Citation Nr: 1753410 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 10-07 592 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for a right knee disorder. 3. Entitlement to service connection for a left knee disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Gandhi, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1982 to July 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal of a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. This matter was previously remanded by the Board in December 2016 to schedule the Veteran for relevant VA examinations. The issues of entitlement to service connection for a right knee disorder and a left knee disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence of record is against a finding that the Veteran has a back disorder. CONCLUSION OF LAW The criteria for service connection for a back disorder have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link, or nexus, between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303 (2017). The Veteran contends that he has a back disorder that is related to service. In October 2006 correspondence the Veteran stated that he developed back pain during his military service due to his having to go up and down ladders and because of his field assignments. Unfortunately, however, the Board finds that the evidence does not support a finding of service connection for a back disorder. With regard to a current disability, the Veteran does not have a current diagnosis of a back disorder. Here, the medical evidence does not show that the Veteran has been diagnosed with a back disorder at any time during the course of the appeal. An April 2017 examination found that the Veteran did not have a current diagnosis associated with his claimed condition of a back disorder, specifically finding that "[h]is current back exam is normal." The existence of a current disability is the cornerstone of a claim for VA disability compensation, and without a current disability, service connection is not warranted. 38 U.S.C.A. § 1110; see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Additionally, while the Board has no reason to doubt the Veteran's competent and credible statement of experiencing pain in his back, pain is not a disorder for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) ("[P]ain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted."). In this case, there is no medical evidence showing that the Veteran has had a back disability at any time during the pendency of the claim. Thus, the first element of service connection has not been met, and service connection is unwarranted. See Shedden, supra. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence is against the claim, however, that doctrine is not applicable. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a back disorder is denied. REMAND Upon review of the record, the Board finds that the remaining issues must once again be remanded. The Board sincerely regrets the additional delay caused by this remand, but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claim. The Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the veteran or other claimant, as a matter of law, a right to compliance with the remand orders." Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, compliance with the terms of the remand is necessary prior to further appellate review, and if not, "the Board itself errs in failing to ensure compliance." Id. As noted in the introduction, the matter was previously remanded in December 2016 to schedule relevant VA examinations. The Board's remand instructions specifically asked the examiner to comment as to what significance, if any, may be attached to the Veteran's lay contentions and for the examiner to provide a through explanation for all opinions rendered. The Board finds that the AOJ did not comply with the remand instructions as a through explanation was not provided regarding the Veteran's lay statements regarding his right and left knee disorders. Accordingly, the case is REMANDED for the following action: 1. Assist the Veteran in associating with the claims folder updated treatment records. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's right and left knee disorders. The claims file should be made available to the examiner for review in connection with the examination. Based on review of the record and examination of the Veteran, the examiner should respond to the following: * Is it at least as likely as not (probability of 50 percent or more) that the Veteran has a right knee disorder which had its onset in service or is otherwise related to service? * Is it at least as likely as not (probability of 50 percent or more) that the Veteran has a left knee disorder which had its onset in service or is otherwise related to service? The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. THE EXAMINER MUST COMMENT AS TO WHAT SIGNIFIANCE, IF ANY, MAY BE ATTACHED TO THE LAY CONTENTIONS AND SERVICE TREATMENT RECORDS, AND PROVIDE A THOROUGH EXPLANATION FOR ALL OPINIONS RENDERED. The VA examiner's attention is drawn to the following: *June 1984 service treatment record showing the Veteran's complaint of severe left knee pain after falling down. The medical professional assessed his symptoms as a torn tibial collateral ligament. *July 1984 orthopedic consultation record noting that the Veteran complained of left knee pain, which was exacerbated with running, long walking, and climbing. The assessment was left knee collateral ligament strain. *July 1984 service treatment record showing the Veteran's complaint of pain over the anterior cruciate ligament (ACL) and an assessment of an ACL sprain of the left knee. *June 2005 separation examination in which the Veteran indicated that he had knee trouble. The medical professional explained that the Veteran's knee trouble included occasional soreness that did not limit his activity. *October 2006 statement in which the Veteran alleged that his current right and left knee pain resulted from being in the field as a Marine and from working on Navy ship decks, including going up and down ladders. *August 2009 NOD in which the Veteran alleged that his current right and left knee disorders began in service and have gotten worse since separation from service. He made very similar contentions in his February 2010 VA Form 9. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. After completing any additional notification or development deemed necessary, the Veteran's claim should be readjudicated. If the claim remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded a reasonable opportunity for response. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs