Citation Nr: 21006397 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 17-10 777 DATE: February 4, 2021 ORDER Entitlement to service connection for bilateral foot pain (claimed as bilateral foot condition, to include pes planus) is dismissed. REMANDED Entitlement to service connection for a low back disability is remanded. FINDING OF FACT The claim of entitlement to service connection for bilateral foot pain was granted in a December 2020 rating decision; there is no longer a case or issue in controversy. CONCLUSION OF LAW The Board lacks jurisdiction over the issue of entitlement to service connection for bilateral foot pain (also claimed as bilateral foot condition, tender to touch, smells, chronic) because the issue has been rendered moot. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 20.101, 20.200, 20.202. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1979 to July 1991. In December 2019 the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Veteran’s claims were previously remanded by the Board in a March 2020 decision. The Board finds that the RO has substantially complied with the March 2020 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). Entitlement to service connection for bilateral foot pain (claimed as bilateral foot condition, to include pes planus) In December 2020, the RO granted entitlement to service connection for bilateral foot pain. Thus, the benefit sought on appeal was granted in full. Because the issue of entitlement to service connection for bilateral foot pain has been granted, the claim is rendered moot and is no longer in appellate status. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.101, 20.200, 20.202. Accordingly, the claim is dismissed. REASONS FOR REMAND Entitlement to service connection for a low back disability is remanded. The Veteran contends that his low back disability is due to his military service. Specifically, the Veteran reported that he began experiencing lower back pain during service due to lifting and pulling (cranking) in order to prep and launch the weapon system. The Board previously remanded this claim in March 2020. In the Board’s remand, it directed the RO to schedule an examination to determine the nature and etiology of the Veteran’s low back disability. The Board directed the examiner to consider the full record in rendering their opinion. A review of the Veteran’s service treatment records reveals complaints of and diagnosis of sacroiliitis in 1988. Service treatment records from April 1991 indicate the Veteran had treatment for a “slip disc” in Germany. The Veteran’s separation examination also indicates the Veteran has recurrent back pain. In November 2020, the Veteran underwent a VA examination to determine the etiology of his lower back disability. The examiner opined that the Veteran’s lower back disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner indicated the Veteran has a current disability of Grade 1 anterior spondylolisthesis. The examiner indicated the Veteran’s service treatment records from February 1988 reflected a diagnosis of sacroiliitis, and that does not cause/lead to spondylolisthesis. It does not appear the examiner considered the Veteran’s continued reports of lower back pain diagnosed as sacroiliitis in August 1988, nor did the examiner discuss the Veteran’s April 1991 treatment for a “slip disc.” Once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it “takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one.” Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). Moreover, an examination must be based upon consideration of the Veteran’s prior medical history and examinations. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Secretary has an affirmative duty to gather the evidence necessary to render an informed decision on a claim. Douglas v. Shinseki, 23 Vet. App. 19 (2009). The Board finds that the November 2020 VA examination was inadequate because it did not consider the Veteran’s service treatment notes from April 1991 indicating the Veteran was seen for a “slip disc.” Therefore, a remand is necessary to obtain an addendum opinion to determine the etiology of any current lumbar spine disability. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s lower back disability is at least as likely as not related to his military service. For any currently diagnosed lumbar spine disability, the examiner should offer an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that such is related to service. In doing so, the examiner should acknowledge the Veteran’s contentions of back pain since service. In offering any opinion, the examiner must consider the full record, to include the Veteran’s service treatment records, specifically, the service treatment records from April 1991, and any lay or buddy statements. The examiner is reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). A significant lapse in time between service and post-service medical treatment may be considered a factor in the analysis. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Any opinion provided must be sufficiently supported by medical knowledge and rationale, and therefore, not conclusionary in nature. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. Taylor, 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.