Citation Nr: 18152334 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-43 686 DATE: November 21, 2018 REMANDED Entitlement to service connection for lumbar strain is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1986 to June 1990 and from January 1991 to February 1991. The Veteran appeals a April 2015 rating decision by the Agency of Original Jurisdiction (AOJ) denying entitlement to service connection for lumbar strain. The Veteran was afforded a VA examination in March 2015 to assess the etiology of his lower back disability. However, the Board finds that the clinician’s opinion is inadequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 302, 312 (2007). The March 2015 VA clinician found the Veteran’s lower back range of motion within normal limits and concluded he was “[u]nable to make a diagnosis based on available objective information. There is no condition to relate to service.” See March 2015 VA examination report. However, the clinician also noted that the Veteran experienced lower back pain that has “continued intermittently over the years and has increased such that now the pain is nearly constant.” Id. However, in Saunders v. Wilkie, the Federal Circuit held that pain alone can constitute a disability if it causes functional impairment. 886 F.3d 1356, 1365-68 (Fed. Cir. 2018). The Federal Circuit further explained that to establish a disability, “the [V]eteran will need to show that his pain reaches the level of a functional impairment of earning capacity.” Id. at 1367-68. The Veteran’s pain prevents him from standing for prolonged periods as required to function in daily activities, and becomes “almost unbearable.” See August 2015 Correspondence. As a result, the Board considers the Veteran’s pain amounts to such disabling functional impairment as contemplated in Saunders. Hence, a medical opinion is necessary to determine if the Veteran’s current lower back pain relates to the wear and tear he experienced while working heavy construction in service. As the appeal is being remanded for a medical opinion, the Board separately notes that the Veteran has identified potentially relevant x-rays and treatment records from his chiropractor that may identify an underlying lower back condition. See August 2015 notice of disagreement (NOD). On remand, the AOJ should send the Veteran consent release forms to obtain outstanding private treatment records. The matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for his chiropractor. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain any outstanding VA treatment records relevant to treatment the Veteran received for his lower back symptoms that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 3. Obtain an opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran’s lower back pain. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the clinician. It is up to the discretion of the clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran if deemed necessary by the clinician, the VA clinician should identify all lower back disabilities present. Then, the VA clinician is asked to respond to the following inquiry: Is it at least as likely as not that the Veteran’s lower back pain was incurred in, or is otherwise related, to his time on active service, to include documented lower back pain and wear and tear from heavy construction in service? In rendering this opinion, the clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. Further, the clinician is to discuss the Veteran’s lower back complaints in service, to include his documented injury and back medication prescription in March 1987, and a September 1985 “Min. scoliosis” note. The clinician is also to discuss the Veteran’s report of medical history note at separation where he affirmed he experienced recurrent low back pain, as well as an “LBP” note listed in the Veteran’s service treatment records that occurred in March 1989. In addition, the clinician should discuss statements from the Veteran’s fellow servicemen describing cumulative wear and physical strain on his back while working heavy construction in service. For the purposes of this opinion, the clinician is to assume the Veteran and his servicemen are credible as to the facts surrounding his lower back pain and heavy construction job in service. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. (Continued on the next page)   If an opinion cannot be provided without resorting to mere speculation, the clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Zheng, Associate Counsel