Citation Nr: 1339596 Decision Date: 12/02/13 Archive Date: 12/18/13 DOCKET NO. 02-13 865 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for pharyngitis. 2. Entitlement to service connection for bronchitis, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. Keyvan, Counsel INTRODUCTION The Veteran served on active duty from January 1981 to May 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the October 2001 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In the January 2004 decision, the Board, in pertinent part, remanded the Veteran's claims seeking service connection for bronchitis and pharyngitis and specifically instructed the Agency of Original Jurisdiction (AOJ) to schedule the Veteran for appropriate VA examinations to determine the nature and etiology of her claimed disorders. In the November 2010 decision, the Board, in pertinent part, denied the Veteran's claim for service connection for pharyngitis, and remanded the claim for service connection for bronchitis for additional evidentiary development. The Board specifically instructed the AOJ to schedule the Veteran for a VA examination to determine the nature and etiology of her bronchitis. This examination was conducted in August 2011, and a copy of the examination report has since been associated with the claims file. The Veteran, in turn, appealed the denial of her claims to the United States Court of Appeals for Veterans Claims (Court). In September 2011, the Court, vacated the part of the Board's decision that denied service connection pharyngitis and remanded the matter for proceedings consistent with the Joint Motion for Partial Remand (Joint Motion) filed in this case. In the September 2012 decision, the Board, in pertinent part, remanded the Veteran's claims for service connection for bronchitis and pharyngitis and directed the AOJ to obtain the Veteran's outstanding VA treatment records, and all outstanding VA fee basis treatment records from several non-VA treatment providers, and to schedule the Veteran for VA examinations to determine the nature and etiology of her disorders. VA treatment records dated from November 2007 to January 2013, and records from Brian T. Miller, D.O., at the Allergy and Asthma Clinic of Central Texas were secured and associated with the claims file. The Veteran was scheduled for the requested VA examinations in October 2012, and copies of the examination reports have since been obtained and associated with the claims file. Unfortunately, the Board found the October 2012 medical opinion in connection to her claim for pharyngitis to be inadequate, and following a more thorough review of the claims file, the Board also determined that the Veteran's claim for service connection for bronchitis had to be remanded for additional evidentiary development. Pursuant to the June 2013 remand instructions, the Veteran was scheduled for a VA examination with a VA otolaryngologist to determine the nature and etiology of her pharyngitis. The Veteran's claims file was also referred to the August 2011 VA examiner for a clarifying medical opinion addressing the nature and etiology of her bronchitis. The examination was completed in September 2013, and a copy of the examination report has since been obtained and associated with the claims file. A medical opinion dated in August 2013, that addresses the nature and etiology of her bronchitis was also obtained and associated with the claims file. As will be discussed further herein, as to the Veteran's claim for service connection for pharyngitis, the Board finds that the AOJ substantially complied with the remand orders, and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Unfortunately, a remand of the Veteran's claim for service connection for bronchitis is necessary. The Board regrets the delay caused by this remand; however, in light of the inadequate August 2013 medical opinion, the Board finds that further development of this issue is necessary prior to a final adjudication of this claim. Accordingly, and for the reasons set forth below, this issue is addressed in the REMAND below and is REMANDED to the RO via the AMC in Washington DC. FINDING OF FACT Pharyngitis did not have its clinical onset in service and is not otherwise related to active duty. CONCLUSION OF LAW The Veteran does not have a disability manifested by symptoms of pharyngitis that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist At the outset, the Board will address the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In the February 2001, March 2006, May 2008, and September 2008 letters, VA notified the Veteran of the information and evidence needed to substantiate and complete her claim, and of what part of that evidence she was to provide and what part VA would attempt to obtain for her. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2013). In addition, in the March 2006 letter, the RO provided the Veteran with a letter for the express purpose of advising her of the additional notification requirements imposed by the Court in Dingess/Hartmen v. Nicholson, 19 Vet. App. 473 (2006). Since the issuance of these letters, the RO has reconsidered the Veteran's claim, most recently in the November 2008, March 2010, July 2012, February 2013 and September 2013 Supplemental Statements of the Case (SSOCs). See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (holding that the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a Statement of the Case or Supplemental Statement of the Case, is sufficient to cure a timing defect). Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the notice requirements of the VCAA. With respect to VA's duty to assist, the record shows that VA has undertaken all necessary development action. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). Her service treatment records as well as all identified and available private and VA treatment records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the service connection claim adjudicated herein. Pursuant to the September 2012 remand, outstanding VA treatment records generated at the VA Medical Centers in Dallas and Temple, Texas, and dated from November 2007 to January 2013, have since been obtained and associated with the claims file and/or the Virtual VA claims processing system. In addition, attempts were made to retrieve the Veteran's VA fee basis treatment records from several non-VA providers, to include Dr. Miller, William Long, M.D., and J.E. Dvoracek, M.D. with the Scott & White medical group. In a September 2012 letter, the AMC asked the Veteran to complete the VA Form 21-4142 Authorization and Consent to Release Information forms for these three physicians. It does not appear that the Veteran completed the necessary forms. Nonetheless, private treatment records from Dr. Miller at Allergy and Asthma Clinic of Central Texas, and dated from April 2009 to June 2012, have been retrieved and associated with the claims file. In addition, records from Dr. Dvoracek are also associated with the claims file. If there is additional available evidence to help substantiate the Veteran's claim, the RO cannot obtain these records without further assistance from the Veteran. VA is only required to seek pertinent records that are adequately identified and for which necessary releases are furnished. 38 U.S.C.A. § 5103A(b); See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street"); 38 C.F.R. §§ 3.159(c)(1)(i), (c)(2)(i) (requiring a claimant to cooperate fully with VA's efforts to obtain federal and non-federal records). As the Veteran did not submit an additional VA Form 21-4142 for treatment received with these physicians and did not otherwise respond to the September 2012 letter, any further efforts to obtain treatment records from Drs. Miller, Long and Dvoracek., would be futile. 38 C.F.R. § 3.159(c)(2). Significantly, neither the Veteran, nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. A VA examination with respect to the issue on appeal was conducted in October 2012. In June 2013, the Board remanded the Veteran's claim and specifically instructed the AOJ to schedule the Veteran for another VA examination. The remand directives specifically instructed the VA examiner to address whether the Veteran had a diagnosis of pharyngitis, and if so, whether said disorder had its clinical onset in service or was otherwise related to the Veteran's military service. The Veteran was scheduled for a VA Sinusitis, Rhinitis and Other Conditions of the Nose, Throat, Larynx and Pharynx examination in September 2013, and a copy of this examination report has since been associated with the claims file. Accordingly, the requirements of the remand were ultimately accomplished and the prior remand instructions pertaining to the issue of service connection for pharyngitis were substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that collectively, these medical opinions are adequate for purposes of rendering a decision in the instant appeal. 38 C.F.R. §4.2 (2013); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). They reflect that the physicians reviewed the Veteran's past medical history, her current complaints, conducted/reviewed necessary testing and examination findings, and provided a complete rationale for the opinions stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the claims on appeal has been met. 38 C.F.R. § 3.159(c)(4). Finally, the Board notes that the Veteran is represented by a veterans service organization (VSO) and that organization is presumed to have knowledge of what is necessary to substantiate a claim for VA benefits. Neither the Veteran, nor her representative, has pled prejudicial error with respect to the content or timing of VCAA notices. See Shinseki v. Sanders, 129 U.S. 1696 (2009). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome here, the Board finds that any such failure is harmless. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Analysis Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to establish direct service connection for a disorder, there must be (1) evidence of the current disability; (2) evidence of the in-service incurrence of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a). Subsection (a) also refers to "each disabling condition . . . for which [a veteran] seeks a service connection" and states that "[d]eterminations as to service connection will be based on review of the entire evidence of record." See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provisions, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that she is entitled to service connection for pharyngitis as she was treated for this condition during active service and has had pharyngitis since her separation from service. The Veteran's service treatment records document treatment for pharyngitis in February 1986, as well as treatment for acute pharyngitis/strep in September 1986. The remaining service treatment records, however, are silent for any complaints or findings of pharyngitis or any residual thereof. At the April 1992 separation examination, the clinical evaluation of the Veteran's mouth and throat was shown to be normal, and the Veteran did not report a history of respiratory problems in her medical history report. The post-service record on appeal includes voluminous VA and private clinical records, dated from 1992 to 2013. An August 1992 treatment report reflects that the Veteran presented at the VA medical center (VAMC) with complaints of a sore throat of two days duration. Based on his evaluation of the Veteran, the treatment provider assessed the Veteran with pharyngitis. A review of the record reflects that following this treatment visit, many years elapsed before the Veteran was treated for throat problems. Indeed, the post-service record on appeal is negative for any complaints of, or treatment for pharyngitis and/or symptoms of pharyngitis until the July 2001 VA examination, at which time, the Veteran provided her medical and military history and described the circumstances surrounding her in-service hospitalizations for pharyngitis. Based on his discussion with the Veteran, the examiner diagnosed the Veteran with acute pharyngitis, for which the Veteran was hospitalized for several days during service. VA treatment records dated in June 2007 demonstrate that the Veteran visited the Austin VAMC on a number of occasions with complaints of a sore throat of three days duration. These records also reflect the Veteran's complaints of hoarseness and worsening pain in her throat. In a June 2007 opinion, a VA ENT examiner indicated that he had reviewed the Veteran's claims folder, which reflected treatment for episodes of streptococcal pharyngitis in service. According to the examiner, although the Veteran had received treatment for streptococcal pharyngitis while on active duty, there was "no evidence of recurrent or chronic pharyngitis at the present time." During a July 2007 treatment visit, however, the Veteran reported to have experienced a persistent sore throat several weeks prior which had resolved with two courses of antibiotics. According to the Veteran, she decided to visit an ear, nose and throat physician due to the persistence of her symptoms, but findings from her evaluation were shown to be normal. She was assessed with "recent pharyngitis, with slow resolution and a normal ENT examination suspect viral illness." The Veteran was thereafter scheduled for a VA Nose, Throat, Larynx and Pharynx examination in October 2012. During this examination, the Veteran reported a problem with "pharyngitis" during her period of service, and noted that she had experienced additional episodes of pharyngitis since then, at which time she was treated on an outpatient basis, and provided oral antibiotics. According to the Veteran, her episodes of pharyngitis had decreased and were less frequent since she had been on immunotherapy with allergy shots since 1992. The Veteran reported that the last episode of pharyngitis she could recall was in 2007. Based on his evaluation of the Veteran, the VA examiner diagnosed the Veteran with having acute pharyngitis by medical history, but added that her current examination was normal and therefore, the Veteran did not have any current residuals. According to the examiner, acute pharyngitis is an acute condition that is episodic and which occurs after one has been exposed to a pathogen, either bacterial or viral. The examiner explained that every episode could be due to a different pathogen or exposure and is related to the reaction of the immune system of the individual. The examiner determined that although there was evidence in the service treatment records reflecting a diagnosis of acute pharyngitis during active duty, there is no evidence in the service treatment records of chronic pharyngitis. Based on his evaluation of the Veteran, the examiner concluded that a diagnosis of chronic pharyngitis was not warranted, and therefore a medical opinion was deemed unnecessary. The Veteran was afforded another VA examination in September 2013, at which time, the VA examiner reviewed the Veteran's claims file, interviewed the Veteran regarding her medical history, and conducted a physical evaluation of the Veteran. Based on his discussion with, and evaluation of the Veteran, the examiner determined there to be no current diagnosis of pharyngitis, to include either acute or chronic pharyngitis. In his rationale, the VA examiner acknowledged the fact that the Veteran had been treated for two bouts of acute pharyngitis in service, one of which was "positive for Group B Streptococcus, and the other of which was negative on culture." According to the examiner, this is evidence that the two episodes were more likely than not clinically separate. The examiner went on to explain that a diagnosis of chronic pharyngitis or tonsillitis usually requires "a frequency of three to four bouts per year for two or more years; or a set of 6 episodes in one year." The examiner further explained that irritation of the throat [i.e. the pharynx] was a common event with many simple upper respiratory conditions, such as the common cold, and a diagnosis of acute pharyngitis is relatively non-specific. According to the examiner, having an acute respiratory infection with associated pharyngeal irritation is common one to three times a year for many adults. Based on these facts, the examiner concluded that the Veteran clearly did not meet the criteria for a diagnosis of chronic pharyngitis. With regard to the Veteran's in-service hospitalizations for pharyngitis, the examiner explained that [i]n the 1980's difficulty swallowing associated with poor fluid intake and then dehydration was a common scenario for hospitalization of a patient with acute tonsillitis or pharyngitis. Currently, this is rarely the case as IV hydration can be carried out in the office or clinic setting, as well as using not only antibiotics, but also a brief burst of steroids to reduce the swelling and inflammation which alleviates the symptoms of severe difficulty swallowing. The fact that the claimant was hospitalized twice in 1986 does not denote any specific level of severity of illness, only that . . . she was unable to drink enough fluids. During the evaluation, the Veteran described intermittent symptoms of soreness in her throat and difficulty swallowing over the last two or three years. The examiner noted that the Veteran was service-connected for GERD, and explained that in the past fifteen to twenty years, medical evidence showed that GERD can and will cause symptoms of sore throat and frequent throat clearing-symptoms which were once incorrectly attributed to "post-nasal drainage" by the average lay person. The examiner further explained that reflux can also cause increased spasms of the cricopharyngeus muscle, "which is responsible for the feeling of a 'lump in the throat' as well as intermittent difficulty swallowing." According to the examiner, [g]iven the lack of evidence to warrant a diagnosis of acute or chronic pharyngitis, along with the fact of only two to three documented cases noted in the records from 1981 to present, as well as the history of being service connected for a hiatal hernia and describing symptoms that have been classically associated with gastroesophageal reflux, it is more likely than not that the [Veteran's] throat related symptoms were, and are, not due to a diagnosed pharyngitis, but instead a result of the GERD from the hiatal hernia for which she . . . was service connected in the past. In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for pharyngitis. With regard to this claim, the Board notes that the existence of a current diagnosed disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. The evidence clearly shows that the Veteran was treated for pharyngitis during her period of service; however, for there to be a showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. As such, the fact that an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. See 38 C.F.R. § 3.303(b). Throughout her eleven years of service, the Veteran was treated twice for pharyngitis, and any symptoms pertaining to this condition appear to have long resolved by the time she was discharged from service. As such, the evidence indicates that any symptoms of pharyngitis experienced during active duty service were of an acute and transitory nature. Indeed, the greater weight of the evidence points to the Veteran not having a current diagnosis of recurrent or chronic pharyngitis. Although the July 2001 VA examiner diagnosed the Veteran with acute pharyngitis, this diagnosis was based on a review of the Veteran's medical history and on the Veteran's self-reported symptoms, rather than on the objective medical findings at the time, which were negative for any abnormalities in the pharynx. In addition, while the July 2007 VA treatment report revealed an assessment of pharyngitis, it appears that the VA physician predominantly relied on the Veteran's reported assertions regarding her medical history, rather than on the objective medical findings when reaching this conclusion. In fact, on physical evaluation, the objective medical findings were clear for any signs of "exudate or post pharyngeal erythema," the lungs were clear with no wheezing, and the VA physician commented that the Veteran had previously visited with an ENT physician (due to the persistence of her symptoms) and results from this evaluation were shown to be normal. The June 2007 VA treatment records leading up to the July 2007 evaluation were also clear for a diagnosis of pharyngitis. Although these records reflected the Veteran's complaints of throat soreness and hoarseness, as well as an assessment of an upper respiratory infection, they are clear for a diagnosis of chronic pharyngitis. Moreover, the Board notes that the more recent VA examiners have not identified a current diagnosis of chronic pharyngitis. Although the October 2012 VA examiner assessed the Veteran with acute pharyngitis by medical history, the Board observes that this diagnosis was not based on any specific objective findings. Indeed, all the above-referenced diagnoses of pharyngitis do not appear to be based on independent findings using appropriate testing, but rather on unsubstantiated reports in the record. The source of a medical expert's information goes to the credibility of the medical evidence. A transcription of lay history unenhanced by any additional medical comment by the examiner does not constitute competent medical evidence. Moreover, a veteran's subjective complaint is not considered competent medical evidence. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). As such, with respect to whether the Veteran has a diagnosis of pharyngitis, these medical opinions are of little probative value because they are not predicated on an accurate and complete factual history. See Nieves-Rodriguez v. Peake. (It is what an examiner learns from the claims file for use in forming the expert opinion that matters. When the Board uses facts obtained from one opinion over another, it is incumbent upon the Board to point out those facts and explain why they were necessary or important in forming the appropriate medical judgment.) The September 2013 VA examiner acknowledged the Veteran's in-service treatment for pharyngitis, her contentions and complaints of ongoing symptoms associated with pharyngitis, as well as post-service documentation reflecting treatment for pharyngitis, but based on his review of the service and post-service treatment records, he still concluded that the objective evidence of record was insufficient to warrant a diagnosis of acute or chronic pharyngitis. The examiner further determined that any symptoms of a sore throat or difficulty swallowing-symptoms the Veteran attributed to his pharyngitis, were in actuality symptoms arising from her service-connected GERD. He (the examiner) went on to provide the reasoning behind this conclusion, and noted that GERD can and will cause a person to experience certain respiratory and nasal symptoms, to include that of a sore throat, frequent throat clearing, and increased spasms of the cricopharyngeus muscle-a condition responsible for the lump-in-the-throat sensation. To the extent that the July 2007 assessment of pharyngitis was an accurate reflection of the objective medical findings, the Board still concludes that the Veteran is not entitled to service connection for pharyngitis. As previously discussed above, the October 2012 VA examiner diagnosed the Veteran with acute pharyngitis by medical history, and explained that this condition is episodic in nature, and occurs after exposure to a particular type of pathogen. According to this examiner, every episode of acute pharyngitis can be attributed to a different pathogen or exposure, and is more or less related to how that individual's immune system reacts to a pathogen. In essence, the VA examiner determined that pharyngitis develops as a result of the immune system's response to certain types of pathogens occurring in his or her environment. The examiner did not conclude that the Veteran's in-service treatment of pharyngitis led to the subsequent development of her pharyngitis post-service. This opinion was reiterated in the September 2013 VA medical opinion. The VA examiner specifically noted that a diagnosis of acute pharyngitis is "relatively non-specific" and having an acute respiratory infection with associated pharyngeal irritation is common one to three times a year for many adults. Based on his discussion with, as well as his evaluation of the Veteran, this examiner concluded that the Veteran's claimed condition was less likely than not incurred in or caused by an in-service injury, event or illness. Based on the evidence of record, the Board finds that the October 2012 examination report and medical opinion, in conjunction with the September 2013 medical opinion are persuasive and assigns them great probative weight. The opinions were rendered by VA medical professionals with the expertise needed to opine on the matter at issue in this case. In addition, the examiners addressed the Veteran's contentions, based their opinions on a review of the claims folder, including the most pertinent evidence therein, and provided a rationale for their conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (discussing factors for determining probative value of medical opinions). The Board has considered the Veteran's assertions that she has a respiratory disability manifested by symptoms of pharyngitis. As a layperson, however, the Veteran is not competent to give a medical opinion on the diagnosis of this claimed disorder. She is competent to report on symptoms she experienced either during or following service, but not to say what any diagnosis is. Thus, although the Veteran is competent to report symptoms observable to a layperson, such as sore throat and difficulty swallowing, a diagnosis that is later confirmed by clinical findings, or a contemporary diagnosis, she is not competent to independently provide a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Further, the October 2012 and September 2013 examiners considered the Veteran's report of post-service symptoms in reaching their medical conclusions. Consequently, in this case, lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant a claim for service connection. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). Therefore, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for pharyngitis. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Because the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt provision does not apply. See Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Board concludes that service connection for pharyngitis is not warranted. ORDER Entitlement to service connection for pharyngitis is denied. REMAND Although the Board sincerely regrets further delay, another remand with regard to the Veteran's claim for service connection for bronchitis is essential to ensure that the Board remand instructions are complied with and carried out prior to a final adjudication of the claim. Pursuant to the June 2013 Board remand directives, the Veteran's claims file was referred to the August 2011 VA examiner for an addendum opinion addressing whether the Veteran's bronchitis had its clinical onset in service or was otherwise related to her military service, to include her in-service treatment for, and diagnosis of, bronchitis. In August 2013, the same VA examiner who evaluated the Veteran in August 2011 issued another medical opinion attempting to address the questions listed in the June 2013 remand directives. In the opinion, the VA examiner acknowledged the Veteran's in-service treatment for bronchitis, and further took note of the post-service medical evidence which demonstrated ongoing treatment for, and diagnoses of, bronchitis from March 1995 to August 2000. According to the VA examiner, review of the more recent VA treatment records dating from 2011 to the present time is clear for any treatment for, or diagnosis of bronchitis. The examiner also noted that the Veteran's most recent pulmonary progress note was negative for a diagnosis of chronic bronchitis. According to the examiner, "[p]atients with acute bronchitis present with a cough lasting more than five days (typically one to three weeks), which may be associated with sputum production." The examiner further explained that chronic bronchitis exists in patients with chronic obstructive pulmonary diseases and is distinguished by a cough of at least three months' duration in each of two successive years. Based on this medical reasoning, as well as her review of the service and post-service treatment records, the VA examiner determined that the Veteran did not have a current diagnosis of acute bronchitis or chronic bronchitis. She acknowledged the in-service episode of acute bronchitis that resolved prior to the Veteran's separation examination, and further acknowledged the Veteran's subsequent treatment for multiple episodes of acute bronchitis three years after service which was attributed to her allergies. Based on her review of the records, the examiner determined that the Veteran currently had diagnoses of asthma and allergies but not a diagnosis of acute or chronic bronchitis. According to the examiner, in light of the fact that the Veteran did not have a current diagnosis of acute or chronic bronchitis, her claimed condition was less likely than not related to, or incurred by, a single in-service episode of bronchitis, nor could her claimed condition be caused or aggravated beyond natural progression by her service-connected asthma. Unfortunately, the Board finds this opinion to be inadequate. Although the Veteran may not have had a current diagnosis of bronchitis, the evidence reflects that she was diagnosed as having bronchitis at the August 2000 VA treatment visit during which she reported to experience "yellow sputum production . . . for the last couple of weeks." She was also diagnosed with having bronchitis at the July 2001 VA examination. Indeed, the July 2001 VA examination report mentions the Veteran's in-service treatment for bronchitis, as well as her subsequent treatment for recurrent bronchitis beginning in 1995 following intubation for major surgery (breast reduction surgery). At the examination, the Veteran reported to experience an intermittent cough that was usually worse on first arising in the morning, and returned later on during the day. The Veteran also reported to cough up yellow sputum when first awakening in the morning. Based on the Veteran's reported symptomatology, as well as her discussion with, and physical examination of the Veteran, the examiner diagnosed the Veteran as having bronchitis with chronic recurrent symptoms that was probably associated with her allergic rhinitis, for which the Veteran was receiving desensitization treatment following skin testing. In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. As such, even though the Veteran's bronchitis may have since resolved since filing her claim in April 2000, the evidence demonstrates that she was diagnosed as having bronchitis during the pendency of the claim. See August 2000 VA treatment report and July 2001 VA examination report. Moreover, the symptoms described by the Veteran at the August 2000 VA treatment visit and the July 2001 VA examination, to include symptoms of intermittent cough and yellow sputum being coughed up for several weeks, fall under the definition of acute bronchitis as provided by the August 2013 medical examiner. Thus, the Board finds that another medical examination and opinion which considers all of the evidence of record, and which provides an etiological opinion with sufficient rationale and explanation regarding the Veteran's bronchitis, is necessary. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a VA otolaryngologist to determine the nature and etiology of any bronchitis present. The claims folder and all records on Virtual VA must be made available to the examiner in conjunction with the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, and all pertinent pathology should be noted in the examination report. The examiner should specifically take into consideration the September 1987 clinical records that document the Veteran's treatment for bronchitis. The examiner should also take into consideration the August 2000 VA treatment report and the July 2001 VA examination report, both of which reflect a diagnosis of bronchitis. Consideration should be given to the Veteran's history and particularly to any statements regarding recurrence of symptoms since service. Following a review of the record and an examination of the Veteran, the examiner should determine whether the Veteran has a diagnosis of acute and/or chronic bronchitis. For any bronchitis diagnosed on examination, OR during the pendency of the claim which has resolved at the time of the examination, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disability had its clinical onset in service or is otherwise related to the Veteran's military service, to include her in-service treatment for bronchitis. The examiner should understand that even if the Veteran's bronchitis has since resolved, if the Veteran was diagnosed as having bronchitis anytime during the pendency of the claim (since April 2000) he or she must provide an opinion addressing whether a previous diagnosis of bronchitis made anytime during the pendency of the claim (since April 2000) is/was at least as likely as not related to the Veteran's military service, to include her in-service treatment for bronchitis. In answering this question, the examiner should address the Veteran's assertions of, and documentation reflecting, ongoing treatment for bronchitis since service. The examiner should set forth the medical rationale for accepting or rejecting the Veteran's statements regarding continuity of symptoms since military service. If the examiner finds that it is unlikely that bronchitis had its onset in service or is otherwise etiologically related to the Veteran's military service, then the examiner should also express an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any bronchitis currently present was caused or aggravated (permanently worsened beyond natural progression) by the Veteran's service-connected asthma. The examiner should provide a rationale on which his or her opinions are based. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). 2. After completing the above, and undertaking any additional evidentiary development deemed necessary, readjudicate the remaining issue on appeal. If any benefits sought are not granted, the Veteran and her representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. No action is required of the Veteran until she is notified; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2013). The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims 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. 2012). ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs