Citation Nr: 21009043 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 15-09 208 DATE: February 18, 2021 ISSUES 1. Entitlement to service connection for arthritis of the arms. 2. Entitlement to a compensable disability rating for status-post tonsillectomy. ORDER Entitlement to a compensable disability rating for status-post tonsillectomy is denied. REMANDED Entitlement to service connection for arthritis of the arms is remanded. FINDINGS OF FACT The Veteran’s status-post tonsillectomy is manifested by throat irritation caused by certain foods and beverages. Inflammation of the vocal cords or mucous membrane, or thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy were not shown. CONCLUSION OF LAW Entitlement to a compensable rating for status-post tonsillectomy is not warranted. See 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.20, 4.27, 4.97, Diagnostic Code 6516 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1966 to May 1969. He had additional service in the Air Force Reserve. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified before the undersigned during an April 2018 videoconference hearing. A copy of the transcript is of record. When this case was previously before the Board in May 2020, it was remanded for additional evidentiary development. In regards to the claim for a compensable rating for status-post tonsillectomy, the Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Increased Rating Claim Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2017). In accordance with 38 C.F.R. §§ 4.1, 4.2 (2017) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the Veteran’s service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Board notes that when it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant’s favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); see also 38 C.F.R. § 3.102. Additionally, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b) (West 2014); 38 C.F.R. § 4.3(2017). The Veteran’s status-post tonsillectomy is rated under Diagnostic Code 6599-6516. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2017). When an unlisted disease is encountered, rating by analogy is permitted pursuant to 38 C.F.R. § 4.20 (2017), whereby the disability is rated under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology, are closely analogous. Under Diagnostic Code 6516, chronic laryngitis manifested by hoarseness with inflammation of cords or mucous membrane is rated as 10 percent disabling and chronic laryngitis manifested by hoarseness, with thickening or nodules of cords, polyps, submucous infiltration or pre-malignant changes on biopsy is rated as 30 percent disabling. 38 C.F.R. § 4.97, Diagnostic Code 6516 (2017). Historically, in a March 2009 rating decision, service connection for status-post tonsillectomy was granted with an evaluation of 0 percent effective June 23, 2008. In December 2012 the Veteran filed a claim for an increased rating, stating that he still had trouble swallowing and would choke if someone asked him a question while he was eating. Private treatment records in January 2013 showed that the Veteran was diagnosed with dysphagia, difficulty swallowing. The Veteran was afforded a VA examination in August 2013 in which he reported that his throat was irritated by acid foods, pickles, chile products, carbonated drinks, and corn products would cause muscle spasms of the throat. The Veteran also stated that he had to be careful with what he ate and how fast he ate in order to avoid choking. The examiner stated that the Veteran had cricopharyngeal hypertrophy, an enlargement of the cricopharyngeal muscle which lies at the beginning of the esophagus located mid neck around C4/C5. The examiner stated that this caused swallowing problems. The examiner stated that there was no relationship between cricopharyngeal hypertrophy and tonsillectomy surgery. The Veteran testified before the undersigned in April 2018 that his residuals of this disability cause trouble swallowing, difficulty sleeping, acid reflux, and spasms in his throat, especially with eating. The Board remanded this matter in June 2018 to afford the Veteran a VA examination to address these reported symptoms and to clarify whether cricopharyngeal hypertrophy was a residual. In response to the Board’s remand, the Veteran was afforded a VA examination in October 2019 in which the examiner stated in pertinent part that the Veteran had a long-term history of gastroesophageal reflux disease (GERD) (acid reflux) and hiatal hernia with reflux esophagitis which could also cause dysphagia “spasms in his throat”, and difficulty sleeping. The examiner stated that chronic acid reflux into the esophagus coming from the stomach due to GERD was suspected to be the main cause of cricopharyngeal bar. However, the examiner did not opine as to whether the GERD (acid reflux) and hiatal hernia with reflux esophagitis was caused by the service-connected status-post tonsillectomy. As such, the Board remanded this claim in May 2020 is to obtain an addendum opinion to address this issue. An addendum VA opinion was obtained in May 2020 in which the examiner provided a detailed description of GERD and reflux. The examiner stated that review of available medical/scientific literature did not show evidence-based medical information that had established a cause and effect relationship of status-post tonsillectomy as a risk and/or aggravating factor beyond its natural progression for GERD (acid reflux) and hiatal hernia with reflux esophagitis. GERD (acid reflux) and hiatal hernia with reflux esophagitis were not residuals from the service-connected status-post tonsillectomy. Based on the foregoing, the Board finds that the Veteran is not entitled to a compensable rating for his status-post tonsillectomy. The Board notes the Veteran’s various statements regarding his difficulty swallowing. However, a VA examiner determined that this was caused by cricopharyngeal hypertrophy, and there was no relationship between cricopharyngeal hypertrophy and tonsillectomy surgery. Moreover, at no point has the Veteran been shown to have inflammation of his vocal cords or of the mucous membrane. Finally, a VA examiner found that GERD (acid reflux) and hiatal hernia with reflux esophagitis were not residuals from the service-connected status-post tonsillectomy. Accordingly, entitlement to a compensable rating is not warranted at any point during the appeal period. Most significantly, the Board finds the objective medical evidence, particularly the VA examination reports of record, to be probative and credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). This claim has also been reviewed with consideration of whether staged ratings would be warranted. The evidence shows no distinct periods of time when the Veteran’s symptoms have varied to such an extent that a rating in excess of the currently assigned rating would be warranted. 38 U.S.C. § 5110 (West 2014); 38 C.F.R. § 3.344 (2017); See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). For the foregoing reasons, the Board finds that a compensable rating for status-post tonsillectomy is not warranted. Therefore, the claim is denied. 38 U.S.C. § 5107 (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Board instructed in the June 2018 and May 2020 remands that the RO should verify the Veteran’s dates of active duty training (ACDUTRA) and inactive duty training (INACDUTRA); these dates were to be compiled in a memorandum. If such records were unavailable, the Veteran’s file was to be clearly documented to that effect, and the RO was instructed that he must be notified in accordance with 38C.F.R. §3.159 (e). Unfortunately, there has not been substantial compliance with the Board’s previous remand directives. While the Board regrets the further delay, another remand is required to notify the Veteran in accordance with 38C.F.R. §3.159 (e) that his records are unavailable. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Notify the Veteran in accordance with 38C.F.R. §3.159 (e) that his records are unavailable. 2. Readjudicate the remaining issue on appeal, entitlement to service connection for arthritis of the arms. If the benefit sought on appeal is not granted in full, furnish to the appellant and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations. The appellant should be afforded the appropriate time period to respond. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.M.K., 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.