Citation Nr: 21002156 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 11-07 636 DATE: January 12, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for additional chronic spinal injury residuals of a fall on May 20, 2008 is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1978 to January 1986. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing with the undersigned in November 2014. The Board denied this claim in July 2018, and the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In October 2019, the Court granted a Joint Motion for Remand in which the parties agreed to vacate the July 2018 decision and remand the matter to the Board. Although the Board regrets additional delay, remand is necessary to obtain a new VA medical opinion from a spinal cord injury specialist. In March 2018, an Independent Medical Examiner opined that the fall that the Veteran suffered did not permanently worsen or aggravate his pre-existing back injury. The examiner did not provide an opinion as to whether the incident created an additional disability that is separate and distinct from his original disability. Further, the examiner did not consider if additional pain that the Veteran claims he suffered, in and of itself, could qualify as an additional disability. Pain that causes functional impairment can be considered a disability. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Upon remand, a new medical opinion is necessary to address the above. This matter is REMANDED for the following action: The claims file should be sent to an appropriate examiner to offer an opinion. The opinion can be obtained from VA, a contract provider, or an independent medical expert (see 38 U.S.C. § 5109) but should be obtained from an examiner who specializes in spinal cord injuries. The examiner is asked to address the following: (a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran incurred an additional disability affecting his back as a result of his May 20, 2008 fall from a wheelchair. This includes a re-injury or aggravation of his original spinal condition or a separate disability to specifically include an increase in pain resulting in additional functional impairment. (b.) If so, is it at least as likely as not that the additional disability was the result of carelessness, negligence, lack of proper skill, or similar instances of fault on the part of the VA medical personnel. The incident has to do with a fall from a wheelchair while under the care of a physical therapist. If the examiner does not have expertise to address the actions of a physical therapist as it relates to patient transfers to wheelchairs, this opinion can be obtained from a different individual with such expertise. Otherwise, the examiner should explain how he or she has expertise regarding patient transfers to wheelchairs. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Hofmeister, Attorney Advisor 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.