Citation Nr: 1758093 Decision Date: 12/14/17 Archive Date: 12/28/17 DOCKET NO. 11-12 725 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a low back disorder, to include as residual to an in-service injury. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran appellant served on active duty in the United States Army from June 1974 to June 1978. He subsequently enlisted in the Texas Army National Guard in October 1979, and he was a member of the Texas National Guard until his retirement from that organization in September 2008. The appellant served a period of active duty for training (ACDUTRA) from May 14, 1982 to November 11, 1982; he also had various other verified periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This case originally came before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In May 2016, a Board videoconference hearing was held before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. The Board remanded the case for additional development in August 2016. The case has now been returned to the Board for appellate review. The Board notes that the Veteran's claim for service connection for a low back condition was originally denied in a March 1979 rating decision; the Veteran was notified of the denial that same month, but he did not appeal. In May 2009, the Veteran again sought service connection for a low back disorder. Then the RO, in essence, reopened the claim and denied it after de novo review in a rating decision issued in November 2009. Years later, after a Board hearing was scheduled and conducted, the Board remanded the case, in August 2016, after a de novo review reflecting a reopening of the claim. See e.g., Percy v. Shinseki, 23 Vet. App. 37 (2009) (holding that VA waived any objections as to the content of the appeal by treating the issue as on appeal for five years). Because the RO and the Board have already considered the issue of entitlement to service connection on a de novo basis and because the appellant has had opportunity to address the merits of this claim, the Board may proceed with a final adjudication of the merits of the claim because there is no prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Therefore, the issue on appeal is as listed on the title page. The Board also notes that the Veteran's Texas National Guard personnel records reflect that he was called to active duty from August 30, 2005 to October 10, 2005; the Veteran has reported that this period of service was related to Hurricane Katrina. The Veteran's Texas National Guard personnel records state that this period of service was not federalized service under Title 38 U.S.C., but rather it was state-controlled service pursuant to Title 32 U.S.C. This appeal was processed using the VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran failed, without good cause, to report to his January 24, 2017 VA medical examination. 2. The Veteran has not offered reasons for not reporting for that examination, nor did he respond to a subsequent letter sent to remind him of his responsibility to report for examination that asked him if he wanted to reschedule the examination. CONCLUSION OF LAW Entitlement to service connection for a low back disorder, to include as residual to in-service injury, is denied. 38 U.S.C. §§ 501, 1110, 1131, 5102, 5103, 5103A, and 5107 (2012); 38 C.F.R. §§ 3.103, 3.104, 3.326, 3.655(b) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim by notifying the Veteran about the need for necessary supporting evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this case, VA obtained service medical treatment records and service personnel records. In addition, VA complied with the specific directives in the August 2016 remand decision to obtain current medical treatment records and schedule a VA examination. However, regardless of VA efforts in having fulfilled its duties of notice and assistance, the application of relevant provisions of the law and regulations will now determine the outcome of this appeal and no additional evidentiary development or further notice or assistance would change its outcome. See Manning v. Principi, 16 Vet. App. 534, 542 (2002); Mason v. Principi, 16 Vet. App. 129, 132 (2002). II. The Merits of the Claim When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination, and a claimant, without good cause, fails to report for such examination or reexamination, an original compensation claim will be adjudicated on the evidence of record as it stands. 38 C.F.R. § 3.655(a) and (b). However, when the examination was scheduled in conjunction with a reopened claim for a benefit which was previously disallowed, the claim will be denied. 38 C.F.R. § 3.655(b). The March 1979 rating decision denied the Veteran's claim for service connection for a low back disorder based on a finding that there was no low back disability found during the VA medical examination conducted in December 1978. The Veteran was notified of the decision, but he did not appeal that denial and, therefore, it became final. The November 2009 rating decision denied the Veteran's claim for service connection for the residuals of a low back injury, having found after de novo review that, while there now was evidence of a current diagnosis of a low back disorder, there was no nexus linking the current condition to service. As stated above, in August 2016, the Board also conducted a de novo review and remanded the claim to the Agency of Original Jurisdiction (AOJ) for additional development, to include scheduling a medical examination. That medical examination was scheduled for January 24, 2017, but the Veteran failed to report for that examination. January 2017 correspondence sent to the Veteran notified him that the examination had been canceled due to his failure to report for the examination. The letter further informed the Veteran that it was his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. The letter also provided the Veteran with examples of good cause for failure to report. 38 C.F.R. § 3.158 and 38 C.F.R. § 3.655. In addition, the letter asked the Veteran if he wanted to reschedule the examination. The evidence of record contains no indication of any response from the Veteran. A Supplemental Statement of the Case (SSOC) was issued in August 2017, and reflects that the Veteran's claim was again denied based on the evidence of record. In looking briefly to the record, the Board notes there is some evidence of the existence of a present low back disorder. However, in order to establish service connection, medical diagnosis or lay evidence must establish the in-service incurrence or aggravation of a disease or injury and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). See also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case, the medical evidence of record does not provide a causal link between the symptoms of Veteran's current low back disorder and some in-service incurrence, to include any jeep accident. Regardless of the deficiencies of the medical record in terms of supporting the Veteran's claim, the Board is compelled to deny the Veteran's claim of service connection for a low back disorder, including as residual to an in-service injury. The Veteran without good cause failed to report to the scheduled VA examination. In light of those facts and given that his claim was reopened after being disallowed in a prior final decision, the claim must be denied under 38 C.F.R. § 3.655(b). ORDER Entitlement to service connection for a low back disorder, to include as residual to in-service injury, is denied. ____________________________________________ DEBORAH SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs