Citation Nr: 21005040 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 18-54 208 DATE: January 28, 2021 ORDER New and material evidence having been received since the prior final denial, the petition to reopen the claim to establish service connection for idiopathic azoospermia (claimed as swollen testicles and low sperm count) is granted. Entitlement to service connection for idiopathic azoospermia (claimed as swollen testicles and low sperm count). is denied. FINDINGS OF FACT 1. In a January 2011 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for idiopathic azoospermia (claimed as swollen testicles and low sperm count); the Veteran did not initiate an appeal or submit new and material evidence in support of such during the appeal period. 2. Evidence submitted since the January 2011 decision, in support of the Veteran’s claim for a testicular disability is new, relates to an unestablished fact and raises a reasonable possibility of substantiating a claim. 3. The most probative evidence reflect that idiopathic azoospermia was not incurred during the Veteran’s active duty. CONCLUSIONS OF LAW 1. The January 2011 denial of service connection for idiopathic azoospermia (claimed as swollen testicles and low sperm count) is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received sufficient to reopen the claim for entitlement to service connection for idiopathic azoospermia (claimed as swollen testicles and low sperm count), and the previously-denied claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for azoospermia (claimed as swollen testicles and low sperm count) have not been met. 38 U.S.C. §§ 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1966 to April 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for idiopathic azoospermia (claimed as swollen testicles and low sperm count) The Veteran was previously denied entitlement to service connection for idiopathic azoospermia (claimed as swollen testicles and low sperm count) by way of a rating decision in January 2011. Notice of the rating action was provided that same month. The Veteran did not appeal the decision or submit new and material evidence in support of such during the appeal period, and thus, and the rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Generally, a claim that has been denied in a final unappealed RO decision may not be reopened and re-adjudicated. 38 U.S.C. § 7105(c). An exception to that rule is that if new and material evidence is presented or secured with respect to a claim, which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. “New and material evidence” can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992) In August 2013 the Veteran secured a private medical opinion purporting to link his testicular condition to service. In November 2015 the Veteran was afforded a VA examination to investigate the nature and etiology of his idiopathic azoospermia. In January 2019, the Veteran submitted the results of a 2013 Brazilian research regarding the etiologies of azoospermia which was accompanied by an affidavit indicating that he suffered swelling and pain in service and had never suffered testicular pain prior to or subsequent to active duty. On review, the Veteran’s 2015 VA examination, affidavit and private nexus opinion are new as not previously submitted to decision makers, and material as they relate to an unestablished fact and raise a reasonable possibility of substantiating the claim. Accordingly, the claim for service connection for idiopathic azoospermia (claimed as swollen testicles and low sperm count) is reopened herein. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010) (the Court interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.”). 2. Entitlement to service connection for idiopathic azoospermia (claimed as swollen testicles and low sperm count). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 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. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that his current azoospermia diagnosis is related to a testicular irregularity he experienced while in basic training. The Veteran’s entrance examination in November 1965 and his separation examination in March 1968 are silent as to any indication of treatment or a diagnosis for a genitourinary system or testicular problem. Service treatment records include one clinic visit in June 1966 to address reported pain in the testicles. A dispensary note in October 1967 documents a report of pain in the left upper abdomen, burning in nature and constant. The examiner specifically annotated no genitourinary symptoms. Otherwise, active duty medical records are silent as to any reports, complaints or treatment for testicular swelling, inflammation, infection or injury. In a September 2010 statement, the Veteran described learning that he had a zero sperm count shortly after getting married in May 1970. Laboratory results from November 2010 included an estimated Glomerular Filtration Rate (eGFR) of 60 ml/min/1.73 square meters indicating the presence of chronic kidney disease. The Veteran was afforded a VA genitourinary examination by a urologist, Dr. J. G. in December 2010. During that examination, the Veteran reported swollen testes while in basic training, accompanied by pain with no fever. The documented medical history included no trauma to the genitourinary system, no abdominal or flank tenderness, no peripheral edema, and the testicles and prostate were normal on examination. Similarly, the epididymis, spermatic cord, scrotum and seminal vesicles were all reported as normal. The Veteran was diagnosed with azoospermia. Under other significant findings, the examiner reported normal size testes. It was the urologist’s opinion that the Veteran’s azoospermia is not caused by the history of swollen testes while in the military. As a rationale for that opinion, the urologist added, that the only bilateral selling that could lead to azoospermia would be mumps orchitis which would demonstrate other signs and symptoms. The urologist characterized the Veteran’s condition as idiopathic azoospermia. The Veteran was diagnosed with prostate cancer in 2011. In August 2015, the Veteran secured a succinct private medical opinion from a urologist who had been treating him for 16 years. The physician cited the Veteran’s September 2010 letter as showing that the Veteran had episodes of acute scrotal swelling during his basic training. It was also stated that acute and chronic infections or inflammation have been thought to possibly cause sterility and certainly any genitourinary infection may have a deleterious effect on a patient’s fertility status. The physician opined that while he was unable to document the Veteran’s fertility prior to the acute scrotal swelling, an infection of the testes could have contributed to his infertility status. The private opinion as exclusively based on the Veteran’s September 2010 statement. In November 2015, Dr. J. G. administered a second VA genitourinary examination. The Veteran’s diagnosed erectile dysfunction was attributed to his 2011 surgery and treatment for his malignant prostate cancer evaluated as in remission. The Veteran’s testes and associated physiology were described as normal. Dr. J. G. opined that the medical and lay evidenced added to the record since his first examination did not change his opinion that the Veteran’s azoospermia was not caused by the history of swollen testes while in the military. As a rationale, he provided two explanations. First, the only bilateral swelling that could lead to azoospermia would be mumps orchitis and the Veteran did not claim or demonstrate any of those symptoms or signs. Secondly, Dr. J. G. indicated that he looked through the records and could not find any documentation showing swollen testes while in service. In October 2020 the Veteran’s representative submitted the report of a February 2013 Brazilian research study examining the epidemiology and etiology of azoospermia. That study reviewed over 130 other reports of research to analyze the epidemiology and etiology of azoospermia. The study grouped causes of azoospermia into three categories: endocrine induced or secondary testicular failures, disorders attributed to primary testicular failure, to include mumps and idiopathic azoospermia and, post-testicular ejaculatory or obstructive disorders. The second etiology group described intrinsic disorders to include idiopathic, mumps orchitis, vas deferens problems, genetic disorders, and other conditions not related to the Veteran’s theories. Analysis The evidence recounted above unambiguously reflects a diagnosed disability during the appeal period and the Veteran’s reports of symptoms congruent with such during active duty. As such, the crux of the Veteran’s appeal involves the probative weight of the medical nexus evidence concerning the etiology of the claimed disability. At the first VA examination in December 2010 the Veteran reported that the active duty presentation of the condition was pain with no fever. The urologist, Dr. J.G. reported normal sized testicles, with no indications of pain, swelling or infection. For the second examination in November 2015 Dr. J.G. reported that he could not find documentation evidencing swollen teste while in service. The Board also reviewed the service treatment records and found no complaints, treatment or diagnoses referring to swollen testes while on active duty. Both of the opinions from the urologist are probative, because they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez, 22 Vet. App. at 304 Veteran’s counsel posits five theories under which the Veteran should be granted service connection for his azoospermia or, at a minimum, be afforded a third VA examination. The Board will address those theories in sequence. Lack of examiner credibility for failure to consider multiple sources for azoospermia beyond mumps While the research study divided the causes of azoospermia into three subsets, the Veteran did not argue nor does the evidence suggest any endocrine or post testicular or obstructive modality. For the second category of causes the VA urologist considered and addressed intrinsic disorders to include mumps orchitis and idiopathic azoospermia. None of the other four potential intrinsic causes are suggested by the evidence or arguments, and the genetic intrinsic etiology would be automatically disqualifying. Counsel has not suggested any other specific cause listed in the study or otherwise that should have or could have been reasonably considered by the examiner. The VA examinations were inadequate because only “non-explanations” for etiology were listed. Counsel argues that the VA urologist reverting to a diagnosis of idiopathic azoospermia makes the examination results inadequate because idiopathic azoospermia is a “non-explanation” for what caused the condition. Here, the Veteran’s representative denigrates the very clinical study that he introduced into evidence to forward the Veteran’s claim. Counsel provides one of the recognized definitions for idiopathic: “unknown cause or spontaneous origin”. Idiopathic is listed as the seventh disorder under the second (intrinsic disorders) category of causes for azoospermia in the Brazilian study. The urologist’s opinions ruling out mumps for no complaints, treatment or diagnosis and rendering a diagnosis of idiopathic azoospermia does not support a conclusion that he lacks credibility. Although the examiner did not mention the six other causes for primary testicular failure there is nothing in the medical evidence to suggest that any of them were applicable. The Board acknowledges that while the diagnosis of idiopathic azoospermia complicates the Veteran’s ability to establish a nexus to service, it is not a “non-explanation” for the origin of the disability. Nothing in the conduct, evaluation, findings or analysis offered by the urologist suggests that he lacks credibility. Failure to consider acute trauma/injury and inflammation as a cause of azoospermia In this factual setting the rigors of basic training could present an environment and opportunity for the Veteran to suffer acute trauma to his testicles. Some evidence of trauma could also trigger VA’s duty to investigate and further develop that theory. However here, the Veteran reported pain in mid-June 1966, without any mention of any injury that might be linked to that pain. Service treatment records for his 24 months of active duty are also silent as to any accident or injury affecting the Veteran’s groin area. The Veteran’s August 2010 claim for service connection listed low sperm count as the basis for entitlement. In his September 2010 statement the Veteran described his June 1966 active duty clinic visit and indicated that he did not recall the cause for his swollen testicles at that time. Similarly, the September 2015 claim listed acute scrotal swelling affecting fertility. The Veteran’s private provider opinion letter from August 2015 made no mention of injury or trauma as relating to his infertility. The Board finds that the VA urologist’s failure to address trauma or injury where there is no evidence or statements suggesting this cause, does not constitute error on the part of the examiner. Counsel’s arguments regarding inflammation are addressed below in detail. The private opinion establishes acute injury/infection Initially, it is important to note that the May 2016 private medical opinion was based exclusively on the Veteran’s September 2010 written statement. While the physician had been treating the Veteran for 16 years, there was no review of the Veteran’s claims file and no in-person examination. The private opinion offers a creative syllogism that starts with an active duty report of pain, and morphs into evidence of an unspecified injury, then acute or chronic inflammation or infections, which resulted in symptoms of pain and swelling. To account for the lack of medical evidence in the record, the examiner provides assurance that it is common knowledge that swelling is fluid accumulation that may result from inflammation. Likewise, he reasons that inflammation is the body’s immunological response to injury and infection. The report of pain in the testicles from June 1966 did not mention any injury. There was also no in-service report of infection. Swollen testicles were not documented until the December 2010 VA examination. Medical evidence outside of the private opinion does not link inflammation to injury and infection as an immunological response or otherwise. The private medical opinion while based on common knowledge, it is unsupported by medical evidence of record and does not establish acute injury/infection. Nothing in the Brazilian research study and meta-analysis cures these defects and the opinion is entitled to little weight. The evidence is in equipoise because of in-service evidence of acute inflammation, pain and swelling The Veteran’s private attorney argues that the VA urologist examination reports and the expanded private medical opinion are at least in equipoise based on the research study report and the Veteran’s short-lived symptoms of pain and swelling. At his June 2010 examination, the Veteran reported that he noticed both testes swollen while in basic training, with no fever but painful. He also reported he received no treatment and the swelling subsided in 3 to 4 days. A review of the service treatment records confirms a clinic complaint for pain in the testes in June 1966. There is, however, no report in the service treatment records for inflammation or swelling. In the November 2015 examination report the urologist characterized the Veteran’s assertions as a claim for azoospermia due to swollen teste while in service. The next sentence read “I looked through records but can’t find documentation.” The medical evidence of record confirms a complaint for painful testes on active duty which the Veteran characterizes as a complaint for pain, swelling and inflammation on active duty. The Veteran’s appellate brief attempts to bridge that gap by arguing that it is common knowledge that swelling is fluid accumulation that may result from inflammation, and that inflammation is the body’s immunological response to injury and infection. The report on active duty was for pain and not injury or infection, and the Veteran’s examination statement indicated that there was no fever, which might have suggested some form of infection. The expanded private medical opinion did not include a records review or an in-person examination, was based on a singular written statement by the Veteran, based its conclusions on common knowledge and a response to in-service injury and infection neither of which were documented in service treatment records. The Board finds that the evidence does not approach equipoise, the expanded private medical opinion is entitled to little probative weight, and there is no evidence of acute inflammation or swelling during service. The Veteran’s in-service genitourinary infection may have a deleterious effect on fertility Finally, it is argued that the nature of the in-service inflammation (acute or chronic) does not alter the entitlement to service connection because genitourinary infection may have a deleterious effect on the Veteran’s fertility status. As previously described, neither testicular inflammation nor genitourinary infection have been documented, treated or diagnosed while on active duty. While it might be true that genitourinary infection may have a deleterious effect on fertility, that opinion (with its associated weight) does not advance the Veteran’s cause. Linking the Veteran’s infertility to symptoms or a condition such as inflammation or infection, that does not rise to the level of an in-service event, illness or injury does not generate a path to service connection. This argument reverts back to the creative syllogism to morph the report of pain on active duty into evidence of inflammation and infection. The Board cannot make that leap. The VA examining urologist reviewed the record and provided two well-supported rationales. These examinations are judged to be the most probative evidence as to entitlement to service connection for azoospermia claimed as swollen testicles and low sperm count. The Veteran’s lay statements and the private medical opinion from August 2015 based on that lay evidence are substantially outweighed by the December 2010 and November 2015 urologist VA opinions. Upon review of the record, the Board adopts the November 2015 VA opinion finding that there was no evidence showing swollen testes while in service. Accordingly, the Board concludes that the Veteran’s azoospermia with swollen testicles and low sperm count are not etiologically connected to his report of testicular pain while in basic training. The preponderance of the evidence is against the claim. To the extent that the Veteran argues that his pain in service is related to his current condition, he does not have the medical expertise or training to render a competent and credible medical opinion concerning causation of a disability. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009), citing Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In contrast, the November 2015 VA examiner does possess the medical training and knowledge to competently and credibly opine on matters of causation and aggravation, and his opinion is congruent with the evidence of record and cited medical literature. Bloom v. West, 12 Vet. App. 185, 187 (1999). Similarly, the controverting private medical opinion, which discusses the etiology of the Veteran’s disability in terms of possibility rather than probability, suffers deficiencies that make its probative value highly diminished. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the appeal advanced must be denied. 38 U.S.C. § 5107(b); see also, generally, Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Allen M. Kerpan 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.