Citation Nr: 1324042 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 07-30 881A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for partial paralysis of vocal cords (also claimed as a throat condition). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1960 to November 1963. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran also initiated an appeal with respect to the denial of his claims of entitlement to service connection for bilateral hearing loss and tinnitus in the July 2006 rating decision. Service connection for those claimed disabilities was subsequently granted, however, in an October 2009 rating decision, thus constituting a full grant of the benefit sought on appeal with respect to those claim. In his October 2007 VA Form 9, the Veteran indicated that he would like to be scheduled for a hearing before a Veteran's Law Judge of the Board at his local VA office. The record reflects, however, that he failed to appear to his Board hearing scheduled in November 2010. Thus, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(e) (2012). The Board remanded the Veteran's service connection claim on appeal for further evidentiary development in September 2011. For the reasons described below, the claim is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the further delay, it is necessary to pursue additional development to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. In the September 2011 remand of the Veteran's claim, the Board was primarily concerned with obtaining a medical opinion regarding the nature and etiology of the Veteran's claimed throat disability. The Board specifically noted the Veteran's contention that his throat condition was incurred as a result exposure to, and inhalation of, noxious fumes emanating from exploding shells during his military service. The Board further noted that the Veteran was shown to have received the Expert Badge, the Marksman Badge, and the 1st Class Gunner award, and that his military occupational specialty was a heavy weapons infantryman. The Board also observed that it was feasible to believe that he had been subjected to heavy artillery fumes from firing and detonating various types of artillery and explosive weapons. The Veteran was afforded the requested VA examination in October 2011. The VA examiner noted the Veteran's diagnosed TVC cord paralysis/paresis, and noted that no pathology was shown in a CT scan performed in 2005. The examiner then provided the opinion that the Veteran had idiopathic left cord paralysis, and that it was less likely than not that his left cord paralysis was service related. Notably, in an apparent rationale for this opinion, the VA examiner relied on a finding that the Veteran's left cord paralysis was idiopathic. The examiner did not, however, provide any discussion as to why the Veteran's left cord paralysis could not have been related to his service, to include as a result of exposure to fumes from firing and detonation multiple military-type weapons. Accordingly, the VA examiner's opinion is inadequate for determining the etiology of the Veteran's claimed throat disability on appeal. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's reports, but instead relied on an absence of medical records to provide a negative opinion). Accordingly, remand is necessary in order to obtain a new medical opinion regarding the etiology of the Veteran's claimed throat disability. Additionally, in the September 2011 remand, the Board observed that the Veteran reported receiving VA treatment from the VA facility in Hines, Illinois, between 1993 and 2001, and directed that records pertaining to this treatment be obtained. While VA treatment records dated in June 1996 and from November 2002 to June 2006 were obtained, it is unclear whether additional treatment records dated between 1993 and 2001 were available. VA regulations provide that VA will make as many requests as are necessary to obtain relevant records in the custody of a Federal department or agency until the records are obtained or until VA concludes that the records sought do not exist or that further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2) (2012). Accordingly, additional efforts to obtain these identified VA treatment records must be made on remand. See also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain a complete copy of the Veteran's VA treatment records from the VA medical facility in Hines, Illinois, dated between 1993 and 2001. All reasonable attempts should be made to obtain outstanding records. If these identified records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) (West 2002) and 38 C.F.R. § 3.159(e) (2012). 2. Schedule the Veteran for a VA otolaryngology examination. The claims file and a complete copy of this REMAND should be made available and reviewed in association with the examination. The VA examination report should indicate that this has been accomplished. All necessary studies and tests should be conducted. The examiner should diagnose and describe all throat conditions found to be present, to include paralysis of the vocal cords. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed throat disability, to include paralysis of the vocal cords, had its clinical onset during the Veteran's active service or is related to any in-service disease, event, or injury, to include exposure to fumes from discharging heavy artillery fumes and explosive military devices. In providing this opinion, the examiner should specifically address all medical and lay evidence of record addressing the Veteran's claimed throat disability. The examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached, discussing the reasons why the Veteran's disability is or is not at least as likely as not related to his claimed in-service exposure to fumes. The examiner should cite the objective medical findings leading to these conclusions. 3. Thereafter, review the claims file to ensure that the foregoing requested development has been completed. In particular, review the VA examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Finally, readjudicate the Veteran's service connection claim on appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case, and after they have had an adequate opportunity to respond, return his appeal to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Thomas H. O'Shay Acting 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. See 38 C.F.R. § 20.1100(b) (2012).