Citation Nr: 21077092 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-46 402 DATE: December 28, 2021 REMANDED Entitlement to service connection for lumbar spine disability is remanded. Entitlement to service connection for atherosclerotic cardiovascular disease, coronary artery disease is remanded. Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran had active service with the US Marine Corps form November 1968 to May 1970. This matter is before the Board of Veterans' Appeals (the Board) on appeal from a November 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified in a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the evidence of record. At the hearing, the Veteran's motion to hold the record open for a period of 30 days for additional development was granted. An appellate brief was received and will be considered by the Board in the adjudication of this appeal. After a thorough review of the record, the Board finds that more development is necessary prior to final adjudication of the claims on appeal. 1. Entitlement to service connection for lumbar spine disability is remanded. The Veteran contends he is entitled to service connection for a lumbar spine disability due to an in-service injury. In July 2021, the Veteran testified he was on top of a parapet observing the field of fire when a mortar or rocket exploded, and he fell onto his back. He was injured during combat and was not able to obtain treatment at the time. The Veteran also testified that he did not receive treatment for his back for many years after his separation from service. However, he reported back pain since the fall in service. The Board notes that in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit found the term "disability" as used in 38 U.S.C. § 1110 refers to the functional impairment of earning capacity, not the underlying cause of said disability and held that pain alone can serve as a functional impairment and therefore qualify as a disability. In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. To establish the presence of a disability, the Veteran needs to show that his pain reaches the level of functional impairment. In other words, subjective pain in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. The Veteran's service records show he had active service in the Republic of Vietnam. He was awarded a Vietnam Campaign Medal with device and a Vietnam Service Medal with one star. His military occupational specialty (MOS) was as a rifleman. This is accepted evidence of participation in combat operations. Satisfactory lay evidence will be accepted as sufficient proof that an in-service injury or disease was incurred in combat if consistent with the circumstances thereof, even if there is no official record. 38 U.S.C. § 1154(b). However, this does not establish service connection for a combat Veteran; it only relaxes the adjudicative evidentiary requirements for determining what happened in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999). Giving the Veteran every benefit of the doubt, the Board finds he sustained an in-service injury to the lumbar spine, which was not documented in his service treatment records. Therefore, a VA examination by an appropriate clinician is necessary to determine the nature and etiology of any lumbar spine disability found to be present. 2. Entitlement to service connection for atherosclerotic cardiovascular disease, coronary artery disease is remanded. The Veteran contends he is entitled to service connection for arteriosclerotic heart disease, coronary artery disease due to exposure to herbicides in service. In the August 2017 statement of the case (SOC), the RO conceded exposure to herbicides in Vietnam. However, it is unclear from the evidence of record whether the Veteran was diagnosed with atherosclerotic cardiovascular disease during the relevant period (since May 2015). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997). To be present as a current disability, the claimed condition must be present at the time of the claim for benefits, as opposed to sometime in the distant past. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). The Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). During his July 2021 hearing, the Veteran testified that he did not remember being told he had coronary artery disease. In April 2017, his private treatment records show an assessment of atherosclerotic ischemic nephropathy. Therefore, a VA examination by an appropriate clinician is necessary to determine whether a diagnosis of ischemic heart disease including but not limited to atherosclerotic cardiovascular disease, coronary artery disease was present at any time during the pendency of the appeal. 3. Entitlement to service connection for hypertension is remanded. The Veteran contends service connection is warranted for his hypertension due to his heart disease and exposure to herbicides in service. Since the issue of service connection for the Veteran's hypertension is intertwined with his heart disease claim, which requires further development, remand is warranted. Additionally, although hypertension is not a condition currently recognized as presumptively linked to herbicide exposure, the threshold for finding a link between current disability and disease or injury in service is low. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation claims, the VA must provide a medical examination when there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. However, there is insufficient competent medical evidence on file for the VA to make a decision on the claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The record shows a current diagnosed disability of hypertension. The August 2017 SOC conceded exposure to herbicides in Vietnam. Therefore, the Veteran should be afforded a VA examination to determine the nature and etiology of his hypertension. The matters are REMANDED for the following action: 1. Take appropriate steps to obtain any outstanding VA and non-VA treatment records. Request the Veteran identify all VA and non-VA health care providers including the name and address who have treated him during the pendency of this appeal. If the Veteran identifies a private provider, make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Thereafter, schedule the Veteran for a VA examination with an appropriate clinician regarding the nature and etiology of any lumbar spine disability found to be present. The examiner is asked to opine on the following: If it is at least as likely as not that the Veteran's lumbar spine disability had its onset in service or was otherwise etiologically related to any event or circumstance of his service. The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. The examination report must include a notation that this record review took place. 3. Schedule the Veteran for a VA examination by an appropriate clinician to determine whether a diagnosis of ischemic heart disease including but not limited to atherosclerotic cardiovascular disease or coronary artery disease was present at any time during the pendency of the appeal (since May 2015). The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. The examination report must include a notation that this record review took place. 4. Schedule the Veteran for a VA examination with an appropriate clinician regarding the Veteran's service connection claim for hypertension. The reviewing clinician is asked to opine on the following: If it is at least as likely as not that the Veteran's hypertension had its onset in or was otherwise etiologically related to any event or circumstance of his service. If the answer to (a) is no, is it at least as likely as not that ischemic heart disease (if present) proximately caused or aggravated his hypertension. If aggravation is found, the examiner should state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record as well as the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. The examination report must include a notation that this record review took place. 5. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran and his representative should be furnished with a supplemental SOC and be afforded the opportunity to response. Thereafter, the case should be returned to the Board for further consideration. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Byers 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.