Citation Nr: 21070312 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-25 089 DATE: November 23, 2021 ORDER Entitlement to service connection for a back condition is denied. Entitlement to service connection for a bilateral lower extremity condition is denied. FINDINGS OF FACT 1. The Veteran's back condition did not occur during active service, and is otherwise unrelated to an in-service injury, event, or disease. 2. The Veteran's bilateral lower extremity condition did not occur during active service, and is otherwise unrelated to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for an entitlement to service connection for a back condition have not been met. 38 U.S.C. §§ 1131, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for an entitlement to service connection for a bilateral lower extremity condition have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1153, 1154, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1968 to November 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal of a December 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). While the Veteran indicated his intent for a Board hearing (see April 2017 Form 9), he later cancelled that request (see January 2019 correspondence). The Board finds there has been substantial compliance with the Board remand directives to the extent that the RO subsequently scheduled VA examinations in accordance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). While the Veteran was scheduled for VA examinations pursuant to the Board remand, he cancelled those examinations himself, without providing any good cause (see October 2020 exam request correspondence). The RO subsequently provided the Veteran with a "withdrawal of appeal" form, to which the Veteran failed to respond (see May 2021 subsequent development letter). In July 2021, the RO contacted the Veteran to reschedule the VA examination, but the Veteran orally indicated his wish not to continue his claim (see July 2021 VA internal correspondence). The Board will not accept this as a valid withdrawal. Withdrawal of an appeal is only effective where the withdrawal is explicit and unambiguous, with understanding of the consequences. Moreover, an effective withdrawal requires either a written and signed withdrawal request or a statement on the record at a Board hearing. There is nothing from which the Board could conclude the Veteran understood the consequences of withdrawing his appeal pursuant to this oral response made during the July 2021 call. Out of an abundance of caution, the Board will not accept the withdrawal and proceed to adjudicate his appeal. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist with respect to the hypertension claim being decided at this time. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is a balance of positive and negative evidence regarding any material issue, the benefit of the doubt shall be given to the claimant. See 38 U.S.C. § 5107 (b). Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. See 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. The Board has reviewed all the evidence of record. Although the Board has an obligation to provide adequate reasons and bases supporting its decisions, there is no requirement that the Board discuss every piece of evidence in the record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claim on appeal. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 1131; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For certain chronic diseases, such as degenerative disc disease, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. See 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). The disease does not have to be diagnosed within the presumptive period, but it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. See 38 C.F.R. §§ 3.303 (b), 3.307. 1. Entitlement to service connection for a back condition The Veteran seeks service connection for "severe back" problems. He contends that these symptoms are related to his heavy lifting performed as part of his duties in service. He also claims that he was treated by private medical providers for his symptoms shortly after service, but also adds they are either no longer around or have possibly passed away. It is not in question that the Veteran has a current back disability, as he has been diagnosed with various conditions, to include lumbar lordosis, thoracic kyphosis and lordosis, and severe L5-S1 degenerative disc disease. His DD-214 form shows that his military occupational specialty was yeomen (administration)/clerk. While an April 1968 report of medical history for enlistment documents the Veteran's report of recurrent back pain, he was still found to have all clinically normal conditions during that time upon physical examination. His service treatment records do not include any complaints, diagnosis, or treatment relating to back condition. His October 1972 separation examination also show clinically normal back condition, as evidenced by the notation "summary of defects and diagnosis: none." Even though the Veteran's degenerative disease is a "chronic disease" under 38 C.F.R. § 3.309, the Board initially finds that he is not entitled to presumptive service connection for this condition. See 38 C.F.R. § 3.303 (b). There is no evidence showing that the Veteran's current back disability became manifest to a compensable degree within one year of discharge. There is no evidence that he was diagnosed with current back disability within presumptive period, and the Veteran has not alleged otherwise. In fact, it appears that the Veteran merely filed a service connection claim in 2014, over 40 years after separating from service. Moreover, the weight of the evidence is against a finding of continuity of symptomatology. Although the Board acknowledges the Veteran's statement that he sought treatment from private medical providers shortly after separating from servicewhich might have included information relevant to the claim on appeal such treatment records could not be obtained, as the Veteran failed to respond to the RO's request to complete and return the enclosed VA 21-4142 form (see March 2020 subsequent development letter). As briefly addressed above, while the Veteran was scheduled for a VA examination per McLendon v. Nicholson, 20 Vet. App. 79 (2006), pursuant to the February 2020 Board remand, that examination was cancelled per the Veteran's request (see October 2020 exam request). Due to the Veteran's cancellation of the examination, there is no medical nexus opinion of record. There have been no statements from the Veteran explaining his cancellation of the examinations or requesting they be rescheduled. Pursuant to 38 C.F.R. § 3.655 (a), individuals for whom an examination has been scheduled are required to report for the examination. 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. Turk v. Peake, 21 Vet. App. 565 (2008). The Board also considered the Veteran's lay assertion that his back disability resulted from his MOS duties in service. The Board acknowledges the Veteran is competent to report any symptoms, but he is not competent to provide an opinion the condition is a result of service, as such requires complex medical knowledge and training that are generally beyond the competency of a lay witness. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, the Veteran has not demonstrated any medical training/expertise appropriate for furnishing a medical nexus opinion. Thus, the Board gives no probative value to the lay assertion to that extent. In summary, the Board concludes that the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Thus, the benefit-of-the-doubt doctrine does not apply, and his claim is denied. 2. Entitlement to service connection for a bilateral lower extremity condition The Veteran initially filed a service connection claim for "severe leg" problems. He contends that these symptoms are related to his heavy lifting performed as part of his duties in service. He also claims that he was treated by private medical providers for his symptoms shortly after service, but also noted that those doctors might have passed away and records from them might no longer be available. The Veteran has a current bilateral lower extremity disability, as he has been diagnosed with various conditions, to include right knee arthralgia, right knee pain, acute right calf abscesses, post-systemic infection with incision and drainage to the right leg. It is not clear which of these conditions he is seeking service connection for. While the Veteran's DD-214 form reflects military occupational specialty of yeoman/general clerk, his service treatment records do not contain any complaints, diagnosis, or treatment related to bilateral lower extremity condition. Although there is a single complaint of swollen left ankle along with ace wrap (see August 1969 service treatment record), his October 1972 separation examination does not otherwise show any clinically abnormal conditions, as evidenced by the notation "summary of defects and diagnosis: none." As noted above, the Veteran cancelled the scheduled VA examinations in October 2020. The record reflects there has been no request to reschedule or statement showing good cause for cancelling/not reporting. As such, the claim for service connection must be evaluated based on the evidence of record. It appears that the Veteran first sought treatment from VA for the alleged conditions in 2013, while he left service in 1972, almost 40 years after service, which tends to weigh heavily against his claim that his bilateral lower extremity conditions began in service. Even taking into consideration the Veteran's contention that he sought treatment for his bilateral lower extremity disabilities from private medical providers shortly after separation, the Board reiterates that the Veteran failed to respond to the request that he submit a completed VA 21-4142 form for obtaining any private treatment records. Treatment records from 2013 and onward only show an admission for abscess in his right calf following trauma in 2013, as well as the subsequent treatment provided for his open wound/abscess drainage/infection resulting from the surgery, without any indication of objective or subjective finding of in-service injury associated with bilateral lower extremity condition, all of which tending to weigh heavily against his claim that his condition began in service (see also July 2014 PT therapy note, showing "how injury was sustained: December 2013 had a surgery for right knee infection, had inpatient therapy after surgery, but still has weakness in his right knee"). There is no persuasive evidence suggestive of an in-service disease or injury related to the bilateral lower extremity condition, and there is no medical nexus opinion of record. Thus, the Board finds that the evidence preponderates against a finding that his bilateral lower extremity conditions began during or are otherwise related to his military service. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lee, Catherine 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.