Citation Nr: 1757785 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 10-40 880A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a throat disability, claimed as pharyngitis. 2. Entitlement to service connection for a bilateral foot disability, claimed as pes planus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Hampton, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1973 to April 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board acknowledges the Veteran has perfected appeals with respect to the issues of entitlement to service connection for congestive heart failure, chronic obstructive pulmonary disease, type II diabetes mellitus, hypertension, prostate cancer, shingle virus, pulmonary embolism, bilateral lower extremity peripheral neuropathy, and bilateral upper extremity peripheral neuropathy. However, these issues have not been certified to the Board. As such, these issues are not yet ripe for Board review and will be the subject of a later Board decision, as appropriate. The delay in adjudicating these issues is needed to ensure that the Veteran is afforded full due process. See 38 C.F.R. §§ 3.103, 19.36, 20.1304(a); Gray v. McDonald, 27 Vet. App. 313, 327 (2015) (Due Process protections apply to disability compensation proceedings before the Board); citing Cushman v. Shinseki, 576 F.3d 1290 (Fed.Cir. 2009); see also Carter v. McDonald, 794 F.3d 1342, 1346 (Fed. Cir. 2015) (regulatory requirement of notice in § 1.525(d) can only sensibly be construed to require that the notice to counsel be timely, which requires, at a minimum, notice before the expressly stated deadline has passed). In October 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the Houston RO (Travel Board hearing). A transcript of the hearing has been associated with the record. In April 2017, the Board remanded this case for additional development. The case is now again before the Board for further appellate consideration. The record before the Board consists of electronic records within the Veterans Benefits Management System. The issue of entitlement to service connection for a bilateral foot disability, claimed as pes planus, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). The Veteran's claim for service connection for bronchitis was denied in a July 2012 rating decision. In March 2016 correspondence, he asserted he had bronchitis which was caused by exposure to chemical compounds while working in a warehouse during service. This issue has been raised by the Veteran, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Consequently, the Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2017). FINDING OF FACT The Veteran has not had pharyngitis or any other throat disability at any time during the period of the claim. CONCLUSION OF LAW The criteria for service connection for a throat disability, claimed as pharyngitis, have not been met. 38 U.S.C.A. § 1110, 1154, 5107 (West 2015); 38 C.F.R. § 3.102, 3.303, 3.385 (2017); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2015), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2016), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The record reflects that the Veteran's service treatment records (STRs), VA treatment records, and private treatment records have been obtained, to the extent they have been identified by the Veteran. The Veteran has also been afforded appropriate VA examinations in relation to his claim. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to further substantiate his claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Veteran's claim. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110 (West 2015); 38 C.F.R. § 3.303 (2017). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d) (2017). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary 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 (West 2015); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Background and Analysis The Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to the Veteran's claims. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's claims. At the outset, the Board notes that "Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. . . . In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the current disability requirement 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 where the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran's STRs show he was diagnosed with streptococcal pharyngitis in December 1973, and treated with antibiotics. The STRs are absent of any recurrence of the condition. His post-service medical records are likewise absent of any recurrence of pharyngitis or any other diagnosed throat disability. Pursuant to the Board's April 2017 remand, the Veteran was afforded a VA examination in July 2017. The examiner noted the Veteran had been diagnosed with streptococcal pharyngitis in December 1973, but did not indicate any other disability affecting the sinuses, nose, throat, larynx, or pharynx was present at the time of the examination. The examiner noted the Veteran was treated for his in-service pharyngitis with antibiotics, and that a February 1973 note indicated the condition had resolved. The examiner further noted the Veteran indicated he had never had ear, nose, or throat trouble at the time of his separation from service. The examiner found no abnormalities of the pharynx on examination. He explained that streptococcal pharyngitis is an acute, self-limited illness, which had been treated with antibiotics and resolved during service. He stated there were no long term sequelae related to the Veteran's acute streptococcal pharyngitis documented in his medical records, and concluded it was less likely than not the Veteran had any current condition related to his one-time acute incident of pharyngitis in 1973. The Board has carefully reviewed the foregoing and the entire record. Upon review, the Veteran has not submitted, and there is otherwise no medical evidence of record which contradicts the April 2017 VA examination report. As such, the Board finds a preponderance of the evidence indicates the Veteran has not had pharyngitis or any other diagnosed throat condition at any time during the period of the claim. In reaching its decision, the Board has duly considered the benefit-of-the-doubt doctrine, but has determined a preponderance of the evidence weighs against the Veteran's claim. Accordingly, the doctrine is inapplicable, and the claim must be denied. ORDER Entitlement to service connection for a throat disability, claimed as pharyngitis, is denied. REMAND In its April 2017 remand, the Board noted that the diagnoses applicable to the Veteran's bilateral foot disability were unclear, but that March 2009 X-rays had shown arthritis. As such, the Board broadly characterized the Veteran's claim as one for service connection for any bilateral orthopedic foot disability, and noted the Veteran's contention that his disability was related to vigorous physical training he participated in during service. The Board also noted that a 1973 report of medical examination at entrance included a notation of pes planus, but that a January 1973 physician's summary stated the Veteran had "no foot problems." The Board observed that veterans are presumed to be in sound condition upon entry except as to conditions noted at the time of examination or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. § 1111 (West 2015); 38 C.F.R. § 3.304 (2017). After weighing the evidence, the Board determined that pes planus was not noted at the time of examination with the meaning of the pertinent VA regulations, and that there was no clear and unmistakable evidence that the Veteran had any bilateral foot disability prior to service. The Board proceeded to remand the Veteran's claim for a VA examination. The examiner was requested to identify all bilateral foot disabilities present during the period of the claim and to determine whether they were related to the Veteran's service. The examiner was also specifically instructed to address the Veteran's contention that his bilateral foot symptoms were related to vigorous physical training during service. Pursuant to the Board's remand, the Veteran was afforded a VA examination in July 2017. The examiner noted that a diagnosis of pes planus appeared at entrance into service, but stated the Veteran had no complaints of pes planus at the time of the examination. Instead, the examiner noted, the Veteran had diabetes with diabetic neuropathy, and peripheral vascular disease, which caused edema. The examiner reiterated the Veteran had no symptoms of pes planus. Upon a review of the foregoing, the Board notes the VA examiner addressed only pes planus, and not all bilateral foot disabilities present during the period of the claim, to include bilateral foot arthritis, as documented by March 2009 imaging. In addition, the Board notes the examiner did not address the Veteran's lay statements, as instructed by the Board. Under these circumstances, the Board finds a remand for an addendum opinion from the April 2017 examiner is warranted, following an additional examination, if deemed necessary. Accordingly, this case is REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, forward the Veteran's claims file to the April 2017 orthopedic examiner, or if he is not available, to another qualified examiner, to determine the nature and etiology of all bilateral foot disabilities present during the period of the claim. If the examiner determines another examination is necessary, schedule the examination. Following a review of the relevant records and lay statements, and an additional examination if deemed necessary, the examiner should identify all acquired foot disabilities present during the period of the claim. The examiner should specifically confirm or rule out diagnoses of bilateral pes planus and bilateral foot arthritis (shown by March 2009 X-rays). With regard to each identified bilateral foot disability present during the period of the claim, the examiner must state whether it is at least as likely as not (50 percent probability or greater) that the bilateral foot disability originated during or is otherwise etiologically related to the Veteran's military service. In providing his or her opinion(s), the examiner must address the competent statements submitted by the Veteran to the effect that his bilateral foot symptoms (to include arthritis) are related to the vigorous physical training he participated in during service. The examiner must provide a rationale for any proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Undertake any other development determined to be warranted. 4. Then, readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or 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 2014). _________________________________________________ T. REYNOLDS 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) (2017). Department of Veterans Affairs