Citation Nr: 18152222 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 15-42 251 DATE: November 21, 2018 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1970 to May 1973, from June 1976 to November 1978, from May 2004 to November 2005, from May 2007 to August 2008, and from August 2009 to November 2010, to include service in Southwest Asia. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection claims for a low back disability and an acquired psychiatric disorder (claimed as posttraumatic stress disorder (PTSD)). The Veteran’s service connection claim for an acquired psychiatric disorder was granted in a subsequent rating decision in July 2014 and is not on appeal. While the Board regrets further delay, the Veteran’s claim must be remanded for further development. Before adjudicating the claim for service connection, VA’s duty to assist in developing the claim must be satisfied. Here, this duty involves offering an examination to determine the nature and likely etiology of the Veteran’s claimed low back disability. See 38 U.S.C. § 5103A; McLendon v. Nicholson, 20 Vet. App. 79 (2006). To date, the Veteran has not been afforded such an examination. The Veteran’s low back claim was denied by the RO on a finding that the evidence was negative for an event, disease, or injury in service. As such, no medical opinion was obtained as to the etiology of any low back disability. The Board notes, however, that treatment records dated during the Veteran’s final period of active service in September 2010 show treatment for muscle spasms and a report of low back pain for the previous 7 months. He continued to report low back pain into 2011. Low back pain was also observed years earlier in May 2008. Although kidney stones were suspected and the final outcome is unknown, “musculoskeletal back pain” was initially assessed. Thus, upon remand, a VA examination should be provided and a medical opinion obtained that addresses the etiology of any current low back disability. The Board notes that the record currently contains no evidence of any current low back disability during the period on appeal outside of VA examination reports for unrelated disabilities. The United States Court of Appeals for the Federal Circuit recently held, however, that the term “disability” as used in 38 U.S.C. 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” See Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). In other words, where pain alone results in functional impairment, even with no underlying diagnosis, it can constitute a disability. Additionally, the record reflects that the Veteran served in Southwest Asia during the Persian Gulf War. In a statement provided with his November 2013 Notice of Disagreement, the Veteran asserted exposure to environmental toxins during his active service. The VA examiner’s opinion should address whether any objective signs of low back pain are related to an undiagnosed illness or related to a medically unexplained chronic multi-symptom illness. See 38 C.F.R. § 3.317. The matter is therefore REMANDED for the following actions: 1. Ask the Veteran to identify all outstanding treatment records relevant to his low back disability claim. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, the Veteran should be afforded a VA examination to determine the nature of any low back disability (to include pain resulting in functional impairment) and to obtain an opinion as to whether such is related to service, to include as due to Southwest Asia service and exposures therein. The claim file should be reviewed by the examiner. All necessary tests should be conducted and the results reported. The examiner should elicit a full history from the Veteran and consider the lay statements of record. It is noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to the following: a) Whether it is at least as likely as not (50 percent probability or greater) that any low back disability (to include pain resulting in functional impairment) is related to an in-service injury, event, or disease. b) Whether the Veteran has any objective signs of back disability that are not accounted for by any diagnosed condition. If so, please list each sign/symptom and address the level of impairment and whether it is at least as likely as not that any sign/symptom is related to an undiagnosed illness or related to a medically unexplained chronic multi-symptom illness. The examiner’s attention is directed to 2008 and 2010 medical treatment records noting low back pain, as well as the Veteran’s arguments submitted with his November 2013 Notice of Disagreement. A rationale for all opinions expressed should be provided as the Board is precluded from making any medical findings. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Scarduzio, Associate Counsel