Citation Nr: 1815148 Decision Date: 03/09/18 Archive Date: 03/19/18 DOCKET NO. 07-33 607 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a thoracolumbar spine disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Davidoski, Associate Counsel INTRODUCTION The Veteran had active military service from December 1979 to December 1982, with subsequent service in the Individual Ready Reserve (IRR) from December 1982 to December 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Waco, Texas Regional Office (RO) of the Department of Veterans Affairs (VA). This claim was most recently before the Board in February 2017. At that time, the Board remanded the Veteran's claim in order for him to be afforded a VA examination for his thoracolumbar spine disorder and for outstanding medical records to be obtained. This claim was also before the Board in July 2015, May 2014, and April 2011. At those times, the Board remanded the claim for further development regarding the Veteran's service records and reservist status. FINDING OF FACT The weight of the evidence is against a finding that the Veteran has a thoracolumbar spine disorder which is etiologically related to a period of qualifying service. CONCLUSION OF LAW The criteria for service connection for a thoracolumbar spine disorder have not been met. 38 U.S.C § 1131 (2012); 38 C.F.R. §§ 3.6, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 556 U.S. 396 (2009). Thus, adjudication of his claim at this time is warranted. Under 38 U.S.C. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining that evidence which is necessary to substantiate his claim. All service treatment records, VA treatment records, and private medical treatment records specifically identified by the Veteran have been obtained. VA attempted to procure any possible federal treatment records related to the Veteran's IRR service, but search efforts returned no results. VA offered the Veteran an opportunity to present testimony before the Board at a hearing, but he declined to do so. Of note, the Veteran failed to respond to attempts by VA to develop evidence for his claim, to include VA's February 2017 attempt to obtain information about additional treatment providers and VA's July 2011 attempt to obtain information about his alleged in-service motor vehicle accident. The Board notes that the duty to assist is a two-way street. 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 putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Further, as discussed in the decision below, the Veteran was scheduled for a VA examination to address the etiology of his thoracolumbar spine disorder. However, without showing good cause, he failed to report to the examination, and the Board concludes that there is no duty to attempt to provide another examination or medical opinion. Therefore, his claim will be rated based on the evidence of record. 38 C.F.R. § 3.655. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) incurrence or aggravation of a disease or injury during a qualifying period of service; 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 (Fed. Cir. 2004). Additionally, service connection can also be established through application of a statutory presumption for chronic diseases, like arthritis, when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303 (b). The Veteran asserts that his current back condition stems from a back injury he sustained from a motor vehicle accident in service. VA treatment records include imaging results from March 2013 lumbosacral x-rays. The x-rays revealed minor degenerative changes (arthritis). As such, the Veteran has a current thoracolumbar spine disability of arthritis, as indicated by imaging studies, and his claim will turn on whether the other two elements of service connection are met. The Veteran's service treatment records reveal no complaints of or treatment for any back condition or injury. At a November 1982 separation examination, the Veteran made no complaints of any current or past thoracolumbar injuries or symptoms, and the examiner made no clinical findings reflecting a back condition. He has not asserted otherwise. Rather, regarding the incurrence of an injury during a qualifying period of service, the Veteran submitted a written statement in April 2006, wherein he reported he was in a major car accident in 1983 or 1984 while he was serving as a reservist. Service personnel records covering the entire period of the Veteran's military commitment are of record. The Veteran entered active service in 1979 and had a subsequent reserve obligation which ended December 1985. He was on active duty from December 1979 to December 1982. His DD Form 214 indicates that, upon separation from active service, he was transferred to the Marine Corps Reserve Forces Administrative Center (MCRFAC) in Kansas City, Missouri. Personnel records give no indication that he was then assigned to any active reserve unit. The only entry following his release from active duty in 1982 was the 1985 entry that he was discharged from "Inactive" duty by the Marine Corps Reserve Support Center (MCRSC). Further, the chronological record of assignments in the Veteran's personnel records shows no assignment to any Reserve unit following active duty separation in December 1982, and his records were transferred to MCRSC at that time. The Veteran stated in his initial claim for service connection and in his appellate brief dated January 2018 that he was treated at the University Medical Center Hospital (UMCH) in Lubbock, Texas for his back after the accident. Records were obtained from UMCH in 2006. In response to a request for all records for the Veteran at that facility since 1983, three pages of treatment records were provided from UMCH. They all stemmed from a 1989 visit the Veteran sought for a nose injury. At that visit, the Veteran arrived by EMS and refused to state what had happened to injure his nose. The provider noted the Veteran had alcohol on his breath and there is an ineligible statement in the record ending in the word "handcuffs." Further, the record indicated that the Veteran was treated for a nasal fracture and released to jail. The UMCH records were silent as to any back complaints or treatment for a back condition and did not mention a motor vehicle accident. Moreover, there were no records provided for any time period for which the Veteran served. In seeking treatment for his back condition, the Veteran has made multiple statements to providers about the onset of his pain and his involvement in motor vehicle accidents. For example, in a 2010 VA treatment record, the Veteran reported having low back pain which had started after a motorcycle accident about 15 or 20 years prior (circa 1990). He stated there were no fractures after the accident, but his back had been hurting ever since. In a June 2001 Texas Department of Criminal Justice (TDCJ) treatment record, the Veteran reported having been involved in a motor vehicle accident involving four to five motorcycles and cars in 1988 or 1989 and also reported that a motorcycle hit his driver side door in 1984. In a February 1996 treatment record from the TDCJ, the Veteran reported his back pain had been present since an accident two years prior. In April 2017, the Veteran was scheduled for a VA examination for his claimed thoracolumbar spine disorder, but failed to report for the examination. Neither the Veteran nor his service representative have presented good cause for his failure to report for the April 2017 VA examination, requested another examination, or, after receipt of the supplemental statement of the case (SSOC), argued that the Veteran had not received notice of the VA examination. The Board acknowledges that the record indicates the Veteran became incarcerated in September 2017, but good cause has not been shown as to why the Veteran was unable to report to his VA examination nearly five months prior to his date of confinement. See 38 C.F.R. § 3.655. The Board notes again that the duty to assist a claimant is not a one-way street, and, in the instant case, the Veteran has failed to cooperate to the full extent in the development of his claim. Wood, 1 Vet. App. at 193. Where entitlement to a benefit cannot be established or confirmed without a current VA examination and the Veteran 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. 38 C.F.R. §§ 3.655 (a)-(b) (2016). There is no competent and credible evidence of any back injury during qualifying military service. As discussed, the Veteran's active duty service treatment records, spanning the period from December 1979 to December 1982, show no injury or complaint of back problems, and the Veteran has not asserted otherwise. The Veteran contends that he injured his back in a 1983 or 1984 car accident while he was in reserve service. The medical records the Veteran identified as relating to the accident were obtained, but did not show the existence of such an accident during that time frame. The Board notes that it is possible that the 1989 UMCH records related to a motor vehicle accident and the Veteran did not disclose that to the provider for fear of possible criminal implications; but since the Veteran had separated from all service in 1985, a 1989 automobile accident would not help his claim. Regardless, the Board need not determine whether the Veteran actually injured his back in an accident during his reserve service, as that accident could not have occurred during any duty status which would qualify the Veteran for service-connected compensation benefits. The Veteran contends that his accident was in a period of reserve service; and, in relation thereto, it was related to service. However, the Veteran was not actually assigned to an Active Reserve unit during his reserve service. He was instead a part of the IRR. Corroborating this conclusion are the transfer station listed on the DD Form 214 and the chronological record of assignments in his personnel records. Had he been assigned to an actual unit, orders noting such would have been part of his records, and his service records would have migrated to that unit instead of remaining with MCRSC. Moreover, the Veteran, himself, stated in a written statement in support of his claim filed in May 2006 that he injured his back in an accident while on "inactive service." Veterans in IRR status receive no pay and are not obligated to drill, conduct annual training, or participate in any military activities (except for periodic Muster activities) until activated by Presidential Reserve Callup Authority. It is not a duty status listed as qualifying by regulation, such as active duty, active duty training, or inactive duty training. 38 C.F.R. § 3.6. Travel to and from activities related to IRR status is therefore also not qualifying. Even if the Veteran was involved in a motor vehicle accident while reporting for Muster, such would not have placed him in a qualifying duty status. As such, service connection is not available for any injury which could have been sustained had the Veteran been involved in a 1983 or 1984 motor vehicle accident. Lacking an injury in a period of qualifying service, a discussion of a presumptive service connection for the Veteran's chronic thoracolumbar arthritis is not warranted, as it would not help substantiate the in-service element of the Veteran's claim. In light of the foregoing, the preponderance of the evidence is against the claim, and service connection for a thoracolumbar spine disorder is not warranted. ORDER Service connection for a thoracolumbar spine disorder is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs