Citation Nr: 21003054 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 14-07 300 DATE: January 19, 2021 ORDER Service connection for right hip disability (claimed as right hip pain) is denied. Service connection for left hip disability (claimed as left hip injury and pain) is denied. Service connection for right lower extremity radiculopathy is denied. Service connection for left lower extremity radiculopathy is denied. FINDINGS OF FACT 1. The Veteran’s right and left hip aseptic necrosis did not onset in service and is not causally related to his service, nor does he have another hip disability that onset in service or is causally related to service. 2. The Veteran’s right and left lower extremity radiculopathy did not onset in service and is not causally related to his service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right hip disability have not been met. 38 U.S.C. §§ 1131, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304. 2. The criteria for entitlement to service connection for a left hip disability have not been met. 38 U.S.C. §§ 1131, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304. 3. The criteria for entitlement to service connection for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1131, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304. 4. The criteria for entitlement to service connection for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1131, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in July 2018 and August 2019. The claim has since been returned to the Board for further appellate action. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Where entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination, and a claimant, without good cause, fails to report for such examination or reexamination, an original claim for compensation shall be decided based on the evidence of record. See 38 C.F.R. § 3.655(a), (b). Here, the evidence reflects that the Veteran reported for a VA compensation and pension examination in February 2012. However, subsequent to that examination, relevant service treatment records were added to the Veteran’s claims file. In a July 2018 decision, the Board remanded the Veteran’s claim to afford the Veteran a new VA examination an obtain an etiology opinion as to his claimed disabilities that considered the newly added service treatment records. A note in the file indicates that in March 2019 the Agency of Original Jurisdiction (AOJ) called and mailed a letter to the Veteran asking him to schedule a VA examination. No response was received from the Veteran. However, since the file did not note the date that the letter was mailed to the Veteran, the Board remanded the claim again in August 2019 for the AOJ to either provide that information or again contact the Veteran about scheduling a new examination. The record reflects that on October 4 and 7, 2019, the AOJ called the Veteran about scheduling a new VA examination and left telephone messages. A note by the AOJ states that a letter was mailed to the Veteran’s address on file on October 7, 2019. No response was received from the Veteran. In an October 2020 brief, the Veteran’s representative argued that the VA had not shown a lack of good cause for the Veteran’s failure to report for an examination and had provided insufficient notice of the result of the Veteran’s failure to report. Importantly, however, neither the Veteran nor his representative have contended that the Veteran actually had good cause for his failure to respond to the VA’s request to schedule a VA examination. The record does not indicate any contact from the Veteran at all with respect to the VA’s request that he schedule a VA examination. The Veteran has also not argued that he was not properly notified by VA of the request to schedule a VA examination. The record does not reflect a change in the Veteran’s address or telephone number during the pertinent period. Therefore, in light of the absence of clear evidence to the contrary, the Board finds that the Veteran is presumed to have received notice to schedule a VA examination, and that the absence of the October 2019 letter in the claims file does not constitute clear evidence to effectively rebut this presumption. See Kyhn v. Shinseki, 24 Vet. App. 228, 236 (2011). Accordingly, the Board finds that the Veteran has failed to demonstrate good cause for his failure to work with VA staff to schedule and appear for a VA examination. The Board also notes that the Veteran was notified of the consequences of failure to appear for a VA examination by the May 2019 supplemental statement of the case. The Board finds that VA has no remaining duty with regard to obtaining a medical examination and opinion in conjunction with this claim. Although VA has a duty to assist the Veteran in substantiating his claims, that duty is not a one-way street and it is important that a veteran make efforts to assist VA in gathering evidence relevant to his claim. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000). Based on the forgoing, the Board finds that the Veteran’s service connection claims must be adjudicated on the basis of the current evidence of record. See 38 C.F.R. § 3.655(a), (b). 1. Entitlement to service connection for a right hip disability (claimed as right hip pain) 2. Entitlement to service connection for a left hip disability (claimed as left hip injury and pain) The Veteran contends that he injured his left hip in service and has a right hip disability secondary to his left hip disability. Thus, the question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran’s service treatment records include an August 1977 note of right thigh severe pain, an October 1977 note of the Veteran seeking treatment for a right leg injury due to stairs, and an October 1977 record of the Veteran’s report of pain on extension and rotation of hips. Post-service, a December 1997 VA treatment record states that x-rays showed the Veteran to have aseptic necrosis of the femoral heads in both hips. The treatment record states that the Veteran reported severe pain in his right hip for a little more than a year. The Veteran underwent a right total hip replacement in December 1997 and a left total hip replacement in July 1998. At his February 2012 VA compensation and pension examination, the Veteran reported he injured his left hip in service in a fall and that his hip pain never resolved. The examiner diagnosed bilateral hip degenerative joint disease. The Board has carefully reviewed the record but finds no medical opinion evidence that the Veteran has current right or left hip disability that onset in or is causally related to the Veteran’s service. The earliest treatment record showing bilateral hip disability, specifically aseptic necrosis, is from 1997, which is two decades after the Veteran’s separation from service. The earliest indication of degenerative joint disease is from 1997. In other words, there is no evidence that any degenerative joint disease manifested during service or within one year of separation. Furthermore, while the Veteran is competent to report having experienced hip pain, he is not competent to provide a diagnosis in this case or determine that any hip pain in service was a manifestation of his later diagnosed degenerative joint disease or aseptic necrosis or that his reported in-service fall is the cause of any other current hip disability. The question is medically complex as it requires interpretation of diagnostic medical testing and an understanding of anatomical relationships and pathology. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Therefore, it is outside the competence of the Veteran as the record does not show that he has the medical training or credentials to make such a determination. Id.; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Based on the forgoing, the Board finds that a preponderance of the evidence is against service connection for a right or left hip disability. 3. Entitlement to service connection for right lower extremity radiculopathy 4. Entitlement to service connection for left lower extremity radiculopathy The Veteran contends that he his right and left lower extremity radiculopathy secondary to his hip disability. The Veteran’s VA treatment records include a November 2016 CT scan record indicating that the Veteran reported low back pain with radiating pain into his lower extremities. An August 2017 VA treatment record notes low back pain with radicular symptoms secondary to anterolisthesis L5 over S1, neuroforaminal stenosis, and degenerative disc disease. The Board notes that the Veteran has no service-connected disabilities, to include a back disability. The record does not support that the Veteran’s lower extremity radiculopathy onset in service. To the extent that the Veteran himself has opined that his lower extremity radiculopathy is related to his service, the Board finds that as a lay person he does not have the education, training, or experience to competently offer such an opinion. See Kahana, 24. Vet. App. 428. (Continued on the next page)   There is no medical opinion evidence supporting a relationship between the Veteran’s lower extremity radiculopathy and his service. Based on the forgoing, the Board finds that a preponderance of the evidence is against service connection for right or left lower extremity radiculopathy. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Christensen 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.