Citation Nr: 18151607 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 13-03 433 DATE: November 19, 2018 ORDER Entitlement to service connection for a back disability is denied. Entitlement to a rating in excess of 10 percent for a right ankle disability is denied. FINDINGS OF FACT 1. The Veteran failed, without good cause, to report for a VA examination that was necessary to evaluate the claim for an increased rating for a right ankle disability and service connection for a back disability. 2. The preponderance of evidence is against the finding that any current back disability is etiologically, or causally related to his active service. CONCLUSIONS OF LAW 1. Service connection is not warranted for a back disability. 38 U.S.C. §§ 1110, 1131, 1137, 5103A, 5107; 38 C.F.R. § 3.655. 2. The claim for entitlement to a rating in excess of 10 percent for a right ankle disability is denied based on the Veteran’s failure to report for a necessary VA examination. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.655(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1988 to August 1992. Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from any notice error. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication, and because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter dated in April 2010 of the requirements for substantiating a claim. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The required notice was provided prior to the initial adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that the Veteran is represented in this appeal. Overton v. Nicholson, 20 Vet. App. 427 (2006). The Veteran has submitted argument in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of the claim such that the essential fairness of the adjudication is not affected. The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has attempted to obtain an adequate examination for the claims. In March 2017 the Board remanded the claim for service connection for a back disability for an examination to determine the etiology of the claimed disability. Notice was provided to the Veteran with regards to a scheduled examination for both his service connection and increased rating claim. However, the Veteran did not appear for the examination and did not subsequently contact VA to provide a reason for his failure to appear. The Board emphasizes that the duty to assist is not a one-way street. If a Veteran wants help in developing a claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). As the Veteran did not appear without good cause for an examination scheduled in conjunction with a claim for service connection, VA does not need to attempt to provide another examination. 38 C.F.R. § 3.655 (b). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 1. Entitlement to service connection for a back disability As an initial matter, in a March 2017 remand, the Board requested that the all outstanding treatment records be obtained and that the Veteran be scheduled for an examination to determine the etiology of the claimed bilateral knee disability. The treatment records were obtained as requested. The RO scheduled the required examination. The record shows substantial compliance with the Board’s remand requests. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). The records show that the scheduled November 2017 VA examination was cancelled due to the Veteran’s failure to appear at the time of the examination. From that record, the Board finds that the VA medical center took all necessary steps to attempt to contact the Veteran regarding the examination prior to the examination time. United States v. Chemical Foundation, Inc., 47 S. Ct. 1 (1926). Since the examination, the Veteran has not contacted VA to explain his failure to appear at the examination, nor has he requested a rescheduled examination. When a claimant fails to report for an examination scheduled in conjunction with an original claim for a benefit, the claim shall proceed with the evidence already of record. 38 C.F.R. § 3.655(b). As the Veteran failed to report for a VA examination scheduled in conjunction with an original claim for benefits, the claim will be adjudicated on the merits evidence currently in the claims file. Kyhn v. Shinseki, 23 Vet. App. 335 (2010). Consequently, the Board will proceed with adjudication of the Veteran’s claim for service connection for a back disability. 38 C.F.R. § 3.655. The Veteran claims that his currently diagnosed back disability is due to, or etiologically related to his lower back pain documents during service, as a result of lifting heavy objects. The Board finds that, while there is evidence that the Veteran had documented back pain during service, that the preponderance of the evidence, to include a VA examination, is against any finding that the Veteran’s current disability is etiologically related to such event or injury in service. Therefore, the Board must find that service connection for a back disability is not warranted, and the claim must be denied. Generally, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). To establish service connection for a current disability, a Veteran must show the existence of a present disability; 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). An alternative method of establishing service connection for a current disability is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303 (2007); Savage v. Gober, 10 Vet. App. 488 (1997); Clyburn v. West, 12 Vet. App. 296 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997); Hickson v. West, 12 Vet. App. 247 (1999). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, the Board finds that the Veteran’s current back disability, a low back strain, is not among the enumerated chronic disabilities noted under 38 C.F.R. § 3.309(a), therefore, presumptive service connection based on continuity of symptomatology is not applicable. Additionally, service connection may be established, on a secondary basis, for a disability which is proximately due to, the result of, or aggravated by an established service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). The record does not include credible or probative evidence indicating that the claimed back disability is related to service or any incident of service, or was caused or permanently aggravated beyond the normal progression of the disability by a service-connected disability. Here, the service medical records only show one singular incident in which the Veteran was noted to complain about lower back pain during active service. In a February 1992 medical note in the service medical records, the Veteran was noted to have complaints of lower back pain due to lifting heavy objects. The service medical records noted mild curvature of the thoracic spine. On examination the examiner noted no deformity, no edema, and some pain on palpation. The record also noted a claimed history of back pain going back a year and a half. Further examination of the service medical records showed no further notation indicating complaint, treatment, or diagnosis for any back disability, to include the separation examination, or subsequent report of medical examinations during his reserve service subsequent to his active duty. A review of the medical record since separation from service also shows no further evidence of complaint or treatment for any back condition until years after service, and after the commencement of this claim. Prior to the initial filing of the claim for service connection, the Veteran did not make any statements to VA or medical personnel, to include medical examiners, suggesting that the claimed back disability was related to service. After the filing of the initial claim for service connection, in March 2010, the Veteran told a VA examiner that he had experienced back pain since service, and that he had been relieving that pain with over-the-counter pain killers. The Veteran has expressed similar statements, regarding continued symptomology of lower back pain since active service, during his testimony before the undersigned at a November 2016 Board hearing. There, the Veteran explicitly noted that his back condition has continuously been bothering him since the in-service injury. During the hearing, the Veteran noted that he had worked for the United States Postal Service for the vast majority of the time after service and to the present, as a clerk in a post-office, and not a delivery person. The Veteran also noted no post-service injuries to the back subsequent to leaving active service. At an October 2012 VA examination to assesses the nature and etiology of his claimed service connection for a low back disability, the VA examiner, after a review of the Veteran’s service medical records, and an in-person examination, concluded that the current back disability, diagnosed as a back strain, was not etiologically related to the in-service complaint of lower back pain. The examiner provided a rationale explaining that while there was an in-service incident of back pain, that was considered an acute episode with no evidence of chronicity. Specifically, the examiner noted that a thorough review of the medical records after that incident, to include the separation examination, noted no evidence of a back disability or complaints of back pain until many years after separation. Therefore, the VA examiner ultimately found that with so many intervening years, and the seemingly lack of medical evidence of any diagnosis of a back condition, that condition was less likely than not due to any injury during the Veteran’s service. The Board recognizes that the Veteran has asserted that his back condition arose during his active service and has persisted until the present. However, the Board finds that, the Veteran, as a layman without the appropriate medical training and expertise, is not competent to provide a probative opinion as to whether a back disability was either caused or aggravated beyond its normal progression by any incident of active service, or by another service-connected disability. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Veteran has not been shown to possess the adequate medical knowledge, education, or training, to competently opine as to the diagnosis or etiology of any back disability. Competent evidence has already been provided by the VA examiner, which he Board finds highly persuasive, and dispositive of the claim. The Board is cognizant of the fact that the Veteran, through his representative, has indicated that his previous VA examination was inadequate. The Board remanded this claim for further consideration and development, to include providing the Veteran’s with another spine examination to determine the etiology of the back disability. The Board specifically requested that, had the Veteran appeared and participated at the scheduled examination, the examiner was to offer opinions as to whether the claimed back disorder was either directly related to service, or secondary to a service-connected disability. However, the Veteran was provided with notice of the examination and did not appear; consequently, adjudication on the merits of the existing record is proper. Therefore, as the only competent and probative opinion of record regarding the nexus of the Veteran’s claimed back disability indicates that the Veteran’s back condition is not related to service, service connection must be denied. Accordingly, the Board finds that the preponderance of the evidence weighs against the claim for service connection for a back disability, and the claim must be denied. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an increased rating in excess of 10 percent for a right ankle disability 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, and when the examination was scheduled in conjunction with any claim for increased rating, the claim shall be denied. 38 C.F.R. § 3.655(b). A November 2012 rating decision established service connection for a right ankle disability, and assigned a 10 percent rating. In a January 2013 correspondence, the Veteran contested the 10 percent rating, asserting that his disability was worse and a higher rating was required. The VA construed that correspondence as a notice of disagreement for an increased rating for the right ankle disability. During the pendency of the appeals process, the Veteran continuously asserted that the medical evidence of record did not adequately assess his condition. During this time, the Veteran had only been afforded one examination in October 2012. In March 2017, the Board determined that such singular examination had become stale, and no longer spoke to the current level of disability experienced by the Veteran; therefore, the Board remanded the matter to provide the Veteran with an updated VA examination to help determine the extent of his right ankle disability. Pursuant to the March 2017 Board remand directive, a VA examination was scheduled in November 2017. The Veteran did not report for that examination, without providing any good cause for doing so. On review of the record, there is no indication, either by the Veteran or the representative, that an attempt has been made to reschedule or otherwise provide good cause for failure to appear for the VA examination. Moreover, there is no indication in the record that the letter notifying him of the scheduled November 2017 VA examination was not received. Ashley v. Derwinski, 2 Vet. App. 62 (1992) (regarding the presumption of regularity that public officers have properly discharged their official duties in absence of clear evidence to the contrary); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (regarding the applicability of the presumption of regularity to RO actions). The Board finds no evidence of any VA error in notifying or assisting the Veteran. While VA has a statutory duty to assist in developing evidence pertinent to a claim, a veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). VA’s duty must be understood as a duty to assist a veteran in developing his or her claim, rather than a duty on the part of VA to develop the entire claim with the veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565 (2008). Therefore, remand for an additional VA examination is not warranted. When entitlement cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for a scheduled examination, or reexamination, the claim shall be denied. 38 C.F.R. § 3.655. The Board finds that a VA examination is necessary to decide the claim for an increased rating for a right ankle disability. Here, even considering the evidence of record, to include the Veteran’s lay statements and assertions with regards to the severity of his right ankle disability, there is insufficient competent evidence to demonstrate a higher rating is warranted. Specifically, the Board notes that disability ratings for the ankle are determined on the basis of objective criteria of limitation of motion, which is not shown in any VA medical record during this time period. While the Veteran may claim limited motion in the right ankle, he is not competent to speak to the specific degrees of range of motion requisite for a higher rating, without proper medical training, experience, and education. That determination applying objective criteria requires a medical professional, such as during a VA examination. The Veteran did not attend a scheduled VA examination. The examination may have provided evidence to substantiate any increased rating claim. At the examination, other symptoms would have been elicited from the Veteran, if present, that may have supported the criteria for an increased rating, such as limitation of motion, to include the extent, duration, and timing of any flare-ups, or whether the disability required use of assistive aids. Therefore, the Board must find that entitlement to a higher rating cannot be established without examination, which the Veteran did not attend. The Veteran has not provided a statement of good cause for not attending the examination and expressed a willingness to attend another scheduled examination. As the Veteran, without good cause, has failed to appear for a VA examination, and as entitlement to an increased rating for the service-connected right ankle disability cannot be established without a current VA examination, the appeal must be denied. 38 C.F.R. § 3.655. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Zi-Heng Zhu, Associate Counsel