Citation Nr: 21071019 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 17-36 354A DATE: November 29, 2021 REMANDED Entitlement to service connection for a thoracolumbar spine disability is remanded. REASONS FOR REMAND The Veteran had active duty service from June 2004 to June 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating issued by a Department of Veterans Affairs (VA) Regional Office (RO). The RO found that the Veteran had submitted new and material evidence to reopen a previously denied claim of service connection for a thoracolumbar spine disability but denied service connection. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a July 2021 Board hearing. A copy of the hearing transcript has been reviewed and associated with the claims file. Entitlement to service connection for a thoracolumbar spine disability is remanded. The Veteran has claimed service connection for a thoracolumbar spine disability. He has alternately claimed that his back disability is related to an improvised explosive device (IED) explosion, "tweaking" his back while dismounting a Humvee, and picking up another marine during a training exercise. The Veteran's service treatment records show that he was treated for low back pain in November 2005, after he experienced a sharp pain while picking up another marine during a training exercise two weeks earlier. He was diagnosed with a thoracolumbar strain. The Veteran underwent a VA examination in May 2008, wherein the examiner found no disabilities of the thoracolumbar spine. An October 2015 VA treatment record lists lumbar spondylosis and low back pain as active problems, and the treating physician noted that the Veteran's low back pain is probably related to his active duty service. In June 2016, a VA opinion was issued to address the treatment note stating that the Veteran's low back pain is probably related to his active duty service. Specifically, the examiner was asked to opine as to whether the Veteran's lumbar spondylosis is at least as likely as not related to the November 2005 service treatment record noting low back pain. The examiner opined that the spondylosis is less likely than not related to the Veteran's November 2005 complaint of back pain. She stated that, while the evidence shows that the Veteran was involved in an IED explosion, he had no physical sequelae from the explosion and had no complaints of back pain until 2014, which developed after lifting furniture. She also indicated that lumbar spondylosis usually produces no symptoms and is usually independent from complaints of back pain. The Veteran also claimed that he has bulging vertebral discs, and this claimed disability was not addressed by the examiner. The Board finds that the June 2016 medical opinion is inadequate for the purpose of adjudicating this claim because the examiner's opinion is limited to whether the Veteran's spondylosis is related to the November 2005 complaint of back pain. The examiner stated that spondylosis is usually asymptomatic and independent from complaints of back pain. If his low back pain is separate from his spondylosis, then a separate opinion should be issued for the pain, as pain may be considered a disability if it results in a functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Additionally, the Veteran raised another theory of service connection during his July 2021 Board hearing. Namely, he testified that he believes his back disability may be related to injuries sustained while dismounting a Humvee. To date, no VA examiner has addressed this theory of entitlement. The Board also notes that the Veteran has not undergone a VA examination since May 2008, when he was not found to have a low back disability. Since that examination, he has received a diagnosis of lumbar spondylosis and has also claimed that he has disc bulges at the L4/L5 and L5/S1 vertebrae. Accordingly, a new VA examination is warranted. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed thoracolumbar spine disability. The entire claims folder, including a copy of this remand, must be made available for review by the examiner, and such review should be noted in the examination report. For each diagnosed eye disability, the examiner should opine as to whether the disability is at least as likely as not (a 50 percent or greater probability) related to the Veteran's active duty service, to include his claimed incidents of being involved in an IED explosion, tweaking his back while dismounting a Humvee, and picking up another marine during a training exercise. The examiner must provide a comprehensive rationale for each proffered opinion. If any diagnosis of record cannot be confirmed or validated, please explain why such diagnosis cannot be confirmed. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Pratt 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.