Citation Nr: 20039963 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 11-06 831 DATE: June 11, 2020 ORDER Entitlement to service connection for a back disability, claimed as herniated disc, is denied. FINDINGS OF FACT Without good cause shown, the Veteran did not report for a VA examination that was necessary to evaluate his claim for service connection for a back disability, and the Board must decide the claim based on the evidence of record; the preponderance of the evidence of record is against a finding that the Veteran’s back condition was incurred in or aggravated by his active service; or manifested to a degree of 10 percent or more within one year of service. CONCLUSION OF LAW The criteria for service connection for a low back disability, claimed as herniated disc, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307 (a)(3), 3.309 (a), 3.655. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from October 1987 to February 1992. This appeal comes before the Board of Veterans’ Appeals (Board) from a June 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In April 2017 the Veteran testified at a Board travel hearing in the Cleveland RO before the undersigned Veterans Law Judge. A transcript of the hearing is available in the record. This matter has previously come before the Board. Most recently, in January 2019, the Board remanded this issue for a thorough medical examination to be conducted by VA. The Veteran was scheduled for a new VA examination in December 2019, in accordance with the Board’s instructions. However, the Veteran did not attend the examination. The Board finds that its remand instructions were substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). Failure to report for a VA Examination. VA regulations provide that when entitlement to a benefit cannot be established without a current VA examination or reexamination, and the claimant, without good cause, fails to report for such examination, where the claim being appealed is an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655 (b). Examples of good cause that would excuse the failure to report for a scheduled VA examination or reexamination include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R. § 3.655 (a). Here, the Veteran’s claim for service connection for his back condition is an original claim, filed in February 2008. The Board previously remanded the claim for additional medical examination, as the previous medical nexus opinions in the claims file were not supported by adequate rationale. See January 2019 BVA Decision. In October 2019, the Veteran was notified that he would soon be contacted to schedule a new examination, and that if the Veteran failed to report to such examination without good cause, his claim would be rated on the available evidence of record. See October 2019 Subsequent Development Letter. Two days later, a computer readout indicates the Veteran declined the upcoming examination, without any further explanation. See December 2019 C&P Examination. In April 2020, the Veteran was notified in a Supplemental Statement of the Case (SSOC) that his claim had been denied because he had failed to report to the examination. See April 2020 SSOC. Several weeks later, a VA representative contacted the Veteran via telephone. The Veteran indicated he had not yet received the SSOC, but he stated that he had no further evidence to submit for his claim. The representative asked if the claim could be re-certified to BVA, and the Veteran stated that VA could proceed. See April 2020 VA Form 27-0820 Report of General Information. In May 2020, the Veteran’s representative questioned the veracity of VA’s reports that the Veteran had declined his examination. The representative did not provide any reason for distrusting such statements, other than VA’s notations being “vague.” The representative did not otherwise address why the Veteran had missed his appointment six months earlier, nor did the representative assert that the Veteran wished to re-schedule the missed examination. See May 2020 Appellate Brief (VSO IHP; Post remand Brief; Attorney Brief). While the actual notice letters of the scheduled VA examinations are not on file, the Veteran has not asserted that he did not receive notice of the examination. There is no indication that the Veteran’s address has changed. The Veteran has corresponded regularly with VA throughout his pending claim, using the address for the Veteran that VA currently has on file. A VA representative spoke directly with the Veteran via telephone in April 2020, which further indicates that VA’s contact information is up to date. There is a “presumption of regularity” that supports official acts of public officers and allows courts to presume that what appears regular is regular. Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001); Wise v. Shinseki, 26 Vet. App. 517, 525 (2014). The presumption of regularity extends to VA’s ministerial acts of mailing decisional and notice documents to claimants. See, e.g., Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007). Generally, public officers are presumed to have properly discharged their official duties in absence of clear evidence to the contrary. See Ashley v. Derwinski, 2 Vet. App. 307 (1992). VA’s established procedure for notifying claimants of VA examinations entitles it to the presumption of regularity that VA employees properly discharged their official duty to notify a veteran of a VA examination. Khyn v. Shinseki, 24 Vet. App. 228 (2011). The Board finds that, based on the presumption of regularity, the Veteran received notice of the examination. Such a presumption has not been rebutted by clear and convincing evidence. See Matthews v. Principi, 19 Vet. App. 23 (2005); Khyn v. Shinseki, 24 Vet. App. 228 (2011). VA’s duty to assist is not a one-way street. If the Veteran wishes to help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 191 (1991); Hayes v. Brown, Vet. App. 60, 68 (1993). The Veteran has not offered any explanation for nonattendance at his scheduled examination in December 2019. Therefore, good cause is not shown, and the Board must by law decide the claim based on the evidence currently in the record. See 38 C.F.R. § 3.655 (b). Entitlement to service connection for a herniated disc condition is denied. The Veteran has claimed entitlement to service connection for a back disability, originally claimed as a herniated disc, arguing that his condition originated during military service. The Veteran points to complaints of back pain during his active service. See February 2008 VA Form 21-526 Veterans Application for Compensation or Pension; April 2017 Hearing Transcript. Specifically, the Veteran has argued that he knew he had a herniated disc while he was in service, but military doctors did not properly diagnose his condition. See March 2010 Notice of Disagreement. The Veteran’s representative has also advanced the theory that a knee injury in service may have caused or aggravated the Veteran’s back condition. See November 2018 Appellate Brief (VSO IHP; Post remand Brief; Attorney Brief). Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). Service connection may be established for a current disability on the basis of a presumption that certain chronic diseases, to include arthritis, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (a). For arthritis, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307 (a)(3). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires the chronic disease to have manifested in service. 38 C.F.R. § 3.303 (b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The first Hickson element requires a present disabling condition. The Veteran was diagnosed with a herniation at L4-5, and degenerative disc disease at both L4-5 and at L5-S1 in September 2001. In May 2009 at a VA examination, the Veteran was also diagnosed with postoperative lumbar disc disease, due to surgical removal of his herniated disc in 2001. The first Hickson prong is thus satisfied. The second Hickson prong requires a showing of an in-service injury or incurrence. The Veteran’s representative has advanced an argument that the Veteran suffered a knee injury in May 1987, which may have caused or aggravated his back condition. The Veteran was not on active duty at that time. However, service medical records show treatment for knee bruising and pain in May 1989. Thus, the second Hickson prong is satisfied regarding an in-service knee injury. The Veteran has also pointed to his documented complaints of back pain during active service. The Veteran argues he had a herniated disc condition during his military service, which was not diagnosed due to incompetent medical care. See March 2010 Notice of Disagreement. However, the evidence does not show that the Veteran has the requisite medical training to render such a diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board thus affords greater probative weight to the medical evidence of record. Service medical records show the Veteran was treated for back pain in March 1988, which was diagnosed as facet syndrome and low thoracic back pain. He was treated again for back pain in March 1989, which was diagnosed as a back strain and low back syndrome. See Medical Treatment Records. Thus, the second Hickson prong is satisfied regarding complaints of back pain in service, although not diagnosed as a herniated disc. The third Hickson requirement is for a medical nexus between the current disabling condition and the in-service injury. No medical opinions of record have connected the Veteran’s current conditions to any in-service injury. In May 2009, the Veteran was afforded a VA examination to determine the nature and etiology of his back condition. The examiner reviewed the Veteran’s claim file and conducted an in-person examination. The examiner wrote an opinion that “it is not likely” the Veteran’s back pain is related to his service. The examiner explained that multiple post-service injuries, traumas and a surgery showed age-related degenerative disc disease at the L4 and L5 levels. See May 2009 VA Examination. In July 2017, a VA examiner reviewed the Veteran’s medical records to complete a disability benefits questionnaire regarding the Veteran’s back pain. The examiner wrote an opinion that it was less likely than not that the Veteran’s lumbar disc disease was related to active service. The examiner explained that there was no evidence of lumbar disc disease during service, including at separation in February 1992. Additionally, the examiner observed there was no evidence of chronicity of a back condition. See July 2017 C&P Examination. The Board is mindful that the record does not contain evidence that the Veteran underwent a separation examination when he was discharged from the Air Force, despite the implication of such by the July 2017 examiner. In January 2018, the same VA examiner who provided the above opinion completed another disability benefits questionnaire regarding the Veteran’s back. The examiner reviewed the Veteran’s records, and provided an opinion that it was less likely than not that the Veteran’s lumbar disc disease or any other back disability had its onset during active service or otherwise incurred as a result of active service. The examiner again cited to no evidence of lumbar disc disease or any other back condition at the time of the Veteran’s separation from the Air Force, and no evidence of chronicity. See January 2018 C&P Examination. The Veteran’s private medical records do not provide any opinion linking a back condition to his military service. In September 2001, a doctor wrote that the Veteran had back discomfort intermittently for about two years. See document entitled July 2001 Medical Treatment Record – Non-Government Facility. In September 2001, a private doctor observed that the Veteran had not previously had a chronic back problem, but experienced back pain when trying to move a pool filter. See document entitled October 1998 Medical Treatment Record – Non-Government Facility. In September 2007, a private physician observed that the Veteran experienced knee and back pain as a result of a recent motor vehicle accident. See April 2008 Medical Treatment Record – Non-Government Facility. None of these medical records discussed the Veteran’s military service. As shown above, no medical opinions have linked the Veteran’s back condition to his military service in any way, including an in-service knee injury, an in-service back injury, or an in-service back condition. However, the Board will also consider whether the Veteran has suffered from a chronic condition since service, including from an un-diagnosed condition since that time. Indeed, the Veteran has argued that he sought post-service treatment for his lower back as far back as 1994, two years after his discharge. See April 2017 Hearing Transcript. The evidence does not support that the Veteran has a chronic back condition, to include an un-diagnosed condition, which has continued since his active service. August 1998, the Veteran complained to his private physician of low back pain for “the last couple of months.” The Veteran underwent an MRI examination of his lumbar spine, which revealed “minimal degenerative spurring mid thoracic spine,” but was otherwise “unremarkable.” This was prior to the Veteran’s diagnosis of a herniated disc in September 2001. In October 1998, at a follow-up examination for his back, the Veteran’s physician observed no further back pain, and described the Veteran’s condition as “resolved.” See October 1998 Medical Treatment Record – Non-Government Facility. The medical evidence does not include any post-service treatment records for the Veteran’s back prior to 1998. The MRI in 1998 shows the Veteran did not have a herniated disc condition six years after his discharge, indicating that the herniated disc had not originated during his service. Arthritis was shown at the same 1998 MRI, but the medical record does not show that arthritis existed prior to 1998. The evidence therefore does not support a finding that the Veteran has had a chronic disease, to include arthritis, manifesting to a degree of 10 percent or more within one year of his discharge in February 1992. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307 (a)(3), 3.309 (a). VA medical opinions in the record have been previously ruled insufficient for the Board to render a decision. See January 2019 BVA Decision (remanding the claim for further examination and opinion). Nonetheless, as the Veteran has not attended a new examination, the Board must proceed with this decision based on the evidence of record. 38 C.F.R. § 3.655 (b). No medical opinion of record, including in the Veteran’s private medical record, has linked the Veteran’s present back conditions to his military service in any way. Accordingly, the preponderance of the evidence is against a finding that the Veteran’s back conditions were incurred in, aggravated by, or are otherwise related to his active military service. The third Hickson prong is not satisfied, and the claim for service connection must be denied. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hermsdorfer, 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.