Citation Nr: 21010209 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-03 102 DATE: February 24, 2021 ORDER Entitlement to service connection of a neck disability is granted. Entitlement to service connection of right leg varicose veins is denied. Entitlement to service connection of left leg varicose veins is denied. Entitlement to service connection of a right leg disability is denied. Entitlement to service connection of a right hip disability is denied. Entitlement to service connection of a sleep disability is denied. REMANDED Entitlement to service connection of a headache disability is remanded. FINDINGS OF FACT 1. The Veteran’s cervical spine degenerative disc disease is at least as likely as not related to his in-service machinery accident in 1977. 2. The Veteran did not sustain an in-service incident, illness or injury to which his present bilateral varicose veins may be etiologically linked; they are not related to or aggravated by his service-connected left ankle disability. 3. The Veteran did not sustain an in-service incident, illness or injury to which any present right leg disability may be etiologically linked; it is not related to or aggravated by his service-connected left ankle disability. 4. The Veteran did not sustain an in-service incident, illness or injury to which any present right hip disability may be etiologically linked; it is not related to or aggravated by his service-connected left ankle disability. 5. The Veteran does not have a presently diagnosed sleep disability; any present sleep symptoms are not related to any incident of active service, or related to or aggravated by his service-connected left ankle disability. CONCLUSIONS OF LAW 1. The criteria for service connection for cervical spine degenerative disc disease are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.. 2. The criteria for service connection for right leg varicose veins due to service or a left ankle disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for left leg varicose veins due to service or a left ankle disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for service connection for a right leg disability due to service or a left ankle disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 5. The criteria for service connection for a right hip disability due to service or a left ankle disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 6. The criteria for service connection for a sleep disability due to service or a left ankle disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1972 to January 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). As a matter of procedural background, these issues previously came before the Board in July 2018, at which time they were remanded for further development. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection 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. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. 1. Entitlement to service connection of a neck disability The Veteran seeks service connection for a neck disability. The Board finds that the claim should be granted. The Board previously remanded this claim so that a VA examination could be conducted. In September 2020, the Veteran was afforded a cervical spine examination which confirmed a present diagnosis of degenerative disc disease. The Veteran’s service treatment records also document an in-service traumatic incident, a machinery accident, in 1977. The Veteran reported onset of neck pain thereafter with continuity to the present. Following the September 2020 examination, the examiner concluded that the present claimed cervical spine degenerative arthritis was at least as likely as not related to the in-service machinery accident in 1977. In support of this, the examiner cited to the mechanism of the injury, and the findings on his current pain and reduced range of motion. The incident, along with the mechanism of the injury, would cause acute injury and long-term lasting effects. The Board finds this opinion persuasive. It was rendered by a medical professional in contemplation of the complete medical record, to include the Veteran’s documented medical history and lay testimony. Notable, the RO found the same opinion persuasive in the matter of the Veteran’s low back disability, but chose to ignore it when adjudicating the cervical spine claim. The Board will rectify this mistake. The Board has reviewed the evidence of record, but finds no medical evidence which would contradict the VA examiner’s conclusions. As such, the Board will afford the Veteran the benefit of the doubt and grant service connection of cervical spine degenerative disc disease. 2. Entitlement to service connection of right leg varicose veins 3. Entitlement to service connection of left leg varicose veins 4. Entitlement to service connection of a right leg disability 5. Entitlement to service connection of a right hip disability The Veteran seeks service connection of varicose veins of the bilateral legs, a right hip disability, and a right leg disability. The Board finds that the claims should be denied. The Board recognizes a present diagnosis of bilateral leg varicose veins, and evidence of a right hip and leg condition. However, a review of the Veteran’s service treatment do not reveal any in-service incidents, illness or injuries to the legs, hips, or vascular system, nor has the Veteran asserted any such incident or illness. As such, on a direct basis, the varicose vein, hip and leg claims fail the second criteria of service connection and must be denied. Despite the lack of an in-service incident or illness, the Board remanded these claims in 2018 for an examination and medical opinion on a secondary basis, particularly as secondary to the Veteran’s left ankle disability. The Veteran was initially scheduled for an examination in June 2019, which accommodated the Veteran’s request that he be able to record the examination. When the Veteran appeared, he refused to be seen by the examiner because the examiner was a physician’s assistant, and not a doctor. No doctor was available to fulfill the requested examinations and allow for the Veteran to record the examination, and the Veteran refused the examination requesting it be rescheduled at a different location. The Board, here, notes that VA regulations do not specifically require an examiner to be a medical doctor. Under 38 C.F.R. § 3.159 (a)(1), competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. A physician’s assistant or nurse practitioner, having completed medical training, meets the requirement of § 3.159(a)(1) as one competent to provide diagnoses, statements, or opinions. The Court of Appeals for Veterans Claims (Court) has held that a medical examination may be performed by one able to provide competent medical evidence, such as a doctor, nurse practitioner, or physician’s assistant. See Cox v. Nicholson, 20 Vet. App. 563 (2007). The Veteran was again scheduled for examinations in October 2020, which he requested be rescheduled, and again in December 2020. In December 2020, the Veteran notified the RO that he wished for his examinations to be cancelled. No further request to reschedule the examinations has been received. The duty to assist is not a one-way street. If the Veteran wants help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In this matter, the Veteran has been given multiple opportunities to appear for an examination to assess any possible secondary causation or aggravation of his varicose vein disabilities. He has either refused the examinations or cancelled them without further request to reschedule. At this point, VA has fulfilled its duty to assist the Veteran in providing such an examination. Absent the requested examinations and associated opinions, the Board must determine that the evidence is insufficient to establish that the Veteran’s right or left leg varicose veins, and right leg and hip conditions were either caused or aggravated by his service-connected left ankle disability. The Board does acknowledge the Veteran’s own implied assertion that such a nexus exists, but finds it unpersuasive in this matter. While lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause or aggravation of his varicose veins. See id. The Veteran was given ample opportunity to assist VA in obtaining the required evidence to prove his claims, but has either cancelled or refused to take part in those examinations. In sum, the Board finds that the claims of service connection for bilateral lower extremity varicose veins, a right leg disability, and a right hip disability, must be denied as the Veteran did not sustain an in-service incident, illness or injury to which they may be etiologically linked, nor is there sufficient evidence to show that his claimed conditions were either caused by or aggravated by his left ankle disability. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 6. Entitlement to service connection of a sleep disability The Veteran seeks service connection of a sleep disability. The Board finds that the claim should be denied. As an initial matter, the Board notes that there is no evidence of a clinically diagnosed sleep disability in the record. However, present sleep symptoms were inferred by virtue of the Veteran’s claim. There is also notation in his separation records that he had frequent trouble sleeping in 1979. As such, the Board remanded this claim in July 2018, so that an examination could be conducted which confirmed or denied a present sleep disability, and provided an etiology opinion therefor. It also requested an opinion on a secondary basis to his service-connected left ankle disability. The Veteran was initially scheduled for an examination in June 2019, which accommodated the Veteran’s request that he be able to record the examination. When the Veteran appeared, he refused to be seen by the examiner because the examiner was a physician’s assistant, and not a doctor. No doctor was available to fulfill the requested examinations and allow for the Veteran to record the examination, and the Veteran refused the examination requesting it be rescheduled at a different location. Again, the Board notes that a physician’s assistant is competent to provide medical diagnoses and etiology opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). The Veteran was again scheduled for examinations in October 2020, which he requested be rescheduled, and again in December 2020. In December 2020, the Veteran notified the RO that he wished for his examinations to be cancelled. No further request to reschedule the examinations was received. The Board again notes that the duty to assist is not a one-way street. If the Veteran wants help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In this matter, the Veteran has been given multiple opportunities to appear for an examination to assess any possible secondary causation or aggravation of his varicose vein disabilities. He has either refused the examinations or cancelled them without further request to reschedule. At this point, VA has fulfilled its duty to assist the Veteran in providing such an examination. In light off the procedural history, the Board must deny this claim. First, despite the Veteran’s claim asserting a present sleep disorder, there is no evidence of record that he has a presently diagnosed sleep disability. Indeed, the Veteran has been afforded ample opportunity to present for a sleep-related examination but has not done so. Neither has he provided private medical evidence of a present sleep disability. To the extent that the Veteran’s claim implies present sleep symptoms, while he is competent to report observable symptomatology, as a lay person, he is not competent to provide a medical diagnosis or an etiology opinion for his symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Absent evidence of a presently diagnosed disability, or a medical opinion linking either to his in-service sleep issues, or to his service-connected left ankle disability, the claim fails the necessary for a grant of service connection, and the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection of a headache disability is remanded The Veteran was initially afforded an examination in connection with this claim in June 2014. That examination considered the Veteran’s headaches as directly related to his 1977 in-service machinery accident, finding to the negative. However, as was noted in the prior remand, the evidence does suggest a possible nexus between the Veteran’s headaches and his cervical spine disability, although not going so far as to give an opinion. This claim was previously remanded as inextricably intertwined with the cervical spine claim in the 2018 remand. As the Board has now granted the cervical spine claim, a medical opinion should be obtained which fully assesses any possible secondary service connection questions. The matter is REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of his claim. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s headache disability is at least as likely as not proximately due to or aggravated beyond its natural progression by the Veteran’s service-connected cervical spine disability.   A new examination is not necessary unless deemed so by the examiner 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Pryce, Counsel