Citation Nr: 21071015 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 10-29 168 DATE: November 29, 2021 REMANDED Entitlement to a compensable rating for chronic tonsillitis since March 29, 2012 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1968 to July 1968. In April 2020, the Board issued a decision denying the Veteran's claim for a compensable rating for chronic tonsillitis since March 29, 2012. The Veteran appealed the matter to the U.S. Court of Appeals for Veterans Claims (Court), which vacated, in part, the April 2020 Board decision, pursuant to an April 2021 Joint Motion for Partial Remand (JMPR). The Court remanded the matter for action consistent with the terms of the JMPR. 1. Entitlement to a compensable rating for chronic tonsillitis since March 29, 2012 is remanded. In the April 2021 JMPR, the parties agreed that the Board failed to provide an adequate statement of reasons and bases in its April 2020 denial of the claim on appeal. In the April 2020 decision, the Board denied the Veteran's claim for a compensable rating for chronic tonsillitis. As there is no Diagnostic Code (DC) for chronic tonsillitis, the Board analyzed the evidence as a rating by analogy under 38 C.F.R. § 4.20, DC 6516, which is the rating criteria for chronic laryngitis. The Board found that as the Veteran did not satisfy the rating criteria under DC 6516, a compensable rating for chronic tonsillitis was not warranted. However, in the JMPR, the parties found that the Board erroneously required that the Veteran exhibit the exact symptoms outlined in DC 6156, even though the Board rated the condition by analogy. The Veteran has endorsed several symptoms relating to his chronic tonsillitis prior to and throughout the appeal period. In September 2008, a provider noted that the Veteran experienced a sore throat, pain, dark secretions, and a cough. See Aug. 2017 Medical Treatment Record Non-Government Facility, p. 11. In November 2008, a provider submitted a statement noting that the Veteran experiences sore throat, cough, hoarseness, colorful septum, and shortness of breath. See Nov. 2008 VA Form 21-4142. In September 2010, the Veteran experienced a sore throat and hoarseness. See Sept. 2019 CAPRI, p. 596. In February 2011, he reported hoarseness and throat pain. Id. at 588. In May 2011, he reported episodes of throat pain. Id. at 580. In a March 2012 VA examination, the Veteran reported mild itching in his nose, occasional sneezing, and recurrent throat pain. See Mar. 2012 VA Examination. In July 2012, he endorsed a scratchy throat, pain, difficulty swallowing, cough, non-quantified fever, and general malaise. See Sept. 2019 CAPRI, p. 555. In December 2014, he reported throat discomfort. See Aug. 2017 Medical Treatment Record Non-Government Facility, p. 17. In June 2015, a provider noted further throat discomfort, brown secretions, and a cough. Id. at 20. In a September 2016 VA examination, the Veteran reported continued throat discomfort. See Sept. 2016 VA Examination, p. 2. In March 2019, a VA provider noted that the Veteran experienced dry oral mucus, a congested feeling, and a sore throat. See Aug. 2019 CAPRI, p. 17. The Board notes that over five years have elapsed since the Veteran's last VA examination as to his chronic tonsillitis, and evidence associated with the claims file indicates that the condition may have worsened since the most recent VA examination. See Jun. 2021 Medical Treatment Record Government Facility, pp. 2-3. The Board finds that the September 2016 VA examination, the most recent examination of record, is too remote for rating purposes in light of evidence of a worsened disability and cannot be considered contemporaneous. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). Accordingly, the matter must be remanded to afford the Veteran a current VA examination as to the nature and severity of his chronic tonsillitis. Further, the Board finds that upon remand, the examiner should discuss the Veteran's symptoms of his service-connected tonsillitis under any appropriate diagnostic criteria under 38 C.F.R. § 4.97. The Board specifically notes that the general rating formula for sinusitis (DCs 6510 through 6514) contemplate discharge and pain, which the Veteran has endorsed during the period on appeal, outlined above. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate examiner to determine the current nature and severity of his service-connected chronic tonsillitis. The claims folder must be made available to the examiner for review in connection with the examination. The examination report must reflect that such a review was conducted. The examiner should identify any symptoms that the currently manifests or has manifested since March 29, 2012, that are attributable to his service-connected chronic tonsillitis. In determining the current nature and severity of the condition, the examiner should consider DC 6516 and the general rating formula for sinusitis (DCs 6510 through 6514), as well as any other Diagnostic Code found in 38 C.F.R. § 4.97 that the examiner deems appropriate. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries and that his reports must be taken into account in formulating the requested opinions. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Watkins, 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.