Citation Nr: 1752167 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 13-24 152 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a throat condition (previously claimed as a neck condition). 2. Entitlement to a compensable evaluation for a disorder of the ear, mouth, nose, and/or throat (previously claimed as residuals of allergic rhinitis). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Matthew Miller, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1967 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In May 2016, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In light of the testimony received, which will be detailed below, the Board finds that expansion of the Veteran's claim is warranted under Clemons v. Shinseki, 23 Vet. App. 1 (2009). The issues on the title page have since been updated to reflect this change. During the May 2016 hearing, the Veteran and his representative also discussed the issues of entitlement to service connection for headaches and a thyroid condition, but the Board does not have jurisdiction over them at this time. The Board advises the appellant that he must file the appropriate claims form with the RO. A claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2017). See also 79 Fed. Reg. 57660 (Sep. 25, 2014) (All claims governed by VA's adjudication regulations must be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises.) This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Any future consideration of this appellant's case should take into account the existence of these records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Review of the record reveals that a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Specifically, remand is required to receive any outstanding treatment records and to provide a new VA examination. The Veteran seeks entitlement to service connection for a throat condition (previously claimed as a neck condition). He also seeks entitlement to a compensable evaluation for a disorder of the ear, mouth, nose, and/or throat (previously claimed as residuals of allergic rhinitis). Initially, the Board notes that there has been some confusion as to the scope and extent of the Veteran's claims. The Veteran's service records indicate that he received some treatment for assorted conditions pertaining to the head, throat, and neck. These complaints included a sore throat, tonsillitis, respiratory infection, cough, and excessive mucous. The Veteran received a general VA medical examination in December 2010. The Veteran complained of a scratchy throat with increased mucous and stated that these symptoms occurred every few months. Upon examination, his throat and neck was reported as normal, but his nasal turbinates were found to be slightly prominent, with no polyps. The examiner determined that the Veteran's most likely diagnosis for his throat complaints is allergic rhinitis, with minimal symptoms and that his condition is at least as likely as not related to his military service. This examination formed the basis for his current noncompensable evaluation for allergic rhinitis, rated under Diagnostic Code 6522 (2016). Additionally, his claim of entitlement to service connection for a neck condition was denied, as there was no diagnosis or injury reported. The Veteran has since submitted several statements alleging that his current conditions are related to his in service vaccinations. He has also stated that he feels that he has been misdiagnosed with allergic rhinitis, and he should instead be evaluated for a different disorder of the ear, nose, mouth, and/or throat. In May 2016, the Veteran testified as to these issues, and reiterated his previous statements. He also explained his symptomatology and requested a new VA examination to properly assess him and diagnose all potential conditions. In light of the above confusion, the Board has determined to expand the scope of his claims under Clemons, which are now reflected on the title page. Further, given the substantial confusion as to the Veteran's claims and the time period that has elapsed since the Veteran's previous VA examination, the Board finds that a new VA examination would be of considerable assistance in determining and clarifying his claims. The Board observes that the Veteran has indicated that he has received ongoing treatment for his claimed condition. Available treatment records are somewhat limited, with the latest reports dated through 2013. Therefore, VA should obtain all relevant treatment records. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. With the assistance of the Veteran as necessary, identify and obtain any outstanding, relevant treatment records, and associate them with the Veteran's electronic claims file. If the AOJ cannot locate or obtain such records, it must specifically document the attempts that were made to locate or obtain them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. All attempts to obtain records should be documented in the Veteran's Virtual VA and VBMS claims file. 2. Then, after pertinent records are obtained, but whether or not records are obtained, schedule the Veteran for a VA examination with a VA examiner of appropriate expertise to determine the nature, etiology, current severity, and manifestations of the Veteran's claimed conditions. The examiner is to be provided access to Virtual VA and VBMS and must specify in the report that these records have been reviewed. All pertinent symptomatology and findings should be reported in detail, including all diagnoses pertaining to the Veteran's ear, mouth, nose, and/or throat. Any indicated diagnostic tests and studies should also be accomplished. The examiner should then opine whether the Veteran's claimed throat condition, if found, (previously claimed as a neck condition) is at least as likely as not (50 percent or greater probability) to have begun in or is otherwise the result of military service. The examiner should also evaluate the current manifestations and severity of the Veteran's service-connected disorder of the ear, mouth, nose, and/or throat (previously claimed as residuals of allergic rhinitis). The entire claims file must be provided to the examiner for review, and the examination report should reflect that such a review was accomplished. All clinically indicated tests and consultations should be performed and any findings reported in detail. If no pathology other than that related to the rhinitis is found, that should be specifically set out. The examiner should specifically address the Veteran's contentions and his lay statements regarding onset of symptomatology and any continuity of symptomatology since discharge from service or since onset of symptomatology, including his contentions that his condition(s) is/are a possible side effect or residual from in service vaccinations, as well as his contention that he has been misdiagnosed with allergic rhinitis. The examiner should also address and reconcile any previous examination reports, as well as any other pertinent evidence of record. The examiner must provide a complete rationale for any opinions expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After the development requested has been completed, the AOJ should review any examination reports or opinions to ensure that they are in complete compliance with the directives of this REMAND. The AOJ must ensure that the examiner documented consideration of the entire claims file and any relevant records in Virtual VA and VBMS. If any report is deficient in any manner, the AOJ must implement corrective procedures at once. 4. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative, if applicable, should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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. §§ 5109B, 7112 (2012). _________________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).