Citation Nr: 21076180 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-46 970 DATE: December 22, 2021 ORDER Service connection for pharyngitis is denied. REMANDED Service connection for fibromyalgia is remanded. Service connection for tingling and numbness, identified as polyneuropathy, of the bilateral upper extremities, including as secondary to fibromyalgia, is remanded. Service connection for a urinary tract infection (UTI), including as secondary to the service-connected vaginitis with urinary incontinence and atypia, is remanded. FINDING OF FACT The Veteran's current laryngopharyngeal reflux is not related to in-service acute pharyngitis in June 1998. CONCLUSION OF LAW The criteria for service connection for pharyngitis have not been met. 38 U.S.C. §§ 1110, 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 July 1996 through December 1999. This appeal to the Board of Veterans' Appeals (Board) is from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, March 2020 and June 2020, the Board remanded the case to the AOJ for additional development and consideration. The file is again before the Board for further appellate review. Service Connection 1. Pharyngitis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The condition at issue is not a "chronic disease" listed under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A review of the Veteran's service personnel records, such as her DD Form 214, shows no verified service in Southwest Asia during the Persian Gulf War. Her overseas assignments appear to have only been in Germany. Thus, the provisions for presumptive service connection under 38 C.F.R. § 3.317 for Southwest Asia service during the Persian Gulf War are inapplicable. Nor does the evidence indicate that her larynx/sore throat problems are due to an undiagnosed illness or are part of a medically unexplained chronic multi-symptom illness (MUCMI). See 38 U.S.C. § 1117; 38 C.F.R. §§ 3.317. At the December 2019 VA examination, the Veteran complained of losing her voice sometimes, and intermittent symptoms of sore and hoarse throat. The Veteran has been diagnosed with a current disability of laryngopharyngeal reflux by the December 2019 VA examiner. A review of her service treatment records shows no indication of a diagnosis for laryngopharyngeal reflux. However, there is a single service treatment record documenting treatment and diagnosis of acute pharyngitis in June 1998. The remainder of her service treatment records are unremarkable for complaints, treatment or diagnosis of pharyngitis. Further, shortly after her separation from active duty (December 1999), the Veteran underwent a VA general examination in February 2000 that noted the Veteran had a history of past pharyngitis, or at least sore throat, treated with antibiotics, but it had cleared. Additionally, the probative and persuasive evidence fails to relate her in-service pharyngitis to her current laryngopharyngeal reflux disability. December 2019 and July 2020 VA medical opinions provides highly probative medical opinion evidence against the claim. A December 2019 VA examiner opined that the claimed pharyngitis was less likely than not (less than 50 percent probability) incurred in or caused by service. The examiner reasoned that, "Pharyngitis is defined as an inflammation of the pharynx or throat and can be either acute, or chronic. Acute pharyngitis is generally infectious (caused by either a virus or bacteria), is time limited and resolves completely. Symptoms typically include sore throat often with pain on swallowing, often accompanied by lymphadenopathy in the upper neck. Chronic pharyngitis is considered to be either due to recurrent infections, or chronic irritation of the throat from ongoing exposure to environmental factors such as dust or smoke. The description that the Veteran gives of her current symptoms (episodic hoarseness) is not consistent with a diagnosis of pharyngitis. A review of the service treatment record reveal one documentation of having been diagnosed with pharyngitis in [July 1998]. The actual note documenting the symptoms was not located, however, the documentation of pharyngitis without a qualifier would be understood by most practitioners to indicate acute pharyngitis. Regardless, only one visit appears to have been documented in the service treatment record which would suggest a time limited, one time occurrence, rather than an ongoing issue. A separation exam was not identified. A review of the available medical records since separation revealed only one ER visit for an upper respiratory infection which included sore throat. No other visits to either the ER or to primary care note sore throat or pharyngitis as a complaint. She was seen by ENT once in [October 2014] for globus sensation and was diagnosed with laryngopharyngeal reflux (LPR), not pharyngitis. Laryngopharyngeal reflux (LPR) is the movement of gastric contents into the larynx and pharynx frequently causing symptoms of hoarseness, globus sensation, nonproductive throat clearing, as well as cough and mild dysphagia. The veteran's symptoms are consistent with a diagnosis of LPR. The service treatment records do not document any symptoms consistent with LPR. Therefore, the claimed condition of pharyngitis, diagnosed as laryngopharyngeal reflux, was less likely than not incurred in, or caused by, or aggravated by the Veteran's service." Given the VA examiner's review of the claims file, personal interview of the Veteran, physical examination, and discussion of the rationale of the opinion, the Board finds the VA examiner's opinion is highly probative evidence against the claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) ("It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."). Further, the July 2020 VA examiner opined that the Veteran's laryngopharyngeal reflux was less likely than not due to service or had its nexus in service. The examiner reasoned that "Laryngopharyngeal reflux is due to GERD, with acid reflux affecting the larynx. GERD is due to relaxation of the gastroesophageal junction/sphincter allowing acid and stomach contents to reflux into the esophagus. Laryngopharyngeal reflux occurs when the acid regurgitates and is aspirated into the larynx. Therefore, it is a secondary condition of GERD with a defined etiology." The examiner added that GERD was not diagnosed and treated until 2014. Given the VA examiner's review of the claims file, personal interview of the Veteran, physical examination, and discussion of the rationale of the opinion, the Board finds the VA examiner's opinion is highly probative evidence against the claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) ("It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."). Additionally, there are no positive medical nexus opinions in support of her claim. The Board acknowledges the Veteran's contention that her claimed pharyngitis is related to service, but she is not competent to provide a nexus opinion with regard to this matter. The disease is medically complex, as the etiology of this disease involves internal disease processes and requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson,492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran does not have the required medical training to render such diagnosis or etiology of the claimed disease. Thus, the Veteran's lay statements do not provide probative evidence in support of her claim. The Board concludes the evidence does not support the claim for service connection and there is no doubt to be otherwise resolved. The appeal is denied. REASONS FOR REMAND 1. Fibromyalgia So far, all development has been limited towards the Veteran's attorney's argument that fibromyalgia was secondary to a non-service-connected posttraumatic stress disorder (PTSD). In this regard, the December 2019 and July 2020 VA examiners opined fibromyalgia is less likely than not proximately due to or the result of or aggravated by the Veteran's non-service-connected PTSD. However, the Veteran's October 2015 claim for fibromyalgia contended that the disability was secondary to her service-connected major depressive disorder (MDD). A medical nexus opinion is needed on the possibility of secondary service connection as caused and/or aggravated by service connected MDD, as this possibility has not been addressed by the VA medical opinions of record. 2. Polyneuropathy/tingling and numbness of the bilateral upper extremities The Veteran claims service connection for tingling and numbness of the bilateral upper extremities, which has been diagnosed as polyneuropathy, is secondary to the Veteran's fibromyalgia, for which the appeal for service connection is still pending. Thus, this issue is inextricably intertwined with the claim for fibromyalgia still on appeal. 3. Urinary tract infection (UTI) By history, the Board's June 2019 remand requested a medical opinion on the Veteran's contention that her claimed urinary tract infection is secondary to her service-connected vaginitis. A November 2019 VA examiner found no current diagnosis at that time of frequent urinary tract infections, such that the examiner provided a negative medical opinion on the possibility that claimed UTIs are caused by or aggravated by service-connected vaginitis. However, per the remand directives, the clinician did not address the medical literature the Veteran's representative provided, which suggests a causal link between vaginitis and the subsequent development of chronic UTIs. Thus, in March 2020, the Board remanded for another medical opinion to consider the medical literature submitted by the Veteran. See June 2019 Veteran's attorney's correspondence. In June 2020, the Board also remanded for the AOJ to complete any unfulfilled VA examinations and development ordered by the June 2019 Board remand. A remand by the Board confers on a Veteran the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). On remand, a July 2020 VA examiner provided confusing medical opinions against the possibility of both direct and secondary service connection. In the examiner's rationale, citing both the lack of chronic UTIs and that vaginitis does not cause urinary dysfunction or urinary incontinence. However, the Veteran's service-connected vaginitis is characterized by the AOJ as including urinary incontinence and atypia (atypical cells), so that this opinion shows an inaccurate review of the claims file. In addition, the Board accepts that the Veteran has had a current disability of UTI because it has been present during the pendency of the claim, since a November 2015 VA examiner diagnosed the Veteran with urinary tract infection (UTI). A disability is current if present near or at the time a claim is filed or at any time during its pendency. See Romanowsky v. Shinseki, 26 Vet. App. 289, 293-94 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). So, another medical opinion is necessary for clarification on the nature and etiology of her claimed disability. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from an appropriate VA clinician to determine the nature and etiology of the Veteran's fibromyalgia. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. On review of the record, the examiner should provide an opinion addressing the following: (A) Whether it is at least as likely as not (50 percent or greater) that any diagnosed fibromyalgia disability was either incurred in or in any way related to service. (B) Whether it is at least as likely as not (50 percent or greater) that any diagnosed fibromyalgia disability was either caused or aggravated by the service-connected MDD. A complete rationale should be provided for all opinions rendered. 2. Arrange for an addendum medical opinion from a qualified VA clinician, different from a prior VA examiner, to determine the nature and etiology of the Veteran's claimed urinary tract infection disability. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. After review of the claims file, the examiner should express an opinion as to the following: (a) Whether it is at least as likely as not (50 percent probability or greater) that any current urinary tract infection disability is caused by or otherwise etiologically related to her active service. (b) Whether it is at least as likely as not (50 percent probability or greater) that any current urinary tract infection disability is proximately due to or aggravated by service-connected vaginitis with urinary incontinence and atypia. The examiner should accept as established fact that the Veteran has a current disability of urinary tract infections. (Continued on the next page) Rationale must be provided for the opinion proffered. The examiner must consider any competent lay statements by the Veteran on the history of her claimed disability during service and symptoms following service. The clinician is asked to review and discuss the medical literature submitted by the Veteran's representative, which suggests a causal link between vaginitis and the subsequent development of chronic UTIs. R.R. WATKINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Chatterjee, B. 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.