Citation Nr: 1143294 Decision Date: 11/25/11 Archive Date: 12/06/11 DOCKET NO. 10-38 042 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for dysphagia, to include as secondary to service-connected residuals of a tonsillectomy. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Dale, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1946 to October 1947. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which denied the benefits sought on appeal. The Veteran appealed that decision to BVA, and the case was referred to the Board for appellate review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Reason for Remand: To obtain clarifying VA opinions. The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). In this case, the Veteran has asserted his claim for service connection under the theories of direct and secondary service connection. Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Under section 3.310(a) of VA regulations, service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service- connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The evidence of record reflects that the Veteran has been diagnosed with mild dysphasia at the pharyngeal phase of swallowing. See e.g. the March 2010 VA examination report. Accordingly, element (1) has been demonstrated for both theories of entitlement. The Veteran's service treatment records reflect that he underwent a tonsillectomy on December 6, 1946, during his service. Further, in an October 2006 rating decision, the RO granted the Veteran's claim of entitlement to service connection for residuals of the in-service tonsillectomy; evaluated noncompensably (zero percent ) disabling, effective February 26, 2004. Thus, element (2) has been demonstrated for both theories of entitlement. Thus, for the Veteran's claim to succeed, the evidence of record must reflect that his dysphagia is either (1) causally-related to his military service, to include his in-service tonsillectomy, (2) causally-related to his service-connected residuals of a tonsillectomy, or (3) aggravated by his service-connected residuals of a tonsillectomy. See 38 C.F.R. § 3.310(a); see also Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Concerning element (3), the Veteran was afforded a VA examination in connection with his claim in March 2010. The examiner thoroughly reviewed the Veteran's claims file and medical history, and cited to medical literature. Following a physical examination, the examiner noted that the Veteran had a stroke in 1985 and that the record was devoid of any instance of complaints of or treatment for dysphagia "until recently." The VA examiner opined that, given all these factors, it was "less likely as not that the Veteran's mild dysphasia at the pharyngeal phase of swallowing is either related to or the result of his service-connected tonsillectomy." See the March 2010 VA examination report. The Board concludes that the March 2010 VA examiner's opinion is inadequate for the purposes of this decision. Specifically, the stated opinion fails to address whether the Veteran's dysphasia is either (1) causally-related to his service, to include his in-service tonsillectomy (direct service connection) or (2) aggravated by his service-connected residuals of a tonsillectomy (secondary service connection due to aggravation as per Allen). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Based on the foregoing, the Board finds that a clarifying medical opinion is necessary to determine the etiology of the Veteran's dysphasia. Therefore, in order to give the Veteran every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary. (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.) Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should refer the Veteran's claims file to the March 2010 examiner or, if he is unavailable, to another suitably qualified medical professional for a clarifying opinion as to the etiology of the Veteran's dysphasia. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, statements and this Remand. Thereafter, the examiner should address the following: a. State an opinion as to the likelihood (likely, unlikely, at least as likely as not) that the Veteran's dysphasia is causally-related to his military service, to include his December 1946 tonsillectomy. b. State an opinion as to the likelihood (likely, unlikely, at least as likely as not) that the Veteran's dysphasia is aggravated by his service-connected residuals of a tonsillectomy. In rendering the opinions, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. Thus, unless the examiner concludes that the current disability is either likely or unlikely the result of an event, injury, or disease incurred in service, the examiner should state whether it is at least as likely that the current disability is the result of an event, injury, or disease incurred in service as opposed to its being the result of some other factor or factors. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2011), the Veteran's complete VA claims file, to include copies of all pertinent service treatment records, post-service treatment records and statements by the Veteran must be made available to the examiner for review. 2. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefit sought is not granted to the fullest extent, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The Veteran has the right to submit additional evidence and/or argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until he is notified. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).