Citation Nr: 21069675 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 17-00 021A DATE: November 19, 2021 ORDER Entitlement to service connection for a back disability is denied. REMANDED Entitlement to service connection for a chronic cough is remanded. Entitlement to service connection for hypertension is remanded. FINDING OF FACT The Veteran does not have a back disability that is attributable to her active service. CONCLUSION OF LAW The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1978 to January 1983. This matter comes before the Board of Veterans Appeals (Board) on appeal from a July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran was scheduled for a hearing before a Veterans' Law Judge in September 2021, for which she failed to appear. As good cause has not been shown in this case, the Veteran's hearing request is deemed withdrawn. Service Connection Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303. To establish service connection for a disability, the Veteran must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Back Disability The Veteran asserts that she has a back disability that began in service. The question before the Board is whether the Veteran has a back disability that began during service or is at least as likely as not related to an in-service injury or disease. A review of the Veteran's service treatment records does not reveal any complaints, findings, treatment, or diagnoses specifically concerning any symptoms of a back condition. Clinical evaluation of the spine and musculoskeletal system was normal on the October 1982 discharge examination. Post-service medical records do not show that the Veteran has specifically sought treatment for any symptoms of a back condition. The Veteran has not been afforded an examination in connection with the claim of service connection for a back disability, but VA does not have a duty to provide one here, as there is no indication that the condition, even if present, has been present during the pendency of this appeal, or that it may be associated with the Veteran's service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is no competent evidence to suggest that the Veteran has ever had a back disability. Accordingly, there is no duty to provide the Veteran with an examination to evaluate the etiology of any such back disability. The Board has considered this case in light of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In Saunders, the United States Court of Appeals for the Federal Circuit (Federal Circuit) concluded that "pain is an impairment because it diminishes the body's ability to function, and that pain need not be diagnosed as connected to a current underlying condition to function as an impairment." Id. at 1364. "[A] physician's failure to provide a diagnosis for the immediate cause of a veteran's pain does not indicate that the pain cannot be a functional impairment that affects a veteran's earning capacity." Id. at 1367. Ultimately, the Federal Circuit in Saunders held that, to establish the presence of a disability, a veteran will need to show that his or her pain reaches the level of functional impairment of earning capacity. Id. at 1368. That having been noted, the Board finds the present case to be readily distinguishable from Saunders. Not only is there no competent medical evidence suggesting functional impairment of earning capacity, but the Veteran, herself, also has not provided lay evidence suggesting such impairment. Quite simply, there exists no basis for finding that a threshold of functional impairment of earning capacity has been met. Absent such evidence, there can be no finding of a disability per Saunders. Without any supporting records or testimony, the Board concludes that the preponderance of the evidence is against a determination that the Veteran has had a back disability at any time during the pendency of the claim. Service connection is denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107 (b). REASONS FOR REMAND Chronic Cough The Veteran asserts that she has a cough condition that is related to service. Service treatment records are silent as to any complaints of or diagnosis of a cough condition; however, the Veteran asserts that she has a chronic cough that began in service. She has expressed that she believed her in-service chronic cough was simply due to a cold and that she never sought medical attention specifically for her cough. A December 1978 service treatment record shows a complaint of a chest cold. An April 1982 service treatment record reflects a complaint of a cold for three days and chest congestion. The Veteran was assessed as having a viral syndrome. Following service, a March 2008 private treatment record reflects the Veteran saw a pulmonologist who believed her cough may be related to reflux and that it may be difficult to control. A May 2008 private treatment record shows a diagnosis of a cough that was either due to reflux, sarcoid, or another cause. In an August 2014 private opinion, Dr. Stephen Felton opined that the Veteran's "high chronic cough" was due to her military service, but no rationale was provided. Dr. Felton also opined that the Veteran's chronic cough was as likely as not due to her major elevated systolic pressure and it was service connected, but again, no rationale was provided. In a May 2018 Certification of Health Care Provider for U.S. Department of Labor Employee's Serious Health Condition form, it was noted that the Veteran had a chronic cough for which the etiology was unclear despite evaluations. VA is obliged to obtain an opinion when the record contains competent evidence that the claimant has a disability or signs and symptoms of a disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for suggesting a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon at 83. On remand, an opinion should be obtained as to whether the Veteran's chronic cough is related to service. Hypertension The Veteran asserts that she has hypertension that is related to service. A May1983 service treatment record reflects a diagnosis of essential hypertension. Post-service, a May 2008 private treatment record notes a diagnosis of benign hypertension. A July 2010 private treatment record reflects a diagnosis of malignant hypertension. In an August 2014 private opinion, Dr. Felton opined that the Veteran's diagnosis of high blood pressure was due to her military service, but no rationale was provided. The Veteran has not been afforded a VA examination to determine the etiology of her currently diagnosed hypertension. Accordingly, the Board finds a remand is warranted to schedule the Veteran for a VA hypertension examination. See McLendon, 20 Vet. App. at 81-82 The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate examination as to the etiology of any disability manifested by a chronic cough, as reflected in the record. The claims file and this remand must be reviewed by the examiner; consideration of such should be reflected in the completed opinion. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any disability manifested by a chronic cough was due to a disease or injury in service. The examiner must provide a rationale for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The absence of evidence of treatment for any disability manifested by a chronic cough in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. 2. Schedule the Veteran for an appropriate VA examination to determine the etiology of her claimed hypertension. The claims file and this remand must be reviewed by the examiner; consideration of such should be reflected in the completed opinion. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was due to a disease or injury in service, to include the May 1983 diagnosis of essential hypertension during service? If the examiner determines that the Veteran's hypertension is related to service, the examiner should opine whether it is at least as likely as not that the hypertension caused or worsened any disability manifested by a chronic cough. The examiner must provide a rationale for each opinion. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Griffith 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.