Citation Nr: 22014983
Decision Date: 03/15/22	Archive Date: 03/15/22

DOCKET NO. 16-50 229
DATE: March 15, 2022

REMANDED

Service connection for a low back disorder is remanded.

Service connection for a cervical spine disorder is remanded.

REASONS FOR REMAND

The Veteran served on active duty from December 1974 to September 1976.

In November 2019, the Board remanded the claim to the AOJ of the Department of Veterans Affairs (VA) for additional development.  The case has since been returned to the Board for appellate review.

1. Service connection for a low back disorder is remanded

Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure the Veteran is given every possible consideration.

As noted above, in November 2019, the Board remanded the claim for an opinion regarding the etiology of the Veteran's back condition. In October 2020, a VA examiner opined that the Veteran's back condition is less likely than not incurred in or caused by active service. Notably, the examiner relied on normal image studies that were taken for 20 years after the Veteran's separation from active service.  However, the Board finds that the examiner failed to address the Veteran's lay assertions of low back pain since active service. See Board Remand Directive # 4. The November 2019 Board remand noted that the Veteran reported back pain in April 1975 and in March 1976 after falling on a wet floor.  The Veteran maintained that he continued to have back pain since active service. The Board notes pain that results in functional impairment may be considered a disability for VA purposes. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).  

Thus, an additional remand is required to obtain a VA opinion that discusses the Veteran's report of low back pain since active service. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

2. Service connection for a cervical spine disorder is remanded

The issue of service connection for a cervical spine disorder is inextricably intertwined with the claim for service connection for a low back disorder. Notably, as set forth in his March 2012 claim, the Veteran contends that his neck condition is secondary to his low back condition. Thus, service connection for a cervical spine disorder must also be remanded to the AOJ. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991)

The matters are REMANDED for the following action:

1. Obtain an opinion from an appropriate clinician as to the nature and etiology of the Veteran's low back disorder.  If an examination is deemed necessary, one should be conducted to include via telehealth if feasible.  The examiner should indicate whether the Veteran's low back disorder is at least as likely as not (an approximate balance of evidence) related to an in-service disease or injury, to include the noted treatment for back pain during service.

The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. The examiner should address the Veteran's competent statements and testimony that he has had low back pain since active service

The examiner should provide a complete rationale for all opinions expressed and conclusions reached. If it is not possible to provide an opinion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 

 

 

Marissa Caylor

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Costello, 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.