Citation Nr: 1335281 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 08-15 393 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for an ear, nose, and throat (ENT) condition. 2. Entitlement to service connection for sinusitis, to include as secondary to an ENT condition. 3. Entitlement to service connection for an esophagus condition, to include as secondary to an ENT condition. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran had active service from March 1954 to January 1956. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In January 2010, the Veteran and his wife testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. In March 2010, the Board denied entitlement to service connection for an ENT condition, for sinusitis, and for an esophagus condition. In December 2010, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion to remand these three issues to the Board. In September 2011, October 2012 and May 2013 the Board remanded these issues for further evidentiary development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 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 appellant if further action is required. REMAND A preliminary review of the record indicates that this claim requires additional development. The Board's May 2013 remand observed that the requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even though the disability resolves prior to the adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Board found that a January 2013 VA examination (conducted pursuant to the Board's October 2012 remand) was inadequate. The Board explained that the VA examiner failed to address whether any pharyngitis manifested during the pendency of the appeal, even if presently resolved, was etiologically related to the Veteran's service. The VA examiner failed to consider or address a September 2009 diagnosis of pharyngitis, as specifically requested by the October 2012 remand. As a result, the May 2013 remand requested that VA obtain an opinion as to whether it was at least as likely as not (e.g. a 50 percent or greater probability) that any ENT condition diagnosed during the appeal period, including the pharyngitis diagnosed in September 2009, even if presently resolved, was etiologically related to service. In May 2013, the VA examiner who had conducted the January 2013 VA examination wrote that he was unable to provide an explanation for a relationship between an event that occurred in 1954 and resolved and another similar event that occurred 45 years later and resolved, without resort to speculation and conjecture. He suggested that, if further examinations, opinions, etc., were called for, they be done by a board certified ENT specialist. A separate VA examiner wrote in a September 2013 medical opinion that he had reviewed the Veteran's claims file and CPRS records. He stated that it was less likely than not that chronic pharyngitis or other throat complaints were related to the Veteran's military service. He wrote that the Veteran had no demonstrable pathology related to the complaint and there was no correlation to service experience. The Board finds that the September 2013 VA medical opinion is also inadequate. The VA examiner failed to consider or address the Veteran's September 2009 diagnosis of pharyngitis, or address whether any pharyngitis manifested during the pendency of the appeal, even if presently resolved, was etiologically related to the Veteran's service. The medical opinion requested by the Board's October 2012 and January 2013 remands has not been obtained. Compliance by the Board or the AOJ is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). The claim must be remanded for an addendum VA opinion. As discussed in the October 2012 remand, the issues of entitlement to service connection for sinusitis and entitlement to service connection for an esophagus condition, each to include as secondary to an ENT condition, are inextricably intertwined with the claim for entitlement to service connection for an ENT condition. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Thus, these issues must also be remanded. The Board apologizes to the Veteran on behalf of VA for the additional delay, but finds that the requested additional development is necessary for a full and fair adjudication of the Veteran's claims. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Provide the claims file (including any medical records contained in Virtual VA) to the VA examiner who provided the September 2013 medical opinion. If the VA examiner is unavailable, provide the claims file to a VA clinician with appropriate expertise. The examiner is requested to review the claims folder in order to fully address whether it is at least as likely as not (50 percent or more likelihood) that any ENT condition diagnosed during the appeal period, including the pharyngitis diagnosed in the September 2009 VA treatment record, even if presently resolved, was etiologically related to service. Then, if the examiner determines that it is at least as likely as not (e.g. a 50 percent or greater probability) that any ENT condition diagnosed during the appeal period, even if presently resolved, was etiologically related to service, the examiner should address whether it is at least as likely as not (50 percent or more likelihood) that the Veteran's sinusitis or esophagus condition was caused or aggravated by the Veteran's ENT condition. If the VA clinician determines that another examination of the appellant is necessary, such should be accomplished. The VA clinician is requested to provide a thorough rationale for any opinion provided. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 2. Thereafter, readjudicate the claim on appeal of entitlement to service connection for an ENT condition, followed by the claims on appeal for service connection for sinusitis and for an esophagus condition, each to include as secondary to an ENT condition. If any benefit sought is not granted, issue an SSOC and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. The appellant 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). _________________________________________________ M. E. LARKIN 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) (2013).