Citation Nr: 21071637 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-00 854 DATE: December 1, 2021 REMANDED Entitlement to service connection for a back condition (claimed as back injury) is remanded. REASONS FOR REMAND The Veteran had active duty service from August 1972 to August 1975 and from August 1976 to August 1978. The Board notes that the Veteran initially requested a hearing before a Veterans Law Judge. See December 2016 VA Form 9. Such a hearing was scheduled in July 2021. However, the Veteran failed to appear for the hearing. The case will therefore proceed as though the request for a hearing has been withdrawn and the Board is proceeding with the issuance of this remand. 38 C.F.R. § 20.704 (d). The Board finds no prejudice to the Veteran as in addition to the Informal Hearing Presentation (IHP) that was received in October of 2021, his representative will be given an additional opportunity to submit additional argument prior to the Board's review. As an initial matter, the Board observes that this issue was treated by the RO as a new and material evidence issue. In general, decisions of the RO that are not appealed in the prescribed time period are final. See 38 U.S.C. § 7105. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In this case, the Veteran filed a claim for service connection for a back condition in March 2013, which was originally denied in a July 2014 rating decision. The Veteran subsequently submitted a notice of disagreement (NOD) in December 2014. In February of 2015, VA treatment records were associated with the claims file. A December 2015 rating decision purported to reopen the claim and deny service connection on the merits. Under the provisions of 38 C.F.R. § 3.156 (b), new and material evidence received during the appeal period after a decision will serve to preclude that decision from becoming final unless the decision is reconsidered. Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). In that regard, in January of 2015, the Veteran and his representative submitted correspondence requesting reconsideration. However, this request was subsequently withdrawn in May of 2015. Viewing the evidence most favorably to the Veteran, the Board finds that new and material evidence, the February 2015 VA treatment records, was received during the appeal period after the July 2014 rating decision. Therefore, the July 2014 decision did not become final. With that matter resolved, the Veteran was originally denied service connection for a back condition in this case based on a lack of a current diagnosis. While the Veteran's treatment records demonstrated complaints of back pain, under the law in effect at that time, pain alone without a diagnosed or identifiable underlying malady or condition did not in and of itself constitute a disability for which service connection could be granted. However, the legal standard shifted during the course of the Veteran's appeal. In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit held that "'disability' in [38 U.S.C.] § 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." 886 F.3d at 1363, 1368, 1369. The Federal Circuit also made clear, however, 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 her pain reaches the level of a functional impairment of earning capacity." Id. at 1367-68. In light of Saunders, a new VA examination is required to properly adjudicate the claim as the Veteran has not been afforded one in regard to this condition since July of 2014 and the Board cannot make a fully-informed decision on the issue because no VA examiner has opined sufficiently on the nature, etiology, and functional impairment of the Veteran's asserted back condition. Further, the examiner will need to determine whether the Veteran has a diagnosable condition that is caused by or related to his military service. Lastly, as the most recent VA treatment records were associated with the claims file in December of 2016, any additional relevant records should be obtained. The matter is REMANDED for the following actions: 1. Obtain any outstanding relevant VA treatment records from December 2016 through the present and associate them with the claims file. 2. Following the completion of step one, schedule the Veteran for an examination by an appropriate medical professional, to determine the nature and etiology of the Veteran's claimed back condition. The clinician must be provided with and review the entire claims file, to include a copy of this remand. Following a review of the evidence of record, the examiner should examine the Veteran and provide a description of the nature and extent of the Veteran's symptoms related to his back pain, and provide a diagnosis, if any. The examiner should identify any functional impairments due to pain alone and discuss the effect of the Veteran's claimed back disability on any occupational functioning and activities of daily living. Thereafter, the examiner should opine: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's back condition is due to a diagnosable condition. If so, please identify the diagnosis or diagnoses. (b.) If there is no diagnosable back condition found, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's pain reaches the level of functional impairment of earning capacity. (Continued on the next page) (c.) If the Veteran's back condition is attributed to a diagnosable condition OR to pain resulting in functional impairment of earning capacity, as to each such condition, opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's condition had its onset during active duty or is causally or etiologically related to any in-service event, disease, or injury. 3. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning this matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Smith, 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.