Citation Nr: 21004680 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 11-22 591 DATE: January 27, 2021 ORDER Entitlement to service connection for a bladder disorder with increased urinary frequency and nocturia is denied. Entitlement to service connection for chronic insomnia is denied. REMANDED Entitlement to an initial evaluation in excess of 10 percent for patellofemoral syndrome of the right knee is remanded. Entitlement to an initial evaluation in excess of 10 percent for patellofemoral syndrome of the left knee is remanded. Entitlement to service connection for refractive error, bilateral eyes (claimed as blurred vision) is remanded. Entitlement to service connection for residuals of a right ankle fracture is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a bladder disorder with increased urinary frequency and nocturia began during active service, or is otherwise related to an in-service injury or disease, to include as secondary to service-connected pemphigus vulgaris. 2. The preponderance of the evidence is against finding that chronic insomnia began during active service, or is otherwise related to an in-service injury or disease, to include as secondary to service-connected pemphigus vulgaris. CONCLUSIONS OF LAW 1. The criteria for service connection for a bladder disorder with increased urinary frequency and nocturia have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for chronic insomnia have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2003 to January 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2007 and November 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Board remanded the issues of service connection for hypertension, a bladder disorder, chronic insomnia, and residuals of a right ankle fracture. In that same decision, the Board granted a separate evaluation for left knee patellofemoral syndrome but denied entitlement to a higher evaluation than 10 percent for the right and left knee patellofemoral syndrome. The Board also denied service connection for a refractive error of the eyes. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans’ Claims (Court). In January 2020, the Court issued a memorandum decision that vacated and remanded the portions of the Board’s April 2018 decision that denied service connection for an eye disability and increased evaluations for right and left patellofemoral syndrome. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The duty to assist is not a one-way street. A claimant cannot remain passive when he or she has relevant information. See Wamhoff v. Brown, 8 Vet. App. 517 (1996); Wood v. Derwinski, 1 Vet. App. 190 (1991). Under 38 C.F.R. § 3.655 (b), when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or death of an immediate family member. 38 C.F.R. § 3.655 (a). In this case, the record shows that the Veteran was scheduled for VA examinations in response to the Board’s remand for both claims, but he failed to report for those examinations without good cause. See April 2019, September 2019, March 2020, and July 2020 VA examination request printouts. In the April 2020 supplemental statement of the case (SSOC), the AOJ notified the Veteran of his failure to report. A copy was sent to his representative. Further, there is no indication that the Veteran did not receive notification of these examinations. In fact, the Veteran cancelled the July 2020 examinations. At present, neither the Veteran nor his representative have requested rescheduling of the examinations, or provided an explanation as to why the Veteran did not appear for the earlier examinations. Based on the foregoing, the Veteran’s service connection claims will be adjudicated based on the evidence of record. 1. Entitlement to service connection for a bladder disorder with increased urinary frequency and nocturia is denied. The Veteran seeks service connection for a bladder disability that manifests in urinary frequency and post-urination drip. See February 2007 VA 21-526. During service, the Veteran reported urinary dribbling associated with prostate pain in December 2003. The Veteran denied dysuria, frequency, and urgency, but he indicated that there was incomplete emptying. The Veteran was assessed with possible chronic prostatis vs. proctalgia. The Veteran was seen for related complaints in July 2006. At that time, the Veteran reported urinary frequency during the night and that he had been previously treated for overactive bladder during high school (prior to service). A September 2006 cytoscopy was performed, which showed no urethral stricture, lateral median lobes which were not prominent, orthotopic ureteral orifices, bilateral ureteral efflux which were clear, and the entire bladder was inspected. At a March 2007 VA general medical examination, the Veteran reported frequent urination. The examiner did not give a diagnosis related to the Veteran’s claimed bladder condition. In a March 2007 VA genitourinary examination, the Veteran reported nocturia and increasing urinary frequency for the past four years, including treatment with medication and return of symptoms once medication was discontinued. The examiner noted that the September 2006 cystoscopic report showed no evidence of bladder outlet obstruction. The examiner indicated that the Veteran certainly has a problem in bladder storage, either due to a functional disorder or interstitial cystitis. However, the examiner concluded that it was not possible to firmly issue a diagnosis. In the April 2018 remand, the Board found this opinion inadequate as it improperly employed a stricter standard when using the term “firmly” and there were no opinions rendered as to whether the disorder is related to service. In remanding the claim, the Board also indicated that the disorder was not noted at entrance to service and therefore, the presumption of soundness arises. As noted, the Veteran did not appear for the April 2019, September 2019, and March 2020 VA examinations. The Veteran cancelled the July 2020 VA examination for bladder disorder. On this record, the Veteran has not met his burden of establishing entitlement to the claim and service connection is not warranted in this case. Although service treatment records note complaints of urinary frequency, there is not sufficient competent medical evidence to establish a diagnosis. After examination and testing, the service treatment records noted a diagnosis relating to prostate pain but not the Veteran’s claimed bladder condition. Furthermore, the September 2006 cystoscopy did not support a bladder pathology. The Veteran’s lay statements indicating that he had nocturia and urinary frequency are competent as to what he experienced before, during, and after service. However, the Veteran is not competent to offer a diagnosis in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The issue of whether the Veteran has a bladder condition involves a mostly internal disease progression and requires the ability to interpret complex diagnostic testing. Thus, it is outside the scope of a lay person, and the Veteran has not been shown to possess any medical training or experience. Consequently, the Board gives more probative weight to the clinical evidence. The Board has considered whether the holding Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability” if it “reaches the level of a functional impairment of earning capacity.” Id. at 1367-69) is applicable in this case. However, there is no evidence that supports functional impairment of earning capacity due to the claimed bladder condition. Ultimately, there is no competent evidence of a diagnosis at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Accordingly, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Service connection is not warranted. 2. Entitlement to service connection for chronic insomnia is denied. The Veteran seeks service connection for a disability manifested by chronic sleeping problems, to include as due to the claimed bladder disorder. See February 2007 VA 21-526. Alternatively, the Veteran reported sleep difficulties in service tied to steroid treatment for the Veteran’s service-connected pemphigus vulgaris. See December 2005 service treatment records. In the March 2007 general medical VA examination, the examiner noted a diagnosis of chronic insomnia chronic. The examiner did not review the claims file. Presumably based on the Veteran’s report, the examiner stated that “chronic steroid use has produced some of the other problems which we are addressing here such as hypertensive reactors, insomnia, chronic fatigue, multiple joint arthralgias.” The claim was remanded by the Board in April 2018 as no medical examination has been provided with respect to chronic insomnia. The Veteran did not appear for the scheduled VA examinations. See April 2019, September 2019, and March 2020 VA examination request. The dispositive question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. On this matter, the Board does not find the March 2007 general VA examination report probative evidence. Initially, the Board notes that it is unclear from the examination report if the examiner is providing a positive opinion or simply relating the Veteran’s contentions on the cause of his chronic insomnia. To the extent the March 2007 examination report is providing a positive etiological opinion, the Board notes that the rationale is insufficient, and the examiner did not review the claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The claims file includes the December 2005 service treatment record which indicated that the reduction and tapering of steroid medication within one year should eliminate the Veteran’s insomnia. The clinician implies that if sleep issues were caused by the Veteran’s medication, it should be reflected when the medication or dosage is changed. In this regard, the Veteran reported a reduced dosage of steroid medication in March 2007 VA examination without reporting abatement or change regarding his sleep issues. The record raises relevant issues and the failure to review the records diminishes the probative value of any positive etiological link established by the March 2007 report. While the Veteran is competent to report having experienced symptoms of insomnia, he is not competent to determine the etiology of his insomnia. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems and the complex effects of prolonged medication usage in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In this case, there is no competent or probative opinion on the matter. As it is the Veteran’s general evidentiary burden to establish all elements of the claim, the Veteran has not met his burden in relation to his claim, and the claim must be denied. In reaching this conclusion, the Board has applied the benefit-of-the-doubt doctrine where applicable. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND 1. Entitlement to an initial evaluation in excess of 10 percent for patellofemoral syndrome of the is right knee remanded. 2. Entitlement to an initial evaluation in excess of 10 percent for patellofemoral syndrome of the left knee is remanded. The January 2020 memorandum decision by the Court noted that the August 2011 VA examination did not consider the functional loss during flare ups. A review of the record does not reveal any other VA examination that elicited relevant information regarding the Veteran’s claimed flare-ups or provided any estimation of functional impact during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Accordingly, a remand is required for another VA examination. 3. Entitlement to service connection for refractive error, bilateral eyes (claimed as blurred vision) is remanded. The Veteran seeks service connection for blurred vision, to include as having had onset in service. See February 2007 VA 21-526. Alternatively, the Veteran asserts his blurred vision is related to steroid medication used to treat service-connected pemphigus vulgaris. In the January 2020 memorandum decision, the Court found that it was error for the Board to deny service connection based on the March 2007 VA examination. Specifically, the Court noted that the March 2007 VA opinion identified the Veteran’s report of night vision blurriness but did not adequately address the cause of his symptom. Moreover, the Court found that the Board did not consider aggravation of refractive error by a superimposed service-connected disease or injury, to include as due to the use steroid medication in service. Currently, there is no opinion that sufficiently addresses the cause of the Veteran’s blurred night vision, or aggravation of the Veteran’s refractive error. As such, a remand is necessary. 4. Entitlement to service connection for residuals of a right ankle fracture is remanded. 5. Entitlement to service connection for hypertension is remanded. As noted, the Board most recently remanded the claims for right ankle fracture and hypertension in April 2018 and directed the RO to obtain an addendum medical opinion as to these claims. The directives indicated that a new examination (i.e. in person examination) should was only required if deemed necessary by the examiner. The record indicates that the Veteran failed to appear at multiple VA examinations in April 2019, September 2019, March 2020, and July 2020; and an addendum opinion was not obtained in the wake of the Veteran’s failure to appear. As there is no indication from the Board’s review of the file that an in-person examination is required to address these matters. Thus, a medical opinion should be obtained. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right and left knee patellofemoral syndrome. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. In addition, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s claimed blurred vision. The examiner should review the claims file and a copy of this Remand. a) The examiner should note all diagnoses pertaining to the Veteran claimed eye disability. In doing so, the examiner should clarify if the reported blurry nighttime vision is caused by any of the Veteran’s diagnoses. b) For any eye disability that is a congenital defect (to include refractory errors and astigmatism), the examiner should opine whether it is at least as likely as not that refractive error was subject to superimposed injury or disease during the Veteran’s period of service. c) For any eye disability that is a congenital defect (to include refractory errors and astigmatism), the examiner should opine whether it is at least as likely as not that such defect was aggravated beyond the normal progress of the disease during or due to the Veteran’s military service, to include the Veteran’s prolonged use of steroid medication during service. The examiner should consider the Veteran’s service treatment records, to include the December 2006 complaint of reduced visual acuity which also noted that the Veteran was using multiple medications (Cellcept, Prednisone, and Detrol) for his skin condition. 3. Obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of any hypertension or disability manifesting in “hypertensive reactor.” The examiner should review the claims file and a copy of this Remand. a) The examiner is asked to clarify whether the Veteran has hypertension or hypertensive reactor disability. In doing so, the examiner should clarify whether “hypertensive reactor” is a disease, rather than a symptom or normal condition. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider that a “disability” for the purpose of providing the requested opinion(s) below. b) For any diagnosis, the examiner should opine whether it is at least as likely as not related to service, including having had onset within one year of service. c) For any diagnosis, the examiner should opine whether it is at least as likely as not at least as likely as not that such disability is either proximately caused by or aggravated by the Veteran’s service-connected pemphigus vulgaris, to include as due to the medications the Veteran took for that condition. In answering this question, one opinion is required for proximate causation and a second opinion is required for aggravation opinions. Each opinion must be supported by a rationale. The term “aggravation” means worsened beyond its natural progression. 4. Obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s right ankle fracture residuals. The examiner should review the claims file and a copy of this Remand. a) The examiner should opine whether it is at least as likely as not that the Veteran’s pre-existing right ankle disability increased in severity during service or was permanently aggravated during active service, in light of the joint stiffness noted on the March 2007 VA examination. b) If the Veteran’s ankle fracture was aggravated in service, the examiner should opine whether the increase was clearly and unmistakably due to the natural progress of the condition. The examiner is advised that the evidentiary standard of “clear and unmistakable” is a formidable evidentiary standard, requiring that the result be “undebatable.” c) Regardless of the responses to the foregoing, the examiner should opine whether it is as likely as not that a right ankle disability is either proximately caused or aggravated by the Veteran’s use of steroid medication for service-connected pemphigus vulgaris. A complete rationale should be provided. (Continued on the next page)   5. For the claimed eye, hypertension, and right ankle disabilities, the Board defers to the examiner’s discretion whether another in-person examination is required to render the requested opinions. If the examiner determines that an in-person examination is required, the RO should document that determination and any attempts to schedule the Veteran for such examination. For any scheduled examination, advise the Veteran that failure to report for these VA examinations, without good cause, may have detrimental consequences on these pending claims. 38 C.F.R. § 3.655. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Vuong, 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.