Citation Nr: 1320775 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 04-09 974 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for aspermia, to include as due to ionizing radiation exposure. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from July 1945 to December 1946. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO). This case was remanded by the Board in February 2006 for additional development. In July 2007, the Board denied the Veteran's claim. He appealed the denial of several issues, including entitlement to service connection for aspermia, to the United States Court of Appeals for Veterans Claims (Court). In a February 2009 Order, the Court vacated the Board's decision and remanded this appeal for further development consistent with instructions in a February 2009 Joint Motion for Remand. Subsequently, the case was again remanded by the Board in August 2009 for additional development. In June 2011, the Board issued a decision which again denied the claim on appeal. The Veteran appealed that decision to the Court. In a March 2012 Memorandum Decision, the Court vacated the part of the Board's June 2011 decision which denied service connection for aspermia and remanded the matter to the Board for readjudication. FINDINGS OF FACT 1. The Veteran was exposed to approximately 22.5 rem of ionizing radiation during his period of service as an x-ray technician. 2. The preponderance of the competent evidence of record is against a finding that the Veteran's currently diagnosed aspermia is related to service, to include as due to ionizing radiation exposure. CONCLUSION OF LAW Aspermia was not incurred in, or aggravated by, active service, and may not be presumed to have been so incurred, to include as due to ionizing radiation exposure. 38 U.S.C.A. §§ 1110, 1112, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the Veteran, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in February 2002, February 2006, June 2006, and October 2009. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the adjudication in the supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the Veteran of any evidence that could not be obtained. The Veteran has not referred to any additional, unobtained, relevant, available evidence. VA has obtained multiple expert opinions with respect to the claim. In an April 2013 statement, the Veteran's representative argued that it was improper for VA to seek an additional medical opinion in November 2012. The representative claimed that the Board should not have been permitted to obtain a medical opinion, as the "only conceivable reason for VA to do so was to obtain adverse evidence to refute the claim." The Veteran's representative argued that where favorable evidence in the record is un-refuted it would not be permissible for VA to undertake further development if the purpose was to obtain evidence against an appellant's claim. Mariano v. Principi, 17 Vet. App. 305 (2003). The Board notes that the Veteran's representative has apparently overlooked the requirement that the cited holding only applies when the favorable evidence of record was "unrebutted." Mariano v. Principi, 17 Vet. App. 305 (2003). However, there are multiple reports of record which contribute evidence which rebuts the argument that the Veteran's aspermia is related to exposure to radiation. Those reports include a July 1958 addendum to a March 1958 VA hospital discharge report, a September 2006 letter for the Director of the VA Occupational Health Sciences department, an October 2006 radiation review report from the VA Chief Public Health and Environmental Hazards Officer, a November 2006 advisory opinion from the Acting Director of the VA Compensation and Pension Service, and a February 2010 letter from a Radiation Safety Staff Officer with the United States Army Medical Command. Therefore, the Board finds that the cited case is inapplicable to the claim on appeal. In addition, the Board emphasizes that the March 2012 Court decision itself specifically stated that the Board needed to re-evaluate the medical opinions of record and consider whether the evidence was sufficient to trigger the low threshold required to obtain a further medical opinion. The Board interpreted that statement as an indication the Court itself believed that another medical opinion was warranted. Finally, the Board emphasizes that the Veteran's representative specifically argued in a December 2011 Brief that VA had failed to obtain an adequate VA examination and that, for multiple reasons, "the case should be remanded for a new medical opinion." The Veteran's representative asked for a remand from the Court for a new medical opinion, obtained that remand and medical opinion, and then, after being presented with an unfavorable medical opinion, protested the Board's decision to obtain the medical opinion. In light of that situation, the Board finds the argument of the Veteran's representative to be unpersuasive. In the April 2013 statement, the Veteran's representative also argued that the questions that the January 2013 medical opinion answered did not address the relevant medical evidence from a private physician. The Veteran's representative is referring to a December 2010 opinion from a private physician which found that the Veteran was predisposed to infertility due to his thyroid disorder and that, as a result, lower doses of radiation than normal would have contributed to the Veteran's aspermia. The Board notes that it specifically requested that the specialist provide an opinion as to whether the Veteran's aspermia was related to his exposure to ionizing radiation as an x-ray technician, and stated that, in rendering the opinion, the specialist should address the December 2010 opinion from a private physician to the effect that a thyroid disorder can make an individual more susceptible to fertility problems, and that because of the Veteran's thyroid disorder, he was more likely than not predisposed to infertility, and it was more likely than not, because of that predisposition, even lower doses of radiation exposure would have contributed to his aspermia and would explain the complete absence of spermatogenic cells observed in the biopsies. The Board emphasizes that report is a near verbatim citation of all portions of the December 2010 opinion from a private physician which discussed the Veteran's predisposition to infertility due to his thyroid disorder. Therefore, the Board's questions to the medical expert appropriately addressed the point raised by the Veteran's representative. The Board notes that the January 2013 opinion itself lists the questions asked without any reference to that point. However, in the body of the opinion itself, the expert specifically listed the December 2010 opinion in a chart of prior findings. That listing included a summary of the private physician's findings with regard to the Veteran's predisposition to infertility due to his thyroid disorder. Accordingly, the evidence of record shows that the expert who wrote the January 2013 opinion considered the findings of the December 2010 opinion, as requested by the Board. Finally, in the April 2013 statement, the Veteran's representative argued that the expert who provided the January 2013 opinion did not possess the necessary medical education and training to address the etiological medical opinions expressed by the private physician who wrote the December 2010 opinion. The Board specifically requested that the medical opinion be provided by a specialist in radiation physics. The request was referred to the Chief of Staff of the VA Medical Center in Pittsburgh, Pennsylvania. The Chief of Staff then assigned the request to the person who provided the opinion, whose qualification was listed as a Master of Science in Health Policy Research, with the position of Radiation Safety Officer for the VA Pittsburgh Healthcare System. The Board notes that, while the opinion was not provided by a medical doctor, the Board did not specifically ask for a medical doctor to provide the opinion. The Board requested a specialist in radiation physics, and left the decision as to who best met that qualification up to the Chief of Staff of the VA Medical Center in Pittsburgh, Pennsylvania. The Board notes that the Chief of Staff is not only a medical doctor, but is also a supervisor of numerous medical professionals. Accordingly, the Board finds that the Chief of Staff is competent to determine the person on staff who was best qualified to provide the expert medical opinion requested by the Board. As the Chief of Staff chose the Radiation Safety Officer, the Board considers that to be strong evidence that the Radiation Safety Officer was the most qualified person to answer the Board's questions. In addition, the Board notes that the Veteran's representative is an attorney and the evidence does not show that the representative has medical training or certification of any kind. Therefore, the Veteran's representative's statements carry relatively little probative weight in the determination of the level of medical education and training required to address the etiological opinion in question. The fact remains that the Radiation Safety Officer was found to be the proper expert by the Chief of Staff of the VA Medical Center in Pittsburgh, Pennsylvania, a person with far greater qualifications to make that determination than either the Board or the Veteran's representative. Therefore, the Board finds that the expert who provided the January 2013 opinion possessed the necessary education and training to address the etiological questions asked by the Board. Therefore, the Board finds that the January 2013 opinion is adequate for VA purposes. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Veteran contends that he currently experiences aspermia due to exposure to ionizing radiation during service. The Veteran's service records show that he served as an x-ray technician in 1945 and 1946. VA has concluded that, during that time the Veteran was in active service, x-ray technicians were occupationally exposed to ionizing radiation and were classified as Occupational Radiation Workers. Accordingly, for the purposes of this appeal it has been presumed that the Veteran was exposed to ionizing radiation during service for VA purposes. Service connection for a disorder which is claimed to be attributable to radiation exposure during service can be accomplished in three different ways. Ramey v. Brown, 9 Vet. App. 40 (1996). First, there are specific diseases which may be presumptively service-connected if manifest in a radiation-exposed Veteran. A radiation-exposed Veteran is one who participated in a radiation-risk activity. While the Veteran did not engage in a radiation-risk activity as defined by 38 C.F.R. § 3.309(d), as noted above VA has concluded that he was exposed to ionizing radiation during active military service. Therefore, the Board finds that the Veteran is a radiation-exposed Veteran for the purposed of 38 C.F.R. § 3.309(d). 38 U.S.C.A. § 1112(c) (West 2002); 38 C.F.R. § 3.309(d) (2012). In applying that statutory presumption, there is no requirement for documenting the level of radiation exposure. However, the Veteran cannot avail himself of this avenue of recovery as aspermia is not among the specific listed diseases eligible for the service connection presumption under 38 U.S.C.A. § 1112(c) or 38 C.F.R. § 3.309(d). Therefore, presumptive service connection is not warranted for aspermia under the provisions of 38 C.F.R. § 3.309(d). 38 C.F.R. § 3.309(d) (2012). The second avenue of recovery is found under 38 C.F.R. § 3.311(b)(2). That provision provides that certain listed radiogenic diseases found five years or more after service in an ionizing-radiation-exposed Veteran may be service connected if the VA Undersecretary for Benefits determines that they are related to ionizing radiation exposure while in service or if they are otherwise linked medically to ionizing radiation exposure while in service. When it has been determined that: (1) a Veteran has been exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons, the occupation of Hiroshima or Nagasaki, Japan, from September 1945 until July 1946, or other activities as claimed; (2) the Veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest in the period specified, the claim will be referred to the VA Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). When such a claim is forwarded for review, the VA Undersecretary for Benefits shall consider the claim with reference to 38 C.F.R. § 3.311(e) and may request an advisory medical opinion from the VA Undersecretary of Health. 38 C.F.R. § 3.311(b), (c)(1) (2012). The medical adviser must determine whether sound scientific and medical evidence supports a conclusion that it is at least as likely as not that the disease resulted from in-service radiation exposure or whether there is no reasonable possibility that the disease resulted from in-service radiation exposure. 38 C.F.R. § 3.311(c)(1) (2012). A radiation-exposed Veteran is one who participated in a radiation-risk activity which includes participation in the atmospheric testing of nuclear weapons. 38 C.F.R. §§ 3.309(d)(3) (2012). As discussed above, the evidence shows that the Veteran is a radiation-exposed Veteran. However, as with the presumption under 38 C.F.R. § 3.309(d), aspermia is not among the specific listed diseases eligible for the service connection presumption under 38 C.F.R. § 3.311(b)(2). Therefore, presumptive service connection is not warranted for aspermia under the provisions of 38 C.F.R. § 3.311. 38 C.F.R. § 3.311 (2012). Regarding the third avenue of recovery, the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724 (1984), does not preclude a Veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). In addition, 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). The determination as to whether the requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999). The Veteran's service medical records are negative for any complaints or diagnosis of aspermia. After separation from service, a November 1955 letter from a private physician stated that the Veteran was being treated for sterility. The letter noted that the Veteran had been an x-ray technician during service and had been taken off of that duty due to leucopenia. The private physician stated that the Veteran's sterility could be related to over exposure to x-rays. The medical evidence of record shows that aspermia has been consistently diagnosed since November 1955. A December 1955 letter from a private physician stated that, from the Veteran's history of exposure to x-rays in the Army and his history of leukopenia during that time, it was felt that it was not illogical to conclude that the aspermia was a direct result of radiation and was therefore a service connected disability. A January 1956 letter from a private physician stated that it was the opinion of the private physician and a pathologist that the Veteran's aspermia findings were consistent with the changes that follow exposure to radiation. The letter noted that the Veteran worked as an x-ray technician during service but stated that the private physician and the pathologist were not in any position to evaluate the amount or extent of radiation exposure that the Veteran experienced. The letter stated that such a finding could only come from a review of the Veteran's service records. In a February 1957 statement, the Veteran reported that he had been married for approximately five years before he visited a family physician concerning children, at which time he was found to be sterile. In a November 1957 letter, a veterinary doctor stated that he had served as a medical laboratory technician with the Veteran. The letter stated that the Veteran had been found to have a low blood count on testing in approximately August 1946, and that rest and sunshine were prescribed at that time. A February 1958 VA medical report stated that the Veteran was seen for evaluation of aspermia. The report noted the Veteran's history of exposure to radiation as an x-ray technician during service, with a subsequent finding of aspermia following treatment by a private hospital in November 1955. The report stated that the Veteran was married in September 1951 and had no children. A March 1958 VA hospital discharge report stated that the Veteran had been treated for aspermia from February 1958 to March 1958. The report stated that medical records had been obtained from a private hospital which found that the Veteran had undescended testicles and orchitis as a child. The report stated that the precise diagnosis of the Veteran's sterility could not be determined at that time, and that they were waiting for a report and opinion from the Army Museum of Pathology. The report stated that the etiology of the Veteran's aspermia had yet to be determined. A July 1958 addendum to the March 1958 VA hospital discharge report noted the Veteran's diagnosis of sterility due to radiation by x-ray from a November 1955 private hospital. It was stated that the report of the pathology department was that there was no apparent etiology for the Veteran's loss of spermatogenesis, but stated that evidence of a radiation reaction was not seen and that the Veteran showed none of the residual findings necessary to establish a significant radiation effect 12 years earlier. The report stated that, in the case of total body radiation, the complete and permanent depression of spermatogenesis did not occur below fatal levels. It also stated that a contemporary study of testicular tumors treated with high doses of radiation found that 15 out of 33 married men were fertile after treatment. The report stated that those reports were not felt satisfactory, and as such the Armed Forces Institute of Pathology at Walter Reed Medical Center was consulted. The chief of the laboratory service of that institute responded, stating the etiological information listed above. The VA physician who wrote the addendum then opined that the claimed amount of radiation the Veteran was exposed to would not cause his particular reaction. As a result, the physician opined that the Veteran's aspermia was congenital and was not the result of exposure to radiation while in service. A July 2001 letter from a private physician stated that the Veteran had documented sterility that was suspected to have been caused by exposure to radiation during his service as an x-ray technician. The private physician opined that there was a possibility that the sterility could have been caused by the repeated radiation exposure. A second July 2001 letter from a private physician stated that the Veteran was a former x-ray technician and was subsequently found to be sterile. The letter stated that sterility had been associated with radiation exposure, and opined that the Veteran's sterility was related to his radiation exposure. An October 2001 letter from a private physician opined that it was possible that the Veteran's radiation exposure from his time as an x-ray technician could have contributed to, or been the complete explanation for, his sterility. In a June 2005 hearing before the Board, the Veteran stated that he was prompted to seek the medical testing that eventually resulted in the diagnosis of aspermia after failing to have children for several years after his marriage in 1951. A September 2006 letter from the Health Physics Program at the United States Army Center for Health Promotion and Preventative Medicine concluded that the Veteran was exposed to approximately 22.5 rem of ionizing radiation during his period of service as an x-ray technician. That finding was based on an over-estimation of the Veteran's exposure, and that the majority of all military x-ray technicians did not exceed an annual dose of half that rate. An October 2006 radiation review report from the VA Chief Public Health and Environmental Hazards Officer noted that the Veteran had an occupational exposure rate of 22.5 rem of ionizing radiation and stated that azospermia may occur after doses of greater than 100 rads, and permanent sterility could occur after doses of 600 rads. Therefore, the VA physician opined that it was unlikely that the Veteran's aspermia could be attributed to occupational exposure to ionizing radiation in service. Based on that letter, a November 2006 advisory opinion from the Acting Director of the VA Compensation and Pension Service stated that there was no reasonable possibility that the Veteran's aspermia resulted from radiation exposure in service. An October 2009 letter from a private physician noted the Veteran's medical history and in-service history of exposure to radiation. The letter stated that the Veteran had previously been found to have aspermia which was felt to be related to his repeated exposure to x-ray radiation during service. The private physician opined that such a cause and effect relationship was quite plausible, and the private physician would support the Veteran's claim along that line. A second October 2009 letter from a private physician noted the Veteran's medical history and in-service history of exposure to radiation. The physician opined that the Veteran's aspermia was most probably caused by his exposure to x-ray radiation during his service as an x-ray technician. A February 2010 letter from a Radiation Safety Staff Officer with the United States Army Medical Command stated that the radiation dose estimate provided in the September 2006 letter was still valid and should be used as the dose estimate for the Veteran's exposure. In a December 2010 statement, a private physician affirmed that an attached document accurately stated his professional medical opinion regarding the Veteran's aspermia, and that the opinion was based upon his care and treatment of the Veteran and his review of the relevant medical records. The attached page dealing with aspermia made several statements. First, that the examiner was aware that the Veteran had a history of undescended testicles and orchitis as a child. Second, that the private physician had examined the Veteran and could find no evidence of undescended testicles. Third, that a thyroid disorder could make an individual more susceptible to fertility problems. Fourth, because of the Veteran's thyroid disorder, the Veteran was more likely than not predisposed to infertility. Finally, that more likely than not, because of that predisposition, even lower doses of radiation exposure would have contributed to the Veteran's aspermia and would explain the complete absence of spermatogenic cells observed in biopsies. A January 2013 specialist opinion from a VA radiation safety officer included a thorough review of the relevant evidence of record. The specialist stated that relevant published literature had been reviewed on the topic, and included a thorough summary of relevant findings regarding radiation exposure and aspermia. The specialist stated that the radiation dose thresholds for permanent aspermia were determined to range from 2 to 6 Grays (Gy). The specialist then noted that the Veteran's total occupational dose was 0.225 Gy, and that his dose would have to be 8 to 26 times higher before it exceeded the radiation dose threshold for permanent aspermia. The specialist also stated that relevant literature stated that it was inferred that human testes could tolerate 1 mGy/day of occupation irradiation for an indefinite period of time without impairment of fertility. The specialist then calculated that the Veteran's daily exposure to occupational radiation was in the range of 0.75 mGy/day to 0.9 mGy/day, and stated that those values were below the inferred threshold. The specialist found that the Veteran's reported occupational radiation dose was significantly less than either of the thresholds for radiation induced aspermia or radiation induced hypothyroidism. As a result, the specialist opined that there was less than a 50 percent probability that the Veteran's aspermia had its clinical onset in, or was otherwise related to, active service, including exposure to ionizing radiation while working as an x-ray technician. The examiner then stated that the findings were consistent with the assessments made in 1958 and 2006, and disagreed with the December 2010 private physician's assessment. The Board finds that the preponderance of the competent evidence of record is against a finding that the Veteran's currently diagnosed low back disability is related to service. The Veteran's service medical records are negative for any complaints or diagnosis of aspermia. While the medical evidence of record shows that the Veteran has a current diagnosis of aspermia, there is no evidence of record that aspermia was diagnosed prior to November 1955, approximately nine years after separation from service. A prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service resulted in any chronic or persistent disability. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); Mense v. Derwinski, 1 Vet. App. 354 (1991). In addition, the preponderance of the medical evidence of record demonstrates that the Veteran's currently diagnosed aspermia is not related to service, to include as due to ionizing radiation exposure. There are numerous medical and specialist opinions of record which comment on the etiology of the Veteran's currently diagnosed aspermia. Prior to a discussion of the probative value of each opinion, the Board finds that it is particularly important for medical and specialist opinions to take into account and discuss the Veteran's actual estimated radiation exposure. In cases where a determination is being made as to whether a disorder was the result of exposure to radiation, the quantification of the amount of radiation that the subject was exposed to, and the type of radiation, is of particular significance. This significance is so great the it has been codified in 38 C.F.R. § 3.311, which specifically requires VA to obtain dose estimates for radiation exposure in connection with claims for disabilities secondary to exposure to ionizing radiation. The Veteran's aspermia is specifically claimed as secondary to exposure to ionizing radiation. Therefore, the Board finds that consideration of the Veteran's dose estimate is a significant priority for any etiological opinion regarding the issue on appeal. VA has obtained a dose estimate for the Veteran. This estimate was provided in a September 2006 letter from the Health Physics Program at the United States Army Center for Health Promotion and Preventative Medicine, which concluded that the Veteran was exposed to approximately 22.5 rem of ionizing radiation during his period of service as an x-ray technician. That estimate was subsequently confirmed, by a Radiation Safety Staff Officer with the United States Army Medical Command who stated in a February 2010 letter that the radiation dose estimate provided in the September 2006 letter was still valid and should be used as the dose estimate for the Veteran's exposure. There is no evidence of record that indicates that dose estimate is erroneous or otherwise inaccurate. In the absence of any evidence to the contrary, the Board finds that the Veteran was exposed to approximately 22.5 rem of ionizing radiation during his period of service as an x-ray technician. Therefore, the Board finds that any medical or specialist opinion which does not take into account the Veteran's 22.5 rem dose estimate and explain the opinion based on that dose estimate warrants significantly reduced probative weight. With regard to the positive nexus opinions of record, the November 1955, December 1955, January 1956, July 2001, and October 2001 letters from private physicians were all made without the benefit of estimated dose information and did not cite any medical reasoning for their opinions or discuss estimates of dose exposure. Therefore, they all warrant low probative weight. The October 2009 letter from a private physician was conducted after estimated dose information was available, but the letter did not discuss these estimates in any way or otherwise indicate that it had taken the Veteran's estimated radiation exposure into account in making the opinion. Therefore, the Board finds that it also warrants low probative weight. Finally, the December 2010 statement from a private physician included a discussion of a new theory of the case that had not previously been presented. However, it too failed to take the Veteran's actual estimated radiation exposure into account in conjunction with the opinion. As a result, it too warrants low probative weight. With regard to the negative nexus opinions of record, the July 1958 addendum to the March 1958 VA hospital discharge report warrants comparatively higher probative weight than the 1955 and 1956 reports, as its findings were based on the medical evidence of record and contemporary studies into the impact of radiation on male fertility. However, that report was also made without the benefit of estimated dose information, and it did not take into account any predisposition to infertility that the Veteran may have had as a result of a thyroid disorder. Therefore, the July 1958 addendum warrants low probative weight overall. The October 2006 radiation review report from the VA Chief Public Health and Environmental Hazards Officer specifically took into account the Veteran's 22.5 rem dose estimate, and included a detailed rationale based on medical research and documentation. Therefore, it warrants higher probative weight than the medical opinions discussed above. However, it too did not take into account any predisposition to infertility that the Veteran may have had as a result of a thyroid disorder. Therefore, the Board finds that it warrants only moderate probative weight. Finally, the January 2013 specialist opinion from a VA radiation safety officer included a thorough review of the relevant evidence of record and discussed, in detail, the precise thresholds and exposure rates which were relevant for aspermia secondary to exposure to ionizing radiation. That report concluded that the Veteran's total exposure was at a level 8 to 26 times lower than that the threshold for permanent aspermia, and his daily exposure rate was at a level where it was inferred that the exposure could be sustained indefinitely without impairment of fertility. The Board finds those specific applications of the relevant radiation thresholds to the Veteran's estimated dose to be of high probative value. Furthermore, the specialist provided the opinion after consideration of the December 2010 private physician's theory that the Veteran may have been predisposed to infertility as a result of a thyroid disorder. Accordingly, the Board finds that January 2013 specialist opinion warrants high probative weight. Under certain circumstance, lay evidence can be competent and sufficient to establish the etiology or diagnosis of a condition. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Davidson v. Shinseki, 581 F.3d 1313 (2009). However, lay etiological evidence is only competent to the extent that it relies on observable symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Veteran claims that his aspermia is related to in-service exposure to ionizing radiation. However, the Veteran is not competent to state whether his currently diagnosed aspermia is related to radiation exposure. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In addition, the Veteran's statements are not competent to demonstrate continuity of symptomatology of his currently diagnosed aspermia. 38 C.F.R. § 3.307, 3.309 (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). While the Veteran is certainly capable of observing his own infertility, he is not capable of observing the cause of the infertility. In any case, the evidence of record demonstrates that the Veteran attempted to have children beginning no earlier than September 1951. Accordingly, the evidence shows that the Veteran did not observe his own infertility until approximately five years after separation from service. Accordingly, the Board finds that the preponderance of the competent evidence of record is against a finding that the Veteran's currently diagnosed aspermia is related to service. Therefore, the claim is denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for aspermia is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs