Citation Nr: 21006206 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 11-22 056 DATE: February 3, 2021 ORDER Service connection for female infertility/a reproductive disorder, to include under 38 C.F.R. § 3.317(b) is denied. FINDING OF FACT The Veteran’s diagnosed infertility did not have its onset during active service and was not otherwise caused by her service and did not manifest within one year of separation from active service. CONCLUSION OF LAW The criteria for service connection for female infertility/a reproductive disorder, to include under 38 C.F.R. § 3.317(b), have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.317 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1984 to November 1984; and from November 1990 to July 1991, including service in the Southwest Asia Theater of Operations in support of Operation Desert Shield/Desert Storm from January 1991 to June 1991. She has also had periods of active duty for training in the National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in October 2012. In May 2014, the Board granted entitlement to service connection for chronic fatigue/chronic fatigue syndrome and remanded the issue of entitlement to service connection for infertility. This matter was most recently remanded by the Board in October 2019 for additional development. 1. Service connection for female infertility/a reproductive disorder, to include under 38 C.F.R. § 3.317(b). To establish service connection for a claimed disorder, the following criteria must be met: (1) medical evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and current disability. 38 C.F.R. § 3.303; see also, Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active duty military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. For purposes of section 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2). An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Further, lay persons are competent to report objective signs of illness. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). A medically unexplained chronic multi-symptom illness is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. A medically unexplained chronic multi-symptom illness means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2). There are currently no diagnosed illnesses that have been determined by the Secretary to warrant a presumption of service connection under 38 C.F.R. § 3.317(a)(2)(C). Objective indications of chronic disability include both signs, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). Additionally, presumptive service connection is warranted with the manifestation of the following infectious diseases: (i) brucellosis, (ii) campylobacter jejuni, (iii) Coxiella burnetii (Q fever), (iv) malaria, (v) mycobacterium tuberculosis, (vi) nontyphoid salmonella, (vii) shigella, (viii) visceral leishmaniasis, and (ix) West Nile virus. 38 C.F.R. § 3.317(c). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). Lastly, compensation shall not be paid under section 3.317 if there is affirmative evidence that an undiagnosed illness was not incurred during active military service in the Southwest Asia theater of operations during the Persian Gulf War; if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the Veteran’s most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or if there is affirmative evidence that the illness is the result of the Veteran’s own willful misconduct or the abuse of alcohol or drugs. The Veteran seeks service connection for infertility, which she asserts began in service due to exposure to environmental hazards in the Southwest Asia Theater of Operations. Indeed, in a September 2005 letter, the Department of Defense (DOD) notified the Veteran that she may have been exposed to low levels of chemical warfare agents, to include sarin and cyclosarin, during service. Historically, in the early 1990s, the Veteran conceived, but terminated her pregnancy at eight weeks via dilation and curettage. See, e.g., VA Examination, September 2014. Shortly thereafter, she deployed to the Southwest Asia Theater of Operations. Following separation from service, the Veteran unsuccessfully attempted to conceive, to include with medical assistance, and was diagnosed with secondary infertility. See, e.g., Center for Reproductive Health and Fertility, August 1998. In September 2014, a VA examiner opined that it is less likely as not that the Veteran’s infertility initially manifested during, or is related to service, to include in-service candidiasis vaginitis (Service treatment record (STR), November 20, 1984); yeast vaginitis (STR, January 4, 1990), severe stomach cramps and diarrhea (STR, July 1, 1991), and restricted duty due to gynecological complication (STR, March 30, 1991). The rationale was that there is no anatomical or physiologic nexus to connect the Veteran’s infertility to the incidents/conditions during service. The Board finds that the examiner’s opinion fails to explain why the cited in-service incidents are not anatomically or physiologically related to the Veteran’s current infertility and whether her infertility is related to her in-service exposure to chemical warfare agents. The Board also seeks insight into whether the Veteran’s infertility amounts to a medically unexplained chronic multi-symptom illness. In March 2019, the Board sought an opinion as to the instant claim from the Veterans Health Administration (VHA), which was received in May 2019. The expert prefaced her opinion by noting that she did not have direct access to the Veteran’s progress notes, operative notes, and/or procedure notes from the Center for Reproductive Health and Fertility. The expert indicated that the Veteran’s infertility could be linked to service, if the Veteran’s in-service infectious colitis led to pelvic adhesions. As the Veteran’s records were not available to the expert, further medical development is needed to clarify whether the Veteran’s inservice colitis led to pelvic adhesions, and, if so, whether it is at least as likely as not that such adhesions led to her current infertility. Further development is also needed to address whether the Veteran’s infertility is linked to her in-service exposure to sarin and cyclosarin because the VHA expert noted that she is not a toxicology expert and did not have access to the DOD letter detailing the nature of the Veteran’s chemical exposure. For these reasons, a new opinion was obtained in January 2020. After a review of the Veteran’s medical records and an in-person examination, the examiner made several findings. Regarding the Veteran’s inservice diagnosis of colitis, the examiner stated that it did not lead to pelvic adhesions as evidenced by normal imaging of the Veteran’s uterus years after service. The Veteran has had normal laparoscopic examinations and hysterosalpingogram (1997) that showed a normal uterus as well. Therefore, it is less likely that the Veteran’s infertility is due to pelvic adhesions as there is no evidence that the Veteran ever had them. The examiner concluded that it would be mere speculation to suggest that the Veteran’s infertility was a direct cause during the Veteran’s service. Regarding the potential exposure to chemical warfare agents, the examiner reviewed the literature on the Veteran’s potential low-level exposure to chemical warfare agents, as reported in the DOD Letter from September 2005, and opined that it is less likely than not that the Veteran’s infertility is causally related to exposures during service in Southwest Asia during the Persian Gulf War. The examiner’s rationale included a detailed discussion of the effects of the chemical warfare agents listed in the DOD letter, citing to data that was released by the US Department of Defense in 2005, which reported a link to brain cancer, and the CDC, which noted that the extent of poisoning caused by sarin depends on the amount of sarin to which a person was exposed, how the person was exposed, and the length of time of the exposure. Because it evaporates so quickly, sarin presents an immediate but short-lived threat. Mildly exposed people usually recover completely. Severely exposed people are less likely to survive. Therefore, the examiner concluded that the Veteran’s infertility is not causally related to exposures during service in Southwest Asia during the Persian Gulf War. The examiner conducted a Gulf War medical examination and noted that the Veteran’s diagnosis of infertility from 1998 is a diagnosed illness with no etiology. The examiner further noted that the Veteran does not have any additional signs or symptoms that may represent an undiagnosed illness or diagnosed medically unexplained chronic multi-symptom illness. The examiner explained that the Veteran was diagnosed in 1998 with secondary infertility, which means that the Veteran was able to conceive but then was unable to conceive after many attempts. The Veteran had an evaluation by a Fertility Clinic that noted that the Veteran had normal imaging of her uterus and fallopian tubes that showed no physiological abnormalities. The Veteran also had a normal diagnostic laparoscopy. Based on the available medical evidence, the examiner concluded that there are no physiological abnormalities that can identify an etiology of the Veteran’s infertility. Finally, regarding whether the Veteran’s infertility is secondary to her service-connected chronic fatigue syndrome (CFS), the examiner opined that it is less likely than not that the Veteran’s infertility is aggravated beyond its natural progression or proximately due to or the result of the Veteran’s CFS. The examiner reasoned that CFS is a complex debilitating medical disorder that affects approximately 4 million persons in the United States, predominantly women. There has been little scientific exploration about the experience of pregnancy, childbirth, and the postpartum period for women with this disorder. What research suggests is that CFS may be more likely to have gynecological conditions that can decrease fertility; for example, polycystic ovarian syndrome (PCOS) and endometriosis. As the Veteran has never had a diagnosis of PCOS or endometriosis, imaging has been normal for the Veteran, and there is no physiological evidence to suggest that the Veteran’s infertility has any relation to her CFS condition, the examiner concluded that it is less likely than not that the Veteran’s infertility is related to her service-connected CFS. The Board notes that the January 2020 opinion regarding the Veteran’s claim for infertility is based on a careful review of the Veteran’s relevant medical history and the Veteran’s reports of in-service exposure, and the Board finds the opinion highly probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In light of the January 2020 VA examination, the Board concludes that, while the Veteran has a current diagnosis of infertility, the preponderance of the evidence weighs against finding that the Veteran’s infertility began during service or is otherwise related to an in-service injury, event, or disease. Although the Veteran contends that her diagnosed infertility is related to her service or a service-connected disability, the Board finds that the question regarding the potential relationship between the Veteran’s infertility and her service and/or service-connected disabilities to be complex in nature. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the Veteran is not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran does not possess the medical knowledge to attribute her infertility to her military service or a service-connected disability. Therefore, the Veteran’s contention that her infertility is related to service and/or a service-connected disability is not competent and therefore not probative. As the most probative evidence of record shows that the Veteran’s infertility is not related to service or a service-connected disability, the preponderance of the evidence is against the claim, and service connection for infertility is denied. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.