Citation Nr: 21040048 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-63 295 DATE: July 2, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served in the Army National Guard of Tennessee and as an Army Reservist and was ordered to active duty service from December 2004 to January 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Notably, in his December 2016 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge regarding the issue on appeal. In an April 2019 letter from VA, he was informed of the place, date, and time of his requested hearing. However, he did not appear at the hearing and has neither provided good cause for his failure to appear nor requested the hearing be rescheduled. Under these circumstances, the Veteran's hearing request is deemed withdrawn. Entitlement to service connection for a low back disability is remanded. Although it regrets the delay this action may cause, the Board finds that remand is warranted before the Veteran's appeal can be properly adjudicated on its merits. The Veteran asserts that he suffers from a lower back disability that was incurred during his active duty service and that he has experienced a continuity of symptomatology since service. See, e.g., Notice of Disagreement dated June 8, 2016. He further contends that the disability was caused or aggravated by his service-connected left ankle disability, which causes an altered gait and in turn exacerbates his lower back condition "due to improper body mechanics resulting from pain and discomfort." See Appellate Brief dated November 30, 2020. A review of the record reflects that VA assisted the Veteran in the development of his claim by affording him a physical examination in May 2016. At that time, a VA nurse practitioner documented that the Veteran had no current diagnosis of a back condition and did not previously have any such diagnosis. See VA examination dated May 21, 2016. In making this determination, the clinician cited a series of x-rays of the Veteran's back taken in May 2013, which noted, in relevant part, a "minor abnormality." Although the clinician provided no diagnosis of a low back condition, she reported that the Veteran's back condition impacts his ability to work, insofar as the Veteran reportedly experiences low back pain with prolonged standing, bending, or walking. The nurse practitioner provided a negative nexus opinion, reasoning simply that "[there] is no documentation of a back condition other than intermittent back pain post service and radiology reports do not document a back condition." See medical opinion dated May 21, 2016. However, the Board finds the May 2016 VA examination and accompanying medical opinion to be inadequate for adjudicative purposes. Specifically, the medical report is inconsistent in that it provides no diagnosis of a back condition but subsequently indicates that a back condition negatively impacts the Veteran's ability to work. Additionally, the clinician only addressed secondary service connection in her nexus opinion and rendered no opinion concerning direct service connection. Moreover, the rationale of the opinion is inadequate because it does not sufficiently address the Veteran's contentions that he experienced back pain during service and a continuity of symptomatology since service, nor did the opinion offer any possible explanations as to the origin of the Veteran's back disorder, if not his active duty service. In Saunders v. Wilkie, 885 F.3d. 1356 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit addressed the issue of whether pain without an accompanying pathology can constitute a "disability" under 38 U.S.C. § 1110. The Federal Circuit concluded that "pain is an impairment because it diminishes the body's ability to function, and that pain need not be diagnosed as connected to a current underlying condition to function as an impairment." Id. at 1364. Nonetheless, the Federal Circuit explained that to establish the presence of a disability based on subjective pain, a Veteran "will need to show that his or her pain reaches a level of a functional impairment of earning capacity." Id. at 1368. The March 2016 examiner's report that the Veteran's back disorder negatively impacts his ability to work is suggestive of a functional impairment of earning capacity due to back pain. Ergo, a remand is warranted in order to afford the Veteran a new VA examination for his claimed back disability and to procure a medical opinion addressing the Veteran's assertions about the nature and etiology of his back pain. Accordingly, the matter is REMANDED for the following action: 1. Send the Veteran's claims file to the clinician who conducted the May 2016 examination (if available), or otherwise to an appropriate clinician, for review and for the opinions sought regarding the Veteran's claim for service connection for a low back condition, to include as secondary to his service-connected left ankle disability. ONLY IF another examination is deemed necessary to answer the questions below, should one be scheduled. The clinician is asked to address the following: (a.) Is it at least as likely as not (50 percent probability or greater) that any low back diagnosis the Veteran has (or has had at any time throughout the course of the claim) was incurred in service or is otherwise etiologically related to his military service? (b.) Is it at least as likely as not (a 50 percent probability or greater) that the any low back diagnosis the Veteran has (or has had at any time throughout the course of the claim) was caused by or aggravated by his service-connected left ankle disability? Given that service connection may be awarded for a disability present at any time during the course of an appeal, the opinion needs to specifically address any low back disorder documented by the medical and lay evidence of record, even if the condition is no longer present. The clinician should specifically indicate whether the Veteran has had functional impairment of earning capacity of the lower back, in accordance with the holding of Saunders v. Wilkie, 885 F.3d. 1356 (Fed. Cir. 2018); and if so, the clinician should express an opinion as to whether it is at least as likely as not that such pain was incurred in or otherwise etiologically related to the Veteran's active duty service or his service-connected left ankle disability. It should be noted that the Veteran is competent to attest to observable symptomatology. The clinician's attention is directed to the Veteran's statements concerning the in-service onset of his low back pain, the continuity of symptomatology he has experienced since service, and the impact his service-connected left ankle disability has had on his gait, including the discomfort/pain of his lower back that may be attributable to his altered gait. The clinician is reminded that an absence of prior medical documentation of symptoms or treatment is not, per se, a sufficient basis upon which to find the lack of an association between a current disability and an in-service event or injury. A thorough discussion of the rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions rendered, would be of significant assistance to the Board. 2. After the above development has been completed, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, issue a supplemental statement of the case to the Veteran and his representative, and afford the Veteran and his representative an adequate opportunity to respond prior to returning the issue to the Board for further appellate review. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Tolbert, 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.