Citation Nr: 21015187 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 12-32 866 DATE: March 16, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder for treatment purposes only, pursuant to 38 U.S.C. § 1702, is dismissed. REMANDED Entitlement to service connection for a left rib disability, to include as secondary to service-connected disabilities, is remanded. FINDING OF FACT As the Veteran has been granted service connection for unspecified anxiety disorder, and this encompasses the right to treatment, the issue of service connection for an acquired psychiatric disorder for treatment purposes only, is rendered moot. CONCLUSION OF LAW The claim for service connection for unspecified anxiety disorder, which affords greater benefit, has been granted and, as such, the claim for service connection for an acquired psychiatric disorder for treatment purposes only, pursuant to 38 U.S.C. § 1702, is rendered moot. 38 U.S.C. §§ 7104(a), 7105(d)(5); 38 C.F.R. §§ 19.7, 20.101, 20.200. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Marine Corps from August 2006 to August 2010. The Veteran is a Gulf War Era Veteran. This issue is before the Board of Veterans’ Appeals (Board) from an April 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. This case was previously before the Board in December 2016 and October 2020. In December 2016, the case was remanded, in pertinent part, to obtain outstanding treatment records and a VA examination to determine the nature and etiology of his acquired psychiatric disability and a rib disability. In October 2020, the claim was remanded to obtain an addendum VA examination as to the nature and etiology of his acquired psychiatric disorder and rib disability. Subsequent to the October 2020 Board remand, but prior to its return to the Board for readjudication, the Veteran was granted service connection for an acquired psychiatric disability. As the Veteran was granted service connection, the Veteran has been granted his claim in full, the issue is no longer on appeal, and the Board will not address this issue further in this decision. Seri v. Nicholson, 21 Vet. App. 441, 447 (2007); see also Grantham v. Brown, 114 F.3e 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of “downstream” issues such as the compensation level assigned for the disability or the effective date of service connection). The claim has been returned to the Board for readjudication. Entitlement to service connection for an acquired psychiatric disorder for treatment purposes only, pursuant to 38 U.S.C. § 1702, As the Veteran has been awarded service connection for unspecified anxiety disorder, the issue of entitlement to service connection for purposes of establishing eligibility for treatment for an acquired psychiatric disorder, pursuant to the provisions of 38 U.S.C. § 1702 is moot. See 38 C.F.R. § 17.37(b). The Veteran will be afforded equal or greater access to VA treatment by virtue of his now established award of service connection for an acquired psychiatric disability. See 38 U.S.C. § 1710; 38 C.F.R. § 17.36. As such, the appeal as to this specific issue is dismissed. See Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (noting that dismissal is the proper remedy to employ when an appeal has become moot). REASONS FOR REMAND Entitlement to service connection for a left rib disability, to include as secondary to service-connected disabilities, is remanded. The Veteran underwent a VA examination to determine the nature and etiology of his left rib disability in January 2011, and addendum opinions were provided in April 2020 and December 2020. In the January 2011 VA examination, the VA examiner diagnosed left posterior chest strain, but did not provide an opinion regarding the etiology of the disability. In April 2020, the VA examiner opined that it was less likely than not that the Veteran’s left rib disability was related to service; the examiner further opined that the reported rib pain in September 2010 was subacute musculoskeletal pain, but provided no rationale for this conclusion. The examiner noted that there were no objective findings of a rib disability, nor was there treatment for such a disability, within the nine years after the initial complaint of pain in January 2011. The examiner, however, did not consider that, even if resolved, if there was a disability during the period on appeal, the Veteran may receive service-connection for such a disability. In December 2020, the VA examiner opined that the Veteran’s rib pain was less likely than not due to his military service. The examiner stated that, as there was no complaint of such pain in the service treatment records, the rib disability was likely new and acute, unrelated to military service. The examiner went on to state that it was a separate condition from a lumbar strain and these conditions were not related to each other. The examiner, however, did not opine as to aggravation of the rib disability, to include pain, by the Veteran’s service-connected disabilities. 38 C.F.R. § 3.310; see Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Accordingly, a new VA examination is warranted. The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for the disabilities on appeal. After acquiring this information and obtaining any necessary authorizations, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA treatment records. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his left rib and/or left posterior thoracic spine disabilities. The Veteran's claims file, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must reflect that such a review was undertaken. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. (a.) Please identify each left rib and left posterior thoracic spine disability affecting the Veteran during the period on appeal. If possible, an onset date should be provided. If any of these issues have resolved, this should be clearly stated, along with a date of resolution, in the examination report. The examiner must also address whether the Veteran has a disability manifested by pain in the left rib or left posterior thoracic spine. The examiner should specifically indicate whether the Veteran has or had had functional impairment of earning capacity of the left rib or left posterior thoracic spine, in accord with the holding of Saunders v. Wilkie, 885 F.3d. 1356 (Fed. Cir. 2018). (b.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left rib or left posterior thoracic spine disability was incurred in, or is causally related to, the Veteran's military service. (c.) The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left rib disability is causally related to or aggravated beyond the normal progression by any of his service-connected disabilities, to specifically include his service-connected lumbar strain. This opinion should include discussion of body habitus changes, altered posture, altered gait, and perception of pain as due to his service-connected disabilities. The examiner is advised that a finding that the left rib disability was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. (d.) The examiner should also opine as to the following: 1. If any left rib or left posterior thoracic spine symptomatology cannot be attributed to a known clinical diagnosis, the examiner should describe pertinent objective findings related to such symptomatology. 2. If the Veteran has any left rib or left posterior thoracic spine symptomatology that is not attributable to a known clinical diagnosis, the examiner should opine as to whether it is at least as likely as not that there are symptoms due to any undiagnosed illness, or a medically unexplained chronic multi-symptoms illness resulting from service in Southwest Asia during the Gulf War. If so, the examiner should also comment on the severity of the symptomatology and report all signs and symptoms necessary for evaluating the illness under the rating criteria. It should be noted that the Veteran is competent to attest to observable symptomatology. The examiner's attention is invited to the Veteran's statements concerning the nature and onset of his left rib and left posterior thoracic spine disabilities. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). A clear rationale for the opinion must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. MICHELLE P. KATZ Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Trotter, 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.