Citation Nr: 21074005 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 20-05 487 DATE: December 13, 2021 REMANDED Entitlement to service connection for costochondritis is remanded. Entitlement to service connection for tonsillitis is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1986 to August 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Board denied the Veteran's service connection claim. She appealed to the Court of Appeals for Veterans Claims (the Court). While the matter was pending before the Court, in August 2021, the Veteran's attorney and a representative of VA's Office of General Counsel filed a Joint Motion for Partial Remand (JMPR). The parties agreed that remand was necessary because "the Board erred when it did not provide an adequate statement of reasons or bases to support its finding that Appellant does not have any current symptoms or disabilities." That same month, the Court vacated the Board's decision and remanded the matter for readjudication consistent with the JMPR. 1. Entitlement to service connection for costochondritis is remanded. 2. Entitlement to service connection for tonsillitis is remanded. The Secretary must provide an exam or medical opinion when it "is necessary to make a decision on the claim." 38 C.F.R. § 5103(d). A medical exam or opinion is necessary only if the record contains (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that the veteran suffered an in-service event, injury, or disease; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to decide on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The third element "requires only that the evidence 'indicates' that there 'may' be a nexus" between the Veteran's symptoms or disability and his military service. McLendon, 20 Vet. App. at 83. "This is a low threshold." Id. And where, as here, the Veteran's service treatment records (STRs) are incomplete, VA's duty to assist is heightened. See Washington v. Nicholson, 19 Vet. App. 362, 370 (2005). Here, the Veteran stated she experienced headaches, congestion of nasal passages, sneezing, coughing, upper respiratory infections, and wheezing 4 or 5 times a week (i.e., persistent or recurrent symptoms of a disability). And the available STRs are replete with the same or similar symptoms during service. The Veteran has reported that these problems continued after her separation. See a December 2016 statement. "The types of evidence that 'indicate' that a current disability 'may be associated' with military service include . . . evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation." Id.; see also Miller v. Wilkie, 32 Vet. App. 249, 262 (2020) ("[A] medical opinion may inform the Board about credibility."). Because the record lacks sufficient competent medical evidence to decide the claim, the Board finds the criteria for a medical examination met. Finally, as the case is being remanded for additional development, any outstanding VA treatment records should be associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (per curiam). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the nature and likely etiology of the Veteran's upper respiratory disease, claimed as costochondritis and tonsillitis. The claims file should be made available to and reviewed by the examiner. (a.) The examiner should identify all current upper respiratory diseases. (b.) For each disease, the examiner should provide an opinion on whether it is at least as likely as not (50 percent probability or greater) that the Veteran's upper respiratory disease had its clinical onset during service or is due to an event or incident of the Veteran's period of active service. The examiner should comment on whether costochondritis and tonsillitis has been present during the appeal period. (c.) If no identifiable disease or condition is diagnosed, the examiner should describe the Veteran's symptoms and provide an opinion on whether those symptoms cause functional impairment of her earning capacity. (d.) The examiner must address the Veteran's contention that her symptoms onset during service and continued after discharge and the medical evidence cited in the July 2018 Notice of Disagreement. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that her reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and her attorney should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Canedy, 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.