Citation Nr: 21066792 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 16-29 403 DATE: November 2, 2021 ORDER Entitlement to service connection for tonsillitis is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's tonsillitis is related to service. CONCLUSION OF LAW The criteria for service connection for tonsillitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1989 to May 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which, in relevant part, denied service connection for tonsillitis. This claim was previously before the Board in December 2018 and April 2021, at which time the Board remanded it for further development. The development has been completed to the extent possible, and the claim has returned to the Board. Duty to notify and assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5103(a), 5103A; 38 C.F.R. § 3.159. The issue adjudicated in the instant decision is also subject to compliance with December 2018 and April 2021 Board remands. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Neither the Veteran, nor his representative have identified a specific notification or assistance error. The December 2018 and April 2021 Board remands instructed that the Veteran be contacted to identify or submit medical evidence regarding the claim and then furnish an appropriate VA examination and medical opinion. The agency of original (AOJ) was then to readjudicate the claim. A February 2019 Report of General Information shows that the Veteran was successfully contacted about submitting additional evidence for this claim. The June 2021 VA-contract medical opinion is sufficiently responsive to adjudicate the claim as discussed below. The AOJ readjudicated the claim in the July 2021 supplemental statement of the case. The record reflects substantial compliance with the applicable remand instructions. For the above stated reasons, the claim is ready for appellate adjudication. See Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). Entitlement to service connection for tonsillitis Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service treatment records (STRs) showed that the Veteran underwent a physical examination in June 1988 as part of the Reserve Officer Training Corp (ROTC). No pertinent findings were made. November 1989 STRs reported that the Veteran received hospital treatment for a left peritonsillar abscess (tonsil abscess). The abscess was drained, and intravenous (IV) antibiotics were administered. At discharge, the tonsillar swelling had decreased, and the Veteran was able to tolerate his regular diet. June 1991 physical examination report showed that the Veteran's mouth and throat were clinically examined and deemed normal. May 1992 STR memorandum stated that a physician had reviewed the Veteran's health record and determined that a separation physical examination was not necessary. February 2009 private medical records reported that the Veteran was treated for swollen tonsils, congestion, and nasal drainage. Clinical findings were detailed. The clinician appears to assess pharyngis and sinusitis as well as an illegible diagnosis. July 2013 VA treatment records showed that the Veteran presented with a sore throat. He reported having left anterior neck pain for the last three weeks with pain on swallowing and sore throat. He reported a tonsillitis history but believed his current symptoms were different. Clinical evaluation showed a clear oropharynx with no erythema or tonsillar swelling. Neck was notable for mild tenderness over the left anterior area. The physician listed an impression of sore throat. He provided medication and instructed the Veteran to return with any worsening symptoms. September 2013 VA treatment records showed that the Veteran complained about continuing tonsil problems. The medication he received in July initially helped but now he occasionally felt like his tonsils were swollen. In the May 2016 substantive appeal, the Veteran reported that he was hospitalized for tonsillitis in service. In August 2016, the Veteran stated that his tonsil was aspirated with a needle during service because of an infection and to increase the oxygen flow. He attributed his problems swallowing, obstructive sleep apnea (OSA) and food deposits to this incident. May 2017 VA treatment records noted reflux symptoms while laying down at night and throating burning. The clinician observed that the Veteran was not taking Prilosec correctly. He advised the Veteran to take Prilosec as directed, 30 minutes prior to meals. July 2017 VA treatment records included sore throat complaints. It occurred intermittently around the upper throat area when the Veteran laid in the supine position. Prilosec improved the pain. He took it once a day. The clinician encouraged the Veteran to use Prilosec 30 minutes prior to meals. August 2017 VA treatment records included an assessment that the Veteran's intermittent sore throats were likely secondary to uncontrolled GERD, which was exacerbated by uncontrolled OSA. December 2017 VA treatment records reported that the Veteran was initially referred for intermittent sore throat but now followed for OSA with poor tolerance of continuous positive airway pressure (CPAP) use. He had a history of recurrent tonsillitis and one peritonsillar abscess drained many years ago. He had been advised that his intermittent sore throats were likely related to uncontrolled reflux which was in turn worse due to uncontrolled OSA. He received an endoscopy in October 2017. He reported doing well since the endoscopy. He took his reflux medication twice a day, but not at 30 minutes prior to meals. Oropharynx was remarkable for large tongue and oropharyngeal crowding with 2+ tonsils that were cryptic in appearance. The October 2017 operative report showed partial AP palate collapse, complete circumferential oropharyngeal collapse, and partial lateral hypopharyngeal collapse. The physician listed impressions of severe OSA and GERD. He recommended tonsillectomy and expansion pharyngoplasty. In November 2019, the Veteran had a VA-contract examination with a certified nurse practitioner (NP). In pertinent part, the Veteran reported that he was treated for a peritonsillar abcess in 1989. He stated that it is caused OSA and food to become stuck in his tonsils. Currently, he had difficulty breathing and burning sensation affecting the back of his throat due to his tonsils. The NP noted the OSA and GERD history as well as recommendation for tonsillectomy and expansion pharyngoplasty that had not been pursued. Briefly, the Board observes that the accompanying physical examination indicated no symptoms and the corresponding no diagnosis medical opinion has been deemed inadequate for adjudication purposes. These sections to the VA examination will not be considered further. However, the above medical history reports are unaffected by this determination, and may be considered. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight"; "it may be given some weight based upon the amount of information and analysis it contains"). In May 2021, the Veteran had a VA-contract examination with a physician's assistant (PA). The PA diagnosed significant narrowing of oral pharynx. He noted the 1989 peritonsillar abscess that resulted in hospitalization and drainage treatment. Since then, the Veteran reported intermittent tonsil problems with swelling and aches. A tonsillectomy had been recommended, but the Veteran did not want to pursue it. Physical examination showed a very crowded and narrow oral pharynx. Medical records confirmed an expansion pharyngoplasty was recommended and that CPAP treatment was ineffective. The October 2017 endoscopy confirmed partial anterior/ posterior collapse, complete circumferential collapse and partial lateral wall collapse of the hypopharynx. The PA furnished a negative medical opinion. He reported reviewing the claims folder. He specifically noted the August 2017 and December 2017 VA treatment records about findings related to sore throat complaints and the clinician's assessment attributing sore throat to uncontrolled GERD and OSA. He stated that the Veteran had a very narrow oropharynx and in connection with obesity, it resulted in OSA. He also noted frequent sore throat secondary to acid reflux and intermittent tonsillitis. He commented that due to the narrow oropharynx, the Veteran may be prone to tonsillitis. The in-service peritonsillar abscess was acute and not deemed the main etiology of the present complaint of intermittent sore throat. He reported that the Veteran had an anatomical problem with recommended surgical intervention. For the following reasons, service connection for tonsillitis is not warranted. The Veteran reports that he has developed tonsillitis from service, specifically the November 1989 tonsil abscess aspiration. The Veteran is competent to report about throat or tonsil symptoms and information given to him from treating clinicians. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007). STRs from November 1989 showed that the Veteran had a tonsil abscess aspirated and received IV antibiotic treatment. Otherwise, STRs do not include any specific treatment for tonsillitis or similar throat condition. The Board has considered whether the evidence demonstrates continuous symptoms since service. The Veteran's historical reports refer to intermittent tonsil symptoms following service that he believed were related to the November 1989 peritonsillar abcess surgery. (See August 2016 report; November 2019 and May 2021 VA-contract examination reports). Overall, the Board does not find the Veteran's reports persuasive to show continuous symptoms since service. This is because his reports are vague about the frequency and duration of the tonsillitis symptoms following service and the possibility of other post service causes, such acute respiratory illness and in 2017, GERD and OSA. (See July 2017, August 2017, and December 2017 VA treatment records). The question of whether the current tonsillitis is related to the November 1989 tonsil abscess aspiration or any other incident of service is a complex medical issue. The complex medical issue designation is appropriate because the medical records indicate the presence of post service medical conditions as possible causes for the tonsil or throat condition complaints. Thus, identifying the November 1989 throat abscess aspiration or in-service illness as the cause for any current tonsil disorder extends beyond a simple cause and effect type relationship. It is the type of relationship that the courts have found to be beyond the competence of lay witnesses. Jandreau, 492 F.3d at 1377, n. 4; 38 C.F.R. § 3.159(a)(1). Consequently, the Veteran's reports about any relationship to the November 1989 tonsil abscess aspiration or any in service illness are not competent. Id. The competent evidence for consideration regarding a relationship to service is limited to the May 2021 VA-contract medical opinion. It was given by a PA based upon an examination of the Veteran, a review of his treatment records, and consideration of his reported history. Reading the opinion as a whole and in the context of the evidence of record, the PA did not find sufficient evidence to link any current tonsil problem to service including the peritonsillar abscess. He cited the alternative causes of GERD and OSA as noted from the clinical records. He assessed the in-service tonsil abscess as acute and not the main etiology of the current intermittent sore throat complaints. His opinion is therefore entitled to some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). There is no conflicting medical opinion or competent evidence linking tonsillitis or similar throat disorder to service, including the November 1989 tonsil abscess aspiration or any in-service illness. For the above stated reasons, the preponderance of the evidence is against the claim for service connection for tonsillitis. The benefit-of-the-doubt doctrine is therefore not for application, and the claim for service connection for tonsillitis must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. D. Simpson, 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.