Citation Nr: 20051982 Decision Date: 08/05/20 Archive Date: 08/05/20 DOCKET NO. 16-34 773 DATE: August 5, 2020 REMANDED Entitlement to service connection for spasmodic dysphonia is remanded. REASONS FOR REMAND The Veteran served active duty from January to March 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in September 2019. The hearing transcript is associated with the claims file. The Board notes that a March 2014 rating decision originally denied service connection for the Veteran’s claim on the basis that the disability which preexisted service was not aggravated by service. The Veteran submitted a claim for reconsideration in December 2014 along with new and material evidence within one year of the March 2014 rating decision. The RO continued the denial of the claim in the March 2015 rating decision. The Veteran submitted a timely notice of disagreement with the March 2015 rating decision in February 2016. Thus, the March 2014 rating decision did not become final and the new and material evidence analysis is not needed. Entitlement to service connection for spasmodic dysphonia is remanded. The Veteran was afforded VA examination with respect to this claim in May 2016. The examiner opined that the Veteran’s spasmodic dysphonia which clearly and unmistakably existed prior to service, was clear and unmistakably not aggravated beyond its natural progression by cadence calling during service. The examiner reasoned that the medical record noted that the Veteran had rather advance symptoms of dysphonia since age 9. The examiner noted that calling cadence would cause exacerbated symptoms that would be transient or short term in nature and would resolve with rest. The examiner concluded that there was no evidence to suggest that calling cadence on a one to three-month duration has caused a permanent aggravation of the Veteran’s dysphonia and thus the Veteran’s condition was following a natural progression and not exacerbated by service. The Board finds this opinion is inadequate for adjudication purposes. Here, the examiner opined that the Veteran’s spasmodic dysphonia preexisted service based on the medical record. Review of the record fails to reveal evidence noted on the Veteran’s October 1978 enlistment examination or otherwise that indicated the Veteran had spasmodic dysphonia prior to service. Service treatment records (STRs) reflect the Veteran suffered from hyperkinesis since the age of 9. There was no evidence in STRs that reflects that the Veteran suffered from spasmodic dysphonia or associated symptoms prior to service. Thus, the Board finds the disability was not noted on entrance within the meaning of 38 C.F.R. § 3.304 (b), and the Veteran is therefore presumed sound on entry. The RO has not shown by clear and unmistakable evidence that the Veteran’s spasmodic dysphonia existed prior to service and that the condition was not aggravated by service. Therefore, the presumption of soundness has not been rebutted and the Veteran is still entitled to the presumption of soundness upon entry. See 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304 (b) (2018); VAOPGCPREC 3-2003 (July 16, 2003); Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). Therefore, remand is required for an examination with the appropriate legal standard. Additionally, at the September 2019 Board hearing the Veteran testified that she has received treatment for this disability since 1979. The record also reflects the Veteran received extensive treatment with Emory Voice and Swallow clinic. However, the claims file only reflects VA treatment records dated as early as 2006 and does not reflect all treatment records from the Emory clinic. On remand efforts should be made to obtain these records. The matter is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment dated as early as 1979, if any. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and her attorney. 2. Contact the Veteran and afford her the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. A specific request should be made for records from the Emory Voice and Swallow Clinic. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and her attorney. 3. After the above development has been completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any spasmodic dysphonia. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran being the sole individual calling cadence six to seven hours a day over a three-month period. The examiner must address the Veteran’s lay statements regarding the onset and continuity of symptoms associated with her spasmodic dysphonia. An explanation for any opinion expressed must be provided. The examiner must elicit from the Veteran a full history and/or description of her active service. 4. After the above has been accomplished, readjudicate the claim. If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McDuffie, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.