Citation Nr: 21025567 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-15 974A DATE: April 28, 2021 ORDER Entitlement to service connection for infertility is denied. FINDING OF FACT The Veteran’s infertility did not onset in service, nor is it etiologically related to an in-service injury or disease, or to contaminated water at Camp Lejeune. CONCLUSION OF LAW The criteria for entitlement to service connection for infertility, to include as due to exposure to contaminated water at Camp Lejeune have not been met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 1131, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to September 1969. This appeal was remanded by the Board in July 2018. The Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, additional medical records were obtained and associated with the claims file, and new VA opinions were obtained, which the Board finds adequate for adjudication purposes. After the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in March 2021. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. Finally, the Board notes that service connection for asthma was appealed along with infertility. The asthma claim having been granted in a March 2021 Rating Decision, this issue is no longer on appeal. Service Connection Generally, to establish service connection for a present disability, “the veteran must show (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.” Shedden v. Principi, 381 F.3d 1163, 1166–67 (Fed. Cir. 2004). Aggravation of a pre-existing condition beyond the natural progression is presumed where the disability increases in severity over the course of service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. This presumption is rebuttable by clear and unmistakable evidence that the increase is attributable to the natural progression of the condition. 38 C.F.R. § 3.306(b). Effective March 14, 2017, VA amended 38 C.F.R. §§ 3.307 and 3.309 to allow presumptive service connection for specific diseases, as related to exposure to contaminated drinking water at the U.S. Marine Corps Base Camp Lejeune. Under the current regulations, a veteran with no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune from August 1, 1953 through December 31, 1987, shall be presumed to have been exposed during such service to the contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. 38 C.F.R. § 3.307 (a)(7). Veterans meeting the above requirements will be awarded service connection for the following diseases, even though there is no record of such disease during service, subject to the rebuttable presumption provisions of § 3.307(d): 1) kidney cancer; 2) liver cancer; 3) Non-Hodgkin’s lymphoma; 4) adult leukemia; 5) multiple myeloma; 6) Parkinson’s disease; 7) aplastic anemia and other myelodysplastic syndromes; and 8) bladder cancer. 38 C.F.R. § 3.309(f) (amended March 14, 2017). The rule applies to all claims pending before the finalization of the rule on March 14, 2017, as here. 1. Entitlement to service connection for infertility The Veteran seeks service connection for infertility. At her July 2018 Board hearing, she articulated her main argument, that multiple other women who served at Camp Lejeune also developed reproductive disorders, to include infertility. She also points to a 30 year history of unsuccessful attempts at childbearing, ascribing it to presumed exposure to contaminated water. In this case, after reviewing all evidence currently of record, the Board determines that service connection for infertility is not warranted. As an initial matter, the Veteran’s service personnel records document service at Camp Lejeune from May 1968 to September 1969. Therefore, exposure to contaminated water therein is presumed. However, infertility is not a disorder, or a symptom of a disorder, that may be presumed related to contaminated water at Camp Lejeune under §3.309. Accordingly, the Veteran’s infertility cannot be attributed to her acknowledged contaminated water exposure on a presumptive basis. Next, although though her primary assertions have been addressed above, the Veteran is not precluded from establishing service connection for her infertility with proof of actual direct causation as due to active duty service. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). However, service connection is also not warranted on this basis. While the Veteran’s infertility is not tied to a specific diagnosis, the Board concedes a current disability, as the persistent infertility imposes a fundamental limitation on the Veteran. As such, it is a current disability. However, the Veteran’s service treatment records show no treatment for or symptoms of infertility in service or at her separation exam in September 1969. The Veteran first claimed service connection for infertility in November 2013. Medical records, to include a March 2018 Women’s Health Note, corroborate her claim for infertility. During the 44-year gap between the Veteran’s separation and her claiming service connection, the Veteran displayed no symptoms of a reproductive disorder. Indeed, the available pap smears, including the initial one dated February 2011, and a subsequent May 2013 examination, have shown normal results. While a pap smear is not the only way to detect a reproductive disorder, the Veteran’s records show no identifiable disorder in which the Veteran’s infertility could have originated. Therefore, based on the clinical evidence of record, service connection cannot be established through continuity of symptomatology. Moreover, despite the Veteran’s reports of longtime difficulty conceiving, the Board cannot determine, without speculating, whether her infertility has truly lasted since service. The treating gynecologist notes that the Veteran miscarried twins in her early 20s, and never conceived, despite 30 years of trying during marriage. However, due to the lack of available records, there is not enough information for a medical professional to determine when the Veteran’s infertility truly onset. Therefore, continuous symptoms cannot be established based on the evidence of record or the Veteran’s statements. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). Next, despite the lack of continuous symptoms, service connection may still be warranted if the evidence otherwise indicates a relationship between the Veteran’s current disorder and her active duty service. However, there is no medical nexus between the Veteran’s active duty and current diagnosis. A June 2020 VA opinion was obtained to determine the etiology of the Veteran’s infertility. The goal was to determine the likelihood that the Veteran’s service, particularly her presumed exposure to contaminated water at Camp Lejeune, caused her infertility. The June 2020 C&P examiner noted the Veteran’s 30 year history of unsuccessful attempts to have children. Nonetheless, the examiner opined that the evidence of record was insufficient to even support a diagnosis of infertility. From the evidence before him, the examiner was unable to detect any disorder that may have caused infertility. Because many different factors can promote infertility, and because the Veteran does not display any symptoms of a reproductive disorder that would have caused her infertility, the medical evidence weighs against finding by equipoise a service-related medical cause. In arriving at this conclusion, the Board acknowledges the Veteran’s statements relating her current disorder to active service. Specifically, she ascribes her 30 years of unsuccessful attempts to bear children to her presumed exposure to contaminated water at Camp Lejeune. Notably, she argues that because she never obtained a pap smear test during her childbearing years, that a disorder causing infertility could have lain dormant during those years. The Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, however, the Veteran is not competent to testify regarding the etiology of infertility or any reproductive disorders. See Jandreau, 492 F.3d 1372 at 1377, n.4. Because such disorders are not diagnosed by unique and readily identifiable features, they do not have a simple identification that a layperson is competent to make. The Veteran is not competent to identify a nexus between her service and her current infertility. While the Board does not dispute the Veteran’s credibility in describing her history of unsuccessful attempts at childbearing, the weight of the medical evidence is against a finding that it is etiologically related to her service, to include exposure to contaminated water at Camp Lejeune. Therefore, the Veteran’s lay statements that her infertility was incurred in service, to include as due to contaminated water exposure, are found to lack competency.   In sum, the most probative evidence of record shows no link between the Veteran’s infertility, and any event, injury, or disease incurred in service. Based on the evidence of record, the Veteran’s claim must be denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Maskatia