Citation Nr: 21000853 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 15-42 706A DATE: January 6, 2021 ORDER Entitlement to service connection for a male reproductive disability, to include atrophy of the testicles and sterility, claimed as due to radiation and herbicide exposure, is denied. FINDING OF FACT The Veteran’s male reproductive disability clearly and unmistakably pre-existed service and was not aggravated by service. CONCLUSION OF LAW The criteria for service connection service connection for a male reproductive disability, to include atrophy of the testicles and sterility, claimed as due to radiation and herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1949 to July 1974, including service in Vietnam. He died in May 2017. The appellant is the Veteran’s widow. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision by a Department of Veterans Affairs Regional Office (RO). In October 2017, the appellant was substituted as the claimant for the current issue on appeal that was pending at the date of the Veteran’s death. In December 2018, the appellant testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. At that time, the Board held the record open for 60 days in order to obtain additional evidence. In May 2019 and June 2020, the case was remanded for further development. Service connection for a male reproductive disability, to include atrophy of testicles and sterility, claimed as due to radiation and herbicide exposure. The Veteran’s surviving spouse asserts that the Veteran’s male reproductive disability, including testicular atrophy and sterility, was related to service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection nonetheless may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing entitlement to direct service connection generally requires: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation between the disease or injury in service and the currently claimed disability - which is the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. The Veteran’s service treatment records show that on his June 1949 report of medical history at enlistment, the Veteran reported that he had had the mumps. At his June 1949 enlistment examination, the Veteran was found not to have any significant abnormalities of the genitourinary system. At an August 1951 periodic medical examination, the Veteran was noted to have had mumps in 1947 followed by testicular involvement. At a December 1958 regular Air Force commission examination, the Veteran was noted to have marked testicular atrophy bilaterally. It was noted that the atrophy was secondary to mumps orchitis, which occurred prior to service when the Veteran was in his teens. On his February 1974 report of medical history upon retirement, the Veteran reported that he was in good health. At a January 1977 genitourinary consultation, it was noted that the Veteran was seen for orchitis epididymitis. The Veteran gave a history that about two months previously he had onset of pain and discomfort in the area of the right testicle. The type of the pain that the Veteran described was a pressure or squeezing sensation in the area of the right testicle. The Veteran also noted that he had observed some increasing impotence over the past few months, indicating that he was not able to get a full erection and sometimes was not able to get an erection at all. However, he was able to have intercourse and reach a climax. It was also noted that the Veteran was given an oral course of an antibiotic and the treating medical professional believed that the pain and discomfort had improved somewhat. The Veteran reported that at age 18, he had the mumps and then developed bilateral mumps/orchitis. He noted that both testicles swelled, and he was in considerable distress. After this had resolved, and just prior to his marriage, he was found to be sterile. However, he had not had any problems with impotence until the present illness. He also denied any history of further acute swelling of either the testis or scrotum since the mumps/orchitis had resolved. In addition, the Veteran denied any known history of urinary tract infection, no hematuria, no obstructive symptoms and no history of any calculus disease. He did give a history of what possibly sounded like recurrent prostatitis. Physical examination showed that both testes were atrophic, a typical finding with post-mumps orchitis. They were about ¼ the normal size, soft in consistency. The epididymides were also small and there were some areas of tenderness over the epididymis but there was no evidence of induration on either epididymis. Both vas and cords felt essentially normal and there was no evidence of hernia. The pertinent diagnoses were probably psychogenic impotence that the treating medical professional thought with reassurance, would clear up, and previous bilateral mumps epididymal orchitis with subsequent post and inflammatory atrophy. In a November 1984 letter, the Department of the Air Force Occupational and Environmental Health Laboratory reported on the recorded radiation doses for the Veteran incurred on duty during U.S. government atmospheric testing. It was noted that the Veteran had recorded radiation doses of 0.23 rem gamma and 0.070 beta during the Ranger tests in 1951; 0.005 rem gamma during the Greenhouse tests in 1951 and 0.094 rem gamma during the Ivy tests in 1952. It was also noted that the Federal standard for a maximum radiation dose during any 12-month consecutive period was 5 rem. Air Force research indicated that less than one percent of all atmospheric test participants exceeded these Federal standards and all these individuals had been specifically notified. It was concluded that the consensus of the medical and scientific communities was that the risk of any health effect from exposures such as were experienced by the overwhelming majority of the atmospheric test participants would be slight. In an October 2003 rating decision, service connection for erectile dysfunction was granted as secondary to the Veteran’s service-connected diabetes. Also, special monthly compensation for loss of a creative organ due to erectile dysfunction was granted. At a November 2004 VA examination, the examiner diagnosed the Veteran with erectile dysfunction, which he found was at least as likely as not related to the Veteran’s diabetes. The examiner also indicated that there was an incidental finding of sterility probably related to the Veteran’s radiation exposure while he was in the military. In a March 2020 medical opinion, a VA nurse practitioner found that the Veteran’s male reproductive condition of atrophy of the testicles and sterility was less likely than not related to, caused by, or aggravated by the Veteran’s military service. The nurse practitioner noted that complications of mumps, include testicular atrophy, orchitis and decreased sperm count. The nurse practitioner indicated that there was documentation on the reports of medical history in 1958 of the Veteran having mumps in his teens, which was complicated by bilateral orchitis and which was not symptomatic in 1958. In an August 2020 VA contract medical opinion, a VA contract physician opined that the Veteran’s testicular atrophy with orchitis clearly and unmistakably existed prior to service and clearly and unmistakably was not aggravated beyond its natural progression by any in-service injury, event or illness. The physician commented that the Veteran’s testicular atrophy due to mumps orchitis was well-documented, including an annual examination in August 1951, an interim exam in December 1958 and a separation examination in December 1974. The physician noted that the 1958 examination specifically noted that marked testicular atrophy occurred prior to service. Therefore, no further aggravation of the testicular area was possible as the mumps orchitis had run its course with resultant testicular atrophy and dysfunction. This would include infertility due to azoospermia, which more likely contributed to the Veteran’s erectile dysfunction. The physician also commented that the Veteran’s hypotestosteronemia was almost certainly due to the pre-existing testicular atrophy. The physician noted that the opinion rendered in 2004 clearly did not account for the mumps orchitis. Moreover, the Veteran had no other manifestations of radiation disease. Therefore, the physician found that general 2004 opinion should be discounted. The physician found that in sum, the pre-existing testicular atrophy was the endpoint of the mumps orchitis and was responsible for all the manifestations. Therefore, aggravation beyond the natural course was not possible. This included Agent Orange exposure (due to the Veteran’s Vietnam service) as well as radiation exposure during Air operations. Every veteran who served in the active military, naval, or air service after December 31, 1946 is taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. §§ 1111, 1137. Only those conditions recorded in examination reports can be considered as “noted.” A history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304(b)(1). To rebut the presumption of sound condition for conditions not noted at entrance into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003), 70 Fed. Reg. 23027 (May 4, 2005). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, the second step necessary to rebut the presumption of soundness, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C. § 1153. In this case, the Veteran was not noted to have male reproductive disability, to include testicular atrophy and sterility, at the time of entrance into service. Consequently, concerning this disability, the Veteran is presumed to have been sound upon entry into service. Accordingly, to rebut this presumption, there must be clear and unmistakable evidence that the male reproductive disability pre-existed service and was not aggravated by service. The above summarized evidence shows that the Veteran reported on his June 1949 enlistment report of medical history that he had had the mumps. Subsequently, during the December 1958 commission examination, the Veteran’s marked testicular atrophy was clearly noted and at that point, the Veteran clarified that the atrophy had occurred when he suffered orchitis as a complication of the mumps prior to enlistment. Similarly, during the January 1977 genitourinary consultation, the Veteran gave a history of having the mumps at age 18, prior to entry, and developing the “mumps orchitis” at that time. He elaborated that both testicles swelled, and he was in considerable distress, and denied any history of further acute swelling of either the testis or scrotum since the mumps/orchitis had resolved. Additionally, physical examination showed that both testes were atrophic, a finding that was noted to be typical of post-mumps orchitis. Further, in August 2020, the VA contract physician, after review of the claims file, specifically concluded that the Veteran’s testicular atrophy with orchitis clearly and unmistakably existed prior to service, noting that the testicular atrophy due to mumps had been well documented as occurring prior to service, including at the August 1951 annual examination, the December 1958 examination and at the December 1974 separation examination with the December 1958 examination specifically noting that the marked testicular atrophy occurred prior to service. Additionally, the March 2020 VA nurse practitioner also noted the documentation on the report of medical history in 1958 of the Veteran having mumps in his teens, which was complicated by bilateral orchitis. Moreover, there is no medical opinion evidence to the contrary (i.e. a medical opinion tending to indicate that the orchitis/testicular atrophy did not pre-exist service). Further, neither the Veteran nor the appellant has specifically alleged that the orchitis with testicular atrophy did not pre-exist service. Accordingly, the evidence is clear and unmistakable (i.e. undebatable) that the Veteran’s male reproductive disability pre-existed service. Notably, the November 2004 VA physician did opine that the Veteran’s sterility was probably related to radiation exposure in service. However, as noted by the August 2020 contract physician, the November 2004 physician was not aware of the Veteran’s history of mumps orchitis. Also, as pointed out by the contract physician, the Veteran had shown no other signs of radiogenic disease. Therefore, due to these major deficiencies, the Board is not able to attach any probative value to the November 2004 opinion. Regarding potential aggravation, the service treatment records do not show any permanent increase in severity of the underlying testicular disability. In this regard periodic examinations, including in August 1951 and December 1958, noted that the Veteran had underlying testicular disability, which pre-existed service with the December 1958 examination specifically noting the testicular atrophy, which had occurred prior to service. However, neither of these examinations show any indication of any permanent worsening of this pre-existing testicular disability, nor do any of the other service treatment records. To the contrary, on his February 1974 report of medical history at retirement, the Veteran reported that he was in good health. Similarly, at the January 1977 genitourinary consultation, a few years after separation, the Veteran denied any history of further acute swelling of either testis or scrotum since his initial mumps/orchitis had resolved prior to service. Additionally, in the August 2020 opinion, the VA contract physician specifically opined that the Veteran’s testicular atrophy with orchitis clearly and unmistakably was not aggravated beyond its natural progression by military service. The physician supported this opinion with a specific rationale; that the 1958 examination specifically noted the marked testicular atrophy occurring prior to service, indicating that no further aggravation of the testicular area was possible as the mumps orchitis had run its course with resultant testicular atrophy and dysfunction, including infertility due to azoospermia, which more likely contributed to the Veteran’s erectile dysfunction and hypotestosteronemia. Moreover, there is no opinion of record to the contrary (i.e. an opinion tending to indicate that the pre-existing testicular atrophy/orchitis was aggravated by the Veteran’s military service). Accordingly, the evidence clearly and unmistakably indicates that the Veteran’s pre-existing testicular atrophy/orchitis was not aggravated by his military service, to include radiation exposure and herbicide exposure therein. In sum, because the Veteran’s testicular atrophy/orchitis clearly and unmistakably pre-existed service and clearly and unmistakably was not aggravated by service and because his underlying male reproductive disability is shown to have resulted from this pre-existing disability, service connection for male reproductive disability, to include atrophy of the testicles and sterility, is not warranted. 38 C.F.R. §§ 3.303, 3.304; Wagner, 370 F.3d 1089, 1096 (Fed. Cir. 2004) The claim is denied. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dan Brook, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.