Citation Nr: 1339809	
Decision Date: 12/03/13    Archive Date: 12/18/13

DOCKET NO.  09-27 709	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas

THE ISSUES

1.  Entitlement to service connection for reflex sympathetic dystrophy of the right hand to include as secondary to service-connected ganglion cysts.

2.  Entitlement to service connection for pharyngitis. 

3.  Entitlement to service connection for a psychiatric disorder to include anxiety and posttraumatic stress disorder to include as secondary to service-connected disability.

REPRESENTATION

Veteran represented by:	Texas Veterans Commission

WITNESS AT HEARING ON APPEAL

The Veteran
ATTORNEY FOR THE BOARD

S. Coyle, Counsel

INTRODUCTION

The Veteran, who is the appellant, served on active duty from May 1975 to August 1995. 

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in May 2008 of a Department of Veterans Affairs (VA) Regional Office (RO).

A hearing was held before the undersigned Veterans Law Judge in July 2011.  In January 2012 and March 2013, the claims were remanded for further development.  

The claims of service connection for reflex sympathetic dystrophy of the right hand to include as secondary to service-connected disability and for a psychiatric disorder to include anxiety and posttraumatic stress disorder to include as secondary to service-connected disability are REMANDED to the RO via the Appeals Management Center in Washington, DC.


FINDING OF FACT

Pharyngitis is due to service-connected rhinitis.    


CONCLUSION OF LAW

The criteria for service connection for pharyngitis are met.  38 U.S.C.A.  §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. § 3.310 (2013). 







The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.

As the Board is granting the claim of service connection for pharyngitis, VCAA compliance need not be addressed further.

REASONS AND BASES FOR FINDING AND CONCLUSION

Principles and Theories of Service Connection

A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service.  38 U.S.C.A. §§ 1110 (wartime service) and 1131 (peacetime service).

Generally, to establish entitlement to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement.  All three elements must be proved.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d).





Service connection may also be granted on a secondary basis for a disability that is proximately caused by, or is aggravated (permanently worsened in severity) by, a service-connected disability.  38 C.F.R. § 3.310(a); see also Allen v. Brown, 237 F.3d 1368 (Fed. Cir. 2001).

To prevail on the issue of secondary service causation, the record must generally show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability.  Wallin v. West, 11 Vet. App. 509, 512 (1998). 

Evidentiary Standards

VA must give due consideration to all pertinent lay and medical evidence in a case where a veteran is seeking service connection.  38 U.S.C.A. § 1154(a).

Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

Competency is a question of fact, which is to be addressed by the Board.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).

When the evidence is admissible, the Board must then determine whether the evidence is credible.  "Credible evidence"  is that which is plausible or capable of being believed.  See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance).




If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).   If the evidence is not credible, the evidence has no probative value.

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 veteran.  38 U.S.C.A. § 5107(b). 

Facts

The service treatment records document complaints of sore throat and laryngitis, variously characterized as viral syndrome, pharyngitis, and tracheitis.  The Veteran asserts that she has continued to experience the symptoms since service.  

On VA examination in April 2012, the Veteran presented with a cough and laryngitis, stating that she had been sick for two weeks.  She indicated that she did not have these symptoms all the time.  The VA examiner expressed the opinion that the symptoms were less likely than not related to service, because pharyngitis was usually an acute episode and her issue today was laryngitis.  

On a second VA examination in April 2012 by otolaryngology, the pertinent finding was granular lymphoid tissue on the pharyngeal wall, secondary to allergic rhinitis and drainage.  The VA examiner stated that the  recurrent episodes of pharyngitis were likely related to service-connected allergic rhinitis.  

Analysis

Two elements of secondary service connection have been established, namely, evidence of a current disability (pharyngitis) and evidence of a service-connected disability (allergic rhinitis).  



The remaining element to establish secondary service connection is evidence of a causal relationship between the current disability and the service-connected disability.  Wallin, at 512. 

The otolaryngologist who examined the Veteran noted granular lymphoid tissue on the pharyngeal wall which was likely secondary to allergic rhinitis and draining and expressed the opinion that the episodes of recurrent pharyngitis were likely related to service-connected allergic rhinitis.  

In determining the probative value to be assigned to a medical opinion, the Board may consider such factors as whether a medical expert was fully informed of the pertinent facts or medical history, whether the medical expert provided a fully articulated opinion, and whether the opinion is supported by a reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). 

The Board finds that the opinion of the VA otolaryngologist, a specialist in diseases of the noses and throat, is persuasive evidence in favor of the claim and outweighs the opinion of the VA examiner, a physician's assistant.  

As the claim is granted as secondary to service-connected allergic rhinitis, the principles and theories of direct service connection need not be addressed.


ORDER

Service connection for pharyngitis is granted.  








REMAND

On the claim of service connection for reflex sympathetic dystrophy of the right hand, in the remand in March 2013, the Board directed that the Veteran be scheduled for a new VA examination.  The requested examination took place in June 2013, but the report is inadequate to decide the claim.  

On the claim of service connection for a psychiatric disorder, in June 2013 on VA examination, the diagnosis was posttraumatic stress disorder due to military sexual trauma which occurred in 1975, or, alternatively, a progression of the 1984 reference to "excessive worry and depression."  The Veteran has not alleged military sexual trauma and the examination report does not contain any details as to the allegation.  Also, the VA examiner provided no rationale for the conclusions reached in the opinion.  The report of the examination is inadequate to decide the claim. 

Accordingly, the case is REMANDED for the following action:

1.   Ensure compliance with the notice requirements of 38 C.F.R. § 3.304(f)(5), pertaining to an in-service personal assault.  

2.  Obtain the Veteran's service personnel records. 

3.  Request from the appropriate federal custodian the records, including any inpatient records, from the U.S. Naval Hospital, Subic Bay, pertaining to mental health treatment in March 1984.  

4.  Afford the Veteran a VA examination to determine:  



a).   Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability approximately 50 percent), or less likely than not (probability less than 50 percent) that the surgical removal of a right ganglion cyst in November 2006 caused or aggravated reflex sympathetic dystrophy of the right hand. 

In formulating an opinion, the VA examiner is asked to consider that the Veteran underwent a right carpal tunnel release and a ganglion cyst excision during the same surgical procedure.   

b).  Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability approximately 50 percent), or less likely than not (probability less than 50 percent) that the intermittent development of ganglion cysts in the right hand aggravates the reflex sympathetic dystrophy of the right hand beyond its normal progression?  

The Veteran's file must be provided to the VA examiner for review.  

5.  Afford the Veteran a VA psychiatric examination, by a VA examiner who has not previously evaluated the Veteran, to determine:  







Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), less likely than not (probability less than 50 percent), that any current psychiatric disorder, including posttraumatic stress disorder, is related to service, to include as due to a personal assault?  

In formulating an opinion, the examiner must address:

i).  Any evidence of behavior changes following the claimed in-service assault and provide an opinion as to whether any behavioral changes tend to suggest that a traumatic event occurred during service; 

ii).  Whether any currently diagnosed psychiatric disorder is a progression of the reports of excessive worry and anxiety during service, or the development of a new and separate condition.  

The Veteran's file must be provided to the VA examiner for review.  

6.  After the above development, adjudicate the claims.  If any benefit sought is denied, furnish the Veteran and her representative a supplemental statement of the case and return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the claims the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).





The claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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. 2013).



______________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs