BVA9402838 DOCKET NO. 92-22 764 ) DATE ) ) ) THE ISSUE Entitlement to service connection for sterility. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD Christopher Maynard, Associate Counsel INTRODUCTION The veteran had active service from January 1966 to March 1970, May 1971 to July 1978 and May 1986 to April 1989. By rating action dated in January 1979, service connection for sterility secondary to an infection was denied by the agency of original jurisdiction. The veteran was notified of this decision and did not appeal. By rating action dated in August 1992, the Montgomery, Alabama, Regional Office, (RO) denied the veteran's claim of service connection for sterility claimed as due to gunshot wound injury. A statement of the case was then issued in September 1992 and the substantive appeal was received in October 1992. The appeal was received at the Board in November 1992 and docketed in December 1992. The veteran has been represented throughout his appeal by State Department of Veterans Affairs, Alabama. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that he was treated at a VA medical facility while in service in 1973 for sterility and believes service connection should be granted. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. The Board has determined that only those items listed in the "Certified List" attached to this decision and incorporated by reference herein are relevant evidence in the consideration of the veteran's claim. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that service connection for sterility is granted on the basis of clear and unmistakable error in the January 1979 rating decision. FINDINGS OF FACT 1. Department of Veterans Affairs (VA) treatment records dated in July and August 1973 show that the veteran was evaluated for infertility problems and was diagnosed with azoospermia with possible obstruction of the ejaculatory duct while on active service in 1973. 2. An examination conducted by VA shortly after service (in connection with his original claim) reported findings of sterility which could have only been attributed to disease or injury in service. 3. The basis for the denial by the RO in 1979 was totally inconsistent with the evidence of record and, as such, was not tenable. CONCLUSION OF LAW The rating action of January 1979 involved clear and unmistakable error in failing to grant service connection for sterility. 38 U.S.C.A. § § 1110, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.104(a), 3.105(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that the veteran's claim is well-grounded within the meaning of § 5107 and is satisfied that all relevant facts have been properly developed in accordance with this law. The evidentiary record indicates that the veteran was apparently tested at a VA medical facility in July 1973 (during service) for possible sterility. Initial laboratory studies showed no evidence of sperm activity and the veteran was subsequently admitted in August 1973 for additional evaluation that included a vasotomy and vasogram with left testicular biopsy. The biopsy revealed disarray of spermatogenesis, but it was active. The record reported a history of infection in service in Vietnam. Test results showed no evidence of active sperm and the diagnosis was azoospermia with possible obstruction of the ejaculatory duct. The hospital summary report also indicated that prior sperm counts in 1971, 1972 and March 1973 had all been normal. Additional studies in 1975 and 1976 were essentially the same and the diagnosis of azoospermia was continued. A December 1975 hospital report noted that the veteran had had urethral dilation since an injury in Vietnam. At this point, the RO had attempted to obtain all of the veteran's service medical records, but those records pertaining to his first period of service, specifically Vietnam service, were apparently lost and are no longer available. When examined by the VA in November 1978, the examiner (the same physician who had treated the veteran in 1973) indicated that he remembered evaluating the veteran and recorded a history of right testicle swelling and epididymitis in 1967 and "GC" in 1970 in Vietnam. He also reported that the veteran (as of 1978) had been married for seven years and remained infertile with followup checks showing no mobile sperm. It was added that the veteran had adopted 2 children. The examiner opined that the veteran's immobile spermatozoa was probably caused by obstruction of the vas deferens at the ejaculatory level and sperm antibody from infections the veteran reportedly had had in Vietnam. By rating action dated in January 1979, service connection was denied for sterility. The rating board noted that the veteran had been evaluated by the VA in 1973 for azoospermia and concluded that, although the veteran related his sterility to an infection in Vietnam, the service medical records were negative for such an infection. The rationale for the RO's 1979 rating decision is not tenable as the facts then of record were not in dispute. The first evidence of azoospermia or findings of sterility was in 1973, while the veteran was on active service. Thus, there was of record at the time of the original claim (filed shortly after service) this positive evidence showing incurrence in service and no evidence to the contrary. The stated basis was totally inconsistent with the evidence of record. The history recorded in service and at the time of the first examination by VA is entirely credible and, in fact, represents the only evidence concerning the etiology and date of onset of the condition. This information could not be confirmed because the service medical records were not obtainable by the RO. As such, the decision of the RO in 1979 was arbitrary and capricious. The law provides that a veteran is entitled to a grant of service connection for a disability resulting from personal injury or disease contracted in the line of duty while in active military service. § 1110. Therefore, it is the decision of the Board that there was clear and unmistakable error in the January 1979 rating decision in failing to grant service connection for sterility. ORDER Based on clear and unmistakable error in the January 1979 rating decision, service connection for sterility is granted, subject to the criteria governing the payment of monetary awards. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 STEPHEN L. WILKINS U. H. ANG, M.D. DANIEL J. STEIN NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.