Citation Nr: 20022569 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 16-51 935 DATE: April 1, 2020 REMANDED The claim of entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1982 to January 1986, and from October 1986 to July 1992. This appeal to the Board of Veterans’ Appeals (Board) arose from a May 2015 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO), inter alia, denied service connection for a back disability. In December 2015, the Veteran filed a notice of disagreement (NOD). In September 2016, the RO issued a statement of the case (SOC). In October 2016, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals). Of note, the Veteran also appealed the denial of service connection for irritable bowel syndrome. However, that claim was granted in a July 2019 decision and is therefore no longer before the Board. In October 2019, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. Regarding representation, although the Veteran was previously represented by Marine Corps League, in October 2019, he submitted a statement indicating that he was revoking his power of attorney executed in favor of that organization. To date, the Veteran has not appointed a representative; hence, he is now recognized as proceeding pro se (unrepresented) in this appeal. The Board’s review of the claims file reveals that further agency of original jurisdiction (AOJ) action on the claim on appeal, prior to appellate consideration, is warranted. The Veteran asserts that he has a back disability associated with several in-service injuries and incidents. He testified that he sustained back injuries when he was crossing railroad tracks and was thrown into a hydraulic cylinder and when he was serving in Iraq and was riding in a truck which was bouncing and jostling him. He also reported seeking treatment for back pain resulting from physical training during service. A review of the Veteran’s service treatment reports (STRs) reveals a report of low back pain related to basketball on one occasion. Although the STRS do not document any other treatment for low back complaints, the Veteran testified that he believes some of his records may have been destroyed. Notably, on a report of medical history form prepared in conjunction with his separation examination in May 1992, the Veteran reported recurrent back pain. Post-service VA and private treatment records indicate that he has sought treatment for ongoing back complaints, to include during time frames relevant to the current claim. Moreover, he testified that he has had low back problems since he left service in 1992. During an April 2015 VA examination, the Veteran reported that he sustained a lower back injury after falling four to five feet from a crane while stationed in Korea; that he began experiencing back pain during physical training while stationed in Fort Hood, he sustained an injury while crossing railroad tracks when he was thrown against a hydraulic cylinder and found unconscious; and that he injured his back when he was stationed in Germany and he was thrown out the front windshield of a vehicle and hit a brick wall. The Veteran indicated that he had flare-ups of back pain four to five times a week which required him to rest for one hour up to one day. Physical examination of the lumbar spine and X-rays were reported to be normal. The examiner indicated that the Veteran’s lumbar spine condition did not impact his ability to work. The examiner did not discuss the Veteran’s post-service treatment for low back complaints or elicit any information regarding the impact of the Veteran’s low back complaints on his functional abilities. Although the Veteran has not been diagnosed with a specific lumbar spine disability, notably, in Saunders v. Wilkie, the United States Court of Appeals for the Federal Circuit found 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.” 886 F.3d 1356 (Fed. Cir. 2018). As the Veteran has reported that he sustained back injuries in service and has had back problems since service, and his post-service medical records reflect treatment for low back complaints, the Board finds that another VA examination is needed to determine whether the Veteran’s reports of and treatment for back pain result in any functional impairment, and if so, the medical relationship, if any, between any such current disability and service, to include injuries and symptoms therein. See 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). See also Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that if VA provides a medical examination or obtains a medical opinion in connection with service connection claim, even if not statutorily obligated to do so, it must ensure that the examination provided, or opinion obtained, is adequate for purposes of the determination being made). Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. Regarding VA treatment, the claims file included treatment records from the VA Saginaw Vista electronic records system (dated through October 2015), from the Ann Arbor VA Medical Center (VAMC) (dated through March 2016), and from the Fort Worth VAMC (dated through May 2019). As more recent VA medical records may well exist, the AOJ should obtain any records of outstanding VA evaluation and/or treatment of the Veteran, to include from the above noted system and facilities. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal (to include regarding any private (non-VA treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.156. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claim on appeal. The matter is hereby REMANDED for the following action: 1. Obtain all outstanding records of VA evaluation and/or treatment of the Veteran, to include records from the VA Saginaw system (dated since October 2015), the Ann Arbor VAMC (dated since March 2016), and the Fort Worth VAMC (dated since May 2019). Follow the procedures set forth in 38 C.F.R. § 3.159 as regards obtaining records from Federal facilities. 2. Furnish to the Veteran a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the claim on appeal that is not currently of record, to include any private (non-VA) medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although the VA may decide the claims within a one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination of his lumbar spine, by an appropriate physician. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should clearly identify all lumbar spine disability(ies)—to include low back pain resulting in functional impairment of earning capacity—currently present, or present at any point pertinent to the current claim (even if now asymptomatic or resolved). Then, for each such identified disability, the physician should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (a 50 percent or greater probability) that the disability had its onset during, or is otherwise etiologically related to service, to include injuries and symptoms of back pain therein. In addressing the above, the physician must consider and discuss all pertinent medical and other objective evidence, to specifically include service treatment records documenting complaints of low back pain during service; and post-service medical records and statements referencing low back pain. The physician must also consider and discuss all lay assertions, to include the Veteran's assertions as to occurrence of in-service injuries, and as to the nature, onset, and continuity of back pain. Notably, the absence of documented evidence of a specific disability in or shortly after service should not, alone, provide the sole basis for a negative opinion. In this regard, the physician is advised that the Veteran is competent to report matters within his personal knowledge, to include his injuries, symptoms and history, and that his assertions in this regard must be considered in formulating the requested opinions. If lay assertions in any regard are discounted, the physician should clearly so state, and explain why.   All examination findings/testing results, along with complete, clearly stated rationale for the conclusions reached, must be provided. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. 6. After completing the requested actions, and any additional action(s) deemed warranted, adjudicate the claim on appeal, considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Cryan, 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.