Citation Nr: 18156686 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 17-00 360 DATE: December 10, 2018 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1990 to February 1993. He also has service of an unspecified nature in the South Carolina Army National Guard from April 1993 to June 1998. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a June 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of the Veteran’s appeal was transferred to the RO in Baltimore, Maryland, from where it was certified to, and received by, the Board. 1. Entitlement to service connection for a low back disability is remanded. The Agency of Original Jurisdiction (AOJ) has denied the Veteran’s claim and resulting appeal because the evidence did not reflect a diagnosed low back disability during the appeal period. However, the United States Court of Appeals for the Federal Circuit recently held in Saunders v. Wilkie, 886 F.3d 1356, 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." In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. The Board finds that this holding is pertinent to the Veteran’s case, as the May 2016 VA examination report confirms that, while no diagnosed low back disability was identified, the Veteran experiences low back pain which radiates into his legs and causes functional impairment. In light of this recent legal development, additional VA examination and medical opinions should be sought. Moreover, the Veteran recently asserted that his primary care physician confirmed a diagnosis of degenerative arthritis of the spine upon testing. The records pertinent to this diagnosis and all others which may be pertinent to the issue on appeal should be sought, obtained, and associated with the record. The matter is REMANDED for the following actions: 1. The AOJ must contact the Veteran and request that he identify any VA and/or private medical facility from which he receives treatment for his low back disability. Any VA treatment records identified by the Veteran must be obtained and associated with the file. The Veteran must be requested to complete releases for any outstanding private treatment records pertinent to his claimed low back disability. In these releases, the Veteran should provide a time period in which he was treated at each facility identified. The AOJ should then obtain the records identified by the Veteran. All records obtained should be associated with the Veteran's file. If any identified and requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the file, and the Veteran should be informed in writing. 2. Thereafter, the AOJ must request that the Veteran be scheduled for appropriate VA examination to determine the nature and etiology of his claimed low back disability. The complete electronic record must be made available to, and reviewed by, the VA examiner prior to conducting the examination. All necessary studies and tests should be conducted, to include X-ray testing of the Veteran’s thoracolumbar spine. Thereafter, the examiner is requested to address the following: a. Identify all low back disabilities present during the appeal period (since February 2016). b. For each low back disability identified in part (a), provide an opinion whether it is at least as likely as not that the identified disability/disabilities is/are the result of the Veteran's service. c. If the Veteran's reported low back pain are not found to be manifestations of any disability, please describe the functional impairment resulting from the Veteran's low back pain. In doing so, the examiner is requested, to the extent possible, to describe any and all effects of the Veteran's low back pain on his ability to lift, squat, stand, walk, run, and sit for extended periods. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall 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 the particular question. 3. After undertaking any additional development deemed appropriate, and giving the Veteran a full opportunity to supplement the record, readjudicate the Veteran's appeal in light of any additional evidence added to the record. If the benefit sought on appeal remains denied, the Veteran should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott W. Dale, Counsel