Citation Nr: 21023649 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-54 557 DATE: April 21, 2021 REMANDED Entitlement to service connection for a back condition is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1965 to December 1968. This matter is on appeal from an August 2016 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, a hearing was held before the undersigned. A transcript of the hearing is in the record. Entitlement to service connection for a back condition is remanded. The Veteran contends that he is entitled to service connection for a back condition. However, upon review of the record, the Board finds that an additional opinion is necessary to adjudicate this claim. In August 2017, the Veteran was provided with a VA examination in which the examiner noted that the Veteran does not have a diagnosed back condition. During the course of this appeal, the U.S. Court of Appeals for the Federal Circuit held in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), that pain alone, even without an accompanying pathology or identifiable condition, can qualify as a disability for service connection purposes if it results in functional impairment of earning capacity. Saunders, 886 F.3d at 1367. During the October 2020 hearing, the Veteran provided a competent and credible report of back pain that limits his ability to perform certain physical activities. Thus, the record reflects that the lack of a diagnosis in this case is not fatal to the Veteran’s claim. Further, the August 2017 examiner opined that the Veteran’s back condition was less likely than not incurred in or caused by service. She noted that there was no diagnosis in service and no documentation of treatment for a back condition throughout the medical records or service treatment records. The Board notes that while a lack of contemporaneous medical records may be a factor to consider and weigh against a Veteran’s lay testimony, the lack of such records does not, in and of itself, render lay evidence not credible. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). If lay evidence presented by a Veteran is ultimately found to be credible and competent, the lack of contemporaneous medical evidence should not be an absolute bar to the Veteran’s ability to prove his claim of entitlement to disability benefits based on that competent lay evidence. Id. at 1337. Moreover, in this case, the record does in fact contain contemporaneous evidence which supports the Veteran’s lay report of a back injury from a truck accident in service, as May 1967 service treatment records note a check-up from the truck accident with pain in the back, and his October 1968 separation examination notes recurrent back pain. Once VA undertakes the effort to provide an examination for a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). An opinion is considered adequate when it is based on consideration of an appellant’s prior medical history and examinations and describes the disability in sufficient detail so that the Board’s evaluation of the claimed disability is a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As the August 2017 opinion does not reflect consideration of the favorable evidence noted in the Veteran’s service treatment records, this matter must be remanded to obtain an additional opinion which adequately addresses and weighs the Veteran’s pertinent medical history. The record also reflects the Veteran receives VA treatment; thus, updated VA treatment records should be associated with the claims file. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from April 2020 to the present. 2. After completing the development in item 1, schedule an examination with an appropriate clinician for the Veteran’s claim for service connection for a back condition. The reviewing clinician should be requested to provide an opinion (based on a review of the record) to answer the following: (a.) Provide a diagnosis for the Veteran’s back pain, if possible. In rendering a diagnosis, any testing deemed necessary should be completed. If a diagnosis is not possible, does the Veteran have pain or other symptoms that are productive of functional impairment? (b.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s back condition (or symptoms resulting in functional impairment) was incurred in service or is otherwise related to an in-service injury, disease, or event, to include the truck accident? A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. H. White, 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.