Citation Nr: 1338577 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-32 053 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for sterility. 2. Entitlement to a disability rating in excess of 10 percent for service-connected muscoviscidosis. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to November 1969. These matters come before the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. By an August 2009 rating decision, the RO continued a 10 percent disability rating for mucoviscidosis. In November 2011, the RO denied entitlement to service connection for sterility. In March 2013, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development. (The issue of entitlement to a disability rating in excess of 10 percent for muscoviscidosis is addressed in the remand that follows the decision below.) FINDING OF FACT Sterility was not manifested during military service and it is not otherwise attributable to military service. CONCLUSION OF LAW The Veteran does not have a sterility disability that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 and 5126 (West 2002 & Supp. 2013) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013), describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the issuance of a late notice may be cured by re-adjudication. In this case, by a May 2010 letter, the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised him of how disability evaluations and effective dates are assigned and the type of evidence that impacts those determinations. The case was last adjudicated in July 2013. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his available service treatment records, service personnel records, post-service private and VA treatment records, VA examination and medical opinion reports, and lay statements. VA has considered and complied with the VCAA provisions discussed above, to include substantial compliance with the prior remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In May 2013, the National Personnel Records Center (NPRC) notified the AOJ that a search for clinical records from the Long Beach Naval Hospital from 1969 was conducted, but no records were located. In a June 2013 letter, the AOJ notified the Veteran that records from Long Beach Naval Hospital were unavailable and invited him to submit any such records he may have in his possession or to inform VA of their location. The Veteran responded, indicating that he did not have the records. The Board is mindful that, in a case such as this, where some service treatment records are unavailable, there is a heightened obligation to explain our findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). While it is unfortunate that the Veteran's service treatment records from Long Beach Naval Hospital are unavailable, the appeal must be decided on the evidence of record. The Board's analysis has been undertaken with this heightened duty in mind. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). 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). To establish service connection for a present disability, there must be: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Holton v. Shinseki, 557 F.3d 1362 (2009). Congenital or developmental defects are not diseases or injuries within the meaning of the applicable law and regulations for VA compensation purposes. 38 C.F.R. § 3.303(c). A defect is a structural or inherent abnormality or condition that is more or less stationary in nature. VAOPGCPREC 82-90. While service connection may be granted, in limited circumstances, for disability due to aggravation of a constitutional or developmental abnormality by superimposed disease or injury (see VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); and Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993)), no competent, credible, and persuasive evidence establishes that such occurred in this case, warranting an award of service connection. The Veteran asserts that as a result of heat exposure and resulting dehydration while on active duty in Vietnam, he is sterile. He claims that he was tested and informed that he was sterile at Long Beach Naval Hospital where he was hospitalized from June 1969 to October 1969 before being discharged from military service for mucoviscidosis after Physical Evaluation Board proceedings. As noted, the NPRC conducted a search for clinical records from Long Beach Naval Hospital dated in 1969 and notified VA that no records were located. In June 2010 correspondence, the Veteran indicated that his first two wives wanted children, and with his second wife 25 or 30 years ago [around 1980 or 1985], he went to see a urologist, who told him that "there were no live ones." He stated that those treatment records were no longer available. Existing service treatment records are silent for complaints, findings, diagnosis, or treatment for reproductive or genitourinary problems, or documentation of any semen analysis. During a February 1971 VA examination to evaluate his original claim of service connection for mucoviscidosis, examination of the genitourinary system was reported as normal. An August 1976 VA hospital summary reflects that the Veteran was admitted for heat intolerance secondary to profuse sweating and a history of abnormal sweat chlorides. Laboratory data included semen analysis, which revealed no sperm. The aspermia was noted to be unexplained. In consultation with the chief of medical services at a different hospital, the doctors agreed that the diagnosis of cystic fibrosis was very questionable because of the absence of pancreatic and pulmonary symptoms. During an August 2009 VA examination to evaluate his claim for an increased rating for service-connected mucoviscidosis, the examining physician reviewed the claims file and obtained a detailed subjective history from the Veteran prior to the physical examination. The Veteran stated that he had not been able to father any children due to problems with inadequate spermatogenesis or motility of sperm, causing some practitioners to further consider the realistic diagnosis back then as cystic fibrosis. During a review of systems, the Veteran denied any sexually transmitted diseases or erectile dysfunction. The examiner concluded that the Veteran "most certainly does not have cystic fibrosis." With his February 2010 claim for service connection, the Veteran reported that he was given a semen test before he was discharged in 1969 and informed that he was sterile. The Veteran was afforded a VA reproductive and genitourinary examination in April 2013. The examining physician reviewed the claims file and obtained a subjective history from the Veteran. The Veteran stated that in 1986 he was seen by a urologist for a work-up and was informed that the sperm were all non-motile. He indicated that there was no cause or treatment, erectile dysfunction or hypogonadism, or urologic signs or symptoms noted. Following a physical examination, the diagnosis was idiopathic asthenospermia, which the examiner noted was a congenital condition. The examiner opined that it was less likely than not that idiopathic asthenospermia or non-motile sperm was incurred in or caused by in-service injury, event, or illness. In support of his conclusion, the examiner explained that idiopathic asthenospermia is a genetic or congenital condition versus acquired and the etiology is unknown. He explained that idiopathic asthenospermia is the most frequent cause of male infertility in the United States. Because men undergo spermatogenesis approximately every two months (64-70 days), if an environmental condition or medication is the cause of asthenospermia, then it would be logical to assume that the condition would reverse following the removal of such condition. In the Veteran's case, he has never been able to produce motile sperm, even in the absence of physical stress or illness. Indeed, this idiopathic asthenospermia for the Veteran is entirely genetic, therefore less likely than not related to service or any events incurred in service. Having reviewed the entire claims file, the Board finds that service connection for infertility, diagnosed as idiopathic asthenospermia, is not warranted. As an initial matter, the Board acknowledges that the Veteran is competent to describe events that occurred during military service such as heat exposure resulting in bouts of dehydration. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Also, the Board does not doubt the Veteran's assertion, despite the absence of records, that he had a semen test at the Long Beach Naval Hospital and was informed that he was sterile. However, to the extent the Veteran believes his sterility is related to service, the Veteran has not shown that he has specialized training sufficient to render an opinion as to the etiology of reproductive disorders, as such matters require medical testing and expertise to determine. Accordingly, his opinion as to the etiology of his sterility is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The only medical opinion to address the question of whether the Veteran's sterility was caused by military service is from the April 2013 VA examiner. The Board finds that this opinion is persuasive and probative evidence against the claim of service connection for sterility because it was based on a review of the claims file and supported by an articulated medical rationale that is consistent with the record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). Here, the physician indicated that idiopathic asthenospermia is a genetic or congenital condition. The physician also explained that it was less likely an acquired condition caused by an in-service injury, event, or illness because men undergo spermatogenesis, and if an environmental or other condition was the cause, then one would expect the condition of asthenospermia to be reversed after removal of the environmental condition. However, the Veteran's asthenospermia did not reverse after separation from the heat exposure and working conditions in Vietnam. Rather, his condition of sterility remained static. Regarding the Veteran's specific contention that heat exposure and dehydration while on active duty in Vietnam caused his sterility, the Board finds that the opinion of the April 2013 examiner adequately addresses the Veteran's theory of causation in that the examiner explained that removal from that environment along with spermatogenesis did not reverse the Veteran's sterility. In summary, the Board finds the opinion of the VA physician is more probative than the Veteran's lay assertions, and the VA medical opinion is uncontradicted in the record by any other medical evidence relative to the specifics of this case. Although muscoviscidosis can be manifested by problems with the reproductive system, there has been no indication that this was so in the Veteran's case. As detailed below, the Veteran contends that he was misdiagnosed with mucoviscidosis during military service and insists that he has never had persistent respiratory symptoms characteristic of mucoviscidosis or cystic fibrosis. The Veteran has also emphasized that VA examiners have confirmed that he does not have mucoviscidosis. The medical evidence likewise tends to corroborate the Veteran's claim, namely that he does not in fact have cystic fibrosis. Logically, therefore, asthenospermia cannot be attributed to mucoviscidosis, including disease manifestation of the male reproductive tract, because competent medical evidence and credible statements from the Veteran regarding the absence of symptomatology typically associated with mucoviscidosis reflect that he does not have mucoviscidosis. In conclusion, the Board finds there is no basis upon which to conclude that the Veteran's sterility is related to military service. See 38 C.F.R. § 3.303. Therefore, service connection for sterility is not warranted and the claim must be denied. In reaching the conclusions above, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for service connection, that doctrine is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for sterility (idiopathic asthenospermia) is denied. REMAND The Board previously remanded the case for additional development in March 2013. The requested development was not completed. The case is again remanded to ensure compliance with the previous remand. See Stegall v. West, 11 Vet. App. 268 (1998). The agency of original jurisdiction (AOJ) attempted to obtain the Veteran's service treatment records showing his hospitalization beginning in June 1969 at Long Beach Naval Hospital, and provided the Veteran with a VA examination to determine whether he in fact has mucoviscidosis that causes his reported symptoms, including heat intolerance. Like the August 2009 VA examiner, the April 2013 VA examining physician concluded that the Veteran did not have mucoviscidosis (cystic fibrosis) based on a review of the claims file and physical examination. Unfortunately, the examiner's reports failed to address the Veteran's contention that he has had increased heat intolerance since his active duty and that he continues to experience symptoms with exposure to heat. The examiner's reports also failed to identify the disability to which the Veteran's symptoms, including heat intolerance, are attributed. As detailed in the prior remand, the Veteran has contended that his service-connected disability, rated under Diagnostic Code 6602, has worsened. The Veteran is service connected at a 10 percent disability rating by analogy under Diagnostic Code 6699-6602 for what was characterized as mucoviscidosis based on service treatment records, including the findings of a Physical Evaluation Board (PEB). Diagnostic Code 6602 pertains to bronchial asthma. 38 C.F.R. § 4.71a, Diagnostic Code 6602 (2013). He has been at this rating since November 1969 when he filed his original claim for service connection for mucoviscidosis. On his original application for VA compensation benefits, he described the nature of his disability as vomiting and dizziness. He alleges that he does not have a respiratory disorder, but instead that his symptoms have always been related to heat intolerance that began to be problematic when he was stationed in Vietnam while on active duty and "left on a hilltop in 100+ degree temperatures for [four] days with no water." Nevertheless, because the 10 percent rating for mucoviscidosis has been in effect for more than 20 years, that rating will not be reduced except upon a showing that such rating was based on fraud. 38 C.F.R. § 3.951 (2013). Service treatment records reflect that the Veteran was treated for dehydration and heat exhaustion in July, August, and September 1968. An August 1969 Medical Board form reflected a diagnosis of mucoviscidosis. He was discharged based on findings of a Medical Board report, reflecting the Veteran's reports that after feeling hot he would develop light-headedness, nausea, and occasional vomiting, followed by abdominal cramps and intermittent leg cramps. The Veteran's activities would be unrestricted during the winter months, but he would have a recurrence of these symptoms during hot weather. Chest x-rays and pulmonary tests were within normal limits. Abnormal tests included sweat chlorides. The Veteran reported that he first began to notice heat intolerance when he was 13 years old, when he had a severe sunburn. Following this incident, the Veteran would notice the onset of unsteadiness, nausea, vomiting, and cramps with exposure to heat. He reported that these incidents were markedly worse in frequency and severity when he was transferred to Vietnam. Indeed, a January 1969 treatment record reflects that the Veteran started having some vomiting with heavy work in the heat as the weather was turning hotter. The Medical Board concluded that, in view of this history and laboratory tests, it was fully expected that the Veteran would develop recurrence of symptoms and would be unable to perform physical exercise in a hot area. The Board notes that the Veteran was also hospitalized from September to November 1968 for treatment of tropical sprue with a 30-pound weight loss. The Veteran has reported that he has had increased heat intolerance since his active duty and that he continues to experience the symptoms associated with his exposure to heat. The Veteran submitted a letter dated in July 2010 from J. Reid, M.D., a private physician, who reported that the Veteran had been a patient for approximately ten years and that he had treated the Veteran on three separate occasions for clinical dehydration with significantly elevated BUN. Dr. Reid related that the Veteran is aware of his susceptibility to dehydration and tries to consume adequate fluids while working at his usual job as an operator/switchman; however, he becomes severely dehydrated on certain occasions. The AOJ should attempt to obtain the private treatment records from J. Reid, M.D. VA examiners in August 2009 and April 2013 determined that the Veteran did not have mucoviscidosis, because while he was found to have abnormal sweat chlorides during active duty when tested on three separate occasions, he did not currently have any chronic endocrine, respiratory, digestive, liver, gallbladder, or pancreas problems. The Board finds that the Veteran should be afforded an additional VA examination to determine the cause of his symptoms of heat intolerance, and whether the service-connected disability over which the Board has jurisdiction should be rated differently. The examiner should elicit reports from the Veteran as to the symptoms associated with his heat intolerance, including gastrointestinal symptoms, and should address the fact that these symptoms apparently only occur coincident to heat exposure, particularly when engaged in strenuous activity or heavy work. On remand, the AOJ should also obtain outstanding treatment records from the Central California VA Healthcare System (HCS), including from Castle and Merced VA community based outpatient clinics (CBOCs), dated from November 2009 to the present that may be related to evaluation and treatment for mucoviscidosis and/or signs and symptoms of heat intolerance, dehydration, nausea, vomiting, or weakness. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. The AOJ should contact the Veteran and request that he identify the names, addresses and approximate dates of treatment for all health care providers, VA and private, who may possess additional records pertinent to his claim. The AOJ should attempt to obtain and associate with the claims folder any medical records identified by the Veteran that are not already of record, including all private treatment records from J. Reid, M.D. Even if the Veteran does not respond, the AOJ should obtain from the Central California VA HCS, including from Castle and Merced VA CBOCs, ongoing records of evaluation and treatment for mucoviscidosis and/or signs and symptoms of heat intolerance, nausea, vomiting, weakness, or dehydration dated from November 2009 to the present. 2. Upon completion of the above, the AOJ should arrange for the Veteran to be scheduled for a VA general medical examination by a clinician with the appropriate expertise to assess the claim. The claims folder must be reviewed by the examiner as part of the examination. All indicated studies, tests and evaluations deemed necessary by the examiner should be performed. The results of such must be included in the examination report. Following a review of the claims folder and examination of the Veteran, the examiner is requested to identify whether the Veteran has a current disability manifested by heat intolerance, increased susceptibility to dehydration, nausea, vomiting, weakness, or other signs and symptoms. If the Veteran does have a current disability, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that any such disability was incurred in or otherwise etiologically related to any incident or disease during active duty, to include his bouts of dehydration in service. The examiner must provide reasons for each opinion. For example, if the Veteran does have a current disability related to military service, the examiner should identify specific evidence from service treatment records that reflects a chronic disease or disability and post-service medical and lay evidence supporting the conclusion that a current disability is related to the in-service findings. Also, the medical reasons for accepting or rejecting the Veteran's statements and theories of entitlement should be set forth in detail. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that definite opinions with respect to disability manifested by increased heat intolerance and dehydration can be obtained.) 3. The AOJ must ensure that the medical examination report(s) and opinions comply with this remand and the questions presented in the request. If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 4. After undertaking any other development deemed appropriate the AOJ should re-adjudicate the issue on appeal, including whether the service-connected disability over which the Board has jurisdiction should be rated differently. If the benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. 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 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). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs