Citation Nr: 1329945 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 03-20 124 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for throat cramping, pain after eating, difficulty swallowing, and loss of energy as secondary to service-connected residuals of laryngeal cancer. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from February 1964 to February 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board denied the Veteran's claim for entitlement to a disability rating in excess of 60 percent for residuals of laryngeal cancer, to include aphonia, in a May 2004 decision. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a July 2006 Memorandum Decision, the Court vacated and remanded the Board's decision. Thereafter, the Board remanded the issue in April 2007, and again in August 2008. In May 2009, the Board denied the Veteran's claim. In an April 2011 Joint Motion for Remand (JMR), the Secretary of VA and the Veteran (the parties) moved the Court to vacate the May 2009 decision, and the Court subsequently approved the JMR. In October 2011, the Board increased the Veteran's rating from 60 to 70 percent. In July 2012, VA filed a Motion for Partial Remand wherein the 70 percent rating was protected and the remainder of the Board's decision, including its findings as to the additional disorders listed above, was vacated. The Court granted the Motion in an August 2012 Order. In compliance therewith, the Board construed the Veteran's complaints concerning throat cramping, pain after eating, difficulty swallowing, and loss of energy as secondary to service-connected residuals of laryngeal cancer as a distinct claim for service connection and remanded it in March 2013. Therefore, this issue returns to the Board for further consideration. The issue of entitlement to service connection for psychiatric symptoms/disability, including anxiety, was remanded in March 2013 along with the claim currently on appeal. Following development conducted pursuant to the Board's March 2013 remand, the Agency of Original Jurisdiction (AOJ) granted service connection for anxiety disorder in a May 2013 rating decision. As such is a complete grant of the benefits sought on appeal, that issue is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). FINDING OF FACT The most probative evidence fails to link the Veteran's claimed throat cramping, pain after eating, difficulty swallowing, and loss of energy to active service, or to his service-connected residuals of laryngeal cancer. CONCLUSION OF LAW The criteria for service connection for throat cramping, pain after eating, difficulty swallowing, and loss of energy, including as secondary to service-connected residuals of laryngeal cancer, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004). This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA's notice requirements were satisfied by a March 2013 letter which advised the Veteran of the criteria for establishing service connection on both direct and secondary bases, and provided him with notice regarding the assignment of disability ratings and effective dates. The letter was sent prior to the readjudication of the Veteran's claim in May 2013. Next, VA has a duty to assist the Veteran in the development of his claim. This duty includes assisting him in the procurement of pertinent medical records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the RO has obtained and associated with the claims file the Veteran's service treatment records and records of his post-service VA and private treatment. The Veteran was afforded VA compensation and pension examinations germane to his claim for service connection for throat cramping, pain after eating, difficulty swallowing, and loss of energy on appeal in October 2001, December 2002, November 2008, and April 2013. These examination reports are adequate because the examiners based any opinions upon consideration of the Veteran's prior medical history, described the Veteran's symptoms in sufficient detail so that the Board's evaluations of the claimed disabilities would be fully informed, and supported all conclusions with analyses that the Board could consider and weigh against any contrary opinions. Additionally, the VA examiners fully described any functional effects caused by the Veteran's claimed disorders. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The record reflects substantial compliance with the Board's prior remand instructions. In March 2013, which was the Board's initial review and remand of the issue listed above as a distinct claim for service connection pursuant to the Court's August 2012 Order, the Board requested that the RO provide the Veteran with proper VCAA notice, obtain any additional pertinent treatment records identified by the Veteran and all treating VA facilities, and provide him with an appropriate VA examination of his claimed throat cramping, pain after eating, difficulty swallowing, and loss of energy. In response, the RO provided him with proper notice and a request for identification of records in a March 2013 letter, obtained his additional VA treatment records, and provided him with a VA examination in April 2013. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions, and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). For the foregoing reasons, the Board concludes that VA made all reasonable efforts to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. Service Connection In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active service in the Armed Forces, or if preexisting such service, was aggravated therein. Establishing direct service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection may also be established for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2012). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran reported in his April 2013 letter that he is claiming service connection for his claimed conditions and symptoms-namely, throat cramping, pain after eating, difficulty swallowing, and loss of energy-as secondary to his service-connected residuals of laryngeal cancer, and is not claiming that service connection is warranted on a direct or presumptive basis. The Board's independent review likewise finds no basis for a grant of service connection on either a direct or presumptive basis because the claimed disorders were not diagnosed in service or subsequently related to service, and no presumptive basis for service connection is available. Consequently, the remaining question for the Board is whether service connection is warranted as secondary to the Veteran's service-connected residuals of laryngeal cancer. Upon review of the record, the Board finds that service connection for throat cramping, pain after eating, difficulty swallowing, and loss of energy is not warranted because the evidence of record demonstrates that assertions as to the existence of those symptoms lack credibility. Specifically, in an October 2001 VA examination of his nose, sinus, larynx, and pharynx, the Veteran did not report, and the examiner did not find, throat cramping, pain after eating, difficulty swallowing, or loss of energy. Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) (noting that where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist). In a December 2002 VA examination of his nose, sinus, larynx, and pharynx, the Veteran again did not report and the examiner again did not find throat cramping, pain after eating, difficulty swallowing, or loss of energy. In a November 2008 VA examination of his nose, sinus, larynx, and pharynx, the Veteran again did not report and the examiner again did not find throat cramping, pain after eating, difficulty swallowing, or loss of energy; indeed, the examiner expressly found that the Veteran "has had no dysphagia." Finally, in an April 2013 VA examination of his ear, nose, and throat (ENT), the examiner wrote in his report that: I was asked to check with him on throat cramping, pain after eating, [and] difficulty swallowing. The patient states that he really does not complain of these problems at this time....Examination today reveals no evidence of any recurrent disease. By contrast, in September 2002, a private physician, James Netterville, M.D., listed 13 symptoms which he attributed to the Veteran, including throat cramping, pain after eating, difficulty swallowing, and 75% loss of energy. Dr. Netterville asserted that all 13 symptoms were residual effects and symptoms of the Veteran's April 1997 left vertical hemilargyngectomy. Where, as here, conflicting competent opinions are of record, the Board can ascribe greater probative weight to one opinion over another, provided that a rational basis is given. Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 854 (Fed. Cir. 1999). In this case, the Board finds that the findings in the four VA examination reports warrant greater probative value than statements to the contrary because they provide more detailed descriptions of examinations and findings, include the results of interviews conducted by trained clinicians, and show consistent results over time. Since the most probative evidence of record shows that the allegations of throat cramping, pain after eating, difficulty swallowing, and loss of energy are not credible, reasonable doubt does not apply, and the appeal of the issue is denied. ORDER Service connection for throat cramping, pain after eating, difficulty swallowing, and loss of energy is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs