Citation Nr: 21069391 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 14-43 245 DATE: November 18, 2021 ORDER Entitlement to service connection for a low back disorder is denied. FINDINGS OF FACT 1. Although the Veteran was notified in the May 2021 Board remand that that he was to be provided with a VA back examination and medical opinion in support of his claim for low back disorder, the Veteran failed to respond to the VA's request to schedule an examination and did ot provide good cause for his failure to respond. 2. The Veteran's low back disorder is not attributable to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1137, 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.655. (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active-duty service in the United States Air Force from March 1993 to May 1999. This matter comes before the Board of Veterans' Appeals (Board) upon appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In June 2018, the Board remanded the claim to provide the Veteran and his representative with notice regarding the evidence necessary to substantiate the Veteran's claim for low back disorder. The Board remanded the claim a second time in May 2021 in order to provide the Veteran with a VA examination and medical opinion in support of his claim. As discussed below, the Veteran failed to respond to a request to schedule a VA examination. Entitlement to service connection for low back disorder The Veteran' electronic file contains an entry dated May 11, 2021 reviewing selected options for the site of the examination. The VAMC treatment records contain an email from the Veteran on June 1, 2021 indicating that he had been seen in a local emergency department on May 29, 2021 and had been advised to contact his physician to have his hernia repaired as soon as is possible as it was on the verge of strangulation. On Jun 7, 2021, there is an electronic note in the file indicating that the Veteran failed to return telephone calls or respond to a letter asking him to confirm his availability for a back examination. The RO denied the claim for service connection for low back disorder and returned this matter to the Board for further appellate consideration. Moreover, the Veteran was informed of his failure to respond to the request to schedule his VA examination in a July 2021 Supplemental Statement of the Case (SSOC) but has not provided a reason for his failure to respond or a request to reschedule the examination. There is no reason to believe the VA does not have the correct contact information for the Veteran as the most recent SSOC has not been returned as undeliverable at the address on file. While there are no letters notifying the Veteran of the examination associated with his claims file, the United States Court of Appeals for Veterans Claims (Court) has held that the presumption of regularity applies to notice of VA examinations. See Kyhn v. Shinseki, 24 Vet. App. 228, 237 (2011). That decision was vacated on other grounds in Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013) without any subsequent precedential opinion on this issue. However, the Court has held that the absence of copies of letters notifying a veteran of VA examinations in the claims file does not preclude application of the presumption that the veteran received proper notice. See Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004). In this case, even if there were an allegation of non-receipt, which there has not been, such allegation alone does not constitute clear evidence to rebut the presumption of regularity. Id. Given the absence of any contentions in this regard, the Board finds that the presumption of regularity has not been rebutted and notice of scheduling of the June 2021 VA back disorders examination is presumed to have been received by the Veteran. Further, the Veteran was not unable to respond to communications during this time period given his June 1 email. A claimant has the responsibility to present and support a claim for benefits under laws administered by the VA, 38 U.S.C. § 5107 (a). While VA has a duty to assist the Veteran in substantiating his claim, that duty is not a one- way street. Woods v. Gober, 14 Vet. App. 214, 224 (2000). As such, no further RO action to afford the Veteran a VA examination is warranted. As there is insufficient evidence of good cause for the Veteran's failure to respond to the request to confirm a date for the VA back disorder examination, his claim for service connection for low back disorder shall be decided based on the evidence of record, as the claim was an original claim. See C.F.R. § 3.655 (a), (b). The June 2021 back disorder examination was needed to obtain a competent medical etiology opinion pertaining to the Veteran's claimed low back disorder. As explained below, the evidence is otherwise insufficient to grant service connection for a low back disorder. Reviewing the Veteran's service treatment records (STRs), in November 1994, the Veteran reported that he fell asleep at the wheel and was involved in a head-on collision. STRs from November 1994 reflect a request for a physical therapy consultation after a head on collision two days earlier. The records show that the physical therapy intake evaluation noted that the Veteran was presenting with low back pain and radicular symptoms. The physical therapist noted tenderness of the paraspinal muscles with active range of motion of the lumbosacral spine within normal limits. He was assessed as having an acute lumbar sprain due to a motor vehicle accident. At the end of his first physical therapy session the Veteran verbalized improvement and the therapist noted decreased tenderness along the paraspinal muscles. The Veteran did not return for his scheduled physical therapy sessions and was discharged from physical therapy. He was subsequently released from his physical profile on January 2, 1995. A summary in the Veteran's Social Security Disability records details that in July and December 2011, the Veteran was evaluated by Dr. R. C. for pain in his coccyx (tailbone). Upon examination, Dr. R.C. noted exquisite tenderness to palpation of the sacroiliac joints bilaterally with moderate tenderness to palpation throughout the Veteran's lumbar spine and paraspinous musculature. The Veteran received a right sacroiliac joint injection in January 2012. Also, in January 2012 the Veteran was seen at the VA complaining of constant episodes of severe lower, mid, and upper back pain radiating to his right neck and shoulder. In August 2012, the Veteran was treated in the emergency room for low back pain after landing on his buttocks, low back, and left elbow after a fall on stairs. X-rays of the lumbar spine completed at that visit were unremarkable. In June 2019 during a visit for left testicle pain, a full examination was performed which demonstrated normal musculoskeletal range of motion with no edema or tenderness to palpation. During a 6-month follow-up primary care visit, in September 2019, the Veteran denied sciatica and numbness in his feet. Lumbar spine x-rays from 2017 revealed mild spondylosis at L-4 and L4-5 level with endplate sclerosis and osteophytosis, mild degenerative facet arthropathy and L4-5 and L5-S1. His back was not tender to palpation upon clinical examination although the Veteran indicated that his pain was worse. The first requirement of service connection, a current disability is satisfied as the evidence shows that during the appeal period the Veteran complained of intermittent tenderness of the lumbar spine and his x-rays of the lumbar spine progressed from being unremarkable in 2012 progressed to mild degenerative arthritis changes in 2017. The second requirement of service connection, an inservice occurrence is satisfied with the November 1994 back strain induced by an automobile accident. The Board observes that there is no competent medical evidence associating the Veteran's back strain incident in service with his current mild degenerative arthritis that was first documented by x-ray in 2017, twenty-three years after the accident. The back strain resolved while the Veteran was in-service and the next evidence of any treatment for a low back disorder was in 2011, which does not show continuity of symptoms since service. Again, the Board notes that this matter was remanded in May 2021 in order to assist the Veteran by affording him a VA examination; however, he failed to respond to efforts to schedule the examination. Inasmuch as the medical evidence currently of record provides no reasonable basis for a grant of service connection, and the Veteran has not provided supportive evidence or cooperated with VA efforts to further develop the record, the Board is unable to grant the benefits sought. (Continued on the next page) As for the Veteran's contentions that he has a current low back disorder related to service, the Board acknowledges the Veteran is competent to describe his back symptoms both during and after service. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). However, the Veteran is not competent as a layperson to provide a diagnosis for his symptoms or an opinion relating any current symptoms he has to service as the issue is medically complex and requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Adams Hill, 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.