Citation Nr: 21075708 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 19-04 149 DATE: December 21, 2021 ISSUE Entitlement to service connection for a low back disability. REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served in the United States Navy from January 1985 to July 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision of a Department of Veteran Affairs (VA), Regional Office (RO). In July 2020, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the Veteran's claims file. Entitlement to service connection for a low back disability. The Veteran contends that his low back disability is related to an injury he sustained in a motor vehicle accident (MVA) during service. The Veteran also contends that his low back disability is related to the physical rigors associated with his duties as an aviation electrician (often in uncomfortable positions, carrying heavy equipment). The Veteran contends that he has continued to have back pain since his separation from service. See July 31, 2018 Notice of Disagreement (NOD). July 2020 Board Hearing transcript, pgs. 3-6, 7 & 13; See also, July 13, 2020 Brief, pgs. 2-4. The Veteran's June 1992 service treatment record (STR) shows complaints and treatment for lower back pain following a motor vehicle accident, with complaints of spasms. The motor vehicle accident was reported to have occurred 1 day earlier. See June 20, 1992 STR; June 22, 1992 STR re: Post MVA, whiplash, spasms for 3 days; June 29, 1992 STR re: treatment record for lower back strain secondary to a motor vehicle accident on June 19, 1992. June 1996 service treatment records show complaints of a twisted back less than a week ago, which has not completely resolved. This treatment records shows that the Veteran has a past history of lower back pain. It was reported that the Veteran is in otherwise good health. See June 18, 1996 STR. On clinical evaluation, the Veteran's back was found to be normal on his May 7, 1996 Separation examination. While the Veteran did deny recurrent back pain on his separation examination, the Board notes that the Veteran did indicate on his separation examination that he had received treatment for an accident in 1992. See May 7, 1992 Report of Medical History. At his July 2020 Board Hearing, the Veteran testified that he denied any recurrent back pain at separation because at the time of his separation examination, his back was not causing any current pain. See July 15, 2020 Board Hearing transcript, pgs. 8-9. After service, the Veteran testified that he had seen a doctor a few times for his back condition. The Veteran testified that he primarily goes to a doctor during annual visits. The Veteran testified that he saw a chiropractor for one year in Jacksonville, Florida, but has not been able to obtain these records. The Veteran testified that he never had an x-ray or MRI done on his back. Id. at pgs. 4-6. With respect to functional limitations, the Veteran testified that his back condition limits what he can do at work. The Veteran testified that he works in agriculture and has the ability to adjust his schedule. Id. at pgs. 4-5 & 9. The Board notes that the Veteran has not been afforded a VA examination as to the nature and etiology of his low back disability. The Board observes that while the evidence of record does not show a specific diagnosis for a low back disability, the Veteran has indicated that the pain associated with his low back disability does cause functional impairment, limiting what he can do at work. Id. at pgs. 4-5 & 9. The Board also notes that pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Further, the Board notes that the Court has held that Saunders is not limited to pain, such that a disability for VA purposes includes any condition that results in functional impairment of earning capacity. See Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020). In this case, the Board notes that there is some evidence of a current disability based on functional impairment associated with the Veteran's low back pain; however, it is not clear as to the nature and etiology of this Veteran's low back disability. As there is evidence of a current disability and an indication of a link to the Veteran's military service based on an in-service incident (MVA), the Board finds that the Veteran should be afforded a VA examination to determine if his low back disability is etiologically related to service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Moreover, as outlined above, the Veteran expressly contends that he has had continuing back problems since his separation from service in 1996. The Veteran testified that he currently receives treatment from the VA. See July 2020 Board Hearing transcript, pg. 14. Furthermore, the Veteran testified that he received treatment from a chiropractor in Jacksonville, Florida after his separation from service. Id. at pg. 5. The Board finds that to ensure that there is a complete record on which to decide this Veteran's claim, remand is also required to obtain all outstanding VA and private treatment records. VA's duty to assist claimants to obtain evidence needed to substantiate a claim includes making reasonable efforts to obtain relevant private medical records. 38 C.F.R. § 3.159 (c)(1). Accordingly, this matter is REMANDED for the following actions: 1. Ensure all outstanding VA treatment records are associated with the Veteran's claims file. 2. Send the Veteran VA Form(s) 21-4142 Authorization for Release of Information, for completion, to obtain any outstanding private treatment records relating to his low back condition, including treatment records from a private chiropractor in Jacksonville, Florida. Provide instructions to return the completed form(s) to the RO in a timely fashion. 3. Next, provide the Veteran a VA examination to determine the likely nature and etiology of his low back disability. The claims file, including a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. Based on the examination of the Veteran and review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) any currently present low back disability, to include low back pain resulting in functional impairment, (1) began during active service, (2) manifested within 1 year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. For purposes of this etiology opinion, the examiner should consider and discuss as necessary (1) the June 1992 motor vehicle accident during service resulting in complaints of low back pain, whiplash and back spasms (See also, June 1996 treatment records re: back pain); (2) the Veteran's duties associated with his MOS as an aviation electrician (getting in uncomfortable positions, carrying heavy equipment); and (3) the Veteran's complaints of low back pain since his separation from service. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After undertaking any additional development deemed necessary, readjudicate the issue on appeal. If any benefit sought remains denied a supplemental statement of the case (SSOC) must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, then return the appeal to the Board for appellate review, if otherwise in order. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Little, 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.