Citation Nr: 21032894 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 16-27 727 DATE: May 28, 2021 ORDER Service connection for a right knee condition is denied. REMANDED Entitlement to service connection for a spine condition is remanded. FINDING OF FACT The Veteran does not have a current right knee disability. CONCLUSION OF LAW The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1980 to May 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims filed. The Board previously remanded this appeal in December 2019 and December 2020 for further development, including scheduling a VA examination. Subsequently, new VA examination reports were associated with the claims file in March 2021. These examinations substantially comply with the directives for the knee; however, for the reasons set forth below, the Board has determined that substantial compliance with its previous remand directives has not yet occurred, and thus, the Veteran's claim for entitlement to service connection for a spine condition must again be remanded for further development. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C. § 1110 (West 2014); 38 C.F.R. § 3.303 (a) (2015). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303 (d) (2015). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. Hickson v. West, 12 Vet. App. 247, 252 (1999). Additionally, claims for certain chronic diseases - namely those listed in 38 C.F.R. § 3.309 (a) - benefit from a somewhat more relaxed evidentiary standard under 38 C.F.R. § 3.303 (b). The U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303 (b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). In its determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 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 a right knee condition The Veteran contends that her right knee condition is related to her time in service. Specifically, she contends that her training caused the current chronic pain she is experiencing. The Veteran testified at the hearing that she has experienced symptoms of right knee pain continuously since service and that she had complaint for the right knee, in addition to the left knee, while in service but it was not recorded. In addition, post-service treatment records from May 2019, notes that the Veteran "also has right knee swelling and pain. She tries to compensate the right knee with the left." The Veteran was afforded a VA examination for her right knee in March 2021. The examiner found the Veteran's right knee to be normal on examination and made no diagnosis of a right knee condition. The examiner noted that the Veteran's right knee has normal range measurements. Active ROM testing indicates flexion 0 to 140 degrees and extension 140 to 0 degrees, same as passive ROM. No pain was noted on examination. There was no evidence of pain with weight bearing, no localized tenderness or pain on palpation. There was no crepitus. The Veteran was able to perform repetitive use testing with no additional functional loss. The Veteran was not examined immediately after repetitive use overtime. No flare ups were noted. The examiner noted no additional contributing factors of disability. No ankylosis, no instability, no scars, no assistive device were noted. The examiner noted that the Veteran does not have or ever had recurrent patellar dislocation, meniscal condition, "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment. The functional impact described by the examiner was for the left knee condition. The Veteran reported "I documented the left knee and they (VARO) said the right, I tried to correct it when I saw the judge but they did not corrected it." She also reported that she developed right knee pain. "I do not remember when the right knee pain started, the patient stated "I developed right knee pain when I compensated with the right." The examiner stated "[t]here is no objective evidence to support a diagnosis of right knee condition. Therefore, no right knee opinion is warranted. Veteran stated that she doesn't know why the VARO is requesting a right knee exam, because she claimed the left knee." The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; Degmetich v. Brown, 104 F.3d. 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. In the absence of proof of a present disability due to disease or injury that occurred in service, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Sanchez-Benitez v. Principi, 259 F.3d. 1356 (2001). Service connection may only be granted for a current disability; and when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). After a review of all of the evidence of record, both lay and medical, the Board finds that the weight of the competent evidence demonstrates that the Veteran does not have a diagnosis of a right knee condition. As stated above, the Veteran reported her intentions to claim only for a left knee condition that has been service-connected. She does not have a diagnosis of, and is not treated for, a right knee condition. However, the record shows she has complaint of right knee pain. While pain without a diagnosis can potentially satisfy this element of a claim, the VA examination revealed no pain and, significantly, no functional loss or functional impact. See Saunders, 886 F.3d at 1361. Without sufficient evidence of a current disability, that element of the claim is not established and obtaining further nexus opinion evidence is not necessary. Thus, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and entitlement to service connection for a right knee disability is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a spine condition is remanded. Unfortunately, the Veteran's claim must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. As noted in the December 2020 Remand, the Veteran testified during her August 2019 Board hearing that she has experienced symptoms of low back continuously since service when she injured her back during basic training, carrying the sack, weapon, and other equipment. Directive three of the Board's December 2020 Remand directed the examiner to specifically discuss the Veteran's lay statements as well as her medical records. As aforementioned, in response to the Board's December 2020 Remand, the Veteran was afforded a VA examination in March 2021. The examiner opined that the Veteran's thoracolumbar spine degenerative disease and scoliosis condition claimed was less likely than not caused by the back pain/muscle spasm during service. As rationale, the examiner stated that the Veteran was diagnosed with thoracic spine degenerative disease, scoliosis and lumbar spine degenerative disease several years after military service separation and there is no nexus to service. He further added that degeneration in the intervertebral disc is a consequence of aging. The Board finds that the examiner failed to discuss the Veteran's assertions and failed to comply with the Board's December 2020 Remand directives. When VA undertakes to provide a VA medical opinion, it must ensure that the opinion is adequate, see Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007), which in this context requires that a medical opinion report sufficiently inform the Board of a medical expert's judgment on a medical question, rely upon accurate factual premises, including the Veteran's lay statements and the relevant medical evidence of record, and present a fully articulated, sound rationale based upon applicable VA regulations and case law. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In addition, a prior Board remand confers on the claimant a legal right to substantial compliance with the remand order; thus, the Board errs as a matter of law if it fails to ensure substantial compliance with prior directives. See Dyment v. West, 13 Vet. App. 141, 147 (1999); Stegall, 11 Vet. App. at 271. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issue on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). On remand, an addendum medical opinion should be sought which carefully considers the Veteran's lay statements regarding in-service low back and continuous nature of her low back pain disability since service. The matters are REMANDED for the following action: 1. Associate any outstanding VA treatment records with the electronic claims file. 2. The claims file must be returned to the examiner who performed the March 2021 VA examiner or another qualified examiner to obtain an addendum opinion regarding the Veteran's low back disability. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The entire claims file and a copy of this Remand must be made available to the reviewing examiner and the examiner shall indicate in the report that the claims file was reviewed. The requested opinion must specifically address, and attempt to reconcile, the pertinent evidence of record, to include: service treatment records; private treatment records; the Veteran's lay statements regarding the in-service onset and continuity of symptomatology of his low back disability; post-service VA medical records; and any other relevant medical and lay evidence of record. The addendum opinion should address the following: (a.) whether it is at least as likely as not (50 percent probability or greater) that the Veteran's low back disability is related to any in-service incident; and (b.) whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's low back disability manifested to a compensable degree within one year of separation from service. The examiner must comment on the following: (i) the Veteran's August 2019 Board testimony describing the onset of his low back disability; and (ii) the Veteran's August 2019 Board testimony describing the continuity of the symptomatology of his low back disability. A complete rationale with discussion of medical literature for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Romero-Sanchez, 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.