Citation Nr: 1433150 Decision Date: 07/24/14 Archive Date: 07/29/14 DOCKET NO. 10-30 516 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for low sperm count. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from August 2003 to August 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2012 the Veteran remanded the issue for the Veteran to be scheduled for a Board hearing. In November 2012, the Veteran appeared at a hearing before the undersigned. A transcript of the hearing is in the record. The Virtual VA paperless claims processing system and the Veterans Benefits Management System have been reviewed. VA medical records dated from 2008 to 2013 are part of Virtual VA. The other documents in the electronic files are either duplicative of the evidence of record or are not pertinent to the present appeal. FINDING OF FACT The evidence is at least in relative equipoise as to whether the Veteran's low sperm count was incurred in during his active duty service. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, the criteria for service connection for a low sperm count are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 In light of the favorable determination to grant entitlement to service connection for a low sperm count, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide the issue on appeal. See 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159. Service Connection Generally, to prove service connection, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence as to any issue material to the determination, the benefit of the doubt is afforded to the Veteran. Analysis During the appeal period, while the Veteran's sperm count fluctuated the VA medical records show that he has a low sperm count with an impression of infertility. See, e.g. VA treatment records dated in August 2009, September 2009, October 2009, and August 2010. During the November 2012 Board hearing and in multiple statements, to include a statement dated in October 2009, the Veteran related his low sperm count to his service in the Gulf War where he was exposed to high powered antennas and radiation to include microwave radiation. The Veteran's DD 214 shows that the Veteran was a machine gunner and received a Combat Action ribbon for his service in Afghanistan and Iraq. In the case of a Veteran who engaged in combat with the enemy in active service, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease. So long as the evidence is consistent with the circumstances, conditions or hardships of such service, the fact that there is no official record of such incurrence or aggravation in such service is of no consequence. 38 U.S.C.A. § 1154(b). Although the record shows that the Veteran initially was confused about the extent of his exposure to microwave radiation during service, his subsequent statements and testimony clarifying his exposure to microwave radiation are credible as they are consistent with his combat service in the Gulf War. In September 2009 a VA examiner opined that the Veteran's low sperm count was related to his microwave radiation exposure during active duty service. The examiner noted that the Veteran had no other obvious risk factors and microwave exposure was known to impair testicular function. The Board finds this opinion to be highly probative as it is based on medical principles and applied to the facts of the case. Nieves Rodriquez v. Peake, 22 Vet. App. 295 (2008). It is uncontroverted by the other evidence of record. Therefore considering the totality of the evidence, the Board finds that the evidence is at least equipoise on the question of a nexus between service and the low sperm count. Resolving reasonable doubt in the Veteran's favor, the claim of service connection for a low sperm count is granted. 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102. ORDER Service connection for a low sperm count is granted. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs