen for a semen analysis. Analysis results showed 6 percent normal morphology with a good prognosis according to Kruger strict criteria. Results were noted to include normal semen volume, normal sperm concentration, mildly decreased total motility, and moderately decreased progressive motility. In a September 2004 statement, the Veteran's spouse stated that after seeing an infertility specialist, she and the Veteran were advised that the Veteran had very poor quality sperm and that they could try in vitro fertilization (IVF) with intracytoplasmic sperm injection (ICSI) in an attempt to conceive a child. She stated that it was her belief that the PB he took while on active service caused his reproductive dysfunction. In a September 2004 statement, the Veteran's sister-in-law stated that the Veteran and his spouse have been attempting to conceive for most of their 10 year marriage, without any success. She stated that the Veteran had been tested numerous times and had been found to have poor sperm quality, which continued to worsen. She believed that this was caused by the PB he took while on active service. On September 2005 VA examination the Veteran reported serving in Saudi Arabia, Iraq, and Kuwait while on active service during the first Gulf War. He reported he was treated with PB for approximately three weeks just prior to his deployment to the Middle East. The Veteran stated that it was his belief that the PB resulted in his reproductive dysfunction. The Veteran reported that after 3 to 5 years of unsuccessful attempts to initiate a pregnancy with his spouse, he sought infertility treatment in 2001. The VA examiner reviewed the Veteran's private treatment records and found that the Veteran had been seen by two infertility specialists. The examiner noted that the studies and analysis conducted by the infertility specialists suggested the Veteran had some male factor infertility, possibly related to a variable sperm count, and to abnormal morphology and motility. The Veteran contended those abnormalities were related to the PB pills he took prior to his deployment. The VA examiner noted that neither of the infertility specialists who treated the Veteran related his infertility to any prior drug therapy. The examiner stated that he had no independent information which could substantiate or support the Veteran's contention. The VA examiner noted in his report, that at the examination, the Veteran provided a news article which summarized research performed at Duke University Medical Center in North Carolina. The examiner explained that the research described in the article indicated animal experiments were performed, the results of which might support a theory that insecticide and anti-nerve gas drugs given to soldiers during the Gulf War may play some role in infertility. The examiner noted that the Veteran was basing his claim for service connection on this single article. Medical articles or treatises can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence "discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." Mattern v. West, 12 Vet. App. 222, 228 (1999).; see also Sacks v. West, 11 Vet. App. 314, 317 (1998) (medical treatise evidence that discusses a relationship in generic terms is insufficient to meet requirements for a medical nexus). In this regard, it is important for the Veteran to understand that while this article, and others, indicates that anti-nerve gas drugs given to soldiers during the Gulf War may play some role in infertility, they do not indicate that it is at least as likely as not (50% chance or greater) that the Veteran's infertility is result of these drugs, the standard the Board must use. The information provided is not specific to the Veteran's case. It takes into account no other risk factors possibly suffered by this Veteran, any clinical findings of this Veteran, or any other specific information. After examining all of the evidence of record and interviewing the Veteran, the examiner opined that it was his clinical impression that the Veteran exhibited characteristics consistent with male factor infertility. He explained that whether the infertility was related to the medication that the Veteran took prior to his deployment 11 years earlier was open to considerable debate, as the examiner was not aware of any clinical materials that implicated such medication as a cause to male factor infertility. Also of record are numerous news articles from various sources submitted by the Veteran that suggest there is a possible link between the various toxins that Veterans of the first Gulf War were exposed to, including PB pills, and infertility. The majority of these articles reference the same animal study that was discussed by the September 2005 VA examiner. Some of the articles submitted by the Veteran also refer to a study performed in the United Kingdom on Gulf War Veterans which found some evidence of an association between Gulf War service and reported infertility. The Board notes that it is not in dispute that the Veteran has a current reproductive dysfunction, as the medical evidence of record documents his diagnosis of male factor infertility. However, what must still be shown in order to establish service connection is that his male factor infertility is related to his active service, to include PB pills taken therein. At the outset, the Board notes that the first evidence of record indicating the Veteran sought treatment for reproductive dysfunction is in March 2001. Additionally, the Veteran reported that he was married in 1995, and after unsuccessfully attempting to conceive a child with his wife for several years, he saw an infertility specialist in 2001. Accordingly, the Veteran has not reported continuity of symptomatology since service. Consequently, service connection for male factor infertility on the basis that such became manifest in service and persisted is not warranted. What remains for consideration is whether the Veteran's male factor infertility is related to, or otherwise caused by, his active service, to include the BP pills he took therein. The only competent (medical) evidence of record that addresses the relationship between the Veteran's male factor infertility and the PB pills he took while on active service is the report of the September 2005 VA examiner, which explained that there were no clinical materials that documented such medication as a cause of male factor infertility. The examiner acknowledged the Veteran's belief that his infertility had been caused by the PB pills (which the Board does as well); however, he noted that the Veteran appeared to base his claim solely on a study conducted on animals at Duke University, the results of which might support the theory that insecticides and anti nerve gas drugs could play a role in infertility. The examiner stated that he had no independent information that could support this theory. Additionally, the examiner noted that even the Veteran's treating infertility specialists did not relate his infertility to any past drug therapy. As this is the only medical opinion of record, the Board finds it significant, providing limited evidence against this claim. As noted, the Board acknowledges that the Veteran has submitted numerous news articles that show there is considerable question as to the possible link of toxins present during the first Gulf War, including PB, and infertility in Gulf War Veterans. However, the Board finds that the news articles of record do not provide the Board with any affirmative evidence that there is even a 50 percent or better probability that the Veteran's male factor infertility is related to the PB pills he took while on active service. Additionally, the Board further observes that the only evidence of record supporting the Veteran's claim are his own statements, and the statements by his spouse and sister-in-law, which asserted that his male factor infertility was caused by the PB pills. In this regard the Board notes that the Veteran and his family members are competent to give evidence about observable symptoms such as experiencing trouble conceiving a child or undergoing fertility treatment. See Layno, 6 Vet. App. at 465; Jandreau, supra ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer.") However, the Veteran, and his family members, are not competent in this instance to opine that his male factor infertility is related to his active service, to include the PB pills taken therein, as that is a complex medical question the determination of which requires medical training and would not be subject to lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, the opinions of the Veteran, and his family members, on causation are not competent evidence and cannot be considered as evidence favorable to the claim. Finally, as the Veteran has a current diagnosed disability, male factor infertility, the Board finds that entitlement to service connection based on a finding that his reproductive dysfunction is caused by, or related to, an undiagnosed or unexplained illness in accordance with 38 C.F.R. § 3.317 would not be appropriate. In light of the above, the Board finds that the preponderance of the evidence is against the claim. In reaching this decision, the Board has considered the doctrine of reasonable doubt. However, since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: (1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and (2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in August 2004 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Because the initial adjudication was issued in August 2005, prior to the Court's holding in Dingess, Dingess notice was not provided until April 2008. Regardless, any error is deemed harmless given that service connection is being denied, and hence no disability rating or effective date will be assigned with respect to the claimed disability. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished and therefore appellate review of the claims addressed above may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records and VA outpatient treatment records. In Roberts v. West, 13 Vet. App. 185 (1999), the Veterans Court considered whether a physician's statement "[c]annot say whether related to frostbite or not" was inadequate where that statement was in response to a Board remand requesting a medical opinion as to whether that appellant's arthritis was due to residuals of frostbite during service. The Court stated that "[t]he fact that the medical opinion was inconclusive, regarding the relationship between the appellant's arthritis and residuals of frostbite, does not mean that the examination was inadequate." Id. at 189. Additionally, in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court addressed a VA medical examination report regarding a claim for an increased rating; specifically, the issue of whether the statements of the examiner rendered the examination inadequate with regard to extraschedular consideration and the effect of the veteran's disability on his occupational functioning and daily activities. The Court stated "[n]or was he required to offer a speculative opinion based on information that the appellant had not provided." Id. at 455. This case is similar to Martinak and Roberts. Because the examiner reviewed all the evidence of record in rendering this decision and provided a rationale for the opinion, finding that no independent information that could support the Veteran's theory, the examination and opinion rendered are not inadequate. In this case there is no other probative evidence tending to prove or disprove a relationship between the Veteran's disability and service. The Board cannot force a VA examiner to provide a more detailed opinion in a case where such an opinion is not possible, based on the evidence (or lack of evidence, as in this case). The Veteran was afforded VA medical examination in September 2005, and as is discussed above, this examination was adequate. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of his claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for reproductive dysfunction claimed as due to bromide pills and/or undiagnosed illness is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs