Citation Nr: 21041547 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 19-14 154 DATE: July 9, 2021 REMANDED The claim for service connection for hypogonadism (also claimed as an endocrine disability), to include as due ionizing radiation exposure and/or as due to exposure to toxic chemicals, is remanded. The claim for service connection for infertility, to include as secondary to hypogonadism, is remanded. The claim for special monthly compensation based on loss of use of a creative organ is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 1988 until his honorable discharge in August 1992. His military occupational specialty was as a maintenance technician in the U.S. Navy Weapons Division. This appeal is being treated expeditiously on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. §§ 5109B, 7112 and 38 C.F.R. § 20.902(d). This case comes before the Board on appeal from a June 2018 decision by a Regional Office of the United States Department of Veterans Affairs (VA). In a March 2020 decision, the Board reopened the Veteran's claim for service connection for hypogonadism and denied all of the above-stated claims on the merits. The Veteran subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion to Remand (JMR) at the Court in which they stipulated the Board erred because: (1) the Board relied on an inadequate November 2017 medical opinion; (2) the Board relied on an inadequate January 2018 opinion from the Director of Compensation and Pension; (3) the Board did not address whether hypogonadism could be considered a radiogenic disease; and (4) they stipulated that the claims are inextricably intertwined such that they should all be remanded to the Board for readjudication. Based on the JMR, the Court entered an order in November 2020 vacating the Board's decision in full, except with respect to the favorable decision reopening the Veteran's claim for service connection for hypogonadism. The Court then remanded the case to the Board. The case now returns to the Board for readjudication. Prior addressing the merits of this appeal, the Board must address some confusion within the parties' JMR. The November 2017 medical opinion to which they refer is nonexistent. Instead, there is a November 2017 memorandum from the VA Director of Compensation and Pension to the Under Secretary for Health requesting (1) a dose estimate, to the extent feasible, and (2) an opinion whether it is likely, unlikely, or as likely as not that the Veteran's hypogonadism disease resulted from exposure to ionizing radiation in service. Dr. M., on behalf of the Under Secretary, authored a medical opinion on January 9, 2018. The Director then issued her opinion in June 2018. 1. The claim for service connection for hypogonadism (also claimed as endocrine disability), to include as due ionizing radiation exposure and/or as due to exposure to toxic chemicals, is remanded. The Veteran initially filed a claim for service connection for hypogonadism on the theory that he was exposed to ionizing radiation in service. See VA Form 21-526EZ (Claim for Compensation). He later submitted and alternate theory that his hypogonadism was caused by exposure toxic chemicals, including toluene, ucetone, MEK, PD680, dry cleaning fluid, and zinc chromate, during active service as part of his military duties. See Veteran's Statement (received by VA November 28, 2017). The parties' stipulated within their JMR that the Board did not address whether the Veteran's hypogonadism was a "radiogenic disease" in its March 2020 decision. Pursuant to 38 C.F.R. § 3.311, if the Veteran's hypogonadism is determined to be a radiogenic disease, then certain procedures must be followed in development of the Veteran's claim for service connection. On review of the record, is unclear to the Board whether the VA Regional Office made a determination on this issue. Any determination by the VA Regional Office would subsequently affect the procedural development of the claim. The Board finds remand is required to allow the VA Regional Office to make this specific determination in the first instance due to the affect any determination has on the development of the claim. See 38 C.F.R. § 3.311(b)(4) ("If a claim is based on a disease other than one of those listed in paragraph (b)(2) of this section, VA shall nevertheless consider the claim under the provisions of this section provided that the claimant has cited or submitted competent scientific or medical evidence that the claimed condition is a radiogenic disease."). In addition, the Board observes that the Veteran has not been afforded a VA examination in connection with his claim for service connection for hypogonadism on either of his theories. Consistent with McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Board finds remand is required to offer the Veteran a VA examination. Although the Veteran submitted an endocrine disability benefits questionnaire and addendum opinion completed by a treating physician who offered a positive nexus opinion between the Veteran's hypogonadism and exposure to radiation, that physician offered no rationale, thus making it insufficient. The parties also stipulated that a November 2017 medical opinion (which is actually the January 2018 opinion) authored by Dr. M. on behalf of the Under Secretary for Health was inadequate. Therefore, there is insufficient evidence for the Board to make a determination on the Veteran's claim for service connection for hypogonadism at this time. As to the parties' stipulation that the Director of Compensation and Pension's opinion did not take into account the factors listed in 38 C.F.R. § 3.311(e), the Board finds any determination on that issue is not appropriate at this time due to the need for further development of the claim. The Board will note for benefit of the Veteran and the VA Regional Office that pursuant to Hilkert v. West, 12 Vet. App. 145, 149 (1999), "[f]ailure to discuss these factors is by no means a failure to consider these factors." (Emphasis in original). Rather, the factors should be considered and consulted as a point of reference. Id. at 14950. 2. The claim for service connection for infertility, to include as secondary to hypogonadism, is remanded. 3. The claim for special monthly compensation based on loss of use of a creative organ is remanded. The Board observes that the Veteran has not been afforded a VA examination in relation to his claim for service connection for infertility based on any theory. Consistent with McLendon, 20 Vet. App. 79 , the Board finds the record requires remand to offer the Veteran a VA examination in relation his claim. An opinion as to secondary service connection, however, is not required at this time because the Veteran is not yet service connected for hypogonadism. In addition, as the development and subsequent grant or denial of service connection for the Veteran's hypogonadism may reasonably affect the adjudication of his claim for service connection for infertility and claim for special monthly compensation, the Board finds these issues to be inextricably intertwined. Thus, these claims must be remanded pending completion of development on the question of service connection for the Veteran's hypogonadism. Accordingly, the matters are REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. After any additional records are associated with the claims file, obtain a VA examination from an appropriately qualified clinician to provide an opinion addressing the onset and etiology of the Veteran's hypogonadism. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. The examiner is asked to provide an opinion regarding the following: (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's hypogonadism had its onset in or is otherwise etiologically related to an in-service event, injury, or disease, to include: (1) exposure ionizing radiation, and/or (2) exposure to toxic chemicals. (b.) Whether the Veteran's hypogonadism is medically considered a "radiogenic disease." Please explain your reasoning in full, to include citations to any references utilized. In rending his or her opinion, the examiner should consider and, if deemed relevant, address the following, in addition to any other relevant evidence: (a.) The Veteran's military records, to include multiple records of occupational exposure to ionizing radiation, and a December 1998 unclassified Administrative Message discussing potential inaccurate dosimetry results between July 1990 and September 1990. See Compiled Military Records received by VA on December 10, 2015. (b.) The Veteran's statements that he was exposed to radiation and/or chemicals during an accident with a nuclear weapon that contained several containers of Tritium 9AS and Deuterium gas as part of his military occupational specialty. See December 4, 2015, VA 21-4138 (Statement in Support of Claim). (c.) The Veteran's statements about being exposed to toxic chemicals, including toluene, acetone, MEK, PD680, dry cleaning fluid, zinc chromate, and other chemicals, through absorption from using the chemicals on a rag and cleaning bomb parts as part of his military duties. See Veteran's Statement received by VA on November 28, 2017. (d.) A private VA treating physician's endocrine disability benefits questionnaire and addendum opinion, completed by Dr. G. P., submitted by the Veteran and received by VA on September 12, 2017. (e.) A January 2018 medical opinion from Dr. M., on behalf of the Under Secretary of Health written in response to a November 2017 memorandum from the Director of VA Compensation and Pension Services. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his disability, including any evidence concerning continuity of symptomatology, as he is legally permitted to report he symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion that an in-service event, injury, or illness led to his hypogonadism. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 3. After any additional records are associated with the claims file, obtain a VA examination from an appropriately qualified clinician to provide an opinion addressing the onset and etiology of the Veteran's claimed infertility. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. The examiner is asked to provide an opinion regarding the following: (a.) Whether the Veteran has been diagnosed or currently is diagnosed with infertility during the claim period. (b.) If the Veteran has been or is diagnosed with infertility during the claim period, whether it is at least as likely as not (50 percent probability or more) that his infertility had its onset in or is otherwise etiologically related to an in-service event, injury, or disease, to include: (1) exposure ionizing radiation, and/or (2) exposure to toxic chemicals. (c.) Whether the Veteran's infertility is medically considered a "radiogenic disease." Please explain your reasoning in full, to include citations to any references utilized. 4. In rending his or her opinion, the examiner should consider and, if deemed relevant, address the following, in addition to any other relevant evidence: (a.) The Veteran's military records, to include multiple records of occupational exposure to ionizing radiation, and a December 1998 unclassified Administrative Message discussing potential inaccurate dosimetry results between July 1990 and September 1990. See Compiled Military Records received by VA on December 10, 2015. (b.) The Veteran's statements that he was exposed to radiation and/or chemicals during an accident with a nuclear weapon that contained several containers of Tritium 9AS and Deuterium gas as part of his military occupational specialty. See December 4, 2015, VA 21-4138 (Statement in Support of Claim). (c.) The Veteran's statements about being exposed to toxic chemicals, including toluene, acetone, MEK, PD680, dry cleaning fluid, zinc chromate, and other chemicals, through absorption from using the chemicals on a rag and cleaning bomb parts as part of his military duties. See Veteran's Statement received by VA on November 28, 2017. (d.) Medical records indicating the Veteran received testosterone injections during the claim period, as early as 2014. (e.) August 2017 and July 2017 VA medical notes indicating that the Veteran had a desire for surgical sterilization. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his claimed infertility, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion that an in-service event, injury, or illness led to his claimed infertility. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 5. Following completion of the foregoing development, the Regional Office should make a determination whether any of the Veteran's claimed disabilities constitute a "radiogenic disease" as described within 38 C.F.R. § 3.311(b)(2) and/or (b)(4). This includes making a determination as to whether the Veteran "has cited or submitted competent scientific or medical evidence that the claimed condition is a radiogenic disease." 38 C.F.R. § 3.311(b)(4). (Continued on the next page) 6. Only if the Regional Office determines that a claimed disability constitutes a "radiogenic disease" defined by 38 C.F.R. § 3.311(b)(2) or (b)(4), then the Regional Office should undertake all necessary development not inconsistent with section 3.311, with particular attention paid to the adequacy of any medical opinions obtained thereto. 7. The VA Regional Office should follow all development to its logical conclusion, which may include additional examinations or opinions. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.