Citation Nr: 21064534 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 16-17 607 DATE: October 20, 2021 REMANDED Entitlement to service connection for vocal polyps/nodules on vocal cords (previously claimed as chronic throat infection) is remanded. Entitlement to service connection for impaired vision is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from August 1982 to November 1990, with additional Reserve service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claim for entitlement to service connection for vocal polyps/nodules on vocal cords (previously claimed as chronic throat infection) was originally denied in a September 1993 decision, which she did not appeal. The Veteran subsequently filed a request to reopen this claim in August 2014, which was denied by the RO in a January 2015 rating decision that the Veteran appealed to the Board. In June 2020, the Board also denied the Veteran's appeal to reopen her claim for service connection for vocal polyps/nodules on vocal cords based on a lack of a new and material evidence, and denied her service connection claim for impaired vision, including other claims unrelated to this appeal. The Veteran, through her attorney, subsequently appealed the Board's denial of the claims to the United States Court of Appeals for Veterans Claims (Court), and thereafter the Board's decision with respect to these two specific claims was vacated pursuant to a June 2021 Joint Motion for Partial Remand (JMPR), and these matters were remanded for further proceedings consistent with the Motion. These matters have now been returned to the Board for readjudication. Applicability of 38 C.F.R. § 3.156 (c) Pursuant to the parties JMPR, both parties agree that the Board's June 2021 decision denying the Veteran's claims was not supported with an adequate statement of reasons or bases. With regards to the Veteran's request to reopen her claim for service connection for vocal polyps/nodules, by failing to address whether additional service treatment records (STRs) associated with the record after the original denial in September 1993 were relevant pursuant to 38 C.F.R. § 3.156 (c). For her service connection claim for impaired vision, the parties determined that VA failed in its duty to assist when it did not obtain outstanding treatment records from a non-VA optometrist, whose services were provided through the VHA Choice Program. Upon further review, the Board finds that 38 C.F.R. § 3.156 (c) is applicable in this case because the December 1993 STR that was added to the file subsequent to the RO's initial denial of the Veteran's claim in September 1993 reflects the Veteran's continuing complaints with regards to her ear, nose, or throat (ENT) symptoms, including chronic cough and colds which were not of record when the RO determined that the Veteran's claimed throat disorder was not chronic in nature and had been resolved as a basis for denying her original claim. Section 3.156 provides that "at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim." 38 C.F.R. § 3.156(c)(1). Thus, the Veteran's original claim for service connection for chronic throat infection (now for vocal polyps/nodules on vocal cords) remains open and pending because the finality of the prior rating decision of September 1993 is no longer at issue and this obviates the Board's responsibility to undertake a new and material analysis regarding that issue. 1. Entitlement to service connection for vocal polyps/nodules on vocal cords (previously claimed as chronic throat infection) is remanded. As previously noted, the evidence of record includes several references of the Veteran's in-service complaints of sore throat/throat inflammation. Also, during her December 1990 Naval Reserve enlistment examination, the Veteran reported being previously hospitalized for a "throat virus", and that she continues to experience ENT related issues. There is also a February 2017 post-service complaint of recurring sore throat. Given these facts, the Board finds that the Veteran should be afforded a VA examination for her claimed disability, and an opinion as to the etiology of any current ENT disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). However, the Board notes that additional development is necessary prior to undertaking this examination. Pertinently, the record indicates that the Veteran served in the Navy Reserve starting in August 1992, but no actions have been undertaken to verify the nature of this service or to obtain all treatment records during her period of Reserve service. This is significant because the laws to establish service connection differ between period of active duty and periods of Active Duty for Training (ACDUTRA) and Inactive Duty Training (INACDUTRA). Specifically, service connection may be granted for any disability stemming from an injury incurred during a period of ACDUTRA or INACDUTRA; however, while service connection may be established for diseases initially manifesting during a period of ACDUTRA, the same is not true for initially manifesting diseases during a period of INACDUTRA, unless they stem from an injury incurred during a period of active duty, ACDUTRA, or INACDUTRA. Therefore, to ensure completeness of the record for review by the opining VA examiner, updated VA and private treatment records must be sought, obtained, and associated with the file. 2. Entitlement to service connection for impaired vision is remanded. As a reason for remand, the Court cites to the Board's denial of the Veteran's claim for a lack of a current disability for impaired vision, notwithstanding evidence that the Veteran had outstanding eye treatment records that may have been relevant to the Veteran's claim. Specifically, that the record reflects that the Veteran obtained authorization to go to an optometrist in November 2015 under the VHA Choice Program but that there is no evidence that the RO attempted to obtain these records. Although the Board also made a determination that the Veteran's eye disability is developmental in nature because of references to myopia in her service treatment record, a congenital defect for which service connection cannot be granted based on VA regulations, it also acknowledged that service connection may also be granted if there is there is evidence of eye trauma or unusual developments. As such, upon further review, the evidence of record that was relied upon to deny the Veteran's claim for impaired vision was incomplete. Consequently, pursuant to the Court's motion, the Board finds that this issue should be remanded to obtain the Veteran's outstanding optometrist records, and to afford the Veteran a VA examination to determine the nature and etiology of her impaired vision disability claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. The Agency of Jurisdiction (AOJ) must contact the Veteran and request that she complete a release for any post-service treatment records that are outstanding and pertinent to the disabilities subject to this remand. In these releases, the Veteran should provide a time period in which she was treated at each facility identified. The AOJ should then obtain the records identified by the Veteran. With regards to the Veteran's impaired vision claim, this must include the Veteran's VA treatment records from an optometrist in November 2015 under the VHA Choice Program. All records obtained should be associated with the Veteran's file. If any identified and requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the file, and the Veteran should be informed in writing. 2. The AOJ must contact the National Personnel Records Center (NPRC), Records Management Center (RMC), Naval Reserve Personnel Center, and any other appropriate repository to request a complete set of the Veteran's service treatment and personnel records for her service in the Navy Reserves from August 1992 to March 1995 (based on the current record, this appears to be her Reserve service dates). All actions taken to complete this directive must be memorialized in the file. 3. The AOJ must also contact the Defense Finance and Accounting Service (DFAS), the NPRC and any other appropriate repository and request the Veteran's pay stubs from her service in the Navy Reserves from August 1992 to March 1995. Attempts to secure the pay stubs should be clearly documented in the file, along with any negative responses. 4. After completion of the above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any disability related to her ear nose and throat (ENT) present during the appeal period of this claim (from June 1993). The examiner should examine the Veteran, review the clinical records, and conduct any necessary diagnostic testing. The claims folder should be made available to the medical professional providing the opinion for review in conjunction with rendering the opinion and the examination report should note that the claims file was reviewed. The examiner should also obtain a complete, pertinent history from the Veteran and then render an opinion as to the following: a) Identify all ENT disabilities, including pharyngitis (sore throat) and laryngitis, during the appeal period (from June 1993 to the present). b) For each disability identified in subpart (a) provide an approximate date of onset (month and year), and an opinion concerning whether it at least as likely as not (meaning a 50 percent or greater probability) that such is proximately due to or the result of any incident of the Veteran's service, to include her active duty and subsequent periods of ACDUTRA and INACDUTRA. The examiner should provide a clear rationale, fully explaining the medical reasons for his or her opinions. If the examiner is unable to provide an opinion without resort to speculation, he or she should state whether the inability is due to the limits of the person's knowledge, the limits of medical knowledge in general, or there is additional evidence that would permit the needed opinion to be provided. 5. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any eye disability present during the appeal period. The complete electronic record must be made available to, and reviewed by, the VA examiner prior to conducting the examination. All necessary tests and studies should be conducted. Thereafter, the examiner is requested to address the following: a) Identify all disabilities involving either of the Veteran's eyes present during the period of appeal (since August 2014), even if currently resolved. b) For any eye disability found to be congenital, the examiner must specifically indicate whether the disability constitutes a congenital defect (i.e., a condition more or less stationary in nature) or a congenital disease (i.e., a condition capable of improving or deteriorating). 6. Provide an opinion addressing whether the Veteran has any current eye disability, within the meaning of VA regulation, to include any disability superimposed on a congenital defect, that is at least as likely as not (50 percent probability or greater) the result of disease or injury incurred in or aggravated by her active service, and subsequent periods of ACDUTRA and INACDUTRA. Note: Defects of form or structure of the eye that are of congenital or developmental origin may not be considered as disabilities or service connected on the basis of incurrence or aggravation beyond natural progress during service. 38 C.F.R. §§ 3.303 (c); 4.9. The examiner must articulate the reasoning underpinning the conclusions. That is, (1) identify what facts and information (whether found in the record or outside the record) support the opinion, and (2) explain how that evidence justifies the opinion. 7. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and her representative should be issued a supplemental statement of the case (SSOC), and an appropriate period should be allowed for a response. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, 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.