GASTROESOPHAGEAL REFLUX DISEASE (GERD)

Summary

The veteran, who served from 1968 to 1970, appeals the denial of service connection for GERD and seeks an increased rating for headaches. The Board granted a 50 percent rating for headaches but denied an increased rating for GERD. The claim for service connection for a cervical disability was reopened based on new and material evidence, and both the cervical and low back disability claims were remanded for further development. Regarding GERD, the veteran contended that his current 30 percent rating was insufficient. However, the Board found that while the veteran experienced symptoms like epigastric pain, pyrosis, nausea, and dysphagia, and had some vomiting and weight loss, these did not meet the criteria for a higher rating, particularly the requirement for material weight loss or combinations of symptoms productive of severe impairment of health. The Board noted periods where the veteran reported no gastrointestinal complaints and found the evidence preponderated against a higher rating. For headaches, the Board agreed with the veteran that a higher rating was warranted. The Board found the evidence evenly balanced regarding the criteria for a 50 percent rating, citing frequent, prostrating headaches with prolonged attacks, missed work hours, and supportive testimony from the veteran's spouse. Resolving reasonable doubt in the veteran's favor, the 50 percent rating was granted. The cervical disability claim was reopened due to new and material evidence, including the veteran's testimony about in-service onset and subsequent treatment records showing a diagnosis of intervertebral disc disorder with myelopathy. The low back disability claim was remanded based on the veteran's and spouse's testimony regarding in-service onset and complaints, which the Board found competent and credible, warranting a VA examination.

Rationale

Symptoms do not meet criteria for 60% rating.; No material weight loss, hematemesis/melena with anemia, or severe impairment.; Periods of no GI complaints noted in primary care visits.

Full Decision Text

Citation Nr: 18120265
Decision Date: 07/23/18	Archive Date: 07/20/18

DOCKET NO. 11-25 235
DATE:	July 23, 2018
ORDER
Entitlement to a rating in excess of 30 percent for GERD is denied.
Entitlement to a 50 percent rating, but no higher, for a headache condition is granted.
New and material evidence having been submitted, the claim of entitlement to service connection for a cervical disability, is reopened.
REMANDED
Entitlement to service connection for a low back disability is remanded.
Entitlement to service connection for a cervical disability is remanded.
FINDINGS OF FACT
1. The Veteran’s GERD is not productive of vomiting, material weight loss, or hematemesis or melena with moderate anemia.  Additionally, the Veteran’s disability is not productive of any other combinations of symptoms productive of severe impairment of health.
2. The evidence is evenly balanced as to whether the Veteran has headaches which are characterized by very frequent completely prostrating and prolonged headache attacks productive of severe economic inadaptability.
3. A January 2004 rating decision denied service connection for a cervical disability.  The Veteran neither appealed this decision nor submitted new and material evidence within the one-year appeal period. 
4. Evidence added to the record since the January 2004 rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for a cervical disability for service connection.
CONCLUSIONS OF LAW
1. The criteria for a rating in excess of 30 percent for GERD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.27, 4.114, Diagnostic Code 7399-7346 (2017). 
2. Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to a 50 percent rating, but no higher, for a headache condition have been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.14, 4.124a, Diagnostic Code 8100 (2017).
3. The January 2004 rating decision denying the claim for service connection for a cervical disability is final.  38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017).
4. New and material evidence has been received to reopen the claim of entitlement to service connection for a cervical disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a) (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
New and Material Evidence
Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed.  38 U.S.C. §§ 7104 (b), 7105(c).  The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 
New evidence means existing evidence not previously submitted to agency decisionmakers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156 (a).
The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion
iating the claim.  38 C.F.R. § 3.156 (a).
The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion.  Id. 
For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).
Here, the evidence received since the January 2004 final denial includes testimony of the Veteran at his February 2018 hearing and various Statements in Support of Claim.  Specifically, the Board notes that during his hearing, the Veteran testified that his neck pain began in service after working with heavy equipment and having to do sit-ups for exercise.  The Veteran further testified that the pain has continued since service.  The Board notes that although the credibility of the evidence is presumed for purposes of reopening the Veteran’s claim, the Veteran’s testimony is substantiated by other “new and material” evidence of record.  See Justus, supra.  
For example, in the Veteran’s September 2011 Statement in Support of Claim, the Veteran explained that he attempted to seek treatment for his neck from July to September 1998, but that he did not qualify for treatment because he was told that he did not have enough active duty service time.  The Veteran further noted that he complained of neck pain shortly thereafter in October 1998, when he was able to receive treatment for his service-connected hypertension.  The Board notes that medical evidence supports the Veteran’s statement.  In addition, the Veteran’s testimony is further supported by his service treatment records (STRs) which show that the Veteran did in fact fail the sit-up portion of his PT test, and separation was recommended.
Given the above, the Board finds that the evidence received since the January 2004 rating decision is not cumulative or redundant and raises a reasonable possibility of substantiating the Veteran’s claims.  While the RO previously denied the Veteran’s claim of service connection for a cervical condition based on the absence of treatment or diagnosis of such during active service, the evidence received since the January 2004 rating decision includes testimony offering a reasonable probability that the Veteran’s cervical condition may have begun in service.  Moreover, medical records added since the January 2004 rating decision show consistent complaints of neck pain.  The Board notes that the RO also previously denied the Veteran’s claim for lack of a clinical diagnosis; however, since January 2004, treatment records show a diagnosis of intervertebral disc disorder with myelopathy, cervical region, and cervical myositis.   
As a result, the Board finds that the old and new evidence of record, considered as a whole, “triggered” VA’s duty to assist to provide a medical opinion in this case.  See Shade, supra; McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159 (c)(4)(i).  On this basis, and consistent with the holding in Shade, the Board finds that new and material evidence has been received to reopen the claims for service connection for a cervical condition.  The claim is further discussed in the remand portion below.  
Increased Ratings
Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.
In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran’s condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). 
If
; 38 C.F.R. §§ 4.1, 4.2, 4.10.
In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran’s condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). 
If two evaluations are potentially applicable, the higher evaluation is assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  Any reasonable doubt regarding a degree of disability is resolved in favor of the veteran.  38 C.F.R. § 4.3.
Pyramiding, the evaluation of the same disability under various diagnoses, is to be avoided.  38 C.F.R. § 4.14.  However, separate evaluations for separate and distinct symptomatology may be assigned where none of the symptomatology justifying an evaluation under one Diagnostic Code is duplicative of or overlapping with the symptomatology justifying an evaluation under another Diagnostic Code.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).
1. Entitlement to a rating in excess of 30 percent for GERD.
The Veteran’s current disability rating of 30 percent was assigned pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7399-7346.  Diagnostic Code 7399 refers to disabilities of the digestive system, while Diagnostic Code 7346 refers to hiatal hernia.  GERD is not listed in the rating schedule.  In this case, the Board finds the use of the hyphenated Diagnostic Code 7399-7346 to be appropriate as the Veteran’s GERD symptoms are more closely captured by those listed under Diagnostic Code 7346.
Pursuant to Diagnostic Code 7346, a 60 percent rating is assigned for symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Comparatively, a 30 percent rating is assigned for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.
The Veteran contends that the currently assigned 30 percent rating does not accurately reflect the severity of his disability.  After reviewing the record, the Board finds that a higher rating is not warranted as the Veteran’s GERD manifest with symptoms of abdominal pain, dysphagia, pyrosis, regurgitation, and occasional vomiting, but no hematemesis, melena, anemia, or other symptom combinations productive of severe impairment of health.
The evidence shows that the Veteran was diagnosed with GERD in 2004.  In his March 2008 VA examination, the Veteran reported that he has epigastric pain, described as a burning sensation, pyrosis, nausea, and sometimes vomiting.  He further reported that initially his doctor prescribed omeprazole, but that the medication was not working, so he began to take Prevacid which causes relief.  The Veteran contended that his medication, including his antihypertensive medication, causes his symptoms.  Upon examination, the examiner noted daily epigastric pain before eating, lasting minutes in duration, daily nausea, and vomiting several times a week, but no episodes of hematemesis, melena, diarrhea, anemia, or significant weight loss.  The examiner determined that the Veteran’s GERD is related to his hypertension medication which causes adverse reactions such as nausea, abdominal pain, dyspepsia, epigastric distress, and gastritis.
The Veteran received a second VA examination in May 2011.  The examiner noted that the Veteran experiences nausea several times a week, esophageal distress several times daily, accompanied by moderate to severe pain, and dysphagia at least weekly.  The examiner also noted pyrosis occurs daily, regurgitation several times a week, and a history of moderate hematemesis or melena occurring in 2006.  The examiner further noted that the Veteran did not exhibit signs of anemia or significant weight loss or malnutrition.
In June 2016, the Veteran received a VA examination where the Veteran reported that his condition has become progressively worse since his last examination.  The Veteran reported
igastric distress, and gastritis.
The Veteran received a second VA examination in May 2011.  The examiner noted that the Veteran experiences nausea several times a week, esophageal distress several times daily, accompanied by moderate to severe pain, and dysphagia at least weekly.  The examiner also noted pyrosis occurs daily, regurgitation several times a week, and a history of moderate hematemesis or melena occurring in 2006.  The examiner further noted that the Veteran did not exhibit signs of anemia or significant weight loss or malnutrition.
In June 2016, the Veteran received a VA examination where the Veteran reported that his condition has become progressively worse since his last examination.  The Veteran reported symptoms of pyrosis, reflux, nausea, and sleep disturbance caused by esophageal reflux, and that his symptoms occur at least four times per year, lasting less than one day in duration.  
Considering the above and remaining evidence, the Board finds that a higher rating is not warranted.  As noted above, the Veteran’s GERD symptoms consisted primarily of epigastric distress with pain, pyrosis, nausea, and dysphagia.  None of the examiners noted material weight loss, hematemesis or melena, anemia, or other symptom combinations productive of severe impairment of health.  Moreover, the Veteran noted in his 2008 examination that he has vomiting “sometimes,” and further testified that “I do tend to vomit,” which seems to suggest that he does not do so often.  Nonetheless, the Veteran’s vomiting did not occur in conjunction with hematemesis, melena, anemia, or any other symptoms productive of severe impairment of health.  
Additionally, the Board notes that the evidence shows that from February 2009 to January 2010, the Veteran did not have any gastrointestinal complaints during several primary care follow-up visits.  Specifically, the examiner in each visit noted that the Veteran was negative for gastrointestinal symptoms to include dysphagia, abdominal pain, nausea, vomiting, hematemesis, diarrhea, melena, and hematochezia.  Although in a February 2, 2010 primary care follow up,, the Veteran reported having exacerbated gastric reflux with vomiting two times within one month, epigastric burning sensation, and swelling of the left cheek, the examiner merely prescribed the Veteran Protonic and added Carafate.  Shortly thereafter in a February 23, 2010 follow-up, the examiner noted that the Veteran had no gastrointestinal symptoms.  Furthermore, the Veteran reported improved GERD with gargles in April 2010; and, in a June 2011 procedure for his shoulder, the examiner noted that the Veteran had no gastrointestinal complaints
The Board recognizes the Veteran’s hearing testimony where he reported dry mouth, burning sensation in throat, bad smell, and that he spits blood; however, these symptoms do not warrant a 60 percent rating.  Moreover, although the Veteran reported weight loss, the Veteran explained that he loses and gains weight, including a loss of ten pounds.  However, the Board finds that the Veteran’s loss of ten pounds does not amount to the “material weight loss” required to substantiate a higher rating.  In addition, there is no medical evidence in the record that shows the Veteran experienced a significant weight loss stemming from his GERD.  In fact, in February 2009, the Veteran was determined to be obese and was referred for a weight management program.
Given the above, the Board finds that the Veteran has not displayed vomiting, material weight loss, and hematemesis or melena with moderate anemia throughout the period of appeal.  Further, the Veteran’s service-connected disability has not produced any other combinations of symptoms productive of severe impairment of health.  For these reasons, the Board cannot assign a disability rating in excess of 30 percent pursuant to Diagnostic Code 7399-7346.
As the clinical records are absent findings consistent with the criteria for a higher 60 percent rating, the Board finds that the preponderance of the evidence is against assigning a disability rating in excess of 30 percent pursuant to Diagnostic Code 7399-7346.  As such, an increase rating in excess of 30 percent for GERD is denied.
2. Entitlement to a rating in excess of 30 percent for a headache condition.
The Veteran’s headaches have been rated under DC 8100.  Under DC 8100, a 30 percent rating is warranted for characteristic prostrating attacks occurring on average once a month over the last several months.  The maximum schedular rating of 50 percent is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.
The Veteran contends that his service-connected headaches warrant a higher rating than the currently assigned 30 percent rating.  After reviewing the record, the Board agrees
 Code 7399-7346.  As such, an increase rating in excess of 30 percent for GERD is denied.
2. Entitlement to a rating in excess of 30 percent for a headache condition.
The Veteran’s headaches have been rated under DC 8100.  Under DC 8100, a 30 percent rating is warranted for characteristic prostrating attacks occurring on average once a month over the last several months.  The maximum schedular rating of 50 percent is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.
The Veteran contends that his service-connected headaches warrant a higher rating than the currently assigned 30 percent rating.  After reviewing the record, the Board agrees with the Veteran’s contention and finds that a higher rating is warranted.  In so finding, the Board notes the Veteran’s March 2008 VA examination where the Veteran reported that the medications he takes for his uncontrolled blood pressure increases the severity of his headaches.  The Veteran further reported that his headaches occur about two to three times weekly, and that he has to miss about 60 to 80 hours of work due to his headaches and uncontrolled blood pressure.  The examiner noted that the Veteran has headaches weekly, lasting in duration for hours, and that less than half of the attacks are prostrating.  After examining the Veteran, the examiner concluded that the Veteran’s hypertension, along with other conditions such as cervical myositis/spasm, and sinusitis contributes to the Veteran’s headache condition.  
In his June 2011 neurological examination, it was noted that the Veteran has headaches weekly, with less than half being prostrating, and that the Veteran lost one week of work in the past twelve month period.  
In a January 2012 progress note, the Veteran reported having headaches accompanied by nausea, dizziness, and blurring of vision.
In his February 2018 hearing, the Veteran testified that he has headaches and misses work about three times a week.  He further testified that, at times, his headaches reoccur throughout the day, and that he goes to the hospital approximately twice a month for his headaches.  
Considering the above and remaining evidence, the Board finds that the evidence is approximately evenly balanced as to whether the Veteran’s headaches more closely approximate the criteria for a 50 percent rating under DC 8100 throughout the appeal period.  The Board finds credible and probative the Veteran’s statements that demonstrate that he has experienced frequent prostrating headaches with prolonged attacks that are productive of severe economic inability. 
To this end, although it was noted in his March 2008 and June 2011 examinations that less than half of the Veteran’s headaches are prostrating, the examiners also noted that the Veteran experiences migraine headaches on a weekly basis lasting for hours in duration.  Moreover, the question of whether the symptoms meet the relevant criteria is a legal and not a medical one, and the VA adjudicators, including the Board, are responsible for making this ultimate determination.  See VA Adjudication Procedures Manual, M21-1, Part III, Subpart. iv, Chapter 3, Section A.7.i (updated Oct. 28, 2015) (“Do not request a medical authority to make conclusions of law, which is a responsibility inherent to the rating activity”). 
Indeed, the Veteran has continuously reported that he has headaches that occur frequently with other symptoms such as nausea, dizziness, and blurring of vision.  He further reported that he has missed 60 to 80 hours of work.  Furthermore, the Veteran’s spouse supported the Veteran testifying that they essentially “shut down” when the Veteran has headaches, which includes turning off everything and allowing the Veteran to rest.  
Although the term “severe economic inadaptability” is not defined in the regulation, the Board finds that the nature and frequency of the headaches described by the Veteran and the VA treatment providers would approximate this definition.  Pierce v. Principi, 18 Vet. App. 440, 445 (2004) (acknowledged VA’s concession that the phrase “productive of severe economic inadaptability” in DC 8100 should be construed as either “producing” or “capable of producing” severe economic inadaptability).
In sum, the Board finds the evidence is approximately evenly balanced as to whether the Veteran’s headaches more nearly approximate the criteria for a 50 percent rating under DC 8100.  As the evidence is in equipoise, reasonable doubt must be resolved in favor of the Veteran.  Accordingly, entitlement to the maximum schedular 50 percent rating for the Veteran’s headaches under DC 8100 is warranted.  38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3.
REASONS FOR REMAND
1. Ent
 economic inadaptability” in DC 8100 should be construed as either “producing” or “capable of producing” severe economic inadaptability).
In sum, the Board finds the evidence is approximately evenly balanced as to whether the Veteran’s headaches more nearly approximate the criteria for a 50 percent rating under DC 8100.  As the evidence is in equipoise, reasonable doubt must be resolved in favor of the Veteran.  Accordingly, entitlement to the maximum schedular 50 percent rating for the Veteran’s headaches under DC 8100 is warranted.  38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3.
REASONS FOR REMAND
1. Entitlement to service connection for a low back disability is remanded.
2. Entitlement to service connection for a cervical disability is remanded.
After further review, the Board finds that further development is necessary before the Board can properly adjudicate the Veteran’s claims.  
The Veteran is seeking service connection for both a low back disability and cervical spine disability.  As mentioned above, new and material evidence has been received to reopen the Veteran’s claim of service connection for a cervical condition; thus, triggering VA’s duty to assist.  Consequently, a VA examination and opinion is warranted to determine the etiology of the Veteran’s neck condition.  
With regard to the Veteran’s low back disability, the Board notes that the Veteran’s claim for service connection for a low back disability was denied on grounds that STRs did not reflect treatment for a back condition, and that there was no evidence that the Veteran’s low back condition occurred in service or was caused by service.  However, in the Veteran’s hearing, the Veteran testified that his back pain began after having to manage heavy equipment while in service, and that the pain has continued.  Additionally, the Veteran’s spouse also testified that the Veteran would complain of back and leg pain while in service, and that it was difficult for him to perform his PT requirements.  
In considering the testimony described above, the Board finds the Veteran and his spouse, are competent to report on the onset and recurrent symptoms of his condition.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  The Board also finds the testimony credible.  As noted above, the evidence shows that the Veteran failed his PT test in 1997, and subsequently, discharge was recommended.  In addition, medical records show a number of low back pain complaints since discharge.  Given that the Veteran has provided competent and credible testimony regarding the onset of his back pain, an examination is warranted to determine whether the Veteran’s back pain causes functional impairment; and, whether the Veteran’s back pain is causally related to the Veteran’s active duty service.  See McClendon v. Nicholson, 20 Vet. App. 79 (2006); see also Saunders v. Wilkie, 2018 U.S. App. LEXIS 8467 (Fed. Cir. April 2018).
The matters are REMANDED for the following action:
1. Obtain all of the Veteran’s outstanding VA treatment records from May 2012, and any other medical evidence that may have come into existence or is identified since the time the Veteran’s claim was filed.  All efforts to obtain these records must be documented in the Veteran’s claim file.  
2. Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of any low back and cervical spine disabilities.  The claims file must be made available to, and reviewed by the examiner.  Any indicated studies should be performed. 
Lay statements of record should be considered in the rendering opinions.
A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed.  If the examiner determines that he or she is unable to provide the requested opinion without resort to speculation, the examiner must provide a reasoned explanation for such conclusion.
a). The examiner should first identify all disabilities associated with the Veteran’s thoracolumbar spine.  
b)	Then for each disability identified, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that the identified disability is etiologically related to service.
c)	If the examiner determines that the Veteran does not have a back disability, but the Veteran has pain only, the examiner should provide an opinion as to whether there is functional loss related to that pain.
d)	The examiner should also provide an opinion as to whether any identified back pain is at least as likely as not (50 percent probability or better) related to the Veteran’s active duty service.  
e)	The examiner should provide an opinion as to whether it is at least as likely
 thoracolumbar spine.  
b)	Then for each disability identified, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that the identified disability is etiologically related to service.
c)	If the examiner determines that the Veteran does not have a back disability, but the Veteran has pain only, the examiner should provide an opinion as to whether there is functional loss related to that pain.
d)	The examiner should also provide an opinion as to whether any identified back pain is at least as likely as not (50 percent probability or better) related to the Veteran’s active duty service.  
e)	The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran’s cervical spine disability had its onset in service, or is otherwise related to the Veteran’s active duty service.
3. After completion of the above, readjudicate the claims.  If any benefit requested on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and provided an opportunity to respond.  The case should then be returned to the Board for further appellate consideration, if in order.

 
GAYLE E. STROMMEN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K. Laffitte, Associate Counsel