Citation Nr: 20031997 Decision Date: 05/06/20 Archive Date: 05/06/20 DOCKET NO. 10-36 219A DATE: May 6, 2020 ORDER Entitlement to service connection for a low back disability, to include as due to service-connected status post-operative right knee injury with osteoarthritis, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s low back disability is not caused or aggravated by an in-service event, injury, or disease, or his service-connected right knee disability. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ADT) from August 1991 to December 1991, with additional periods of service in the National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal was previously before the Board in November 2015, August 2017, and April 2018. The appeal has since been returned to the Board for appellate review. The Board’s most recent remand directed that the Veteran should be scheduled for a VA examination. The Veteran was scheduled for an examination but did not report for the examination. All other development directed by the Board was completed. The Board finds that there has been substantial compliance with its prior remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Generally, to establish service connection, a claimant 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may additionally be granted for disability resulting from injury incurred in or aggravated while performing ADT or inactive duty for training (IADT) or a disease incurred or aggravated while performing ADT. 38 U.S.C. §§ 101(24), 106. A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Veteran has a current low back disability. For example, at an August 2009 VA examination he was diagnosed with intervertebral disc syndrome and degenerative disc disease of the lumbar spine. Thus, the remaining question is whether the current low back disability is related to service or a service-connected disability. A low back disability is not shown by medical evidence until approximately March 2009, many years after the Veteran’s separation from service. Regarding onset of symptoms related to a low back disability, post-service the Veteran has given conflicting report of its onset: during the August 2009 VA examination, the Veteran reported that he started having back pain about two or three years prior to the examination without any definite injury, but in March 2013 follow-up visit, he reported that the low back pain began in the 1990’s. Service treatment records show no complaints, diagnosis, or treatment related to a low back disability. After falling off an obstacle course in February 1993, the Veteran sought treatment for his right knee. There was no mention of any complaints related to the low back. The Veteran presented for a VA examination in August 2009, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner opined that it was less likely than not that the Veteran’s current low back disability had its origin from his service-connected right knee condition. In support of this conclusion, the examiner explained that the Veteran had the right knee condition for years and was doing physical labor up until two or three years ago when his back started hurting, and that relationship to service-connected right knee condition was not proven. As the VA examiner did not address secondary aggravation, VA made attempts to obtain addendum opinions, to include a February 2018 VA opinion, where the examiner opined that the examiner would have to resort to speculation without a proper examination. However, as noted above, the Veteran did not report to the VA examination scheduled in January 2020. As there is no evidence of an in-service event, injury, or disease related to low back injury or complaint, service connection on a direct basis is denied. Notably, the Veteran has given conflicting accounts regarding the onset of his low back symptoms and as a result these statements are found to lack credibility. Service records show no relevant complaints and are considered the most probative evidence regarding the presence or absence of low back problems during service. There is no medical opinion or competent and credible evidence in significant conflict with a finding of no in-service incurrence of a low back disability. The Board finds the August 2009 medical opinion to be the most probative evidence as to the question of a relationship between the Veteran’s back disability and right knee disability. The opinion was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. While the examiner did not offer an opinion on aggravation, VA has attempted to obtain such an opinion. One examiner indicated examination was necessary to offer an opinion, and the Veteran subsequently failed to report for an examination. As a result, the Board must decide the claim based on the evidence of record. 38 C.F.R. § 3.655(b). Here, there is no competent and credible evidence that links the Veteran’s low back disability to his service-connected right knee disability through causation or aggravation. Notably, as a lay person the Veteran is not competent to diagnose a back disability or offer an opinion as to a back disability’s origin as these are complex medical issues. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include service treatment records and the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. For the above reasons, the preponderance of the evidence is against the claim and service connection is denied. REASONS FOR REMAND In April 2018, the Board remanded the TDIU claim for additional development and then readjudication by way of a Supplemental Statement of the Case. No Supplemental Statement of the Case was issued regarding the TDIU claim; thus, remand is again necessary. 38 C.F.R. § 19.31(c); see also Stegall v. West, 11 Vet. App. 268 (1998). The matter is REMANDED for the following action: Review the record for the Veteran’s TDIU claim. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be given the opportunity to respond. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. J. Kim, Associate Counsel 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.