Citation Nr: 1338123 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 02-01 256 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for infertility and sterility. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran had active duty service from July 1967 to July 1970. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In May 2006, the Board denied the Veteran's claim for service connection. In March 2013, the Court of Appeals for Veterans Claims (Court) vacated and remanded the Board's decision on this issue. The Board observes that, in the interim between the Board's denial of the claim and the Court's remand, the Veteran sought to reopen his service connection claim. That claim was denied in an August 2010 rating decision. The Board has reviewed all relevant documents in the Veterans Benefits Management System (VBMS) and Virtual VA paperless files in its consideration of the appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for infertility/sterility, claiming that the condition was first diagnosed while on active duty. As background, the Veteran and his spouse married in September 1969, and were unable to conceive during the remaining nine months of his service, or at any time to the present. He informed an October 2003 VA examiner that in 1970, he and his wife underwent a study wherein it was determined that he had a low sperm count; while there is no record of such a study in the service treatment records, his recollection of that study is not controverted by other evidence, and should be considered credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Subsequent to service, he underwent testicular biopsy, and received a diagnosis of hypospermatogenesis in April 1978. The Board also observes that the Veteran was treated for a gonorrheal infection in February 1969 during active duty. It is unclear to the Board whether the currently-diagnosed hypospermatogenesis/low sperm count is a congenital or acquired condition, or whether in may be related to the in-service infection. An examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (holding that where there is evidence of a current disability, and an indication that the current disability may be related to an event or injury in service, but insufficient competent evidence on file to make a decision on the claim, an examination is warranted). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a genitourinary examination to determine the nature and etiology of his hypospermatogenesis/low sperm count. The examiner must review the claims file, all relevant materials in Virtual VA, and this remand. The ensuing report must indicate that such a review occurred. The examiner must provide a full examination to determine the nature and etiology of the Veteran's hypospermatogenesis. All necessary tests and procedures must be performed. Thereafter, the examiner should answer the following questions: (a) Is the hypospermatogenesis condition a congenital defect or an acquired disorder? (b) If the condition is an acquired disorder, is it at least as likely as not that hypospermatogenesis had its onset in service or is due to an event or injury in service (such as the February 1969 gonorrheal infection). (c) In the alternative, is the sterility/infertility secondary to or permanently made worse by any of the service connected disorders? (Service connection for ischemic heart disease, diabetes, and posttraumatic stress disorder.) Is this related to the reported low sperm count reported in service, or the infection in service? The examiner must provide a complete rationale in support of all opinions expressed. If the examiner cannot provide a requested opinion without resort to speculation, he or she should explain why such an opinion would be speculative. 2. After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the examiner documented consideration of Virtual VA, to include all records in the Capri system. If the report is deficient in any manner, the RO must implement corrective procedures at once. 3. The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. Then, readjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and the representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. The appellant 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 of Veterans' Appeals 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. 2013). _________________________________________________ MICHAEL D. LYON 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).