Citation Nr: 21008212
Decision Date: 02/12/21	Archive Date: 02/12/21

DOCKET NO. 17-56 254A
DATE: February 12, 2021

REMANDED

Entitlement to service connection for a back disability is remanded.

REASONS FOR REMAND

The Veteran served on active duty from April 2010 to April 2016. 

The Board denied the claim in a November 2019  decision. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court).  In an August 2020  order, the Court granted a Joint Motion for Remand (JMR), vacating the November 2019 decision. 

Entitlement to service connection for a back disability is remanded.

The Board finds the May 2016 VA examination is inadequate and the claim is remanded for a medical opinion.  As the parties to the JMR noted, pain alone may constitute disability, even without an identifiable underlying pathology, when such pain results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).  On the Veteran’s March 2016 service separation examination, which is contemporaneous with his March 2016 claim, the Veteran reported having “lower/mid back [pain] cannot sleep longer than 6 hours – occupation related.”  While the May 2016 VA examiner noted the Veteran’s back pain, they provided no nexus opinion based on finding no diagnosed disability.  Accordingly, a new opinion is necessary to address the etiology of any diagnosed back disability to include such functional impairment.

On remand, updated treatment records should be obtained. See 38 C.F.R. § 3.159. See also Bell v. Derwinski, 2 Vet. App. 611 (1992).     

The matters are REMANDED for the following action:

1. Obtain the names and addresses of all medical care providers who treated the Veteran for any back complaints since service not already associated with the record.  After securing the necessary release, take all appropriate action to obtain these records, including any VA treatment records April 2018.   

2. After completion of the above, obtain an addendum opinion (with examination or telehealth interview, review of the record, etc., if needed) from the May 2016 VA  examiner (or from another appropriate examiner if the May 2016 VA examiner is unavailable) on the likely etiology of the Veteran’s any diagnosed back disability.  Copies of all pertinent records should be made available to the examiner for review. The examiner should answer the following:  

(a.) Identify all diagnosed back disabilities since April 2016. 

(b.) For each diagnosed back disability, is it at least as likely as not related to an in-service injury, event or disease to include his in-service reports of back pain? Why or why not? 

(c.) If no specific back disability is diagnosed, the examiner must consider whether any pain results in functional impairment of earning capacity.  For any identified functional impairment of the back, the examiner must opinion whether it is at least as likely as not related to an in-service injury event, or disease to include his in-service treatment reports of back pain.  Why or why not? 

The examiner should consider and discuss as necessary the notation on the Veteran’s March 2016 service separation examination that the Veteran reported occupational related back pain. 

The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate.  If an opinion cannot be provided, the examiner should indicate why. 

 

M.E. Larkin

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Eric Struening

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.