Citation Nr: 1636963 Decision Date: 09/21/16 Archive Date: 09/27/16 DOCKET NO. 10-27 821 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from July 1995 to June 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. Jurisdiction of the claim is currently with the Denver, Colorado RO. The Veteran testified at a hearing before the Board in August 2014. In November 2014, the Board remanded the Veteran's claim for additional development. FINDING OF FACT The Veteran does not have a back disability that is related to active duty service, and the competent and credible evidence fails to establish an etiological relationship between the Veteran's diagnosed back disability and her active service. CONCLUSION OF LAW A back disability was not incurred in or aggravated by service and may not be presumed related to service. §§ 1110, 1112, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Historically, the Veteran submitted a claim for service connection for a back disability in September 2008. The claim was denied in a January 2009 rating decision. The Veteran appealed the denial of the claim and this appeal ensued. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2014). Generally, the evidence must show: (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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In addition, certain diseases, such as arthritis, are presumed to have been incurred in service if manifested to a compensable degree within one year after service. The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a) (2015). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran asserts that she incurred a back injury in service and has suffered from back pain since her injury in service. Service treatment records reflect that the Veteran sought treatment in September 1995 after falling and landing on her back. She was diagnosed with a contusion of the low back. The April 1999 separation examination reflects a normal clinical evaluation of her spine. The post-service medical evidence includes VA treatment records which reflect a current diagnosis of degenerative disc disease of the L5-S1 disc in September 2006. The post-service evidence reflects that the Veteran has sought treatment for her back following injuries associated with rugby. She subsequently underwent back surgery. The Veteran failed to appear at January 2014 and March 2014 VA examinations scheduled to evaluate her spine. However, she provided sufficient excuses at her August 2014 BVA hearing for her absences. At the August 2014 hearing, the Veteran testified that she was willing to appear for a VA examination. She indicated that she fell ten feet during a drill in basic training and sought treatment for a back injury. She reported that she had numbness down her legs during service but did not seek any further treatment. She testified that her back continued to deteriorate and eventually required surgery. The Veteran was scheduled for a VA examination for her back in May 2015 for which she failed to report. The examination was subsequently rescheduled for a later date in May 2015. She contacted the VA Medical Center (VAMC) and indicated that she could not attend the examination due to a sick child. The Golden VAMC attempted to contact the Veteran at the beginning of June 2015 to attempt to reschedule the examination again. However, the Veteran failed to respond to a letter and a phone call. Under 38 C.F.R. § 3.655, 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. See also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("the duty to assist is not always a one-way street," and a veteran has an obligation to assist in the development of his claim). Simply stated, in light of the history, the Board can not remand this case again. In this case, the evidence confirms that the Veteran currently has a diagnosis of degenerative disc disease of the L5-S1 disc. The issue then becomes whether the low back disability manifested to a compensable degree within one year after service or is the result of the Veteran's active service. As an initial matter, there is no evidence of a diagnosis of arthritis of the lumbar spine within one year of the Veteran's separation from service to allow for service connection on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309(a) (2015). Unfortunately, there is also no competent evidence that suggests the current low back disability either began during or was otherwise caused by her active service. While the service treatment reports reflect treatment for a back injury in service, clinical evaluation of the spine was normal at the Veteran's separation from service. Moreover, the post-service treatment reports reflect treatment for a back disability following a rugby injury which was incurred after service. While VA attempted to obtain an etiological opinion with regard to the claimed back disability, the Veteran repeatedly failed to report for scheduled examinations. The Veteran has not submitted any medical evidence linking her current back disability to her active service. Hence, the Board finds that the competent evidence of record does not reveal a showing of a relationship between the Veteran's back disability and her period of service. Although the Veteran contends that she has a back disability related to her active service, specifically to an injury sustained during service, the Veteran has submitted no competent medical evidence or opinions to corroborate such a contention. 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). The Veteran's opinion is not competent to provide the requisite etiology of the current back disability, because such a determination requires medical expertise. As a lay person, the Veteran is considered competent to report what comes to her through her senses, but she lacks the medical training and expertise to provide a medical opinion as to the etiology of the low back disability. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Although the Veteran has reported a continuity of low back symptoms since service, the Veteran's opinion on its own is insufficient to provide the requisite nexus between her current back disability and her active service and is outweighed by other evidence. Therefore, the lay statements regarding the Veteran's back disability being related to service are not considered to be competent nexus evidence, as the Veteran is not medically qualified to provide evidence regarding matters requiring medical expertise, such as an opinion as to etiology. As such, the weight of the competent evidence is against a finding that the Veteran's back disability resulted from her active service. Therefore, the criteria for service connection have not been met, and the Veteran's claim is denied. The preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not applicable in the instant appeal. 38 U.S.C.A § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Pursuant to the duty to assist, several examinations were scheduled in this case. As noted, the Veteran failed to report for the many examinations scheduled for the back claim. Although various excuses were provided for several of the examinations, when the VAMC attempted to reschedule the most recent VA examination in June 2015, the Veteran failed to respond to a letter and a phone call. The Board wishes to emphasize that, "[t]he duty to assist in the development and adjudication of a claim is not a one way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). "If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Regarding records, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C.A. § 5103A (c)(2). All records pertaining to the condition at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159 (c)(3)). In this case, the Veteran has indicated no such records exist and all pertinent records have been obtained. ORDER Entitlement to service connection for a back disability is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs