Citation Nr: 21029140 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 19-14 219 DATE: May 12, 2021 ORDER Entitlement to service connection for back pain is denied. REMANDED Entitlement to service connection for prostate disability is remanded. Entitlement to service connection for heart valve disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for brain abnormality is remanded. Entitlement to service connection for bilateral knee disability is remanded. Entitlement to service connection for arthritis in bilateral upper limbs is remanded. FINDINGS OF FACT The preponderance of evidence is against the finding that the Veteran has a current disability of the back. CONCLUSIONS OF LAW The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1965 to November 1967. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for back pain The Veteran claims that he currently has a disability of his back/lumbar spine as a result of his active service. The Board finds that, while there is evidence of some back pain during service, the evidence of record shows that the Veteran currently has no diagnosable disability of the back, and to this end, the Veteran has not asserted any specific function limitations or condition of his back, other than pain. Therefore, as the preponderance of evidence is against a finding that the Veteran has a current disability or has had the claimed disability during or contemporary to the claims period, the claim for service connection must be denied. The threshold consideration for any service connection claim is the existence of a current disability. In the absence of proof of a present disability, there is no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Here, the evidence of record shows no evidence of a diagnosis of any back disability. A close review of VA and private treatment record for the time contemporaneous to the claims period show no diagnosable disability of the back or lumbar spine. In fact, treatment session notes during this relevant time period shows the Veteran explicitly denying any pain or issues regarding his back. To this end, the Veteran has also not submitted any private medical evidence that show a diagnose or treatment for any disabilities for the back. As such, based on the forgoing, the Board must find that the record is essentially void of competent and credible evidence of a current disability of the back. Therefore, the Board concludes that the preponderance of the competent evidence of record is against the Veteran's claim, and service connection is not warranted. In finding this, the Board has not ignored the Veteran's lay claims of back pain. However, the Board finds that such general claims of back pain does not constitute as a disability contemplated by the VA. While pain, which causes functional impairment or loss, may be considered a disability without a medical diagnosis, no such assertion of functional loss has been demonstrated by the medical records or asserted by the Veteran. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In fact, even the Veteran's lay assertions has only generally claimed back pain as his disability, and has not cited any functional loss, due to such claimed back pain. Accordingly, the Board cannot find a current disability of the back exists in this context, and the Veteran's claim must be denied. The Board also notes that there is evidence of some complaints of back pain during the Veteran's active service. Such evidence, while relevant in establishing the inservice element for service connection, does not speak to the Veteran's need for a current disability during the relevant claims period, especially since such active service period was over half a century ago. Finally, the Board acknowledge that the Veteran was not afforded a VA examination to assess the current nature and etiology of his claimed condition. To this end, the Board find that, as there is no evidence of a current disability, the VA is not required to afford the Veteran an examination under the criteria of McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). In the absence of competent evidence of medical findings of a back disability, the threshold requirement for substantiating the claim for service connection is not met. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Therefore, the Board finds that the preponderance of the evidence is against a finding of any current disability, and the claim for service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for prostate disability is remanded. 2. Entitlement to service connection for heart valve disability is remanded. 3. Entitlement to service connection for hypertension is remanded. 4. Entitlement to service connection for brain abnormality is remanded. The Board notes that the Veteran's claim for service connection for a prostate, heart, hypertension, and brain disabilities were previously remanded by the Board in April 2020 for further development. On remand, the Board directed the RO to acquire radiation exposure records in line with the specific guidelines governing ionizing radiation claims, which require VA to obtain a dose estimate from the Defense Threat Reduction Agency and to refer the Veteran's case to the Under Secretary for Benefits for an opinion as to whether his claimed disease resulted from in-service ionizing radiation exposure. 38 C.F.R. § 3.311 [emphasis added]. A review of the development subsequent to the last Board remand, however, reveals that, while the RO acquired a response from the United States Army Dosimetry Center, which found no records of exposure for the Veteran, no records were forwarded to the Under Secretary of Health at the VA for assessment. As such, the Board finds that the RO did not substantially comply with the last remand, and that additional development is required. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268 (1998). Consequently, as the RO did not substantially accomplish those directives set out by the last Board's remand, another remand is required. 5. Entitlement to service connection for bilateral knee disability is remanded. 6. Entitlement to service connection for arthritis in bilateral upper limbs is remanded. With regard to the claims for service connection for a bilateral knee disability and arthritis of the bilateral upper limbs, the Board finds that the opinions obtained by the RO on the last remand are considered inadequate and incomplete, and remand is required to obtain additional opinion for the VA to fulfill the duty to assist the Veteran. The Board notes that the VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When the medical evidence is inadequate, as it is here, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268 (1998). Here, the Board's last remand requested that the VA examiner speak to and provide rationale with regards to the Veteran's lay claims of continued ongoing pain and disability associated with his knees and shoulder during active service until the present. The remand directives explicitly noted that the examiner not only needed to note such lay assertions, but also explain why such lay assertions would be discounted. Such directive was borne from the fact that the last October 2017 VA examination opinions were inadequate because the opinions ignored the Veteran's contentions of ongoing pain and disability in the neck, shoulders, and knees, since service. The Board finds that a close review of the latest VA examinations and opinions acquired in October 2020 ostensibly commit the same failure in considering the Veteran's lay statements regarding continuity of symptoms. Here, despite the examiner's recitation of the facts of the case and a terse sentence of the Veteran's claim of "condition getting worse", the opinions essentially ignores the Veteran's explicit claims of ongoing pain since service and provides the same rationale as the previous, inadequate examination opinion, essentially that there were no ongoing medical treatment for either condition during service. As these examination opinions are essentially the same, the Board finds that the lack of discussion/analysis of the Veteran's asserted continuity of symptoms since his service renders the most recent opinions inadequate. Substantial compliance with the terms of the remand has not been achieved. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, remand is required for further inquiry. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated and outstanding treatment records. 2. After securing any necessary authorization, obtain any private treatment records as the Veteran may identify relevant to his claims, including the primary care treatment. If the Veteran provides a signed authorization form, make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 3. Request any available records concerning the Veteran's exposure to radiation, including obtain a dose estimate from the Defense Threat Reduction Agency and to refer the Veteran's case to the Under Secretary for Benefits for an opinion as to whether his claimed disease resulted from in-service ionizing radiation exposure. 4. After outstanding treatment records are obtained to the extent possible, ask the appropriate examiner to review the Veteran's file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should identify any right and left knee disability, to include arthritis, present at any time during the claim period. For each disability, the examiner should opine regarding whether it is at least as likely as not (a 50 percent or greater probability) that the disability: (a) had an onset in service; (b) is otherwise related to service. For any arthritis disability, the examiner should also opine regarding whether it is at least as likely as not (a 50 percent or greater probability) that the disability manifested to a compensable degree within one year of separation from service (i.e., November 1968). The examiner should consider all medical and lay evidence of record, including the September 1966 service treatment record (STR) regarding the left knee, the May 1967 STRs regarding bilateral knee pain, and the Veteran's reports of bilateral knee pain beginning in service with pain progressing through the years. If the Veteran's reports are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject his contentions). The examiner is asked to explain the reasons behind any opinions expressed. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 5. After outstanding treatment records are obtained to the extent possible, ask the appropriate examiner to review the Veteran's file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should opine regarding whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's bilateral shoulder arthritis: (a) had an onset in service; (b) manifested to a compensable degree within one year of separation from service (i.e., November 1968); or (c) is otherwise related to service. The examiner should consider all medical and lay evidence of record, including the June 1966, September 1966, October 1966, and January 1967 STRs regarding shoulder soreness and pain, and the Veteran's reports that his shoulder pain started in service and that he has had aching and intermittent chronic pain since service. If the Veteran's reports are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject his contentions). The examiner is asked to explain the reasons behind any opinions expressed. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ziheng Zhu, 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.