Citation Nr: 0004101 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 97-34 566 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for azoospermia, to include sterility, as secondary to an undiagnosed illness. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The veteran and his wife ATTORNEY FOR THE BOARD Wm. Kenan Torrans, Associate Counsel INTRODUCTION The veteran served on active duty from February 1989 to February 1993. This matter arises from a February 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. FINDING OF FACT There is no competent medical evidence showing that the veteran currently suffers from an undiagnosed illness, or that establishes a nexus or link between any currently diagnosed azoospermia and the veteran's active service. CONCLUSION OF LAW The veteran's claim for service connection for azoospermia, to include sterility as secondary to an undiagnosed illness, is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.317 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury that was incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. See 38 C.F.R. § 3.303(b) (1999). Service connection also may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (1999). In reviewing a claim for service connection, the initial question is whether the claim is well grounded. The veteran has the "burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." See 38 U.S.C.A. § 5107(a) (West 1991); Robinette v. Brown, 8 Vet. App. 69, 73 (1995). A well- grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive, but only possible to satisfy the initial burden of § 5107. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1995). In the absence of a well-grounded claim, there is no duty to assist the claimant in developing facts pertinent to the claim, and the claim must fail. See Epps v. Gober, 126 F.3d 1464, 1468 (1997); Slater v. Brown, 9 Vet. App. 240, 243 (1996); Gregory v. Brown, 8 Vet. App. 563, 568 (1996) (en banc). To establish that a claim for service connection is well grounded, the veteran must satisfy three elements. First, there must be evidence of an incurrence or aggravation of an injury or disease in service. Second, there must be competent (i.e. medical) evidence of a current disability. Third, there must be evidence of a nexus or link between the in-service injury or disease and the current disability, as shown through the medical evidence. See Epps, supra. Lay or medical evidence, as appropriate, may be used to substantiate the service incurrence. See Caluza v. Brown, 6 Vet. App. 489, 506 (1995); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Alternatively, a claim may be well grounded based upon the application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b) (1999). See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Also, pursuant to 38 C.F.R. § 3.317 (1999), the VA shall pay compensation to a Persian Gulf War veteran who "exhibits objective indications of chronic disability" (manifested by certain signs or symptoms), provided that the disability becomes manifest to a degree of 10 percent or more prior to December 21, 2001, and assuming that such disability cannot otherwise be attributed to any known clinical diagnosis. Signs or symptoms which may be manifestations of undiagnosed illnesses include joint and muscle pain, and gastrointestinal symptomatology. "Objective indications" include both objective evidence perceptible to an examining physician, and other non-medical indicators that are capable of independent verification. See 38 C.F.R. § 3.317(a)(2) (1999). Finally, to be "chronic" a disability must have existed for six months or more, or to have exhibited intermittent episodes of improvement and worsening over a six-month period. In addition, pursuant to an opinion by the VA General Counsel, VAOPGPREC 4-99 (May 3, 1999), in order to establish a well-grounded claim for service connection predicated upon a Persian Gulf War etiology, four criteria must be met. First, there must be proof of actual military service in the Southwest Asia theater of operations (SWATO) during the Persian Gulf War. Second, there must be proof of one or more signs or symptoms of an undiagnosed illness. Third, the veteran must show proof of indications of chronic disability manifest during service or to a degree of disability of 10 percent or more during the specified presumptive period. Fourth, there must be proof that the chronic disability is the result of an undiagnosed illness. In this case, it is uncontroverted that the veteran served in SWATO during the Persian Gulf War. His service personnel records disclose that he served in SWATO with the 89th Military Police Brigade from October 1990 through May 1991. The veteran's service medical records are negative for any indication of sterility or azoospermia. Post-service medical treatment records disclose that in December 1995, the veteran underwent treatment for complaints of right groin pain of two-weeks' duration at the Floyd Valley Hospital. He indicated that he first experienced this pain while working in a hog confinement area, and was diagnosed with a probable groin muscle strain secondary to his work with hogs. The veteran was first noted to have a sperm deficiency in March 1996 after having undergone a semen analysis at the Sioux City Urological Associates. At that time, the veteran was noted to have a brother who had been diagnosed with azoospermia. The examining physician noted that he was able to palpate the veteran's vas deferens on the right, but was unable to do so on the left. No other abnormalities, aside from a residual scar from an earlier inguinal hernia repair, were noted. The report of a December 1996 VA rating examination shows that the veteran had recently been diagnosed with azoospermia after having been found to have a sperm deficiency at the Sioux City Urological Associates in March 1996. A subsequent semen analysis conducted in April 1996 confirmed the diagnosis of azoospermia. The veteran reported that during the Persian Gulf War he had taken Pyridostigmine tablets more than once and had been given an anthrax vaccine. The only past medical history of relevance or significance included a right inguinal herniorrhaphy at age six. In addition, the veteran was noted to have a brother with a urethral stricture problem which had been corrected by surgery on two occasions. No physical abnormalities of any significance were noted, and the examiner concluded with a diagnosis of isolated deficiency in sperm production (azoospermia). The record also shows that the veteran was scheduled to undergo VA rating examinations in January and August 1998, but that he failed to report to those examinations. A VA telephone note dated in November 1998 indicates that according to the clerk at the Sioux Falls VA Medical Center (VAMC), the veteran "canceled and no-showed several times" for urology examinations. In November 1999, the veteran and his wife appeared at a personal hearing before the undersigned Board Member at the RO. The veteran testified that he had taken Pyridostigmine tablets regularly for a week during the Persian Gulf War, and that he had been given an anthrax vaccine. He indicated that he had not been involved in combat, and that he did not experience any health-related problems during his service in SWATO. In addition, he testified that he received a letter advising that he had been exposed to chemical munitions destroyed following the cessation of hostilities in 1991. The veteran indicated that he had been given only what he characterized as a cursory examination, and that he had been informed that he had no sperm in his semen. According to the veteran, three civilian doctors and one VA physician were unable to explain why his semen contained no sperm. The veteran reported that he and his wife attempted to have children shortly after their marriage in July 1995, but that they were told in approximately February 1996 that the veteran did not have any sperm. The veteran also stated that he had been told that a genetic test could determine if his problem was congenital, but that no such test had ever been performed. He concluded essentially that there was no known reason for the total absence of sperm in his semen. Based on the evidence, the Board must conclude that the veteran has not submitted evidence of a well-grounded claim for service connection for azoospermia, to include sterility as secondary to an undiagnosed illness. The record is clear that the veteran suffers from sterility or azoospermia. The Board further acknowledges the veteran's testimony that his treating physicians have been unable to determine why he currently has azoospermia. Aside from noting the veteran's history of having been given an anthrax vaccine and having taken Pyridostigmine tablets, however, there is no medical evidence, such as an opinion, linking azoospermia to service, to include his service in the Persian Gulf War. Moreover, with respect to the veteran's sterility, this disorder has been given a known diagnosis of azoospermia and not merely a sign or symptom of an undiagnosed illness despite uncertainty as to the cause of the condition. The veteran has said genetic testing might help to determine whether the condition is congenital, but that such testing has been performed. In any event, the condition cannot be attributed to "Gulf War Syndrome" or an undiagnosed illness under the current regulations. The record also does not show any objective evidence that the veteran's azoospermia was diagnosed prior to March 1996, or that he experienced symptoms of sterility within any presumptive period following his discharge from service. See Savage, supra. In short, absent any medical opinion linking the veteran's azoospermia to his active service, to include Persian Gulf War duty, service connection for azoospermia cannot be granted on a direct basis. In addition, lay statements and testimony by the veteran and his wife that the veteran's azoospermia was incurred as a result of his active service, or that his sterility was the result of an undiagnosed illness do not constitute medical evidence. As lay persons without medical training and expertise, the veteran and his wife are not competent to address issues requiring medical diagnoses or opinions as to medical etiology. See Moray v. Brown, 5 Vet. App. 211, 214 (1995); Espiritu v. Derwinski, 492, 494-95 (1992). What is missing in this case is a medical opinion, such as a letter from a physician, that the veteran's azoospermia was incurred during service or is related to events in service. Absent such an opinion establishing the required nexus or link between azoospermia and service, his claim is not well grounded and must be denied on that basis. For the foregoing reasons, it is the decision of the Board that the veteran has not met his initial burden of submitting evidence of a well-grounded claim for service connection. The Board unaware of any additional relevant evidence which is available which could serve to well ground the veteran's claim. As the duty to assist is not triggered here by a well-grounded claim, VA has no obligation to further develop the evidence. See 38 U.S.C.A. § 5103 (West 1991); McKnight v. Gober, 151 F.3d 1483 (Fed. Cir. 1997); Epps, supra; Grivois v. Brown, 5 Vet. App. 136, 140 (1994). The veteran, of course, may apply to reopen his claim with the RO at any time if he obtains additional medical evidence linking the claimed condition to service. ORDER Evidence of a well-grounded claim not having been submitted, service connection for azoospermia, to include sterility as secondary to an undiagnosed illness, is denied. CHARLES E. HOGEBOOM Member, Board of Veterans' Appeals