Citation Nr: 21003918 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 10-22 369 DATE: January 25, 2021 ORDER Entitlement to service connection back disability to include lumbar strain is denied. FINDING OF FACT The preponderance of the evidence is against finding that a back disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from January 2000 to December 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2008 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Board issued a remand in August 2017 instructing the RO to verify the Veteran’s current address, reissue the April 2017 Supplemental Statement of the Case (SSOC), obtain outstanding treatment records, and scheduled the Veteran for a VA examination. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO made an attempt to contact the Veteran at the address on file on September 11, 2017. In a report of general information, it was noted that the address could not be verified, the phone number was disconnected, and it was possible the Veteran was homeless. The August 2017 letter notifying the Veteran of the Board’s Remand was returned in the mail. On October 4, 2017, the RO attempted to contact the Veteran via telephone at two different numbers and a voicemail was left at those numbers. The RO also created a VA memo reflecting all the possible phone numbers and addresses related to the Veteran’s contact information and associated it with the claims file. Another telephone inquiry was made on November 30, 2017. The Veteran’s representative, American Legion, was contacted to verify the Veteran’s address. No answer was received and a voicemail was left. Another attempt was made to contact the Veteran and the American Legion on January 16, 2018. A sixth attempt was made on February 15, 2018, with the assistance of the American Legion who provided the RO with a new address. A letter was mailed to the Veteran on May 1, 2018, notifying him of the additional information needed to process his claim. The letter was returned in the mail on May 23, 2018. On January 8, 2019, the RO mailed a letter to the bank where the Veteran received his benefits. The letter asked the bank to provide the current address of the Veteran. No response was received. Another letter was mailed to the Veteran on November 7, 2019. Up to this point, the RO made nine different attempts to verify the Veteran’s information or contact him with the information already available. On April 3, 2020, the RO requested a VA examination to be scheduled for the Veteran’s back claim. The RO sent the Veteran a notification letter on April 6, 2020 and June 16, 2020. However, no response was received. The RO has taken extensive steps to contact the Veteran over the last three years to no avail. Even with the assistance of the American Legion, the RO was unable to contact the Veteran. Further attempts to contact the Veteran with the available information is futile. The Board emphasizes that the duty to assist and provide the Veteran with a VA examination is a two-way street, and his failure to communicate with the VA and complete the VA examination does not create a duty for VA to provide any additional examinations relating to this claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, the Board finds the RO substantially complied with the August 2017 remand directives. Entitlement to service connection back disability. Generally, the Veteran contends that a back disability developed as a result of his military service. Service connection may be granted for a 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). Service treatment records lack any diagnosis or treatment of a back condition. On an August 2004 report of medical history, the Veteran checked a box to indicate that he experienced recurrent back pain. It was noted that this chronic intermittent lumbar pain was stable. A report of medical assessment also dated in August 2004 shows that the back pain was negative for radicular symptoms. Post-service treatment records show the Veteran has a current diagnosis of a back disability, but the Veteran has not been consistent in stating when his back pain started. See e.g., July 30, 2008 Emergency Dept Note (Veteran stated low back pain started 10 years prior); August 13, 2008 VA treatment record (chronic back pain); August 21, 2008 Primary Care Note (chronic back pain 2002 onset). The Veteran underwent a VA examination in September 2008. During the examination, the Veteran reported that his back pain had started five years prior. His diagnosis of chronic back pain was confirmed. However, no medical opinion was given as to the etiology of the condition. The Veteran underwent another VA examination in October 2008. The results of the examination showed no evidence of radiating pain on movement, no tenderness, and no ankylosis of the spine. The physician noted there was no signs of intervertebral disc syndrome and x-ray findings were normal. The diagnosis was lumbar strain. The Board acknowledges the Veteran’s assertion that his back disability was related to his military service. However, lay persons are not considered competent to medically attribute a back disability to his military service as doing to requires medical knowledge and expertise the Veteran has not been shown to possess. See Kahana v. Shinkseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the competent evidence of record did not support a causal relationship between the Veteran’s back disability and his military service. Other than the report of back pain by the Veteran in service, the service treatment records contain no treatment or diagnosis of back disability. In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran made inconsistent statements about when his back pain started throughout the record. Therefore, the Board cannot rely on the Veteran’s statements for support of when his back disability began. In addition, the evidence of record does not indicate the development of a disability within one year after discharge. The Board notes that VA must provide a VA medical examination when there is: (1) competent evidence of a current disorder or persistent or recurrent symptoms of a disorder; and, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and, (3) an indication that the disorder, or persistent or recurrent symptoms of a disorder, may be associated with the Veteran’s active military service or with another service-connected disability; but, (4) insufficient competent medical evidence on file for the VA Secretary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes that there is no evidence of a back disability in service other than on the August 2004 exam, and the evidence does not indicate the Veteran’s back disability manifested itself within one year after separation from service. Further, there is insufficient competent evidence otherwise suggesting a link between the Veteran’s current back disability and his service. Extensive measures have been taken to notify and offer the Veteran a VA examination for the purpose of obtaining a medical opinion regarding a possible relationship to service. However, the VA has not received a response from the Veteran even with the assistance of his representative. Accordingly, the criteria for entitlement to service connection for back disability has not been established, either through medical or lay evidence. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for a back disability, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). . MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harris, Attorney Advisor 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.