Citation Nr: 1633734 Decision Date: 08/25/16 Archive Date: 08/31/16 DOCKET NO. 06-38 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a compensable rating for tonsillitis and pharyngitis. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1957 to October 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. This matter was previously before the Board, which denied it in a March 2009 decision. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). This resulted in a January 2010 Joint Motion for Remand (JMR) which sent the claim back to the Board for compliance with instructions in the Joint Motion. The Board remanded the issue in December 2010 for further evidentiary development. The Board has reviewed the electronic records maintained in both Virtual VA and the Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran filed his increased rating claim in October 2005. The Board denied a compensable rating in March 2009. The Veteran appealed this decision to the Court, resulting in the January 2010 JMR which vacated the March 2009 decision and remanded the matter back before the Board. Pursuant to the January 2010 JMR, the Board remanded the matter for a new VA examination in December 2010. The Veteran attended a June 2011 VA examination to determine the severity of his service-connected tonsillitis and pharyngitis. After a review of the claims file, the Board finds that remand is again necessary. The January 2010 JMR vacated the Board's March 2009 denial because the Board only considered Diagnostic Code 6521, and did not properly consider any other potentially analogous Diagnostic Codes. Specifically, the JMR mentioned Diagnostic Code 6516. The Veteran's June 2011 VA examination revealed no symptoms consistent with a compensable evaluation under any potentially relevant Diagnostic Code. However, February 2014 VA treatment records document hoarseness, throat pain, and laryngitis, symptoms potentially consistent with the criteria under Diagnostic Code 6516, specifically mentioned by the JMR. However, VA treatment records also note that the Veteran receives treatment for nonservice-connected asthma and sleep apnea. Given the potential for overlapping symptoms, the Board finds that a new VA examination is appropriate in order to differentiate any existing symptoms from the Veteran's service-connected condition and any nonservice-connected respiratory conditions. In making this determination, the Board also notes that generally a new VA examination is not warranted based on the mere passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95 (April 7, 1995). However, VA treatment records may indicate a worsening of the Veteran's condition since his most recent June 2011 VA examination. 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). Expedited handling is requested.) 1. Associate any updated VA treatment records with the file. 2. Schedule the Veteran for a VA examination with an examiner of appropriate expertise to determine the current severity of his service-connected tonsillitis and pharyngitis. The claims folder, and any pertinent evidence in Virtual VA or VBMS, must be made available to the examiner in conjunction with the examination. Any necessary studies or tests should be performed, and the examination report should comply with all appropriate protocols for rating the respective conditions. The examiner should obtain a detailed clinical history from the Veteran. Specifically, the examiner should: (a) Address the criteria under Diagnostic Codes 6516, 6520, and 6521. (b) If possible, distinguish the symptoms resulting from the Veteran's asthma and sleep apnea from his service-connected tonsillitis and pharyngitis. A rationale for all requested opinions should be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In doing so, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Thereafter, the AOJ should readjudicate the appeal with consideration of any response received. If the appeal remains denied, either in whole or in part, the AOJ should issue a supplemental statement of the case (SSOC) and provide copies of the SSOC to the appellant and Veteran as well as their representatives and an appropriate amount of time should be afforded for response before the claim is returned to the Board. 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 2014). _________________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).