Citation Nr: 21076851 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 10-06 858 DATE: December 28, 2021 REMANDED Entitlement to service connection for sterility due to exposure to herbicide agents and ionizing radiation is remanded. REASONS FOR REMAND The Veteran served on active duty as an electrical engineer in the United States Army from July 1969 until his honorable discharge in May 1971. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902(c). These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Regional Office of the Department of Veterans Affairs (VA). In August 2021, the Veteran testified before the undersigned at a hearing via videoconference. A transcript of his testimony has been associated with the claims file. Entitlement to service connection for sterility due to exposure to herbicide agents and ionizing radiation. The Veteran asserts that he has been sterile since his active-duty service due to exposure to herbicide agents and ionizing radiation. See August 2021 Hearing Transcript. Unfortunately, the claim must be remanded for a VA examination that considers the National Institute of Health (NIH) report cited by the Veteran at his hearing. A Supplemental Statement of the Case (SSOC) must also be issued by the Regional Office considering recent VA treatment records that were received by VA before the claim was certified to the Board. During his hearing he asserted that there were private medical records that diagnosed his sterility. Currently, there are no records from that facility in the file. In December 2005, he signed a release for information from this medical provider from 1988 through 1991. The Regional Office made two attempts to obtain those records and never received a response from the provider. The Veteran was instructed that no response was received and that he could obtain these records and provide them to VA himself. No records from this facility were received. To the extent that information may have been gained to his benefit from these private treatment records, VA made sufficient efforts to obtain the release for private treatment records and made two attempts to obtain them. The duty to assist is a two-way street, and the Veteran is responsible to assist VA in developing his claims. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Also, at his August 2021 hearing, he cited to a NIH report completed after his claim was denied by VA that found "ionization and non-ionization in a powerful setting will affect sterility." VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes providing a medical examination when one is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Regional Office did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, has a presumptive disease during the pertinent presumptive period, or is service-connected for a disability that may have caused or aggravated the Veteran's disability; and (3) indicates that the claimed disability may be associated with the in-service event, injury, disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). The Veteran is competent to report a diagnosis made by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). VA treatment records also show that he was diagnosed with erectile dysfunction in October 2015. His personnel record confirms that he served in both Vietnam and Arizona, where he states he was exposed to herbicide agents and radiation. Finally, he cites to a NIH report that suggests there is a link between his infertility and in-service exposure. As such, he is entitled to a VA examination for infertility and the claim must be remanded. Furthermore, after the Regional Office issued its Statement of the Case (SOC), but before the claim was certified to the Board, several VA treatment records were associated with the claims file without the issuance of a SSOC. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the current nature and etiology of his sterility and erectile dysfunction. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner is asked to: (a.) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sterility or erectile dysfunction had its onset in service or was caused by, or otherwise related to, the Veteran's active service, to include herbicide agent exposure and ionization and non-ionization radiation exposure. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. 2. After, readjudicate the Veteran's claim. If the claim remains denied, send the Veteran and his representative a supplemental statement of the case (SSOC), and allow them an appropriate time to respond before returning the issue to the Board for further appellate consideration. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Johnston, Associate 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.