Citation Nr: 1752337	
Decision Date: 11/15/17    Archive Date: 11/22/17

DOCKET NO.  12-25 109	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for a low back disorder. 


REPRESENTATION

Veteran represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

N. Keogh, Associate Counsel 



INTRODUCTION

The Veteran served on active duty from May 2006 to May 2010. 

This appeal comes to the Board of Veterans' Appeals (Board) from June 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

The Board previously remanded this case in October 2015, January 2016, and December 2016 to schedule the Veteran for a VA examination.  The Veteran never responded or reported for any scheduled examination. 

The Board finds there has been substantial compliance with its prior remand directives.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.)  


FINDING OF FACT

The preponderance of the evidence is against finding that a current low back disorder had its onset in service or is otherwise related to service.


CONCLUSION OF LAW

The criteria for service connection for a low back disorder are not met.  38 U.S.C. §§ 1110, 1131, 1153, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

VA's duty to notify was satisfied by a letter dated April 2014.  See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375   (Fed. Cir. 2015).

VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, to the extent possible under the circumstances.  The RO obtained VA treatment records, to include VA treatment records pursuant to the December 2016 remand.

The Veteran has not made the Agency of Original Jurisdiction (AOJ) or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal.  He has been given ample opportunity to present evidence and argument in support of his claim.  Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of the issue have been obtained and the case is ready for appellate review.

 II.  Service Connection

A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service.  38 U.S.C. § 1110. 

Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303(b).  An alternative to showing chronicity in service is a showing of continuity of symptoms after discharge.  The United States Court of Appeals for the Federal Circuit (Federal Circuit), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309 (a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54).

When a veteran fails to report for an examination scheduled in conjunction with an original compensation claim without good cause, the claim shall be rated based on the evidence of record.  Examples of "good cause" include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R. § 3.655. 

The Veteran failed to report for a VA examination that was scheduled pursuant to the Board's December 2016 remand instructions.  Neither he nor his representative has presented good cause for such failure to report.  There is no correspondence or report of contact from the Veteran or his representative that would explain his failure to report for the examination scheduled to be conducted in February 2017.  Previously, in March 2016 the Board remanded this claim for a VA examination, and the Appeals Management Center (AMC) cancelled the April 2016 VA examination because the Veteran failed to respond to telephone calls and a notification letter regarding the examination.  In compliance with the December 2016 Board remand, the VA attempted to verify the Veteran's address and contact information.  All attempts to contact the Veteran have been unsuccessful. 

The evidence of record at the time of the remand contained competent medical evidence of a low back disorder based on the July 2010 MRI results, which showed a central/left paracentral protrusion at L5-S1 contacting the descending left S1 nerve root sleeve and a very subtle annular tear at L4-L5.  In a June 2012, the Veteran was examined.  The examiner noted the MRI findings and a diagnosis of degeneration of the lumbar intervertebral disc.  The examiner also noted that examination and x-rays during a January 2010 pre-discharge examination were normal.  The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.  Some weight is given to this opinion, as it was based on an examination of the Veteran and included a rationale to support its opinion.  

There is no competent medical evidence that the low back disorder was compensably disabling within a year of separation from active duty.  The Board concludes that neither the clinical record nor the lay statements of record establish a continuity of symptomatology with respect to the diagnosed low back disorder.  The Veteran failed to report for a VA examination that would have addressed whether the low back disorder is related to active service.  In short, the third Shedden element, medical "nexus," is not established.

Based on the evidence of record, there is insufficient evidence to establish an entitlement to service connection for a low back disorder.  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.  See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinksi, 1 Vet. App. 49 (1990).



ORDER

 Entitlement to service connection for a low back disorder is denied.




____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs