Citation Nr: 21067214 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-17 445 DATE: November 3, 2021 ORDER Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a gastrointestinal disability, to include irritable bowel syndrome (IBS), is denied. Entitlement to service connection for a testicular disability, to include epididymitis, is denied. FINDINGS OF FACT 1. The Veteran failed to report for and/or refused VA examinations without good cause scheduled in October 2020 and May 2021 related to his right shoulder, gastrointestinal, and testicular disabilities. 2. The preponderance of the evidence is against finding that the Veteran's right shoulder condition began during active service or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence of record is against finding that the Veteran has had a gastrointestinal disability at any time during or approximate to the pendency of the claim nor has the Veteran's gastrointestinal complaints been associated with an undiagnosed illness or diagnosed medically unexplained chronic multi-symptom illness (MUCMI). 4. The preponderance of the evidence is against finding that a testicular disability began during active service or is otherwise related to an in-service injury or disease, to include association with any undiagnosed illness or diagnosed MUCMI. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a gastrointestinal disability, to include irritable bowel syndrome (IBS) have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for a testicular disability, to include epididymitis 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 had active service in the United States Army from October 1997 to February 2015. As a result of his service, the Veteran was awarded the Combat Action Badge for his service in Iraq in 2004 along with the Afghanistan campaign medal with two campaign stars. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by a VA Regional Office (RO). By way of background, these matters were previously before the Board in May 2020 at which time the Board directed that the Veteran was to be afforded new VA examinations which addressed his claimed right shoulder, testicular, and gastrointestinal disabilities. Upon return to the Board in March 2021, the Board found an additional remand was warranted. The Board's March 2021 decision referenced an October 2020 notation in the record indicated that the Veteran declined right shoulder, male reproductive and stomach examinations. However, the Board ultimately found a remand to afford the Veteran new VA examinations was warranted referencing the February 2021 Informal Hearing Presentation, during which the Veteran's representative asserted that "it appears that the Regional Office ordered the wrong type of disability benefits questionnaire on at least one of the issues". As such, an additional remand was ordered to obtain new VA examinations and subsequent medical opinions for his claimed disabilities. In compliance with the Board's March 2021 remand directives, the Veteran was scheduled for VA examinations in May 2021. As discussed more fully below, the evidence of record establishes that, without showing good cause, the Veteran declined examination by VA examiners. The record reflects that the Veteran refused to be examined during the scheduled examinations, without good cause. In light of the foregoing, because neither the representative nor the Veteran have provided any specific or pertinent reasons as to why he has failed to respond, be examined, or report for the VA examinations that represent good cause, and because there has been no further response from the Veteran and no showing of good cause, additional VA examinations need not be scheduled, and no additional assistance is required to fulfill VA's duty to assist. 38 C.F.R. § 3.655. The Board therefore finds that the remand directives of March 2021 have been substantially complied with to the extent possible. Stegall v. West, 11 Vet. App. 268 (1998). The duty to assist is not a one-way street, and the Veteran has a duty to cooperate, which includes reporting for scheduled examinations designed to develop his service connection claims. See 38 C.F.R. §§ 3.326, 3.655(b); see also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Accordingly, the Board finds that VA has fulfilled its duty to assist the Veteran in developing the record as to the Veteran's right shoulder, testicular, and gastrointestinal disabilities, and nothing further is required. Moreover, the Veteran, or his representative, has not raised any other issues with respect to the duty to notify or the duty to assist, and the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments not raised by the claimant. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Generally, a veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also 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. 38 C.F.R. § 3.303 (d). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). As noted above, the Veteran is considered a combat veteran for his service in Iraq and Afghanistan. As such, the provisions of 38 U.S.C. § 1154(b) are applicable in this case (for veterans engaged in combat during active service). In that respect, the provisions of 38 U.S.C. § 1154(b) state, in pertinent part, that in any case where a veteran is engaged in combat during active service, lay or other evidence of service incurrence of combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the veteran. Further, special service connection rules exist for Gulf War Veterans. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The Southwest Asia theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). Military personnel records show that the Veteran had active service in the Southwest Asia theater of operations during the Gulf War. Therefore, service connection may also be established under 38 C.F.R. § 3.317. Under that section, service connection may be warranted for a Gulf War veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Gulf War. For disability due to undiagnosed illness and medically unexplained chronic multi-symptom illness (MUCMI), the disability must have been manifest either during active military service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2026. See 38 C.F.R. § 3.317(a)(1). For purposes of 38 C.F.R. § 3.317, there are two types of qualifying chronic disabilities: (1) an undiagnosed illness; or (2) a diagnosed MUCMI, such as chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders (excluding structural gastrointestinal diseases). An "undiagnosed illness" means a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A diagnosed MUCMI is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi-symptom illness. A medically unexplained chronic multi-symptom illness means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that a Veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a right shoulder disability is denied. The Veteran asserts that his right shoulder disability is related to service. Specifically, he contends that his right shoulder condition began in service, with treatment beginning while recovering from dengue fever, and has experienced pain since service. The Veteran's service treatment records are silent as to any right shoulder complaints, treatment, or diagnoses. After service, VA treatment records show ongoing complaints of pain in his right shoulder and a private examination submitted by the Veteran indicates diagnoses of right shoulder strain, tendonitis, and osteoarthritis with date of diagnosis August 2018. See November 2018 Private Examination by Dr. L.J.S.J. The Veteran was afforded a January 2019 VA examination for his right shoulder disability. At that time, the examiner diagnosed the Veteran with a right shoulder strain. The examiner opined that the Veteran's right shoulder strain was less likely than not incurred in or caused by the Veteran's claimed in-service injury, event, or illness. In so finding, the examiner stated that there was no evidence in the STRs of any significant injury to the Veteran's right shoulder during service. Thus, the examiner found that there was no evidence to establish service connection for the Veteran's right shoulder. As indicated above, the Veteran was scheduled for additional VA examinations in October 2020 and May 2021, however he failed to report and/or declined to be examined without good cause. 38 C.F.R. § 3.655. There is no evidence that the notice of the scheduled examination was not received by the Veteran. None of the correspondence sent to the Veteran either before or after the scheduled examination has been returned as undeliverable, indicating that the current address of record is correct. See Ashley v. Derwinski, 2 Vet. App. 62 (1992); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (regarding the applicability of the presumption of regularity to RO actions). To date, neither the Veteran, nor his representative, have provided good cause for why the Veteran failed to attend or refused physical examination during the scheduled examinations. 38 C.F.R. § 3.655. As such the Board shall decide the claim based on the current evidence of record. Based on the evidence of record, the Board finds the claim must be denied. There is no evidence indicating the Veteran's right shoulder condition, which was first diagnosed and treated almost three years after service, has any nexus to his military service. The Board acknowledges the Veteran's designation as a combat Veteran, but he does not contend he injured his shoulder in combat. Rather, the Veteran has consistently reported that his right shoulder pain began in and was treated in service while recovering in the hospital from dengue fever. Thus, while the Board has considered the statements, there is no provision of law that his statements alone may be sufficient proof that they shoulder pain in fact started in service. Cf. 38 U.S.C. § 1154(b) (indicating that lay evidence of combat incurred disease or injury will be considered sufficient proof of service connection unless contrary to the circumstances of service or if there is evidence to the contrary). In fact, notwithstanding his statements, his STRs do not contain any such reports, treatment, or complaints of right shoulder pain during service, to include the treatment records related to his dengue fever recovery. His STRs, in contrast, do show complaints and treatment for a left shoulder injury, which has since been service-connected. As outlined above, the Veteran was first diagnosed with a right shoulder condition several years after service, and no medical professional has every linked the condition to his military service. Indeed, there is at least one opinion to the contrary. While the Board attempted to obtain additional medical opinions, the Veteran declined reporting for any such examinations. The evidence, moreover, very clearly shows the Veteran has diagnosed right shoulder conditions that have never been indicated as "medically unexplained," such as strain, tendonitis, and osteoarthritis. Thus, the provisions of 38 C.F.R. § 3.317 do not apply here and there is no medical evidence suggesting an undiagnosed right shoulder condition or diagnosed MUCMI here. In light of the foregoing, the Board must find that the weight of the evidence is against the Veteran's claim. In reaching that decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § §§ 4.3, 4.7. The appeal of this issue must be denied. 2. Entitlement to service connection for a gastrointestinal disability, to include irritable bowel syndrome (IBS) is denied. The Veteran asserts that his gastrointestinal disability is related to service. Specifically, the Veteran claims that his conditions are the result of his military diet he was required to consume, including Meals Ready to Eat (MREs). The Veteran's STRs contain reports of diarrhea in July 2010 and stomach pain, constipation, gas, and nausea in April 2013. He also had a history of dengue fever with diagnoses in December 2012 and 2013. In April 2015, the Veteran was afforded an intestinal disorders VA examination. At which time, the Veteran reported that he did not know when his claimed irritable bowel syndrome (IBS) began. The Veteran reported that he suffers from constipation with consumption of certain foods that is relieved with over-the-counter laxatives. He also reported that the condition has not been formally diagnosed. The examiner noted that the Veteran had no signs or symptoms attributable to any infectious intestinal conditions. Ultimately, the examiner opined that "there is no diagnosis because there is no pathology to render a diagnosis". After the April 2015 VA examination, VA treatment records contain an October 2017 lab result showing an epigastric mass (hernia) and chronic constipation. As a result, the Board in May 2020 directed the RO to afford the Veteran a new VA examination for his gastrointestinal disability. Unfortunately, as indicated above, the Veteran was scheduled for additional VA examinations in October 2020 and May 2021, however he failed to report and/or declined to be examined without good cause. 38 C.F.R. § 3.655. There is no evidence that the notice of the scheduled examination was not received by the Veteran. None of the correspondence sent to the Veteran either before or after the scheduled examination has been returned as undeliverable, indicating that the current address of record is correct. See Ashley v. Derwinski, 2 Vet. App. 62 (1992); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (regarding the applicability of the presumption of regularity to RO actions). To date, neither the Veteran, nor his representative, have provided good cause for why the Veteran failed to attend or refused physical examination during the scheduled examinations. 38 C.F.R. § 3.655. As such the Board shall decide the claim based on the current evidence of record. The Board notes, that the medical evidence of record seems to indicate a possible diagnosis of IBS, constipation, or other gastrointestinal disorder however, it is not clear that the Veteran has ever had a formally diagnosed condition. Hence the Board's prior attempts to afford the Veteran VA examinations to clarify. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the Board must consider only independent medical evidence to support its findings rather than provide its own medical judgment). Based on the evidence of record, the Board finds the claim must be denied. There is no competent evidence indicating the Veteran's has a current gastrointestinal disability, to include IBS, that has any nexus to his military service. Although the Veteran contends his constipation, i.e., IBS, is related to service, in this case he is not competent to provide an opinion regarding this issue. The issue is medically complex, as it requires knowledge of multiple anatomical systems and how they react to each other. Therefore, it is outside the competence of the Veteran because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Given that the Veteran's gastrointestinal complaints have gone undiagnosed, the Board has considered whether he has an undiagnosed illness or perhaps a diagnosed MUCMI (such as IBS) warranting service connection, in light of his PGW service under 38 C.F.R. § 3.317. The medical evidence in this case is simply insufficient at this time to render such a conclusion. As outlined above, IBS has never been confirmed. His complaints amount to constipation relieved with over-the-counter laxatives and solely based on the evidence of record, the Board does not have sufficient information to ascertain an undiagnosed illness manifested by gastrointestinal manifestations to the severity of 10 percent. Again, VA attempted to further develop this claim by prior attempts to afford the Veteran VA examinations. Without such development, the evidence of record does not establish service-connection is warranted under 38 C.F.R. § 3.317. In light of the foregoing, the Board must find that the weight of the evidence is against the Veteran's claim. In reaching that decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § §§ 4.3, 4.7. The appeal of this issue must be denied. 3. Entitlement to service connection for a testicular disability, to include epididymitis is denied. The Veteran asserts that his testicular disability is related to service. Specifically, the Veteran claims that his condition began during service and has experienced symptoms ever since. The Veteran's STRs are silent for complaints, treatment, or diagnosis of any testicular disability. VA treatment records indicate in February 2009 the Veteran underwent a vasectomy and experienced left testicular pain. A testicular ultrasound was performed which showed fluid surrounding the right epididymis which was reported as "probably no clinical significance". In February 2012 the Veteran underwent another testicular ultrasound after heavy lifting and "persistent and progressive testicular pain". It was noted at that time that it was "suspicious for mild or early acute epididymitis on the right". In April 2015, the Veteran was afforded a male reproductive system VA examination. At which time, the examiner found that the Veteran did not have a history of chronic epididymitis. Ultimately, the examiner opined that "there is no diagnosis because there is no pathology to render a diagnosis". After the April 2015 VA examination, VA treatment records contain a September 2015 treatment note indicated that the Veteran was diagnosed with moderate left epididymitis, given an injection of medication, and was advised if testing was "positive, sexual partner needs to be treated simultaneously". As a result, the Board in May 2020 directed the RO to afford the Veteran a new VA examination for his disability to include consideration of this evidence. Unfortunately, as indicated above, the Veteran was scheduled for additional VA examinations in October 2020 and May 2021, however he failed to report and/or declined to be examined without good cause. 38 C.F.R. § 3.655. There is no evidence that the notice of the scheduled examination was not received by the Veteran. None of the correspondence sent to the Veteran either before or after the scheduled examination has been returned as undeliverable, indicating that the current address of record is correct. See Ashley v. Derwinski, 2 Vet. App. 62 (1992); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (regarding the applicability of the presumption of regularity to RO actions). To date, neither the Veteran, nor his representative, have provided good cause for why the Veteran failed to attend or refused physical examination during the scheduled examinations. 38 C.F.R. § 3.655. As such the Board shall decide the claim based on the current evidence of record. Based on the evidence of record, the Board finds the claim must be denied. There is no competent evidence indicating the Veteran's has a current testicular disability, to include epididymitis, that has any nexus to his military service. Although the Veteran contends, he has chronic epididymitis related to service, in this case he is not competent to provide an opinion regarding this issue. The issue is medically complex, as it requires knowledge of multiple anatomical systems and how they react to each other. Therefore, it is outside the competence of the Veteran because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). In light of the medical evidence indication of no diagnosis, the Board considered the applicability of presumptive service connection under 38 C.F.R. § 3.317 for an undiagnosed illness or a diagnosed MUCMI in light of the Veteran's PGW service. Chronic testicular infections, such as epididymitis, are not specifically contemplated under § 3.317 as either evidence of an undiagnosed illness or a diagnosed MUCMI. Arguably, the Veteran's general reports of pain and swelling in the testicle area could fall within the scope of the presumption, but the medical evidence is simply insufficient to determine whether the Veteran has an undiagnosed illness or a diagnosed MUCMI due to his PGW service related to his testicular pain. Without such medical evidence, the Board has no basis to find service connection is warranted under 38 C.F.R. § 3.317. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the Board must consider only independent medical evidence to support its findings rather than provide its own medical judgment). In light of the foregoing, the Board must find that the weight of the evidence is against the Veteran's claim. In reaching that decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § §§ 4.3, 4.7. The appeal of this issue must be denied. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.