Citation Nr: 20009765 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 16-43 721 DATE: February 6, 2020 ORDER Entitlement to an increased (compensable) rating for a left knee disability is denied. Entitlement to service connection for a thoracolumbar spine disability is denied. Entitlement to service connection for right lower extremity radiculopathy is denied. Entitlement to service connection for left lower extremity radiculopathy is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability is remanded. FINDINGS OF FACT 1. The Veteran failed to appear for VA compensation examinations scheduled in response to his claim for a higher rating for his left knee disability, and he has not provided good-cause explanation or other justification for his absence.   2. The Veteran’s thoracolumbar spine disability, right lower extremity radiculopathy, and left lower extremity radiculopathy were not shown as chronic in service and did not manifest to a compensable degree within a year of his discharge; moreover, continuity of symptomatology since service also is not established for a chronic disease; and these disabilities are not otherwise shown to be related to an injury, a disease or an event during his service and/or caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria are not met for a compensable rating for the left knee disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 2. The criteria are not met for entitlement to service connection for a thoracolumbar spine disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria are not met for entitlement to service connection for associated right lower extremity radiculopathy. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria are not met for entitlement to service connection for associated left lower extremity radiculopathy. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Entitlement to an increased rating for a left knee disability, specifically, for residuals of a dislocation, currently evaluated as noncompensable, meaning as 0-percent disabling. The Veteran’s left knee disability has been rated as noncompensable effectively since July 2010. In January 2013, he filed a claim for increased compensation owing to this disability. In response to his claim, he was scheduled for a VA examination in January 2014, but he failed to show up or provide VA with any reason for why he did not. (but with regards to examinations for other disabilities which were also scheduled, he asserted that he had not been properly notified). Therefore, to give the Veteran another opportunity to undergo the VA examination needed to reassess the severity of his left knee disability, he was again scheduled for examinations in February, March, and July 2016 but he again failed to report and again failed to provide any good-cause explanation or justification for his absence. The most recent correspondence from the Veteran is dated in October 2016 and he did not assert that he had not been informed of those subsequent examinations or that he was willing to attend one. In addition, on his August 2016 VA Form 9 (Substantive Appeal to the Board), he did not assert that he had not been informed of those examinations or that he was willing to attend one if again rescheduled. In 2019, he additionally failed to appear for his scheduled hearing before the Board and, just as before, did not provide any good-cause explanation for his absence. The duty to assist is not a one-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 the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). It is well established that it is the Veteran’s responsibility to keep VA advised of his whereabouts. "There is no burden on the part of the VA to turn up heaven and earth to find him." See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). 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. However, when the examination instead was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or (as here) a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b). Since the Veteran’s claim is for an increase in the rating for his left knee disability, his failure to report for the VA examinations scheduled in conjunction with his claim warrants specific action by the adjudicator in the way of a mandatory (i.e., nondiscretionary) summary denial of the claim according to § 3.655. Service Connection In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a nexus between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Under 38 C.F.R. § 3.310, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The record reflects that the Veteran was scheduled for several VA examinations but that he failed to appear. In his February 2014 notice of disagreement, the Veteran asserted that he had not been notified of the January 2014 examinations and that he would be willing to appear for an examination. Additional examinations were scheduled in February, March, and July 2016 but the Veteran failed to report. The RO notified the Veteran in its August 2016 Statement of the Case (SOC) that his failure to appear at the examinations may adversely affect his claims. He was also informed that he should submit good cause for missing an examination and an indicate a willingness to report for another VA examination. VA received the Veteran’s VA Form 9 in September 2016; however, he did not express a willingness to appear for an examination or provide good cause for missing an examination. As is discussed in further detail below, the preponderance of the evidence is against the claims; thus, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 1. Entitlement to service connection for a thoracolumbar spine disability The Veteran entered service on January 16, 2007. A January 19, 2007 record reflects that he reported lower back pain of two days in duration. Upon examination of the thoracolumbar spine, he had full range of motion with no pain. In addition, no tenderness was demonstrated upon palpation. The lumbar/lumbosacral spine had mild pain with range of motion testing. A subsequent January 23, 2007 clinical record notes that the Veteran reported that he had been on a profile for his back and it had now “completely resolved”. However, a February 2007 clinical record reflects lower back pain radiating to the right side which worsens with coughing or sneezing. Upon examination of the thoracolumbar spine, he had full range of motion with no pain. In addition, no tenderness was demonstrated upon palpation. The lumbar/lumbosacral spine had pain with range of motion testing. Upon separation examination in 2009, the Veteran’s spine was normal, but it was noted that the Veteran had a history of low back pain; it was asymptomatic on examination. The Veteran reported that his last episode of back pain had been one week earlier and had lasted three days. On his January 2009 Report of Medical Assessment, the Veteran reported that he had not had any injury or illness while on active duty for which he did not seek medical care. He also reported that the condition which currently limited his ability to work in his primary military specialty or which required limitations was his knee. The Veteran separated from service in March 2009. A February 2010 VA “new patient vesting exam” reflects that the Veteran complained of “lower back pain for some time.” An April 2012 record reflects that the Veteran worked in construction and complained of low back pain. A July 2012 record notes complaint of mid back pain. An X-ray showed findings likely reflective of an old injury; however, this was already more than three years after separation from service. An October 2013 VA clinical record reflects that the Veteran reported constant throbbing pain in the back and left knee. He reported low back pain for the last two years. A November 2014 private record (South Georgia Medical CTR) reflects that the Veteran complained of low and mid back pain for two years with left leg pain. A November 2014 radiology record notes a prominent Schmorl’s node in the superior endplate of T7, an approximate 20 percent loss of vertebral body height, and mild degenerative changes at T6 through T10. A May 2015 South Georgia Medical Center operative record reflects that the Veteran reported “over five years of mid thoracic back pain. He states that he has had several falls and accidents, but he is unable to tie the back pain to a distinct incident. He does say though that it seemed to correlate with some falls or injury in the past.” The postoperative diagnosis was painful T7 compression fracture and Schmorl’s node. A T7 kyphoplasty was performed. August 2015 private records note a 1 mm translation at L5-S1, bilateral spondylolysis at the pars interarticularis of L5, and lumbosacral radiculopathy. The Board notes that the in-service symptoms were found in the lumber back, whereas, the post service compression fracture, Schmorl’s node, and mild degenerative changes were in the thoracic back. There is no competent and credible evidence of a causal link between the thoracic disabilities and service. Moreover, with regard to the 1 mm translation at L5-S1, and bilateral spondylolysis at the pars interarticularis of L5, there is no competent and credible evidence of record that they are causally related to, or aggravated by, service, to include his in-service complaints of low back pain. The Veteran contends that he has two fractures (one in the lumbar region and one in the thoracic region) due to service. On his VA Form 9, he stated that his civilian doctor (Dr. Lane) has informed him that his fractures are old and likely caused by the stress of military training. However, the clinical records do not support such a contention. Dr. Lane’s record notes that the Veteran reported several falls and accidents but that the Veteran was unable to tie the back pain to a distinct incident. The record does not reflect that these “several falls and accidents” were in service or that Dr. Lane attributed the Veteran’s back disability to the stress of military training. The Board also notes that “the connection between what a physician said and the layman's account of what he purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical' evidence." Robinette v. Brown, 8 Vet. App. 69, 77 (1995). Moreover, post service, the Veteran worked in construction and as a painter, he has contended numerous falls and accidents, and he is not competent to state the etiology of his spine disabilities. The Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion to the claimed disability. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issues in this case in light of the education and training necessary to make a finding with regard to the complexities of the spine (to include disc herniation and compression fractures). The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran’s lack of appearance at the scheduled VA examinations and at the Board hearing has not been shown to be for good cause; thus, the Board’s decision is based on the evidence of record. In essence, while he had complaints referable to his low back in service and post service and has a post-service thoracic and post-service lumbar spine disability, there is no competent and credible evidence of a correlation (“nexus”) between his present disability and serviced or showing of continuity of symptoms of a chronic disease listed under 38 C.F.R. § 3.309 since his service. Moreover, there is no probative evidence that any disability is as likely as not causally related to, or aggravated by, a service-connected disability. Based on the foregoing, service connection is not warranted.   2. Entitlement to service connection for right lower extremity radiculopathy AND 3. Entitlement to service connection for left lower extremity radiculopathy The Veteran has been diagnosed with lumbosacral radiculopathy. But as he is not in receipt of service connection for his additionally-claimed thoracolumbar (thoracic and lumbar) spine disability, it follows that service connection for radiculopathy related to, i.e., associated with, his low back/spine disability cannot be granted. Moreover, there is no competent and credible evidence of record that he had radiculopathy of his lower extremities to a compensable degree within one year of his separation from service and/or that this bilateral lower extremity radiculopathy is otherwise casually related to, or aggravated by, a service-connected disability. The Veteran has not been shown to have the experience, training, or education necessary to give a probative opinion on the origins of these claimed disabilities. 38 C.F.R. § 3.159(a)(1) and (a)(2). Again, his failure to attend his scheduled VA examinations and appear for his hearing before the Board, without showing the required good cause, means the Board is left to decide his claims based on the evidence of record. And, for the reasons and bases discussed, this evidence does not provide grounds for granting service connection.   REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD), is remanded. Historically, in September 2012, the local regional office (RO) considered and denied the Veteran’s claim for service connection for an acquired psychiatric disorder, then claimed specifically as PTSD. In January 2013, he submitted a VA Form 21-4138 (Statement in Support of Claim) in which he detailed a stressor; however, this stressor already had been mentioned during his 2012 VA examination; thus, it was not new and material evidence received by VA within one year of the 2012 decision. His statement can, however, reasonably be construed as a notice of disagreement (NOD) with the 2012 denial. (VA’s rule that a NOD must be on a timely VA Form 21-0958 did not become effective until March 24, 2015.) In a February 3, 2014 decision, the RO confirmed and continued the prior denial of service connection for an acquired psychiatric disorder. In a February 4, 2014 decision, the RO confirmed and continued a denial of PTSD. However, the Board finds that new and material evidence is not required to first reopen this claim because the September 2012 decision did not become final and binding. The Veteran contends that he has an acquired psychiatric disorder, including especially PTSD, based on two events in service – the death of his wife and witnessing the aftermath of a motor vehicle accident in which a soldier accidently killed a young boy. The Veteran provided the name of the other soldier (PFC K.B.), the town where the accident occurred (Clarksville, Tennessee), and the approximate time period (March or April 2008). An August 2012 VA examination report reflects that the Veteran did not have a diagnosis conforming to the DSM-IV criteria. Effective August 4, 2014, however, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to remove outdated references to the DSM, Fourth Edition (DSM-IV) and replaced them with references to the DSM, Fifth Edition (DSM-5). The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the agency of original jurisdiction (AOJ), i.e., the local RO, on or after August 4, 2014. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014, even if such claims are subsequently remanded to the AOJ. See 80 Fed. Reg. 53, 14308 (March 19, 2015). The Veteran’s claim was not certified to the Board until 2017; thus, the DSM-5 is applicable. The claims file also includes a 2016 VA addendum to the 2012 examination report, which provides opinions and rationale against service connection for an acquired psychiatric disorder. The examiner, who did not exam the Veteran at that time, noted that “[i]t is difficult to assess the Veteran’s current psychological state given lapse in time.” The examiner noted that he considered the DSM but did not discuss which DSM was used. When adjudicating a service connection claim based on mental health disabilities that were pending before the AOJ on or after August 4, 2014, the Board must ensure that the Veteran received an adequate VA examination or medical opinion in light of the DSM-5. See Molitor v. Shulkin, 28 Vet. App. 397, 410-11 (2017). The Board therefore finds that further development is warranted prior to adjudicating this claim. To wit, VA should attempt to verify the alleged stressor, obtain updated clinical records and, thereafter, schedule the Veteran for another mental status examination. Accordingly, the matter is REMANDED for the follow action: 1. Obtain the Veteran’s complete VA treatment records, to include those dating from June 2016 to present, and associate them with the claims file so they may be considered. 2. Attempt to corroborate the Veteran’s in-service stressor of witnessing the aftermath of the accidental vehicle death of PFC K.B.’s stepson in approximately March or April 2008 in Clarksville, Tennessee. The attempt to corroborate this stressor should include requesting military police reports and private police reports for the period from January to June 2008. If more details are needed, contact the Veteran and ask that he provide all necessary additional information. 3. Obtain the Veteran’s complete military service personnel records and associate them with the claims file. 4. Thereafter, schedule the Veteran for another mental status examination for additional comment concerning whether it is as likely as not that he has an acquired psychiatric disorder causally related to his service. In making this determination, the examiner must use the DSM-5 in rendering any diagnosis. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine on whether it is at least as likely as not the PTSD is the result of a verified in-service stressor.   If the Veteran fails to show for the examination, document the notification of the appointment in the claims file. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.