Citation Nr: 22012206 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 16-08 965 DATE: March 2, 2022 ORDER Entitlement to service connection for loss of use of creative organ, claimed as due to exposure to contaminated water at Camp Lejeune, is denied. FINDING OF FACT The evidence of record persuasively weighs against finding that loss of use of a creative organ began during active service, or is otherwise related to any event, injury, or disease during service, to include exposure to contaminated water at Camp Lejeune. CONCLUSION OF LAW The criteria for service connection for loss of use of creative organ, claimed as due to exposure to contaminated water at Camp Lejeune, have not been met. 38 U.S.C. §§ 1110, 1114, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION In December 2020, the Board remanded a claim for service connection for an eye disability for development. A June 2021 rating decision established service connection, classifying the disability as pigmentary glaucoma. As the June 2021 rating decision fully granted the claim for service connection for an eye disability, the issue is no longer on appeal. In light of the treatment records that have been obtained and associated with the record, the obtaining of the requested medical opinion, and the further adjudicatory actions taken by the Agency of Original Jurisdiction, the Board finds that there has been substantial compliance with the prior remand requests concerning the issue of entitlement to service connection for loss of use of creative organ, claimed as due to exposure to contaminated water at Camp Lejeune. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999). 1. Entitlement to service connection for loss of use of creative organ, claimed as due to exposure to contaminated water at Camp Lejeune Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Furthermore, service incurrence will be presumed for certain chronic diseases if manifest to a compensable degree within the year after active service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Effective March 14, 2017, a Veteran, or former reservist or member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987, shall be presumed to have been exposed during that 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). If a Veteran served at Camp Lejeune during the time frame specified, certain diseases including kidney cancer, liver cancer, non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer shall be service-connected even though there is no record of the disease during service. 38 C.F.R. § 3.309(f). However, the absence of a disease from the presumptive list does not preclude a Veteran from otherwise proving that the disability resulted from exposure to contaminated water at Camp Lejeune. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection may still be established on a direct basis. The Veteran's service personnel records confirm service of at least 30 days at Camp Lejeune during the applicable time period, and exposure to contaminated water is conceded. However, the disability for which the Veteran seeks service connection as due to exposure to contaminated water at Camp Lejeune is not on the presumptive list. Accordingly, the Board will consider whether entitlement to service connection for loss of use of a creative organ can be established on a direct basis, or as secondary to the service-connected disabilities. On VA examination in February 2020, the examiner noted the Veteran's report that he had a sperm test while he was in his 20s, and he was currently 59. The Veteran reported that his sperm count was low, and he had no treatment. The Veteran stated that he was trying to have children with a girlfriend in 1988 and was unsuccessful. The Veteran further stated that he had erectile dysfunction since age 50 or 51. The examiner stated that there was no diagnosis of infertility or inability to have children as there was no documented proof. The examiner reiterated that there was no evidence of an inability to have children. The examiner stated that although the Veteran had erectile dysfunction, erectile dysfunction did not equate to an inability to have children. The examiner stated that just because a person has difficulty having an erection, that did not mean that he could not have children. The examiner commented that the Veteran was 59 years old, and there were no documented sperm tests during his reproductive years. The examiner opined that it was less likely than not that the erectile dysfunction was incurred in service or the result of any incident in service, to specifically include as due to exposure to contaminated water at Camp Lejeune. The examiner found no evidence of a linkage, and the examiner explained that erectile dysfunction was a very common condition among men the Veteran's age. The examiner further opined that the claimed disability was not at least as likely as not secondary to or aggravated by the service-connected disabilities. The examiner reiterated that the Veteran was 59 years old, and at that age, it was common to have erectile dysfunction. On VA examination in July 2021, the examiner opined that the Veteran's claimed inability to have children was less likely than not proximately due to or the result of the Veteran's service. The examiner found that the service medical records showed no evidence of infertility during service, and there was no evidence that the Veteran had been formally diagnosed with infertility. The Veteran told the examiner that he was unable to conceive. The examiner further noted that the Veteran served at Camp Lejeune from 1983 to 1987, and the Veteran stated that he was exposed to TCE, PCE, and Vinyl Chloride. The examiner named and cited a medical review article which conclude that there continued to be insufficient evidence to determine whether an association exists between chronic exposure to TCE or PCE and male infertility. The examiner remarked that the available medical literature, including the cited study, failed to provide evidence of a well-established relationship between male infertility and exposure to the noted chemicals. The examiner reiterated that while the Veteran reported an inability to conceive, there was no evidence that the Veteran had actually been formally diagnosed with infertility. Because of the lack of firm scientific evidence establishing a relationship and the Veteran's records not supporting an actual diagnosis of infertility, the examiner opined that it was less likely than not that a current condition of infertility, if found, was related to service. Concerning any possible connection to service-connected lymphoma, the examiner noted that while there was some minimal literature which associated newer chemotherapeutic agents with male infertility in animals, a causal link in humans had not been established. Additionally, the Veteran had reported an onset of infertility long before he was diagnosed with lymphoma. Therefore, the examiner opined that it was less likely than not that claimed erectile dysfunction was due to service-connected lymphoma or treatment. Although the Veteran claims to have an inability to have children, the Board concludes that the preponderance of the evidence is against a finding of a relationship of that claimed disability to service, to include as secondary to Camp Lejeune contaminated water. The Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). However, the Board is required to assess the credibility and weight to be given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board has considered that laypersons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The lay statements describing the Veteran's lack of children are competent and credible. However, the Board finds that identifying actual infertility and its etiology is a complex medical issue that requires medical training. The February 2020 and July 2021 VA examiner opinions indicate that it was less likely than not that the claimed inability to have children, or any erectile dysfunction, was due to service, to include as secondary to exposure to Camp Lejeune contaminated water, or secondary to or aggravated by service-connected disability. The Board finds the February 2020 and July 2021 VA examiner opinions to be more probative than the Veteran's assertions. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The opinions of the VA examiners are highly probative because they were supported by detailed rationale and provided by trained medical professionals, with medical research cited to support the opinions. The VA examiners specifically identified and discussed the Veteran's contentions and theory concerning service and his claimed inability to have children. In particular, the examiners considered the Veteran's statements. The Board finds that the February 2020 and July 2021 VA examiner opinions carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Hayes v. Brown, 5 Vet. App. 60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1 Vet. App. 190 (1992). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion reached. As is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Veteran has not submitted any further medical evidence to support the contention that his claimed inability to have children is related to service, to include as secondary to Camp Lejeune contaminated water. In June 2021 correspondence, the Veteran stated that the book "Count Down," by Shanna H. Swan with Stacey Colino, demonstrated how a small amount of chemicals affected the human reproductive system. The Board observes that medical articles or treatises can provide important support when combined with the opinion of a medical professional if they discuss generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). However, standing alone, the medical treatise evidence is simply too general to make a causal link between the Veteran's claimed inability to have children and exposure to Camp Lejeune contaminated water that is more than speculative in nature. Moreover, the VA examiners who provided opinions in the specific facts of this case noted medical treatise information concerning Camp Lejeune contaminated water and concluded that it was less likely than not that the Veteran's claimed infertility and erectile dysfunction was related to his service, to include secondary to exposure to Camp Lejeune contaminated water. Therefore, the Board finds that the statements submitted by the Veteran concerning the book "Count Down" are outweighed by the VA examiners' assessments of the medical literature as a whole. Hayes v. Brown, 5 Vet. App. 60 (1993). Accordingly, after a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim. No causal connection between, to include exposure to Camp Lejeune contaminated water, and the Veteran's claimed loss of use of a creative organ is demonstrated by the most persuasive, competent evidence of record. There is also no causal connection between the Veteran's service-connected disabilities and the Veteran's claimed loss of use of a creative organ is demonstrated by the most persuasive, competent evidence of record. The Board finds that, taken together, the February 2020 and July 2021 VA examiner opinions are the most persuasive evidence in this case. The Board is appreciative of the Veteran's faithful and honorable service to our country. However, because the preponderance of the evidence is against the claim, the claim must be denied. The Board finds that the evidence is not in relative equipoise and there is no reasonable doubt to be resolved in favor of the Veteran. Accordingly, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for loss of use of a creative organ, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Layton, 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.