Citation Nr: 21066645 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-06 705 DATE: November 1, 2021 REMANDED Entitlement to service connection for throat disability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1966 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019 and June 2020, the Board remanded the claim for further development. As explained below, there has not been substantial compliance with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for throat disability is remanded. The Veteran contends that the throat problems noted in service never waned and persisted since service. See Correspondence (December 2020). He reported being told that the chlorine and radiation training in basic training "had a lot to do with it." See Form 9 (February 2016). In this case, remand is necessary to (1) attempt to verify the Veteran's radiation and/or chlorine exposure, (2) obtain outstanding service personnel records (SPRs), and (3) obtain and adequate medical opinion, which the Board has requested in its previous remands. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). By way of background, the Veteran's service treatment records (STRs) reflect normal findings of mouth and throat at a preinduction physical conducted in July 1966. See STR-Medical (May 2014). The Veteran was seen in November 1966 and April 1967 for a sore throat. A November 1968 STR shows reports of sore throat for two days as well as pain on swallowing; the examination at that time revealed enlarged red tonsils with white exudate; neck was tender with swollen glands. Id. The impression at that time was tonsillitis and mononucleosis. Examination at that time showed beta strep not Group A. At the time of his separation in November 1968, the Veteran reported having throat trouble; the separation physical showed normal findings for mouth and throat. As to (1) above, it is noted that the Veteran contends that his throat disability is caused by or the result of radiation and/or chlorine exposure in service during basic training. VA has not conceded nor attempted to verify his exposure. As to (2) above, the record does not include the Veteran's SPRs. Furthermore, it appears that the Agency of Original Jurisdiction (AOJ) has not submitted a request for SPRs. Such information is relevant in the sense that it could help the Veteran establish exposure to radiation and/or chlorine has not been verified. Thus, a remand is required for the AOJ to obtain all outstanding SPRs. As to (3) above, despites several Board remands, no adequate medical opinion has been obtained. A November 2019 VA examination diagnosed of erythematous vascular lesion concerning for gastric antral vascular ectasis (GAVE) and Schatski's ring, and provided an opinion that the Veteran's in-service sore throat issues were not related to chlorine exposure, as the in-service sore throat was likely caused by either bacteria or virus. See C&P Exam (November 2019). The exam noted that the Veteran's current Schatski's ring and GAVE were not related to chlorine or radiation exposure. In June 2020, the Board remanded this matter for a new VA medical opinion. The Board found that the November 2019 VA examination (1) did not provide an opinion as to whether the Veteran's current throat disability is related to his period of active service instead being limited to the Veteran's exposure to chlorine and radiation, and (2) noted that Schatski's ring can be caused by abnormal cell growth, but did not provide a specific opinion regarding whether radiation exposure can contribute to abnormal cell growth. The Board then instructed that the new medical opinion provides rationale based on "full history from the Veteran" and discusses "November 1966, April 1967, and November 196[8] for a sore throat; his complaints of throat trouble at the time of separation; and the Veteran's lay assertions to the effect that his current throat disability is due to chlorine and radiation exposure during service." Although a VA medical opinion was obtained in October 2020, the Board finds that it is inadequate as it did not fully answer the Board's question. It is noted that a medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25. Also, "[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Here, the October 2020 VA medical opinion is inadequate as the essential rationale for the opinion is not discernable. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). First, despite the Board's specific instructions to consider full history and discuss the November 1966, April 1967, and November 1968 STRs showing reports of and treatment for sore throat, as well as the Veteran's complaints of throat trouble at the time of separation in November 1968, the opinion generally states that "STRs reveal frequent episodes of pharyngitis." See C&P Exam (October 2020). The Veteran's STRs, however, show episodes of sore throat, tonsillitis and mononucleosis, pain on swallowing, and are not limited to pharyngitis as the opinion generally stated. The opinion was thus limited and did not properly answer the questions posed in the Board remand. See Stegall, supra. Second, despite the Board's request that the medical opinion provides the etiology of "any diagnosis of throat disability," the October 2020 VA examination does not provide any etiology for the established diagnoses of chronic pharyngitis, Schatzki's Ring and an erythematous vascular lesion. See BVA Decision (June 2020); C&P Exam (October 2020). Third, although the opinion discusses risk factors for chronic pharyngitis and cites to a ".com" website, it does not provide the Board a reasoned rationale connecting this medical research to the Veteran's claimed throat disabilities. Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018) (reliance on the absence of medical literature supporting nexus without discussing the specific facts of the case renders an opinion inadequate); see also Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (although general medical research may be considered, it cannot be the sole basis for examiner's conclusion). Significantly, the opinion does not apply any of the online studies to the Veteran's particular circumstances. Nor does the opinion reveal a supporting rationale connecting the findings to the conclusions. See Nieves-Rodriguez, supra. Similarly, when opining that STRs do not "identify any specific environmental trigger which can be causally linked to the veteran's chronic pharyngitis," and that "chlorine exposure produces very acute symptoms of eyes and upper respiratory tract irritation and there is no account of such an exposure in the STR," the opinion again relates on general studies without identifying such studies. The opinion regarding radiation as the cause of throat disability was again based on "current medical literature" that was not identified or discussed. Next, the December 2019 VA medical opinion is inadequate, because the negative opinion relied on the assumption that in-service throat problems were acute, despite the Veteran's specific contention that his throat problems never waned in service and since, which STRs also support given numerous instances of in-service throat troubles. Although a lay person is not competent to opine on the etiology of the claimed disability, a lay person, such as the Veteran, is competent to report signs and symptoms of skin disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In this instance, the Board specifically requested the examiner to address any lay reports of continuing throat symptoms since service. See BVA Decision (June 2020). Such has not been accomplished on remand. See Stegall, supra. The opinion, instead, does not reflect consideration of the Veteran's competent lay reports and, inappropriately, rejects his assertions of continuing symptoms without any explanation. Given the above, remand is required. See Stegall, 11 Vet. App. 268. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran or the appellant's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matter is REMANDED for the following action: 1. Obtain all VA treatment records dated from November 2020 to the Present. 2. Obtain the Veteran's complete service personnel records. Document all requests for information as well as all responses in the claims file. If necessary, notify the Veteran if service personnel records are unavailable through official sources and provide him an opportunity to provide copies of those records. 3. Develop the Veteran's assertion that he was exposed to radiation and/or chlorine. If more details are needed, contact the Veteran to request the information. 4. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any and ALL throat disability/ies. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on examination and review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with any throat disability, to include the Veteran's in-service report of and treatment for sore throat in November 1966, April 1967, and November 1968, and his reports of throat trouble at the time of separation in November 1968. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The clinician must opine on: (a.) Whether any throat disability shown during this appeal is at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease. Consider and expressly address the Veteran's theory that his throat disability stems from in-service throat complaints, to include those annotated in his STRs. Explain. (b.) Only if the Veteran's radiation and/or chlorine exposure is verified, whether any throat disability shown during this appeal is etiologically related to the in-service radiation and/or chlorine exposure, including whether such can contribute to abnormal cell growth as indicated in the November 2019 VA examination. Explain. NOTE (1): A negative medical opinion may not be predicated solely on the absence of in-service documented complaints, findings, or treatment. NOTE (2): A negative medical opinion may not dismiss the Veteran's competent report of respiratory symptoms in service and since without providing an explanation as to why. For example, if the Veteran's reports about his symptoms do not align with how the currently diagnosed disability is known to develop, explain; or if the Veteran's reports are generally inconsistent with medical knowledge or implausible, explain. 5. Ensure that the medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.