Citation Nr: 21006084 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-20 052 DATE: February 3, 2021 ORDER Service connection for low back disability, diagnosed as intervertebral disc syndrome (IVDS), is granted. Service connection for right ankle disability is denied. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran’s currently diagnosed lumbar spine disability was incurred in service. 2. The preponderance of the evidence is against a finding, that the Veteran had a right ankle disability at any time during the appeal period. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a low back disability to include IVDS are met. 38 U.S.C. §§ 501; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for right ankle disability have not been met. 38 U.S.C. §§ 501; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2010 to May 2010 and from August 2011 to September 2012. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Board remanded the claims for service connection for low back disability, right ankle, and sleep disturbances. In a November 2020 rating decision, service connection for unspecified insomnia disorder (claimed as sleep disturbances) was granted. Thus, this claim is no longer before the Board. Lumbar Spine The Veteran contends that she is entitled to service connection for a low back disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303 (d). Service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). IVDS is not a chronic disorder under 38 C.F.R. § 3.309 (a) and presumptive service connection on the basis of continuity of symptomatology is not for application. Initially, the Board finds that the Veteran has a current lumbar spine disability. The VA examiner found that the Veteran has IVDS. See November 2013 VAX. Next, the Veteran’s service treatment records (STRs) confirm various reports of low back pain. See August 2012 post-deployment assessment; see also February 2012 service treatment record (Veteran complained of back pain for 10 days). Next, the Board finds that the evidence is at least in equipoise as to whether her spine disability was incurred in service. The Veteran filed a claim for VA compensation benefits for her back disorder in December 2012, only months following her discharge from service. Further, the Veteran has continued to complain of low back pain. See November 2013 VA spine examination (Veteran reported low back pain); see also post-service VA treatment records (noting a “history of low back pain” and “chronic low back pain.”). For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s low back pain first manifested in service and has persisted since service. Accordingly, service connection is warranted. 38 C.F.R. § 3.102. Right Ankle As, an initial matter the Veteran was scheduled for a VA examination (VAX) for her right ankle in compliance with the July 2018 Board remand. However, she did not report for the scheduled VAX. An April 15, 2019 and an April 17, 2019 invoice confirms she was a no show for the appointment. The scheduled VAX was necessary to establish service connection and she has not offered any explanation for her failure to appear for the VAXs. The action to be taken in instances where the veteran fails to report for a VA examination depends on if the examination was scheduled in connection with a service connection/initial rating claim or a claim for an increase. A service connection claim or an initial rating claim is classified as an original compensation claim under 38 C.F.R. § 3.655 (b), so where the veteran fails to report for such an examination, the case shall be rated on the evidence of record. See Fenderson v. West, 12 Vet. App. 119, 125 (1999); see also Turk v. Peake, 21 Vet. App. 565, 568-70. In contrast, where the veteran fails to report for an examination scheduled in connection with a claim for an increase or any other original claim, the claim shall be denied. See 38 C.F.R. § 3.655 (b). Accordingly, the claim will be adjudicated based on the existing evidence associated with the claims file. The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Under VA regulations, it is incumbent upon the Veteran to submit to a VAX if she is applying for, or in receipt of, VA compensation or pension benefits. See Dusek v. Derwinski, 2 Vet. App. 519 (1992). When necessary or requested, the Veteran must cooperate with the VA in obtaining evidence. Her failure to attend the VAX without a showing of good cause constitutes a failure to cooperate in the development of her service connection claim on appeal. The question before the Board is whether the Veteran has a current disability. The Board concludes that the Veteran does not have a current right ankle disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). Although service records document a left ankle injury, they are absent for any complaints, diagnoses, or treatment for a right ankle disorder. The Board notes that the Veteran has already been awarded service connection for a left ankle disability. Post-service treatment records fail to reflect any right ankle disability. VA treatment records reflect right ankle pain. The Veteran underwent a left ankle VAX in November 2013 and December 2018. The right ankle was also assessed. In both VAXs, the VA examiners determined that there was no right ankle diagnosis. The range of motion (ROM) on flexion and extension was normal. There was no objective evidence of painful motion on flexion or extension. Both VA medical examiners determined that there was no impact on her ability to perform any type of occupational task. The Board acknowledges Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. In this case, even with the Veteran’s reports of subjective pain, there is no finding of that the pain rises to the level of functional impairment of earnings capacity. The Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C. § 1110; see also Degmetich v. Brown, 104 F.3d 1328 (1997). It is well settled that in order to be considered for service connection, a claimant must first have a disability. In Brammer v. Derwinski, 3 Vet. App. 223 (1992), it was noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents resulted in a disability. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Smith, 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.