Citation Nr: 21024063 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 18-06 472 DATE: April 22, 2021 REMANDED Entitlement to service connection for a thoracolumbar spine disorder is remanded. REASONS FOR REMAND The Veteran had honorable active military service from April 2012 to July 2016. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO)’s October 2016 rating decision. The Veteran testified at an April 2021 virtual hearing before the undersigned Veterans Law Judge. A transcript of that hearing has not yet been added to the file, as this decision is being processed under the Board’s “One Touch” hearing program. A copy of this transcript will be added to the Veteran’s claims file in the ordinary course of business. 1. Entitlement to service connection for a thoracolumbar spine disorder is remanded. The Board finds that remand is warranted to afford the Veteran another VA examination as it finds the previous examination to be inadequate. The Veteran was afforded a VA examination in June 2016 as a result of which the examiner stated that the Veteran does not have a current diagnosis associated with the claimed thoracolumbar spine disorder. However, the examiner noted that he did not review any records in relation to this claim. Therefore, the examiner did not review and consider the Veteran’s in-service treatment for low back pain from August 2015 until February 2016 as shown in his service treatment records, including a magnetic resonance imaging (MRI) study of the lumbar spine conducted in January 2016 that showed he had a small posterior disc protrusion at the L5-S1 level. Moreover, the examiner did not explain why he found there was no diagnosis of a thoracolumbar spine disorder despite the Veteran’s report of low back pain that had improved recently with flare-ups of sharp stabbing pain. Furthermore, the examiner’s failure to provide a diagnosis is inconsistent with his statements on the examination report that the Veteran’s range of motion of the thoracolumbar spine was abnormal or outside of normal range and that he has radicular pain or other signs and symptoms of radiculopathy involving the sciatic nerve of the bilateral lower extremities. Finally, the legal standard for what constitutes a disability for VA purposes has changed since the VA examination. In Sanders v. Wilkie, 888 F.3d 1356 (Fed. Cir. 2018), the Court of Appeals for the Federal Circuit held that, where pain alone results in a functional impairment, it can constitute a disability even if there is no accompanying diagnosis or identifiable condition. Id. at 1364-68. However, to establish the presence of a disability, a veteran needs to show that his or her pain reaches the level of a functional impairment of earning capacity. Id. at 1367-68. As the June 2016 examiner failed to comment on whether the Veteran’s reported pain in the thoracolumbar spine with flare-ups and radiculopathy of the bilateral lower extremities has an impact on his ability to work, the examiner failed to provide evidence that would assist the Board in determining whether his symptoms, including pain, results in a functional impairment. As the Board is remanding for a new VA examination, it finds that the Veteran’s VA treatment records should also be updated to ensure a complete record is before the examiner (as well as the Board if returned to it). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from September 2019 to the Present. 2. Thereafter, schedule the Veteran for a VA examination for his claimed thoracolumbar spine disorder. The examiner must review the claims file. The examiner is asked to: (a) Identify all current low back disabilities, to include any related neurological/radiculopathy disorders, either by diagnosis or by identifying any signs and/or symptoms (e.g., pain) that cause functional impairment in earning capacity; and (b) As to each low back disability identified, please provide an opinion as to whether such disability is at least as likely as not related to the Veteran’s active military service, to include in-service treatment for low back pain from August 2015 until February 2016 as shown in his service treatment records, including a magnetic resonance imaging (MRI) study of the lumbar spine conducted in January 2016 that showed he had a small posterior disc protrusion at the L5-S1 level; and (c) The examiner is requested to address whether the Veteran’s reports about his service as an airborne infantryman with a history of 40-60 parachute jumps, and missions and training involving running and carrying heavy loads as well as his reports of symptoms since service align with current medical knowledge as to how any diagnosed disability develops. Please provide a rationale to support any opinions proffered. Such rationale should include a discussion of the in-service treatment for low back pain from August 2015 to February 2016 (especially the January 2016   MRI), as well as any favorable findings on this or prior post-service examinations and in the Veteran’s post-service treatment records, if any. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.M. Kreitlow 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.