Citation Nr: A25041269 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 240523-444832 DATE: May 6, 2025 ORDER Service connection for a lumbosacral strain (claimed as back pain) is granted. REMANDED Service connection for joint pain is remanded. Service connection for scoliosis is remanded. FINDING OF FACT Affording the Veteran the benefit of doubt, the evidence is approximately balanced (nearly equal) in favor of finding the Veteran's currently diagnosed lumbosacral strain (See January 2024 VA examination), and its objectively observable symptoms began in service and continued since service, thereby establishing a causal link (nexus) between his military service and his currently diagnosed lumbosacral strain. [The Board assigns significant probative weight to the Veteran's reports that his back pain began in 1984 during service from heavy lifting and that the pain progressively worsened post service (see January 2024 VA examination); no probative weight is assigned to the January 2024 VA medical opinion because the examiner stated that there were no reports of back pain during service, but the Veteran's service treatment records contradict this because there are multiple instances of back pain reported in 1983-1984.] CONCLUSION OF LAW The criteria are met for service connection for a lumbosacral strain (claimed as back pain). 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2021); see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise has no probative value). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1983 to March 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2024 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In the April 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. By law, for claims appealed in this docket, the Board may only consider the evidence of record at the time of the AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot, by law, be considered by the Board as evidence in this decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claims of service connection for scoliosis and joint pain, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). 1. Service connection for a lumbosacral strain (claimed as back pain) is granted. For the reasons outlined in more detail above in the Findings of Fact section, the appeal for service connection for a lumbosacral strain is granted. REASONS FOR REMAND 2. Service connection for joint pain is remanded. The appeal for service connection for joint pain is remanded for the AOJ to satisfy a regulatory or statutory duty where correction of that error would have a reasonable possibility of aiding in substantiating the claim. 38 C.F.R. § 20.802(a). Specifically, in a November 2023 phone call, the Veteran clarified that his claim for joint pain included a left and right hip condition, bilateral wrist conditions, and bilateral elbow conditions. While the AOJ correctly attempted to obtain the Veteran's private treatment records, it appeals that not all the Veteran's private treatment records were obtain. Additionally, the Veteran has generally asserted that his joint pain is due to weightlifting while on active duty. The Board notes that the Veteran has reported symptoms of pain, but the record is unclear if there is any functional impairment because no VA examinations were conducted. See Saunders v. Wilkie, 886 F.3d 1356 (2018) (despite lack of a formal diagnosis, symptoms may count as a disability for Department of Veteran's Affairs (VA) compensation purposes if they cause functional impairment). Accordingly, remand to correct this duty to assist error and satisfy other regulatory or statutory duties is required. ? 3. Service connection for scoliosis is remanded. The appeal for service connection for scoliosis is remanded for the AOJ to satisfy a regulatory or statutory duty where correction of that error would have a reasonable possibility of aiding in substantiating the claim. 38 C.F.R. § 20.802(a). Specifically, the January 2024 VA examination does not address the Veteran's scoliosis. Further, the Veteran has asserted that it is his belief that his scoliosis is caused by weightlifting during active-duty service. The Veteran is now service connected for a lumbar strain due to his weightlifting in service and the Board finds error in the examiner not addressing the scoliosis during the examination. Accordingly, the Board finds remand to correct this duty to assist errors and satisfy other regulatory or statutory duties is required. The matters are REMANDED for the following action: 1. The AOJ should obtain, if possible, records of relevant private evaluations and treatment the Veteran has received. The Veteran must assist in the matter by identifying his private healthcare providers and by submitting releases for VA to obtain any private records identified. 2. The AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any joint pain disability. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) For each joint pain disability diagnosed, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the disability was either incurred in or otherwise related to the Veteran's active-duty service? Please explain why. The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran's reports are both accurate and credible. The examiner is also reminded that, by law, observable symptoms persisting since service may be sufficient to establish a causal link (nexus), absent clear and convincing medical evidence to the contrary. By law, a lack of medical evidence is not considered "clear and convincing." The examiner is further reminded that, by law, despite lack of a formal diagnosis, symptoms may count as a disability for VA compensation purposes IF THEY CAUSE FUNCTIONAL IMPAIRMENT. A detailed explanation (rationale) is required for all opinions provided. By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested. 3. The AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any scoliosis disability. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) For each scoliosis disability diagnosed, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the disability was either caused or aggravated by the Veterans service-connected lumbar spine disability? Please explain why. (b.) For each scoliosis disability diagnosed, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the disability was either incurred in or otherwise related to the Veteran's active-duty service? Please explain why. The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran's reports are both accurate and credible. The examiner is also reminded that, by law, observable symptoms persisting since service may be sufficient to establish a causal link (nexus), absent clear and convincing medical evidence to the contrary. By law, a lack of medical evidence is not considered "clear and convincing." The examiner is further reminded that, by law, despite lack of a formal diagnosis, symptoms may count as a disability for VA compensation purposes IF THEY CAUSE FUNCTIONAL IMPAIRMENT. A detailed explanation (rationale) is required for all opinions provided. By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Williams, M. E. (BVA) 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.