INTERVERTEBRAL DISC SYNDROME

Summary

The veteran, who served in the United States Army from November 1985 to November 1993, appeals the denial of service connection for a back condition, specifically degenerative disc disease and scoliosis. The veteran claims the back condition originated from an in-service incident in Germany in 1992 where he injured his back while moving equipment. He testified that he experienced intermittent pain, received physical therapy, and was placed on limited duty, but his back pain subsided as he was not doing strenuous work after reenlisting. He also noted a later injury in 2002 involving a bullet lodged near his spine, which he believes may aggravate his back issues. The Board denied the claim primarily because the veteran failed to attend a scheduled VA examination without good cause, necessitating a decision based on the existing evidence. The Board found no evidence of a current back disability, noting the veteran's testimony that he does not currently receive treatment for his back and that his pain is intermittent and activity-dependent. The most recent treatment for a back condition in the record was for a back strain in December 2010. The Board concluded that the evidence persuasively weighed against service connection, as the first element of service connection—a current disability—was not met. Therefore, the benefit of the doubt doctrine was not applied, and the claim was denied.

Rationale

Veteran failed to attend scheduled VA examination without good cause.; No evidence of current back disability.; Most recent treatment for back strain was in December 2010.

Full Decision Text

Citation Nr: A26040789
Decision Date: 04/30/26	Archive Date: 04/30/26

DOCKET NO. 250122-514049
DATE: April 30, 2026

ORDER

Entitlement to service connection for a back condition, to include degenerative disc disease and scoliosis is denied.

FINDING OF FACT

The evidence of record persuasively weighs against finding that the Veteran has had a back disability, to include degenerative disc disease and scoliosis, at any time during or approximate to the pendency of the claim. The Veteran failed to appear at the VA examination for his service connection claim for a back disability, with no good cause shown.

CONCLUSION OF LAW

The criteria for service connection for a back condition, to include degenerative disc disease and scoliosis, are not 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 in the United States Army from November 1985 to November 1993. 

This matter comes before the Board of Veterans' Appeals (Board) from an August 2024 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

In the January 22, 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held by the undersigned Veterans Law Judge on December 11, 2025. 

Therefore, the Board may only consider the evidence of record at the time of the August 2024 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

In the Veteran's January 22, 2025, VA Form 10182, the Veteran appealed the denial of service connection for degenerative disc disease from an August 2024 rating decision under the evidence submission docket. Also, in the underlying August 2024 rating decision was denial of entitlement to service connection for scoliosis. For purposes of this appeal, the Board will combine these conditions into a claim for entitlement to service connection for a back condition pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 4-5(2009). On February 8, 2025, the Veteran filed a VA Form 10182 changing his docket for the claim of degenerative disc disease to the hearing docket. The remainder of the claims on the Veteran's January 22, 2025, VA Form 10182 remained on the evidence docket and were adjudicated in other separate appeal streams. 

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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).

Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1110; see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he or she files a claim for
 (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).

Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1110; see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he or she files a claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain, 21 Vet. App. at 321. In other words, where competent medical evidence indicates that the veteran does not have the disability for which service connection is sought, there can be no valid claim for service connection for the disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

However, where pain alone results in functional impairment affecting earning capacity, the Veteran is considered to have a disability, even if there is no identified underlying diagnosis. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).

Entitlement to service connection for a back condition, to include degenerative disc disease and scoliosis is denied.

The Veteran contends that he is entitled to service connection for a back condition, to include degenerative disc disease and scoliosis. After a careful review of the record, the Board determines that the matter must be denied. The reasons follow. 

At the December 2025 Board hearing, the Veteran testified that he is currently not receiving treatment for a back condition. He stated that, sometimes, when he goes to the doctor, his back is not actively in pain. He testified that the back pain comes and goes depending on his activity level.  He testified that he takes Motrin for his back pain and sometimes, that does subside the pain. The Veteran stated that he hurt his back while in service in Germany. He testified that they were downsizing the base by moving equipment during a day in the summer of 1992. He stated that he was moving an old-fashioned dental chair and when he tried to lift it, his back locked up on him. He stated that he was placed on medication. The Veteran testified that he was placed on limited duty and went to physical therapy. He stated that he later reenlisted and his back was no longer bothering him because he was not doing any strenuous work. He stated that, in the years following this incident, his back pain came and went. He stated that every time he felt his back tightening up, he would do the physical therapy exercises that the VA gave him. He testified that, in 2002 he was shot and still has a bullet lodged an inch away from his spine. He is not sure if that has aggravated his back issues. He stated that, when his back does get painful, he feels the bullet being aggravating. He testified that his back has begun to bother him more in the last five years because he does not walk as much or exercise as much because of his other conditions. He stated that he applied for the claim when he noticed in his service treatment records that he had a back injury, which triggered his memory of the incident. 

Preliminarily, the Board notes that the Veteran did not report for the VA examination scheduled for his claim. When entitlement to a benefit cannot be established without a current VA examination and a claimant, without good cause, fails to report for an examination scheduled in conjunction with an original claim, the claim shall be rated based on the evidence of record. When a claimant, without showing good cause, fails to report for an examination scheduled in conjunction with a claim for an increased rating, the claim shall be denied. 38 C.F.R. § 3.655(a), (b). The Board must determine "(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." Turk v. Peake, 21 Vet. App. 565, 569 (2008). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and the death of an immediate family member. 38 C.F.R. § 3.655(a).

Here, an examination was necessary to establish entitlement to the benefits sought, particularly in addressing the crucial questions of whether
 claim for an increased rating, the claim shall be denied. 38 C.F.R. § 3.655(a), (b). The Board must determine "(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." Turk v. Peake, 21 Vet. App. 565, 569 (2008). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and the death of an immediate family member. 38 C.F.R. § 3.655(a).

Here, an examination was necessary to establish entitlement to the benefits sought, particularly in addressing the crucial questions of whether the Veteran has a current disability and addressing the etiology of the disability. Considering the current evidence of record, entitlement to service connection for the claimed disability cannot be established.

On August 7, 2024, the RO issued an Exam Scheduling Request Contention Cancellation, noting that the Veteran failed to appear for a VA examination scheduled for August 7, 2024. Notice for this VA examination was given to the Veteran based on the presumption of regularity. Importantly, the Veteran is not arguing that he did not receive notice of these VA examinations. Indeed, the United States Court of Appeals for Veterans Claims (Court) has held that there is no requirement that this document be contained in the record for the presumption of regularity to apply. See Kyhn v. Shinseki, 23 Vet. App. 335 (2010). As the Veteran did not report for his VA examination, and good cause has not been shown for the failure to appear for the VA examination, the claim must be decided on the evidence of record. 38 C.F.R. § 3.655.

Turning to the claim of service connection, the first element of service connection requires a current disability. The Veteran's claim arises from an October 2023 VA Form 21-526EZ. However, the most recent treatment for a back condition in the Veteran's medical treatment records was for a back strain in December 2010. The current disability requirement is satisfied when the claimant has a disability at the time the claim is filed or during the pendency of the appeal even though the disability may resolve prior to adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Here, there is no evidence of a current back disability, and indeed, the Veteran testified that he does not receive treatment for his stated back conditions. 

The Board acknowledges that the absence of evidence does not automatically constitute substantive negative evidence. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (holding that the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible). In order to find that silence in the record contradicts lay testimony, the Board "must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation." Fountain v. McDonald, 27 Vet. App. 258, 272 (2015) (citing Horn v. Shinseki, 25 Vet. App. 231, 239 n.7 (2012), for the proposition that "the absence of evidence cannot be substantive negative evidence without 'a proper foundation...to demonstrate that such silence has a tendency to prove or disprove a relevant fact.'"). This foundation may be laid by a finding that the fact at issue would ordinarily have been recorded, in which case the Board may legitimately infer from the absence of such a record that it did not occur. Id; Buczynski, 24 Vet. App. at 224 (noting that under Federal Rules of Evidence 803(7), "the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded"); Cf. AZ v. Shinseki, 731 F.3d 1303, 1315-16 (Fed. Cir. 2013) (noting that the Federal Rules of Evidence, including section 803(7), while not controlling in the adjudication of VA benefits claims, provide "useful guidance," and quoting federal case law to the effect that "[t]he absence of a record of an event which would ordinarily be recorded gives rise to a legitimate negative inference that the event did not occur" (internal citation omitted)). Such a finding constitutes "contradictory" evidence weighing against the credibility of a claimant's testimony.

Here, although the Veteran is receiving VA treatment for a number of conditions, no notation of a back condition exists in the VA medical treatment records since
.3d 1303, 1315-16 (Fed. Cir. 2013) (noting that the Federal Rules of Evidence, including section 803(7), while not controlling in the adjudication of VA benefits claims, provide "useful guidance," and quoting federal case law to the effect that "[t]he absence of a record of an event which would ordinarily be recorded gives rise to a legitimate negative inference that the event did not occur" (internal citation omitted)). Such a finding constitutes "contradictory" evidence weighing against the credibility of a claimant's testimony.

Here, although the Veteran is receiving VA treatment for a number of conditions, no notation of a back condition exists in the VA medical treatment records since December 2010. In addition, there is no objective medical evidence of record competently showing that a back condition, including pain, has resulted in functional impairment in earning capacity to arise to the level of disability for VA purposes. Nor does the Veteran make this assertion. See Saunders, 886 F.3d 1367. Therefore, the first element of service connection is not satisfied. 

Based on the foregoing, the evidence persuasively establishes that the Veteran does not have a current back disability. As there is no medical evidence indicating that the Veteran has the claimed disability, there can be no valid claim for service connection. See Brammer, 3 Vet. App. at 225.

As mentioned above, the Veteran did not report for the VA examination scheduled for this claim. The Veteran has not argued any good cause under 38 C.F.R. § 3.655 as to why he did not appear for the scheduled VA examination for the back condition. Therefore, good cause has not been shown. The Board emphasizes the duty to assist is a two-way-street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information essential in obtaining the relevant evidence.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Wamhoff v. Brown, 8 Vet. App. 517 (1996) (stating that VA has a duty to assist the veteran, not a duty to prove his claim while he remains passive). The Veteran must cooperate with the development and adjudication of his claim. See Martinez v. Wilkie, 31 Vet. App. 170, 178 (2019). Here, the Veteran has not cooperated to the extent he failed to appear for his VA examination scheduled for his benefit, without good cause or explanation. As such, the claim for a back condition must be adjudicated on the evidence of record, which here, lacks a current disability, meaning that service connection must be denied. 

As there is no current disability with respect to the back, the Board does not reach the remaining elements of service connection, including whether the claimed condition is related to service. 

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For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for a back condition is warranted. Rather, the evidence persuasively weighs against service connection for a back condition. The benefit of the doubt doctrine, see 38 U.S.C. §5107(b), is therefore not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). Thus, the claim for service connection for a back condition is denied.

 

 

L.M. YASUI

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Fleming, Shelley M.

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.