Citation Nr: 21072832 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 14-28 812A DATE: December 6, 2021 REMANDED Service connection for a cervical spine disorder is remanded. Service connection for a lumbar spine disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1984 to July 1990. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision. These issues were previously before the Board in September 2019 when they were denied. The Veteran appealed the denial of her spine disorder claims to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 Joint Motion for Partial Remand (JMPR), the Court vacated the parts of the September 2019Board decision relevant to the spine disorder claims and remanded the matters to the Board. These issues returned to the Board in November 2020 and June 2021 when they were remanded for further development. 1. Service connection for a cervical spine disorder is remanded. 2. Service connection for a lumbar spine disorder is remanded. The Veteran contends her neck and back disabilities are related to her active service. The record reflects diagnoses of degenerative joint disease (DJD) of the cervical spine, degenerative disc disease (DDD) of the cervical spine, spinal stenosis of the cervical spine, DJD of the lumbar spine, DDD of the lumbar spine, and scoliosis of the lumbar spine. Service connection will be granted if the evidence demonstrates a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection may also be established by showing a continuity of symptoms since service. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013). A continuity of symptomatology is established if a claimant demonstrates (1) a condition was "noted" during service; (2) evidence of post-service continuity of the same symptoms; and (3) medical, or in certain circumstances lay evidence, of a nexus between the present disability and the post-service symptoms. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1340. On remand, a VA addendum opinion was obtained in June 2021. However, after a review of the addendum opinion, the Board finds a remand is required to obtain a new addendum opinion. Regarding this, in its prior remand, the Board requested a VA examiner address whether the Veteran has had chronic neck and back pain during the appeal period that resulted in any functional loss (the Board notes the appeal period begins on December 2, 2009, the date of claim). In response, the examiner notes the Veteran subjectively reports neck and back pain that resulted in functional loss but found no objective evidence to support the Veteran's assertion. The examiner appears to have discounted the Veteran's claims but provided no explanation for not considering her subjective reports. The Board finds the examiner's findings to be inadequate because the Veteran is competent to report observable symptoms and functional impairments. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As such, on remand, the examiner should provide adequate reasons and bases as to whether the Veteran has had chronic neck and back pain during the appeal period that resulted in any functional loss and whether such disability is related to her active service. Furthermore, the examiner states, regarding the Veteran's claim for a neck and back disability, pain is a symptom and not a diagnosis. However, pain alone which results in functional impairment that affects earning capacity, even if there is no identified underlying diagnosis, can constitute a disability. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The examiner failed to state whether the Veteran's neck or back pain constitutes a disability related to her documented in-service back problems. The examiner also notes they found no evidence to connect the Veteran's back pain from active service to her thoracic and lumbar spine disabilities diagnosed in 2012 or any evidence to connect the Veteran's neck pain from active service to her cervical spine disabilities diagnosed in 2010. In formulating this opinion, the examiner did not afford due consideration to the Veteran's lay statements with respect to continuity of symptomatology. Further, the examiner appears to have discounted the Veteran's claims of continuity of symptomatology solely based on the lack of medical records for the nearly two-decade period following separation from service. A lack of medical documentation of treatment alone is an insufficient basis to find a lack of nexus. Buchanan v. Nicholson,451 F.3d 1331(Fed. Cir. 2006). Finally, the medical record documents the Veteran has seen a chiropractor in the past and was diagnosed with herniated discs in 2004, but it does not appear attempts have been made to obtain these documents. As a result, a remand is required to attempt to obtain these private chiropractor treatment records or any other private treatment records the Veteran wishes to add to her claims file. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Ask the Veteran to complete a VA Form 21-4142 for any private chiropractor treatment records in addition to the private treatment records showing a diagnosis of herniated discs from 2004. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. Associate the records with the claims file. 3. Obtain an addendum opinion regarding the etiology of the Veteran's cervical and lumbar spine disorders from a VA examiner different than who provided the June 2021 opinion. The entire claims file must be made available to and be reviewed by the examiner. The Board leaves it to the discretion of the examiner if a VA examination is necessary or in the alternative, an addendum opinion is sufficient. The examiner is reminded the Veteran is competent to report observable symptomatology and the lack of contemporaneous medical records does not, in and of itself, render lay evidence not credible. Following a review of the record, to include the Veteran's lay statements as well as any other evidence that may be added to the record concerning the onset and recurrence of symptomatology, the examiner should address the following: (a.) Identify the Veteran's diagnosed lumbar spine and cervical spine disorders during the appeal period, which began on December 2, 2009 (the record at the time of this decision reflected diagnoses of DJD of the cervical spine, DDD of the cervical spine, spinal stenosis of the cervical spine, DJD of the lumbar spine, DDD of the lumbar spine, and scoliosis of the lumbar spine). (b.) For each diagnosed disorder, provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) the disorder had an onset in, or is otherwise related to, active service. (c.) If the answer to (b.) is no, then is it at least as likely as not (i.e., a 50 percent or greater probability) the Veteran's reported back pain results in a functional impairment of earning capacity, i.e., a disability for VA purposes? The examiner is reminded pain alone, which results in functional impairment that affects earning capacity, even if there is no identified underlying diagnosis, can constitute a disability. The examiner should observe that in June 2021, a VA examiner noted the Veteran subjectively reports neck and back pain that results in functional loss. (d.) If the answer to (c.) is yes, is it at least as likely as not (i.e., a 50 percent or greater probability) such disability is related to the Veteran's military service? The examiner must acknowledge the following: i. The service treatment records (STRs) noting back and cervical spine pain; ii. The December 2009 VA treatment records describing neck pain starting in 1985 after walking into a pole during active service; iii. The Veteran reporting in December 2009 she had been diagnosed with herniated discs in 2004; iv. The May 2010 VA examination showing the Veteran reports injuring her neck by walking into a metal pipe during active service, recalls injuring her back during active service, and states after service she went to a chiropractor; and v. The July 2014 statement where the Veteran describes hitting her head on a pole during service. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements. The opinions must reflect consideration of the Veteran's reports as to her history and symptomatology. The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. L. BARSTOW Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Buck Denton 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.