Citation Nr: 1333012 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 13-08 099 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for infertility, to include as due to an undiagnosed illness. ATTORNEY FOR THE BOARD Sarah Plotnick, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2003 to December 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Veteran contends that he suffers from infertility as a result of active service, to include as due to environmental exposures coincident with his service in Southwest Asia. Specifically, he states that he served in Iraq from July 2006 to September 2006 and was exposed to air pollution, insecticides, and unknown air and water toxins. The Veteran's service treatment records (STRs) include a pre-deployment assessment dated in June 2006 and a post-deployment assessment dated September 2006. However, his DD 214 does not indicate that he had any foreign service. While the RO has acknowledged the Veteran's service in Iraq, while on remand, the Veteran's service personnel records detailing such foreign service should be obtained. The Board further finds that a remand is necessary in order to obtain an addendum opinion regarding the etiology of the Veteran's infertility. In this regard, his STRs show that he was diagnosed as having a low sperm count in August 2007. Private treatment records likewise show testing with a resultant diagnosis of infertility. Additionally, at an October 2010 VA examination, male infertility with oligospermia and asthenospermia were diagnosed. At such examination, the examiner interviewed the Veteran, reviewed the record, and offered an opinion regarding the etiology of his infertility. In this regard, he opined that it was not as likely as not that the Veteran's impaired fertility condition is related to his Gulf War experience. The examiner noted that he had limited exposure to environmental factors as he was not in combat and was in Iraq for a relatively short period, and no known direct exposure to toxins or ionizing radiation, or history of chemotherapy. Additionally, research has not found fertility problems in Gulf War Veterans. While the examiner addressed whether the Veteran's infertility is related to his exposure to in-service toxins coincident with his service in Southwest Asia, he did not offer an opinion regarding whether such disorder began during service, or is otherwise related to his military service, to include his in-service diagnosis of a low sperm count in August 2007. Furthermore, additional private treatment records were also associated with the record subsequent to the October 2010 VA examination. Such reflect that the Veteran had an atrophic left testicle, a left epididymal cyst, and bilateral varicoceles. Additionally, it does not appear that the October 2010 VA examiner considered whether the Veteran's infertility is due to an undiagnosed illness. In this regard, subject to various conditions, service connection may also be granted for a disability due to a qualifying chronic disability of a Veteran who served in the Southwest Asia Theater of operations during the Persian Gulf War provided that such disability became manifest during either active service in the Southwest Asia Theater of Operations during the Persian Gulf War or to a degree of 10 percent or more, under the appropriate diagnostic code of 38 C.F.R. Part 4, not later than December 31, 2016, and by history, physical examination, and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317 (a)(1). Therefore, the Board finds that a remand is necessary in order to obtain an addendum opinion so as to allow the examiner to consider the additional private treatment records and offer etiological opinions regarding whether the Veteran's infertility is directly related to service, to include his in-service low sperm count, and/or is due to an undiagnosed illness. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (finding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's service personnel records for his period of active duty from October 2003 to December 2007. 2. Return the claims file, to include a copy of this remand, to the October 2010 VA examiner for an addendum opinion. If the October 2010 examiner is not available, the claims file should be provided to an appropriate medical professional to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician offering the addendum opinion. Following a review of the record, to include the private treatment records associated with the claims file subsequent to the October 2010 VA examination, the examiner should offer an opinion on the following: (A) The examiner should specifically state whether the Veteran's infertility is attributed to a known clinical diagnosis. (B) If diagnosed disorder(s) are established, the examiner should render an opinion as to whether it is at least as likely as not that any such disorder had its onset during the Veteran's active duty service or is otherwise related to such service, to include his in-service diagnosis of a low sperm count in August 2007. (C) If the Veteran's infertility cannot be ascribed to any known clinical diagnosis, specify whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that have either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. A complete rationale for all opinions and conclusions reached should be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. His claim should be considered on both a direct basis and due to an undiagnosed illness. If his claim remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).