Citation Nr: 24017444 Decision Date: 04/24/24 Archive Date: 04/24/24 DOCKET NO. 19-12 199A DATE: April 24, 2024 ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), due to military sexual trauma (MST) is denied. FINDINGS OF FACT 1. The Veteran failed to report to an examination scheduled in connection with the back disability and the acquired psychiatric disorder claims without good cause. 2. The evidence of record persuasively weighs against finding that any back disability or acquired psychiatric disability began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.655(b). 2. The criteria for service connection for an acquired psychiatric disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.655(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1990 to February 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). These claims were previously before the Board in a March 2023 decision and were remanded for further development. In March 2023, the Board recharacterized the claims of posttraumatic stress disorder and military sexual trauma to an acquired psychiatric disorder due to military sexual trauma. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Also in March 2023, the Board found the Veteran's request for a hearing to be withdrawn as the Veteran failed to appear or provide good cause for failing to appear. SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38?U.S.C. §?1110; 38?C.F.R. §?3.303. Entitlement to 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). The VA administers the law under a broad interpretation resolving all reasonable doubt in the Veteran's favor when there is an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b), 38 C.F.R. § 3.102. 1. Entitlement to service connection for a back disability The Veteran contends that his "lower back pain" is due to his service. See August 2016 Claim. In the March 2023 Board remand, the Board found that there were outstanding Social Security Administration records that were not associated with the claims file. The RO was directed to obtain these records and then provide another VA exam for proper consideration of the collected evidence. In response to the Board's March 2023 remand, the RO obtained the above records and scheduled the Veteran for VA examinations, which were ultimately cancelled on November 30, 2023, due to no response to "15 attempts made to contact vet." A subsequent development letter was sent to the Veteran's home address on December 18, 2023, requesting clarification of the willingness for the Veteran to attend exams. No response was received from the Veteran. In accordance with 38 C.F.R. § 3.655(b), when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be decided on the evidence of record. See also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street."). In this case, as the Veteran failed to RSVP for the scheduled VA examinations without good cause. As such, the Board must decide his claims for service connection based solely on the evidence of record. In a February 16, 1993 service treatment record, the Veteran reported a lower back injury. Post service, the Veteran has a current diagnosis of degenerative arthritis of the spine, with intervertebral disc syndrome and spinal stenosis. See August 2017 VA Examination Report.. The key question is whether these diagnoses are related to the Veteran's service. The evidence is not approximately balanced as to whether the claimed back disabilities are related to the Veteran's in service report of a lower back injury. To that end, an August 2017 VA examiner concluded that the Veteran's current back disabilities were "as least as likely as not" due to the in-service report of a lower back injury. However, the examiner reversed his opinion upon reviewing the Veteran's April 24, 1998, lay statement, within his private treatment record, where the Veteran stated that he "was well until 4/4/98 at which time he was involved in [a] MVA." See August 2017 Addendum Opinion.. As such, the Board finds that the examiner has considered the full record available to him at the time and has provided a clear conclusion supported by a well-reasoned rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Therefore, the Board assigns this opinion significant probative weight. While the Veteran may believe that he has a lower back condition due to service, he is not competent to provide a diagnosis in this case. The issues of etiology and diagnoses are medically complex matters that fall outside the realm of common knowledge and requires specialized medical education which the Veteran is not shown to have. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, the Veteran's lay statements are not entitled to probative value as to whether the current back disabilities are related to service. As the evidence is not in approximate balance, the "benefit of the doubt" doctrine is not applicable, and the appeal must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for an acquired psychiatric disorder The Veteran contends that he has an acquired psychiatric disorder, to include PTSD, due to an in-service MST. See August 2016 Claim. In August 2016, the Veteran submitted a VA Form 21-0781a, Statement in Support of Claim for Posttraumatic Stress Disorder (PTSD) Secondary to Personal Assault. The Veteran indicated that, while working late at the shop in service, he was a victim of inappropriate comments and touching by another service member. He stated that while he was changing into coveralls, he was grabbed in the crotch by MRI C. He indicated that MRI C. continued to make remarks and joke about the incident. The Veteran stated that these incidents were frequent until the time of his discharge in February 1994. The medical evidence shows a diagnosis of persistent depressive disorder with anxious distress, moderate. See August 2017 VA examination report. As stated above, the Veteran did not RSVP for his post-remand scheduled exams or respond to scheduling attempts. As such, the Board must decide his claims for service connection based solely on the evidence of record. See 38 C.F.R. § 3.655 (b). The key question is whether these diagnoses are related to the Veteran's service, to include the in-service MST. The evidence is not approximately balanced as to whether a current acquired psychiatric disorder is due to an in-service MST. To that end, an August 2017 examiner found the Veteran's current acquired psychiatric disabilities were "less likely than not" related to the Veteran's MST. The examiner's rationale was that "it seems likely the sexual assault is a factor, among others, contributing to the symptoms," but "overall available evidence does not support the assault as being the primary factor leading to symptoms and functional impairments." The March 2023 Board remand found this exam and opinion to be inadequate, as it was incomplete in explaining why the post-service traumatic events were more likely the cause of the Veteran's disabilities. See Nieves-Rodrigues v. Peake, 22 Vet. App. (2008). Thus, the Board directed the RO to provide a new exam. Although the August 2017 VA opinion found that the claimed MST events likely occurred, the examiner was not able to attribute any current disability to the MST. As such, since the examiner failed to articulate the connection between the sexual assault as "a factor" contributing to other symptoms, the Board assigns this opinion a minimal probative weight. While the Veteran may believe that he has an acquired psychiatric disability due to his in-service MST, he is not competent to provide an etiology or diagnosis in this case. The issues of etiology and diagnoses are medically complex matters that fall outside the realm of common knowledge and requires specialized medical education which the Veteran is not shown to have. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, the Veteran's lay statements are not entitled to probative value as to whether he has an acquired psychiatric disability due to his in-service MST. In sum, the weight of the evidence is against the Veteran's claims for service connection for an acquired psychiatric disability. As such, reasonable doubt does not arise, and his claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Leetra J. Harris Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. J. Hall, 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.