Citation Nr: 21023207 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-19 735 DATE: April 20, 2021 ORDER Entitlement to service connection for lumbar strain is denied. FINDING OF FACT The Veteran’s current lumbar strain disability was not incurred in active service and is not otherwise etiologically related to an in-service disease or injury. CONCLUSION OF LAW The criteria for service connection for a lower back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from June 1988 to September 1996. The matter comes before the Board of Veterans Appeals (Board) from a June 2006 rating decision of the VA Regional Office (RO). The issue was previously before the Board in May 2019. The Board remanded the issue based on a finding that the AOJ in its April 2016 Supplemental Statement of the Case (SOC) SSOC failed to include the claim for service connection for a lower back disability. The Agency of Original Jurisdiction (AOJ) is required to issue an SSOC, which contains a summary of the evidence, the applicable laws and regulations, and an explanation as to the decision previously reached. 38 C.F.R. §§ 19.26, 19.29. Additionally, in the remand, the Board mandated that the AOJ issue a SSOC, obtain and associate any outstanding treatment records relevant to the Veteran’s back disability and perform any additional development needed. In October 2019, the AOJ requested the completed VA Form 21-4142, Authorization to Disclose Information, and VA Form 21-4142a, General Release for Medical Provider Information. The Veteran was notified that if he did not provide said forms within 30 days, a decision would be made on his case. As for additional development, the AOJ scheduled the Veteran for a VA examination in December 2019 to determine the etiology of his back disability. In July 2020, the AOJ supplied the Veteran with a SSOC, which continued to deny entitlement to service connection for lumbar strain. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board notes that on December 10, 2019, the Veteran was informed verbally of his scheduled VA examination. A notion of the same date indicates: “Spoke with Vet[eran]...Vet[eran] states that he does not want to schedule C & P app[ointment].” When a Veteran misses a scheduled VA examination, the Board must consider (1) whether the examination was necessary to establish entitlement to the benefit sought and (2) whether the Veteran lacked good cause to miss the scheduled examination. See 38 C.F.R. § 3.655 (a); Turk v. Peake, 21 Vet. App. 565, 568-70 (2008). Examples of good cause 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). To date, neither the Veteran nor his representative has requested that the VA examination be rescheduled nor presented good cause for his failure to report/refuse. Indeed, there has been no commentary at all on his refusal/failure to report for the scheduled VA examination. In fact, the Veteran has indicated that he has submitted all his evidence and wants a decision. See October 2020 Appellate Brief. Accordingly, absent any other evidence to the contrary, the Board concludes that the Veteran was properly notified of the attempted scheduling of the VA examination. Therefore, per the applicable VA regulation, when the Veteran does not appear for a scheduled examination in conjunction with an original claim for service connection, the claim will be rated on the evidence of record. 38 C.F.R. § 3.655(b). Accordingly, despite the absence of a VA examination addressing the etiology of the service connection claim at issue, the Board will continue to adjudicate the lumbar strain claim on the record before it. The Board finds that VA’s duty to assist concerning obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Entitlement to service connection for lumbar strain is denied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303 (a), (b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331(Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence considering the entirety of the record. The standard of proof to be applied in decisions on claims for veterans’ benefits is outlined in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that his lower back disability is related to his service. The Veteran has been diagnosed with back strain. See September 2005 medical record. The service treatment records (STRs) are silent for complaints, diagnosis, or treatment of lumbar strain or any other back disorder. The June 1996 separation examination listed right foot/leg problems, and on the accompanying report of medical history, the Veteran specifically denied any past or present back trouble. See June 1996 reports of medical examination and medical history. The Veteran’s post-service treatment records show complaints and treatment for chronic lower back pain. Treatment records dated in September 2005 note that the Veteran’s report of “hurt[ing] his back about one year ago lifting luggage.” The VA treatment Problem List/Patient’s Medical History (PMH) consistently listed his low back pain disability and an initial May 2001 date of diagnosis. Additionally, of record is an April 2014 Gulf War General Medical Examination Disability Benefits Questionnaire (DBQ), which did not find signs and symptoms which may have been manifestations of a back disability due to an undiagnosed illness or a chronic multisymptom illness. (A qualifying chronic disability is currently defined as either an undiagnosed illness or a medically unexplained chronic multisymptom illness defined by a cluster of signs or symptoms. 38 C.F.R. § 3.317 (a)(2).) Although the Veteran contends that his low back disability is related to active service, the probative medical evidence shows a lack of an in-service incident or disease to support a nexus to service. Although the medical evidence indicates that the Veteran reported a lower back injury in September 2005, the evidence did not corroborate the contention that he injured his lower back during service. Therefore, based on the accuracy of the facts used, the rationale, and consideration of the relevant facts regarding the Veteran’s service, the Board finds that the September 2005 progress note to be the most probative evidence of record. The preponderance of the evidence reflects that the current disability is due to a non-service-related injury. The preponderance of the evidence weighs against a finding that a service-related injury caused the current disability. The available medical evidence is insufficient to confirm a nexus, or link, between the Veteran’s lumbar strain and any alleged in-service incident or disease. The post-service medical records note his report of continuing symptoms. However, these treatment notes do not constitute competent nexus evidence, as they are merely a restatement of medical history provided by the Veteran rather than medical conclusions. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). As detailed above, the attempted to obtain a VA examination addressing the etiology, and the Veteran failed to cooperate. In the absence of a positive nexus opinion, the Veteran’s claim must be denied. The Board has considered the lay statements that the Veteran has presented in this claim. Although lay persons are competent to provide opinions on some medical issues, as to the specific issue, in this case, an etiology of lumbar strain falls outside the realm of common knowledge of a layperson. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). To the extent that the Veteran believes that he has lumbar strain due to in-service injury or disease, he is not competent to give such a diagnosis. Based on the above, the evidence weighs against finding that the Veteran’s lower back injury was incurred during service or a result thereof. There is no discussion of service as it relates to the back injury, and medical evidence establishing a relationship between the current disability and service has not been shown. In summary, the Board finds that the preponderance of the evidence weighs against finding in favor of service connection for lumbar strain. Because the evidence fails to establish that lumbar strain was incurred in or caused by military service, the Veteran’s claim does not satisfy the criteria for service connection, and the benefit of the doubt rule is not for application. Gilbert, 1 Vet. App. 49 (1990); 38 U.S. § 5107 (b) (2012); 38 C.F.R. § 3.102. N. Stevens Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Ottley III 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.