Citation Nr: 21031625 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 15-30 915A DATE: May 24, 2021 ORDER Entitlement to service connection for bilateral renal cysts is denied. Entitlement to service connection for muscle spasms is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's bilateral renal cysts began during active service, or are otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran's muscle spasms began during active service, or are otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral renal cysts are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for muscle spasms are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1968 to July 1971. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by a Department of Veterans' Affairs (VA) Regional Office (RO). The Board previously remanded these matters in August 2018 and September 2020 for additional development. There has been substantial compliance with the September 2020 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for bilateral renal cysts is denied. The Veteran contends that he developed bilateral renal cysts due to exposure to herbicides during active duty service. 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). VA has also established a presumption of service connection for certain diseases found to be associated with herbicide exposure. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Absent affirmative evidence to the contrary, such diseases will be service connected even if there is no evidence of the disease during service, provided that herbicide exposure is established. Id.; 38 C.F.R. § 3.307(d). A veteran who, during active military service, served in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed to such herbicide agents. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6). The 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. The Board initially notes that the Veteran's exposure to herbicide agents is conceded as his DD Form 214 shows service in Vietnam from February 1969 to October 1970, and awards including Vietnam Campaign Medal and Vietnam Service Medal with 3 Bronze Service Stars. However, renal cysts are not a disease subject due to presumptive service connection under 38 C.F.R. § 3.309(e). Notwithstanding, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed Cir. 1994). Turning to the records, the Veteran's service treatment records are silent for complaints of, treatment for, and/or a diagnosis of a renal condition. The Veteran denied kidney stone or blood in urine, or history of stomach, liver, or intestinal trouble on his July 1971 separation report of medical history. His July 1971 separation examination noted normal clinical evaluation of the endocrine system, and his urinalysis was found negative. A July 1971 Form 1811 noted that the Veteran's physical condition on July 23, 1971 was such that he is considered physically qualified for separation or for re-enlistment without re-examination. His military personnel records noted that he service in the Army reserves from 1972 to 1973. Post service, a December 2009 private CT of abdomen revealed four scattered simple cysts in the left kidney, and one simple cyst in the right kidney. It noted the renal function was normal. The impression was bilateral renal cysts. A February 2010 private record and a June 2011 private record noted renal cyst for assessment. In the July 2013 notice of disagreement (NOD), the Veteran stated that he was treated at Walter Reed medical center between 1972 and 1973 for urinating blood caused by tour in Vietnam. A January 2019 VA record noted a simple cyst in the upper pole of the right kidney and a simple cyst in the lower pole of the left kidney. The Veteran underwent a VA examination for kidney conditions in June 2019. The Veteran was diagnosed with bilateral kidney simple cyst. The examiner noted there were no current symptoms. The Veteran stated that he did not receive a physical profile or was declared unfit for service during active military service as a result of the claimed condition. The examiner noted the Veteran did not have renal dysfunction, or history of recurrent symptomatic urinary tract or kidney infections. There were no other pertinent physical findings, complications, conditions, signs, or symptoms related to the diagnosed condition. The examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He examiner explained that there was no diagnosis of simple cyst found during active military service. He further explained that simple kidney cysts are noncancerous cysts that rarely cause complications. He noted that simple kidney cysts that do not cause signs or symptoms usually do not require treatment, and that they tend to be more common as people age. He noted that simple kidney cyst is not a presumed exposure condition to herbicide agents. In October 2019, VA sent a letter sent to the Veteran informing him that VA contacted Walter Reed Army Medical Center and National Personnel Records Center (NPRC) to obtain his service treatment records, but was notified that no records were available. The letter sought the Veteran to submit any other relevant evidence that will support his claim; VA has not received any relevant information. In the September 2020 decision, the Board found the June 2019 medical opinion inadequate because the examiner did not adequately address the Veteran's reports of treatment for blood in his urinary tract in 1972, and did not discuss whether a direct relationship existed between the Veteran's bilateral renal cysts and exposure to herbicide agents. An addendum opinion was requested. In March 2021, an addendum VA opinion was received. The first examiner noted that the entire c-file was reviewed including lay statements. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that service treatment records did not show evidence of bilateral renal cysts during service, and that the condition was diagnosed post-service in 2009. Referring to a medical literature, the examiner explained that simple renal cysts are commonly observed in normal kidneys with increasing incidence as individuals age, and that they are benign (non-cancerous), asymptomatic lesions that rarely require treatment. The examiner also noted that medical literature showed inadequate or insufficient evidence of an association between nonmalignant (non-cancerous) kidney diseases and exposure to the herbicides sprayed in Vietnam. Regarding reports of blood in the urine in 1972, the examiner noted that the urinalysis at the July 1971 separation examination was negative, and that the July 1971 report of medical history noted "No" to kidney stone or blood in the urine. He also noted that the c-file did not reveal medical records pertaining to the reported treatment for blood in his urinary tract. The examiner further noted that hematuria is a non-specific term that can occur as a result of an underlying condition such as urinary tract infection or due to exercise. The examiner added that reported hematuria in 1972 does not predispose to the simple renal cysts. Given the above, the Board concludes that, while the Veteran has a current diagnosis of bilateral renal cysts, and evidence shows that he was exposed to herbicide agents, the preponderance of the evidence weighs against finding that the his diagnosis of bilateral renal cysts began during service or is otherwise related to an in-service injury, event, or disease. Private treatment records show the Veteran was not diagnosed with renal cysts until 2009, decades after his separation from service. While the Veteran is competent to report that he experienced symptoms of blood in urine in 1972, he is not competent to provide a diagnosis or determine that such symptoms were manifestations of bilateral renal cysts. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the June 2019 and September 2020 VA examiners opined that the Veteran's bilateral renal cysts are not at least as likely as not related to an in-service injury, event, or disease, including exposure to herbicide agents. The examiners explained that there was no diagnosis of simple cyst during active military service. They explained that simple renal cysts are commonly observed in normal kidneys with increasing incidence as individuals age, and that they are benign, asymptomatic lesions that rarely require treatment. Further, the September 2020 examiner noted that medical literature showed insufficient evidence of an association between nonmalignant kidney diseases and exposure to the herbicides sprayed in Vietnam. The examiners' opinions are probative, because they are based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his bilateral renal cysts are related to an in-service injury, event, or disease, including his exposure to herbicide agents. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the anatomical relationships and pathology of multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau, 492 F.3d at 1377 n.4; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examiners' opinions. In conclusion, the preponderance of the evidence is against the award of service connection for bilateral renal cysts. The Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim, the doctrine is not applicable. Service connection for bilateral renal cysts is not warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 2. Entitlement to service connection for muscle spasms is denied. The Veteran contends that he has experienced muscle spasms in both legs since his service. The 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. In the April 1968 report of medical history, the Veteran noted he has or has ever had cramps in legs, and pain or pressure in chest. The physician noted "leg muscle spasms with exercise," "leg cramps," and "chest pain" in the summary. A July 1968 report of medical examination noted that the Veteran was "qualified for airborne training." In the July 1971 report of medical history, the Veteran denied swollen or painful joints, cramps in legs, broken bones, foot trouble, or back trouble of any kind. The Veteran's July 2021 separation examination noted that his lower extremities, feet, and spine and other musculoskeletal systems were normal. A July 1971 Form 1811 noted that the Veteran's physical condition on July 23, 1971 was considered physically qualified for separation or for re-enlistment without re-examination. His military personnel records noted that he service in the Army reserves from 1972 to 1973. In the July 2013 NOD, the Veteran asserted that enclosed is a disposition form in 1968 from his Company Commander showing that the Veteran could not complete or take airborne training because of cramps in thighs and pains in chest. The attached August 1968 disposition form noted that the Veteran volunteers to perform frequent aircraft flights, parachute jumps, and to participate in realistic combat training while securing airborne training and/or performing airborne duty. The Commanding Infantry Captain P.I. approved the application for airborne training. It did not indicate the Veteran could not complete or take airborne training because of cramps in thighs and pains in chest. The Veteran underwent a VA examination for muscle injuries in June 2019. The Veteran was diagnosed with "muscle cramp intermittent due to Lipitor" as of 2019. Upon evidence review, the examiner noted that April 1968 report of medical history noted muscle spasm with exercise, chest pain, and leg cramps. He noted that there was no further entry, and that the Veteran was able to deploy to Vietnam. He noted that a July 1968 service record noted the Veteran was qualified for airborne training. He noted that the Veteran denied muscle cramps in legs or pain or pressure in the chest at separation, and that the conditions resolved during active service. He noted that the Veteran did not receive a physical profile or was declared unfit for service due to the diagnosed condition during active service, and that the Veteran was deployable during active service. The examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran's medical records have been silent as to the claimed condition since 1968, and that there were no complaints of cramps in legs, or pain or pressure in chest during his separation exam. The examiner also noted that the Veteran was able to re-enlist in the Army reserves. The examiner concluded that the Veteran's muscle cramp in legs resolved during active military service. In the September 2020 remand, the Board found that the June 2019 examiner did not adequately address the Veteran's contentions that he was unable to complete airborne training due to muscle spasms in service, or that he has experienced muscle spasms since active service. An addendum opinion was obtained in March 2021. The VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the entire c-file was reviewed including the Veteran's lay statements. The examiner noted that while the April 1968 report of medical history noted "Yes" for cramps in leg, the service treatment records were silent for complaints or treatment for muscle cramps during service. Regarding the Veteran's reports about being unable to complete airborne training due to cramps in his legs, the examiner noted that while the Veteran's statement conveys confirmation of the condition during service, the April 1968 report of medical history noting "Yes" for cramps in legs suggested it pre-dated service, and that the July 1971 separation records noting "No" for cramps in legs showed that the complaint of cramps in legs was acute only during service. The examiner commented that post-service records were further silent for continued care and treatment of the claimed condition. The examiner concluded that a nexus is not established. Given the foregoing, the Board concludes that, while the Veteran has a current diagnosis of muscle cramp, the preponderance of the evidence weighs against finding that his diagnosis of muscle cramp began during service or is otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was not diagnosed with muscle cramp until 2019, decades after his separation from service. While the Veteran is competent to report having experienced symptoms of muscle spasm since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of muscle spasms. It requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377 n.4. Regarding the Veteran's contentions that a 1968 disposition form showed he was unable to complete airborne training due to the cramps in thighs, the disposition form demonstrated otherwise as the Commanding Infantry Captain P.I. approved the application for airborne training, and there was no mention of inability to complete training. The July 1968 report of examination noting "qualified for airborne training" also support that he was capable of performing airborne training. Further, the June 2019 and September 2020 VA examiners opined that the Veteran's muscle cramp are not at least as likely as not related to an in-service injury, event, or disease. The June 2019 examiner explained that while 1968 report of medical history noted muscle spasm and leg cramps, the Veteran's service treatment records and separation medical records did not reveal any complaints or treatments for those conditions. He noted that the Veteran was found deployable during service, and that a July 1968 service record noted he was qualified for airborne training. The examiner noted that the muscle cramp in legs resolved during active service. The September 2020 examiner also noted that while the Veteran asserted inability to complete airborne training, the April 1968 record noting "Yes" for cramps in legs suggested it pre-dated service, and that the July 1971 record noting "No" for cramps in legs showed that the complaint of cramps in legs was acute only during service. The examiner added that post-service records further being silent for care and treatment of the claimed condition showed that there was no nexus. The examiners' opinions are probative, because they are based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves, 22 Vet. App. at 304. Additionally, the Board finds no evidence that the Veteran suffered from a pre-existing disorder characterized by muscle cramps that was aggravated beyond its normal progression in service. For one, there is no clear diagnosis of a pre-existing disability. Moreover, as clearly described on VA examination, the Veteran's in-service muscle cramp was shown to resolve, without evidence of a continuing disability from service separation onward. While the Veteran believes his muscle cramps are related to an in-service injury, event, or disease, including his exposure to herbicide agents, he is not competent to provide a nexus opinion in this case as the issue at hand is medically complex and he lacks medical training and expertise. Jandreau, 492 F.3d at 1377 n.4; Kahana, 24. Vet. App. at 428. Moreover, the Board finds that the competent, probative, and persuasive medical opinions, especially the March 2021 VA opinion, outweigh the Veteran's reports of symptoms of muscle cramps that began in service and continued since service. The Veteran is competent to report these symptoms, however, his contentions, as explained by the 2021 VA examiner, are outweighed by the medical evidence by way of the service treatment records and post-service treatment records which are not consistent with the assertions provided. In conclusion, the preponderance of the evidence is against the award of service connection for muscle spasms. The benefit of the doubt doctrine is not applicable, and service connection for muscle spasms is not warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57. R. Erdheim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jake Choi, 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.