Citation Nr: 20032764 Decision Date: 05/11/20 Archive Date: 05/11/20 DOCKET NO. 20-13 095 DATE: May 11, 2020 ORDER Entitlement to service connection for a lumbar spine disorder, claimed as low back strain, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the lumbar spine disorder began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.655. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1976 to July 1976. This claim comes to the Board of Veterans’ Appeals (Board) from a December 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 1. Lumbar Spine Disorder The Veteran asserts that he experiences a back disorder that is related to his active service. Specifically, the Veteran asserts that he injured his back while conducting physical fitness training. See claim, received by VA September 17, 2018. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). The Board notes that the Veteran served on active duty for 75 days and the provisions regarding chronic disabilities are not applicable. The Veteran has a current diagnosis of a lumbar spine disorder. See VA treatment records. Thus, the first element of service connection is met. As to the issue of in-service incurrence, the Veteran’s service treatment records do not show a diagnosis of a chronic lumbar spine disorder. They do show that the Veteran was seen for reported low back pain, and was diagnosed with acute low back strain and discharged with mild low back strain. See Service Treatment Records, May 13, 1976; May 19, 1976 to May 21, 1976. On his April 1976 entrance examination, the Veteran denied any back issues or back pain. See Service Treatment Records, April 30, 1976. The Veteran was deemed qualified for duty. The Veteran was separated from service in July 1976 for lack of motivation, lack of improvement, and lack of effort. See Naval Aptitude Board Summary, July 15, 1976. Here, the Board acknowledges that the March 2020 statement of the case related that the Veteran had slight scoliosis which pre-existed active service. See SOC, March 4, 2020. However, there is no notation of scoliosis in the Veteran’s service treatment records. On his April 1976 entrance examination, the Veteran denied any back issues or back pain, and was deemed qualified for duty. See STRs, April 30, 1976. The Veteran was scheduled for a VA examination in February 2020; however, he failed to report. Both the Veteran and his representative were advised of his failure to report for his examination in the March 2020 statement of the case; however, neither have offered good cause for his absence or request that the examination be rescheduled. In this regard, 38 C.F.R. § 3.655(a) provides, in pertinent part, that when entitlement to a benefit cannot be established or confirmed without a current VA examination, a claimant without good cause, who fails to report for such examination action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. 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. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b). The purpose of the examination was to determine whether there was a relationship between the Veteran's current lumbar spine disorder and his in-service complaints of back pain. As he failed to report without good cause for such examination, any opinion, favorable or otherwise, that would have been rendered at such time cannot be considered. Furthermore, the evidence of record does not contain a competent opinion relating the Veteran's current lumbar spine disorder to any aspect of his military service. The Veteran’s VA treatment records show that he was noted to have a history of low back pain. The Veteran was treated for low back pain since 2017, and reported a history of back pain since the 1980s. the Veteran related that he had lumbar fusion after a back injury at work in the 1990s. See VA treatment records, September 30, 2019. The Veteran related that he has had back pain for 30 years – since about 1989, approximately 13 years after he was released from active service. See VA treatment records, November 27, 2019. Based on a review of the evidence, the Board finds that service connection for a lumbar spine disorder is not warranted. In reaching this determination, the Board has also considered the lay assertions of record, including the contentions of the Veteran in support of a medical nexus. As a lay person, the Veteran is competent to report observable symptoms. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, “[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable symptoms of disability”); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau, 492 F.3d at 1377 n.4. However, he is not competent to provide a diagnosis of a lumbar spine disorder in this case, or determine that his diagnosed lumbar spine disorder is somehow related to his active service. This issue is medically complex, as it requires specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the medical evidence in this case. Here, the Board acknowledges that the Veteran’s representative has argued that the Veteran should be scheduled for a VA examination which would probe into any existing nexus between the Veteran’s in-service acute back pain and his currently diagnosed lumbar spine disorder. See representative statement, April 3, 2020. As detailed above, the Agency of Original Jurisdiction scheduled the Veteran for a VA examination in February 2020. The Veteran failed to report for the scheduled examination. See Request for Physical Examination, February 4, 2020. The Veteran did not provide good cause for missing the examination or offered any explanation for the failure to attend this examination. As such, this argument is without merit and the Board is adjudicating the claim herein. Accordingly, service connection for a lumbar spine disorder is not warranted because the Veteran has not satisfied the second and third requirements of service connection, i.e., an in-service incident and a nexus. See 38 C.F.R. § 3.303; see again Gilpin, 155 F.3d at 1353. In reaching the above conclusion, the Board has considered the benefit-of- the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for a lumbar spine disorder, that doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claim of entitlement to service connection for a lumbar spine disorder is denied. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lech, 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.