Citation Nr: 20052932 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 16-31 990 DATE: August 10, 2020 ORDER 1. Entitlement to service connection for a thoracic spine disability (claimed as upper back pain with spasms) is denied. REMANDED 2. Entitlement to service connection for a lumbar spine disability (claimed as low back pain with spasms) is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran had a diagnosis of a thoracic spine disability, to include pain that causes functional impairment that affects earning capacity, at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for a thoracic spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2007 to June 2009. 1. Entitlement to service connection for a thoracic spine disability (claimed as upper back pain with spasms). The Veteran contends he injured his upper back in service, and he has continued to receive treatment for his back issues since discharge. He stated that he takes pain medicine three times a day and feels back pain daily. The Veteran stated his back pain limits his physical activities and what jobs he can do as a result of his injuries. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for a thoracic spine disability. The reasons follow. The Board concludes that the Veteran did have a current diagnosis related to pain in his thoracic spine and did not have a disability at any time during the pendency of the claim or recent to the filing of the claim. The VA treatment records, though specifically documenting symptomatology in the lumbar spine, do not document pain or other symptoms in the thoracic spine. The Board finds it likely that had a comparable injury or symptoms been present in the thoracic spine, it would have been noted along with the symptoms reported related to the lumbar spine. The Board notes the only mention of upper back pain in the record is in the claim for service connection. In Saunders v. Wilkie, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that "'disability' in § 1110 refers to the functional impairment of earning capacity" and "pain in the absence of a presently-diagnosed condition can cause functional impairment," en route to its conclusion that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability." Saunders v. Wilkie, 886 F.3d 1356, 1363, 1368, 1369 (Fed. Cir. 2018). However, the Federal Circuit also made clear that a veteran cannot "demonstrate service connection simply by asserting subjective pain to establish a disability, the veteran's pain must amount to a functional impairment. To establish the presence of a disability, a veteran will need to show that [his or] her pain reaches the level of a functional impairment of earning capacity." Id. at 1367-68. Here, the Veteran has not provided evidence that thoracic spine pain caused functional impairment that affected earning capacity, at any time during or approximate to the pendency of the claim. Thus, the Veteran cannot satisfy the basic compensation statute. A claim for pain alone is an insufficient factual showing that the pain derives from an in-service disease or injury. Consequently, the Board does not have evidence to establish that the Veteran has a current disability manifested by pain in the thoracic spine that is related to service. Absent a current disability, service connection is denied. VA must provide a medical examination or medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. At least one element is missing in this case. The Veteran is not entitled to a VA examination or medical opinion because the preponderance of the evidence is against evidence of a current thoracic spine disability or persistent or recurrent symptoms of a thoracic spine disability, and there is no evidence establishing an in-service injury or disease involving the thoracic spine occurred. In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, the claim for service connection for a thoracic spine disability is denied. REASONS FOR REMAND 2. Entitlement to service connection for a lumbar spine disability (claimed as low back pain with spasms) is remanded. The Veteran contends he injured his low back in service. The Veteran has not been afforded a VA examination for his lumbar spine disability. VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. VA treatment records show the Veteran has multiple complaints of low back pain after service. An October 2008 STR documents the Veteran has a history of chronic back pain that was aggravated by coming down wrong during basketball. Pain was reported in the lumbar spine. STRs show multiple complaints of low back pain. Thus, a remand is warranted to fully assist the Veteran with the development of the claim for service connection for a lumbar spine disability. The matters are REMANDED for the following action: 1. Obtain outstanding VA treatment records from November 2018 to present. 2. Schedule the Veteran for a VA examination to determine the likely etiology of the lumbar spine disability. The Veteran’s claims file should be reviewed by the examiner in conjunction with the examination. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, when applicable: • The Veteran served on active duty from February 2007 to June 2009. • The Veteran contends that he has a lumbar spine disability that had its onset in service. • The February 2007 entrance RMH shows the Veteran checked no for a history of recurrent back pain or back problems. See VBMS entry with document type, “STR – Medical,” receipt date 07/01/2009, with “#3” in the Subject field, at p. 38. • STRs show multiple complaints of low back pain from 2008-2009. See VBMS entries with document type, “STR – Medical,” receipt date 07/01/2009, with “#1,” “#2,” and “#3” in the Subject field. • The Veteran was placed on two temporary profiles in service from August 26-31, 2008 and for 10 days beginning October 6, 2008. See VBMS entry with document type, “STR – Medical,” receipt date 07/01/2009, with “#1” in the Subject field, at p. 91 and 72. • A service treatment record shows the Veteran was seen for a history of chronic back pain which was aggravated during a basketball game two days prior. Veteran reported coming down wrong with pain to the lumbar area three out of 10 at rest. See VBMS entry with document type, “STR – Medical,” receipt date 07/01/2009, with “#1” in the Subject field, at p. 71. • A Medical Clearance for Respirator Use form shows the Veteran denied ever having a back injury but he currently had back pain. See VBMS entry with document type, “STR – Medical,” receipt date 07/01/2009, with “#2” in the Subject field, at p. 43. • The April 2009 discharge RMH shows the Veteran checked yes for recurrent back pain or any back problem. He noted a history of back spasms. The examiner documented chronic low back pain, mild to moderate severity. See VBMS entry with document type, “STR – Medical,” receipt date 07/01/2009, with “#1” in the Subject field, at p. 24-26. • The Veteran reported he experienced back pain since age 15 in a September 2013 VA treatment record. See VBMS entry with document type, “CAPRI,” receipt date 02/16/2016, at p. 33. • The Veteran reported he experienced back spasms as a teenager and when really active now in an October 2013 VA treatment record. See VBMS entry with document type, “CAPRI,” receipt date 02/16/2016, at p. 9. The examiner is asked the following questions: Is it at least as likely as not (50 percent probability or higher) that the Veteran’s current lumbar spine pain/disability had its onset during service from February 2007 to June 2009? Upon what facts and medical principles do you base the opinion? A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. McDaniels, 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.