Citation Nr: 21014272 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 17-24 090 DATE: March 11, 2021 REMANDED Entitlement to service connection for coronary artery disease, status post myocardial infarction is remanded. Entitlement to service connection for a low back condition, to include as due to an undiagnosed illness or qualifying chronic disability pursuant to 38 U.S.C. § 1117, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1987 to February 1988 and from October 1990 to July 1991, to include service in the Southwest theater of operations during the Persian Gulf War. This case is before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In that rating decision, in relevant part, the RO denied entitlement to service connection for a low back condition and entitlement to service connection for coronary artery disease. The Veteran timely appealed the March 2016 rating decision. In a December 2018 decision, in relevant part, the Board denied the claims of entitlement to service connection for a low back condition and coronary artery disease. The Veteran then appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 Memorandum Decision, the Court vacated and remanded the Board’s December 2018 decision denying the claims of service connection for a low back condition and coronary artery disease. 1. Entitlement to service connection for coronary artery disease, status post myocardial infarction The Veteran seeks service connection for coronary artery disease, which he contends is related to service. As noted above, in June 2020, CAVC vacated and remanded the Board’s December 2018 decision denying the claim of service connection for coronary artery disease. Specifically, the Court noted that the Board did not provide an adequate statement of reasons and bases addressing the materiality of a heart murmur, noted in the Veteran’s entrance examination, to the instant cardiac claim. Here, the Board notes that a Report of Medical examination and a Report of Medical History, both dated July 1987, reflect a heart murmur present “since infancy.” Additionally, a January 1991 service treatment record shows that the Veteran was treated for a “fast heartbeat.” The treating clinician noted that the condition was probably secondary to Valsalva, with note of tachycardia. In a February 2016 VA examination, a VA examiner noted diagnoses of coronary artery disease and cardiomyopathy, noting diagnoses dates of 2008 for both conditions. The examiner opined that the coronary artery disease and myocardial infarction were less likely than not related to service. The examiner rationed that the Veteran’s coronary artery disease was diagnosed seventeen years following service. The examiner also acknowledged that the Veteran was evaluated in 1991 for a rapid heart rate (tachycardia), at which time Valsalva was thought to be the cause. The examiner also noted that the Veteran was not diagnosed or treated for tachycardia or rapid heartbeat during and after service and that his tachycardia was temporary and not related to or resulted in the Veteran’s coronary artery disease. Here, a remand is necessary. In this regard, the February 2016 examiner did not mention that the Veteran’s entrance examination noted a heart murmur since infancy and the Board failed to address this information in its December 2018 decision. On remand, an opinion must be obtained to determine the nature and etiology of the Veteran’s heart condition, with consideration of the infantile heart murmur noted at entry. 2. Entitlement to service connection for a low back condition The Veteran contends that he is entitled to service connection for a low back disorder, which he believes is related to service. Specifically, he reports that he injured his back during service as a result of carrying heavy weapons, duffle backs, and the like over extended distances, in the extreme heat, and over a period of several years. See, e.g. October 2016 VA Form 9. The Veteran also reported that his back disability has worsened over the years, and that he had has difficulty walking and performing day-to-day activities. He also stated that he did not initially seek treatment because he was taught to tolerate the pain and take care of his work. Additionally, he stated that he has sought treatment several times through chiropractors after being discharged. Id. An April 2015 private treatment note reveals that the Veteran presented with complaints of an acute back spasm lasting three days. The Veteran stated that he had back issues for over twenty years. The clinician noted decreased straight leg testing and assessed the Veteran with a lumbar strain. In an October 2015 private treatment note, the Veteran similarly reported that he had “back spasms for years.” In a February 2016 VA examination, the examiner did not provide a back diagnosis, but instead noted that the Veteran’s lumbar spine was normal. In the medical history section of the report, a notation of “currently feels like intermittent muscle spasm” was included. The Veteran denied flare-ups. The Veteran did not report having any functional loss or functional impairment of the back. No pain was noted upon examination. There were no findings of radicular pain, signs or symptoms due to radiculopathy, ankylosis of the spine, neurological abnormalities, or IVDS. The examiner also noted that the Veteran’s back did not impact his ability to work. The examiner opined that it was less likely than not that the Veteran’s back condition was related to service. The examiner rationed that although the Veteran had a sole complaint, in June 1990, of a pulled muscle from lifting, there was no follow-up. The examiner also rationed that there was no post-service clinical indication of continuing back problems and that there were vague complaints with a normal examination. Here, a remand is necessary. As an initial matter, the Veteran served in the Southwest Asia theater of operations during the Persian Gulf War. As so, he qualifies as a Persian Gulf War Veteran such that 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 may apply. In this regard, the Veteran’s low back condition manifests as spasms and pain. Although he was not diagnosed with a back condition upon examination, the Board erred in denying the claim, in part, by concluding that there was no evidence that his back pain caused functional loss. Instead, it was proper for the Board to consider that musculoskeletal pain alone can qualify as a chronic disability. Further, as this claim is being remanded, the Board also notes that while the Veteran may not have been assessed with a back disorder at the time of the February 2016 examination, over five years ago, the Veteran has contended that his back has worsened. Here, a new examination is necessary to fully and fairly evaluate the Veteran’s claim for service connection for a low back condition. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current nature and likely etiology of all disabilities affecting the Veteran’s heart. (a) Identify all currently diagnosed heart disabilities, which have been present at any time during the appeal period. (b) Identify which heart disabilities clearly and unmistakably preexisted service, and, if so; (c) Whether any such preexisting disability clearly and unmistakably was NOT aggravated by service. Note to examiner: To ensure that the correct legal standard is applied, which is essential for adjudication of the claim, the examiner’s opinion must be stated in terms of whether the disorder “clearly and unmistakably preexisted service” AND whether the disorder “clearly and unmistakably was NOT aggravated by service.” (d) For currently diagnosed heart disabilities that did not preexist service, provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the disability onset during service, manifested within one year after service separation, or is otherwise etiologically related to service. In forming such opinions, the examiner is directed to specifically consider the notation, of a heart murmur since infancy, which appears within the Veteran’s July 1987 Report of Medical Examination and Report of Medical History. 2. Next, schedule the Veteran for a VA examination to determine the current nature and likely etiology of all disabilities affecting the Veteran’s back. All necessary tests should be performed. The examiner must review the claims file, including the service treatment records and post-service treatment records, in conjunction with the examination. The examiner is reminded that the requirement for a current disability is met if the Veteran’s joint pain results in functional impairment. For each diagnosis identified, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the current disability had its onset during service; and/or is at least as likely as not (a 50 percent or greater probability) related to an in-service injury, event, or disease, to include whether his back pain is an undiagnosed illness or part of a medically unexplained chronic multi-symptom illness related to service in the Southwest Asia theater of operations. In forming the opinion, the examiner must consider the Veteran’s service treatment records, buddy statements, and the Veteran’s lay statements. The opinion must also be supported with a detailed rationale. If the examiner cannot provide the above opinion, the examiner is advised that they must explain why. TIFFANY N. HANSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. KAYS HUKILL 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.