Citation Nr: A21020525 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 210901-182408 DATE: December 27, 2021 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran had active duty service from January 1952 to December 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in July 2021. The Veteran selected the Evidence Submission lane under the Appeals Modernization Act (AMA) review system by submitting a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement)) in September 2021. Accordingly, the Board will consider the evidence of record at the time of the July 2021 rating decision, and evidence submitted within 90 days of the election of the Evidence Submission lane. Entitlement to service connection for a back disability is remanded. Under the AMA, remand is permissible only for: (a) correction of pre-decisional duty to assist errors, to include examinations and medical opinions; and (b) correction of an AOJ error in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the appellant's claim. 38 C.F.R. § 20.802. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA is obligated to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. McLendon, 20 Vet. App. at 83. The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. Id. The Veteran has claimed service connection for a back disability. Specifically, he attributes his current back problems to a series of falls incurred during his active duty service. The Veteran's VA treatment records note complaints of back pain. The Veteran submitted a statement in June 2021, in which he described three in-service injuries. He stated that during his service he fell down the hatch of a landing craft during a shore landing, landing on his back. He stated that he injured his back again when he slipped and fell from a truck. Finally, he indicated that a third back injury occurred when a tugboat collided with a dock the Veteran was standing on. According to a February 2021 VA treatment note, the Veteran told the treating physician that he never sought treatment or told anyone of his back injuries during service. In correspondence received in September 2021, the Veteran provided further details of his in-service injuries and indicated that he underwent lumbar spine surgery in February 2017. The Board finds that this matter must be remanded for a VA examination. The Veteran has submitted evidence of a current back disability that may be related to his active duty service. The Board notes that the evidence regarding the Veteran's back surgery was not before the RO at the time of the rating decision on appeal; however, pain itself may constitute a disability if the pain results in functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Given the credible evidence of a back disability that may be related to the Veteran's active duty service, the RO's failure to obtain a VA examination constitutes a pre-decisional duty-to-assist error. See 38 U.S.C. § 5103A; McLendon v., 20 Vet. App. at 79; 38 C.F.R. § 3.159. Therefore, a remand is warranted to obtain such an examination. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed back disabilities. 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. Following review of the record, the examiner should state whether it is at least as likely as not that any current low back disability is due to or had its onset during the Veteran's active service. The examiner must provide a comprehensive rationale for each proffered opinion. 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.