Citation Nr: 18102167 Decision Date: 05/14/18 Archive Date: 05/14/18 DOCKET NO. 15-13 660 DATE: May 14, 2018 REMANDED ISSUES Entitlement to service connection for tonsillitis is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to tonsillitis, is remanded. The Veteran served on active duty from June 1981 to October 1987. These matters are on appeal from a November 2013 rating decision. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in February 2018. At his hearing, the Veteran waived initial RO consideration of additional evidence. See 38 C.F.R. § 20.1304(c) (2017). 1. Entitlement to service connection for tonsillitis is remanded. The Veteran’s service treatment records (STRs) show that that he indicated on a December 1980 Report of Medical History that he experienced tonsillitis prior to service. A Veteran is presumed to have been in sound condition when examined, accepted, and enrolled into service except for defects, infirmities, and disorders not noted on entry into service, or where clear and unmistakable evidence shows that the disability existed prior to service and was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. Only such conditions as are recorded in examination reports by a physician are to be considered as “noted.” 38 C.F.R. § 3.304(b). Therefore, a Veteran-noted “history” of a disorder, in and of itself, is not sufficient to constitute having been “noted” under 38 C.F.R. § 3.304(b). However, the evidence of record certainly raises the issue of whether the Veteran’s tonsillitis pre-existed service. Therefore, on remand, the Board seeks an opinion as to the etiology of the Veteran’s tonsillitis, specifically addressing the question of whether the Veteran’s disability clearly and unmistakably preexisted service and, if so, whether the preexisting tonsillitis was clearly and unmistakably aggravated by the Veteran’s military service. 2. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to tonsillitis is remanded. The Veteran was afforded a VA examination in October 2013 to determine the etiology of his GERD, including whether the claimed condition is secondary to tonsillitis. However, the Board finds that a new examination is necessary as the examiner did not address the Veteran’s claim for GERD, but instead discussed achalasia. The matters are REMANDED for the following action: 1. Contact the Veteran and request authorization to obtain any outstanding records pertinent to his claims, including any private treatment records following proper VA procedures (38 C.F.R. § 3.159(c)). 2. After completing the requested development, obtain a VA medical examination to address the Veteran’s tonsillitis and GERD. The Veteran’s claims file, including this remand, must be made available for review by the examiner in conjunction with the examination. The examiner must review the claims folder, and this fact must be noted in the accompanying medical report. Based upon a review of the claims file, an interview of the Veteran, and the examination findings themselves, the examiner must answer the following questions: (a) Did the Veteran’s tonsillitis clearly and unmistakably (obviously or manifestly) exist prior to entrance into service? (b.) If so, was it clearly and unmistakably (obviously or manifestly) NOT aggravated (permanently worsened beyond the natural progression) during active service? Note: The term “aggravated” means an increase in severity of the underlying disability that is not due to the natural progress of the disease. (c.) If the VA examiner concludes that there is no clear and unmistakable evidence that the Veteran’s tonsillitis existed prior to service and was not aggravated by service, is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s tonsillitis began in service, is related to the Veteran’s service, or is otherwise related to a disease, event, or injury in service? (d.) Is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s GERD was caused by his tonsillitis? (e.) If tonsillitis did not cause GERD, is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s GERD was aggravated (permanently worsened beyond its natural progression) by his tonsillitis? If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of GERD by the service-connected disability. (f.) If not, is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s GERD began in service or is otherwise related to a disease, event, or injury in service? The examiner must provide a rationale for all medical opinions provided. The absence of evidence of treatment for tonsillitis or GERD in the Veteran’s service treatment records cannot, standing alone, be a sufficient rationale for providing a negative opinion. The examiner is also advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically considered in formulating any opinions. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. A rationale for all opinions expressed must be provided. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Mukherjee, Associate Counsel