Citation Nr: 1306964 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 05-28 793A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for infertility, to include as due to radiation exposure during active service. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran had active naval service from September 1980 to September 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In connection with this appeal the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in August 2011. A transcript of the hearing is associated with the claims file. This case was previously before the Board in February 2008 and December 2011, at which time the issue currently before the Board was remanded for additional development. The case has now been returned to the Board for further appellate action. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. FINDING OF FACT The Veteran does not have a current diagnosis of an infertility disability. CONCLUSION OF LAW Infertility was not incurred in or aggravated by active military service, to include exposure to radiation therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks entitlement to service connection for infertility, to include as due to radiation exposure during active service. In the interest of clarity, the Board will discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. Stegall concerns As alluded to above, in February 2008 and December 2011 the Board remanded this claim and ordered either the agency of original jurisdiction (AOJ) or VA Appeals Management Center (AMC) to afford the Veteran a VA examination for his claimed infertility and associate a report of the examination with his claims folder. The Veteran's claim was then to be readjudicated. Pursuant to the Board's remand instructions, the Veteran was afforded a VA examination for his claimed infertility in June 2012, and a report of the examination was associated with his claims folder. His infertility claim was readjudicated via a supplemental statement of the case (SSOC) dated November 2012. Accordingly, the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also defines the obligations of VA with respect to its statutory duty to assist a claimant in the development of his claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Notice The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the Veteran with the required notice by a letter mailed in July 2004, and notice with respect to the effective-date element of the claim, by a letter mailed in July 2006. Although the July 2006 letter pertaining to the effective-date element of the claim was provided after the initial adjudication of the claim, the Board finds that the Veteran has not been prejudiced by the timing of this letter. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the Veteran's claim was readjudicated via SSOC's dated June 2007, April 2010, and November 2012. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim. There is no reasonable possibility that further assistance would aid in substantiating the claim. The pertinent evidence of record includes the Veteran's statements, service treatment records, as well as VA and private treatment records. In general, VA's duty to assist includes obtaining records from the Social Security Administration (SSA). See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The record demonstrates that in November 2009, the RO attempted to obtain the Veteran's SSA records. In a subsequent December 2009 report, SSA informed VA that it did not have any of the requested records for the Veteran. The Veteran was informed of the unavailability of the SSA records in a March 2010 letter from the RO. Neither the Veteran nor his representative has since submitted or identified any outstanding evidence pertaining to his SSA records which could be obtained to substantiate the claim. Based upon this record, the Board finds that additional attempts to obtain the Veteran's SSA records, if any, would be futile. The Veteran was afforded a VA examination for his infertility in June 2012. The examination report reflects that the examiner interviewed and examined the Veteran, reviewed his past medical history, reviewed his claims folder, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. The Board therefore concludes that the VA examination report is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. The Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He has retained the services of a representative. He was afforded a personal hearing in August 2011. Accordingly, the Board will proceed to a decision. Service connection for infertility Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In order to establish service connection for the claimed disorder, there must be (1) competent 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) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection presupposes a diagnosis of a current disability. See Rabideau v. Derwinski, 2 Vet. App. 141 (1992). A "current disability" means a disability shown by competent medical evidence to exist. See Chelte v. Brown, 10 Vet. App. 268 (1997). Service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established in any of three different ways. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are diseases that are presumptively service-connected in radiation-exposed veterans under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d). Second, service connection can be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is a radiogenic disease. Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Under Combee, VA must not only determine whether a veteran had a disability recognized by VA as being etiologically related to exposure to ionizing radiation, but must also determine whether the disability was otherwise the result of active service. In other words, the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing service connection by way of proof of actual direct causation. A "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a veteran who while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. "Radiation-risk activity" is defined to mean onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945 through July 1, 1946. 38 C.F.R. § 3.309(b)(i), (ii) (2012). Diseases presumptively service-connected for radiation-exposed veterans under the provisions of 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d)(2) are: leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of the salivary glands, cancer of the urinary tract; bronchiolo-alveolar carcinoma; cancer of the bone; cancer of the brain; cancer of the colon; cancer of the lung; and cancer of the ovary. 38 U.S.C.A. § 1112(c)(2); 38 C.F.R. § 3.309(d). If a claimant does not qualify as a "radiation-exposed veteran" under 38 C.F.R. § 3.309(d)(3) and/or does not suffer from one the presumptive conditions listed in 38 C.F.R. § 3.309(d)(2), the veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if the veteran suffers from a radiogenic disease and claims exposure to ionizing radiation in service. Under 38 C.F.R. § 3.311, "radiogenic disease" means a disease that may be induced by ionizing radiation. See 38 C.F.R. § 3.311(b)(2). Under the special development procedures in § 3.311(a), dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing, and claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. 38 C.F.R. § 3.311(a)(2) (2012). In all other claims, 38 C.F.R. § 3.311(a) requires that a request be made for any available records concerning the veteran's exposure to radiation. These records normally include but may not be limited to the veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service medical records, and other records which may contain information pertaining to the veteran's radiation dose in service. All such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii) (2012). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). 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 each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) 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 preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran is claiming entitlement to service connection for infertility, which he contends is due to his military service, to include radiation exposure. With respect to Hickson element (1), the competent medical evidence of record does not demonstrate that the Veteran is currently diagnosed with an infertility disability. The Board notes that the Veteran was afforded a VA examination for his claimed infertility in June 2012. The VA examiner considered the Veteran's history of in-service radiation exposure as well as the Veteran's report of current symptoms associated with his claimed infertility, to include his report that he has had unprotected intercourse with the same girl for the past 12 months as well as other girls in the past and has not impregnated any of them. After examination of the Veteran and consideration of his medical history, the VA examiner declined to diagnose the Veteran with an infertility disability. The examiner's rationale for her conclusion was based on a reproductive systems examination of the Veteran which documented essentially normal results with regard to the Veteran's penis, testes, and epididymis. She also noted a review of medical literature pertaining to infertility, specifically reporting that "the classic definition of infertility became the absence of conception after 12 months of regular, unprotected intercourse ... Because a small number of normal couples will conceive between one and two years, the World Health Organization (WHO) recommends 24 months of unprotected intercourse as the preferred definition of infertility." The examiner reported that there is no objective evidence that the Veteran had 12 to 24 months of regular unprotected intercourse with the same female partner. She further reported that for a male to have had unprotected intercourse over his lifetime and never caused a pregnancy does not necessitate the diagnosis of infertility. The June 2012 VA examination report appears to have been based upon thorough review of the record, thorough examination of the Veteran and thoughtful analysis of the Veteran's entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. The Board notes that a VA treatment record dated August 2005 indicates an assessment of "possible aspermia" after a physical examination of the Veteran. The treatment record further noted "[Veteran] needs a sperm count but this is done through [primary care] provider." However, there is no indication that the Veteran underwent the subsequent sperm count. Indeed, the Veteran testified at the August 2011 Board hearing that he had not received a test for infertility, and that no one had ever told him that he was impotent. Further, as discussed above, the June 2012 VA examination report indicated essentially normal results with regard to a reproductive systems examination of the Veteran. Moreover, the Court has held that medical evidence which is speculative, general or inconclusive in nature cannot support a claim. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Thus, the diagnosis of "possible aspermia" rendered during the August 2005 VA evaluation is of no probative value. In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Board notes that the Veteran, while entirely competent to report his symptoms both current and past (including inability to impregnate women), has presented no clinical evidence of a diagnosis of an infertility disability. The Board finds that the Veteran as a lay person is not competent to associate any of his claimed symptoms to an infertility disability. Such opinion requires specific medical training and is beyond the competency of the Veteran or any other lay person. In the absence of evidence indicating that the Veteran has the medical training to render medical opinions, the Board must find that his contention with regard to a diagnosis of an infertility disability to be of no probative value. See also 38 C.F.R. § 3.159(a)(1) (2012) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Accordingly, the statements offered by the Veteran in support of his own claim are not competent evidence of a current infertility disability. The Veteran has been accorded ample opportunity to present competent evidence in support of his claim. He has failed to do so. See 38 U.S.C.A. § 5107(a) (West 2002). The Court has held that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190. 192 (1991) ("the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). Because the competent evidence of record does not support a finding that it is as likely as not that the Veteran has a current diagnosis of infertility, the first Hickson element is not met as to this claim, and service connection is not warranted on that basis. See Degmetich v. Brown, 104 F.3d 132 (Fed. Cir. 1997); see also Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection cannot be granted if the claimed disability does not exist]. In conclusion, for the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for infertility. The benefit sought on appeal is accordingly denied. ORDER Entitlement to service connection for infertility, to include as due to radiation exposure during active service is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs