Citation Nr: 21009029 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 14-28 893A DATE: February 18, 2021 ORDER The claim for service connection for posttraumatic stress disorder (PTSD) is dismissed as moot. REMANDED Entitlement to a back disability, to include spina bifida occulta and paraspinous muscle spasms, is remanded. FINDING OF FACT The Regional Office (RO) granted the claim of service connection for PTSD in a September 2020 rating decision. CONCLUSION OF LAW The claim for service connection for PTSD has already been granted and the appeal of that claim is therefore dismissed. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1993 to February 1995, and from March 1996 to May 1997. The matter comes before the Board of Veterans’ Appeals (Board) from an April 2012 rating decision. In April 2018, the Veteran appeared at a hearing before a Veteran Law Judge (VLJ) who is no longer employed at the Board. A transcript of that hearing is of record. In a letter dated January 13, 2021, the Veteran was notified that the VLJ who conducted the April 2018 Board hearing was no longer at the Board. The Veteran did not respond with a request for another optional Board hearing within 30 days of the letter. The claims are now returned before the Board. The Board further notes that the record includes diagnoses of spina bifida occulta and paraspinous muscle spasms. See July 2020 VA Back Conditions Disability Benefits Questionnaire (DBQ). It is well settled that a claimant does “not file a claim to receive benefits only for a particular diagnosis, but for the affliction his... condition, whatever that is, causes him.” Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Given such, the Board finds it appropriate to recharacterize the separate service connection issues for back disorders as a single claim for entitlement to service connection for a back disability, to include spina bifida occulta and paraspinous muscle spasms. 1. The claim for service connection for PTSD is dismissed as moot. In March 2019, the Board remanded the claim for entitlement to service connection for PTSD for further development. Following the remand, in a September 2020 rating decision, the RO granted service connection for PTSD. The Board finds that this grant of service connection constitutes a full award of the benefit sought on appeal with respect to this issue. Given the foregoing grant of benefit in the September 2020 rating decision, there is no case or controversy for the Board to adjudicate with respect to the original claim of entitlement to service connection for PTSD. Consequently, the claim is dismissed. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997); see also 38 U.S.C. § 7104; 38 C.F.R. § 20.101. REASONS FOR REMAND 1. Entitlement to a back disability, to include spina bifida occulta and paraspinous muscle spasms, is remanded. Per the March 2019 Board remand, the claim was remanded for a VA examination and etiology opinion, which were obtained in July 2020. However, the Board finds that the July 2020 VA examiner's opinion is inadequate to decide the claim. First, it is unclear from the opinion whether the examiner determined the Veteran’s spina bifida occulta to be a congenital defect or a congenital disease, because the examiner opined on both “spina bifida occulta as a congenital defect” and “spina bifida occulta as a congenital disease.” It is important to determine which it is – a defect or a disease – because the categorization affects the standard of review for this claim. Next, as to the opinion on “spina bifida occulta as a congenital disease,” the examiner stated that the Veteran has “no lower thoracic/lumbar pain on examination which is where such [congenital] defect would cause symptoms.” However, the record contains numerous complaints of low back pain in the VA medical treatment records, which the examiner failed to address. Third, as to the numerous complaints of low back pain (but no specific diagnosis) in the VA medical treatment records, the United States Court of Appeals (Court) has held that pain in the absence of a presently diagnosed condition can cause functional impairment, which may qualify as a disability for VA purpose. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Here, there is no discussion of the Veteran’s numerous low back pain or any associated functional impairment by the July 2020 VA examiner. Therefore, the July 2020 etiology opinion does not comport with the holding in Saunders. Finally, even though the examiner provided a secondary etiology opinion and opined that the back disability is not related to service-connected pes planus, in June 2019, the Court issued a decision in Ward v. Wilkie, which affects the Veteran's claim. 31 Vet. App. 233 (2019). In Ward, the Court held that secondary service connection is warranted for "any incremental increase in disability any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions... regardless of its permanence." Id. at 239. Upon review of the opinion, the Board finds that the July 2020 etiology opinion does not comport with the holding in Ward. As such, a remand is necessary in order to obtain a new examination and opinion addressing the foregoing concerns. The matters are REMANDED for the following action: 1. Obtain any outstanding relevant VA treatment records and associate the records with the claims file. Any negative reply should be properly included in the claims file. 2. After completion of the above development, schedule a new examination for the back disability. Then obtain a new etiology opinion for the back disability from a new VA examiner. The record and copy of this remand must be made available and reviewed by the examiner in conjunction with the examination. All necessary tests should be completed. Based on the review and the examination, the examiner is asked to: a) Identify any and all back disabilities (to include spina bifida occulta and paraspinous muscle spasms) diagnosed during the appeal period and on current examination. The examiner should also specifically address the Veteran’s numerous complaints of low back pain in the VA medical treatment records. b) For each current diagnosis, state whether each diagnosed back disability is (i) a congenital/developmental defect or (ii) a congenital/developmental disease or (iii) an acquired disease or injury. NOTE: a defect is a structural or inherent abnormality or condition that is more or less stationary in nature whereas a is defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be unknown. c) For each back disability that is determined to be a congenital/developmental DEFECT, opine as to whether it is at least as likely as not (a probability of 50 percent or greater) that the condition was subject to a superimposed disease or injury, resulting in a current back disability. If yes, please identify the superimposed disease or injury, as well as the resultant disability due to such superimposed disease or injury. d) For each back disability that is determined to be a congenital DISEASE, opine whether there is clear and unmistakable evidence (unmistakable) that the congenital disease was not aggravated during service. In other words, is there undebatable evidence that there was no increase in the disability during service or that any increase in disability was due to the natural progress of the pre-existing condition. e) For each back disability that is NOT determined to be a congenital/developmental defect or congenital disease, opine as to whether: (i) Is it "at least as likely as not (50 percent probability or greater)" that the Veteran's back disability BEGAN IN or is related to his time in the service, yes or no? (ii) Is it "at least as likely as not (50 percent probability or greater)" that the Veteran's back disability was: (A) CAUSED BY HIS SERVICE-CONNECTED pes planus, (B) any other service-connected disability, or (C) medicine taken for his other service-connected disabilities, yes or no? (iii) Is it "at least as likely as not (50 percent probability or greater)" that the Veteran's back disability underwent any incremental increase in disability, regardless of its permanence, due to: (A) the service-connected pes planus, (B) any other service-connected disability, (C) medicine taken for his other service-connected disability, yes or no? f) In the event that the criteria for a diagnosis for the low back complaints are not met, the examiner should specifically state whether there is any functional impairment caused by the Veteran's reported low back pain, to include any functional impairment caused by the Veteran's reported low back pain during flare-ups. Evidence of pain alone that causes functional impairment, even without a specific diagnosis or identifiable disease, may constitute a disability for VA purposes. If there is functional impairment, please offer an opinion as to: (i) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s functional impairment due to lower back pain BEGAN IN or is related to his time in the service, yes or no? (ii) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s functional impairment due to lower back pain was: (A) CAUSED BY HIS SERVICE-CONNECTED pes planus, (B) any other service-connected disability, or (C) medicine taken for his other service-connected disabilities, yes or no? (iii) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s functional impairment due to lower back pain underwent any incremental increase in disability, regardless of its permanence, due to: (A) the service-connected pes planus, (B) any other service-connected disability, (C) medicine taken for his other service-connected disability, yes or no? The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. See, e.g, April 2018 Board Hearing Transcript. THE EXAMINER SHOULD ALSO BE AWARE THAT IN RENDERING AN OPINION, IT MUST "CONTAIN NOT ONLY CLEAR CONCLUSIONS WITH SUPPORTING DATA, BUT ALSO A REASONED MEDICAL EXPLANATION CONNECTING THE TWO." SEE NIEVES-RODRIGUEZ V. PEAKE, 22 Vet. App. 295, 301 (2008). Furthermore, if medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010) (The Agency of Original Jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 3. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4.Then, re-adjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Cho, 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.