Citation Nr: 21014712 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 14-30 178 DATE: March 15, 2021 ORDER Entitlement to a compensable rating for status-post tonsillectomy is denied. REMANDED Entitlement to service connection for mild bilateral blepharitis, status-post corneal refractive surgery (Lasik) (bilateral eye disability) is remanded. FINDING OF FACT The Veteran’ status-post tonsillectomy has not been productive of hoarseness with inflammation of cords or mucous membrane. CONCLUSION OF LAW The criteria for an award of a compensable rating for status-post tonsillectomy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6516. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1994 to April 1995, from September 2007 to October 2008, and from February 2011 to November 2011. He also had service in the United States Army Reserve. During a portion of his active service, the Veteran was stationed in the Southwest Asia theater of operations during the Persian Gulf War. These matters come to the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision issues by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In September 2018, the Board remanded the issues currently on appeal to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board. See April 2020 supplemental statement of the case. The Board notes that the issue of entitlement to service connection for sinusitis, which was also remanded by the Board in September 2018, was granted by the AOJ in an April 2020 rating decision. This constitutes a full grant of the benefit sought on appeal as to this issue, and, as such, it is no longer before the Board on appeal. Entitlement to a compensable rating for status post tonsillectomy. The Veteran seeks a compensable rating for his service-connected status-post tonsillectomy. He maintains that his symptoms warrant a higher rating. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If 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. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran is currently assigned a non-compensable (0 percent) rating 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 specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. Diagnostic Code 6516 provides that chronic laryngitis manifested by hoarseness with inflammation of cords or mucous membrane is rated as 10 percent disabling. 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. For the reasons set forth below, the Board finds that the preponderance of the evidence is against the claim. The Veteran underwent a VA examination in September 2014. The examiner noted that the Veteran underwent a tonsillectomy in 2008. The examination report did not reflect hoarseness with thickening or nodules of the cords, polyps, submucous infiltration, or pre-malignant changes on biopsy, or hoarseness with inflammation of cords of mucous membrane. Further, the Veteran did not describe hoarseness during this examination. The Veteran underwent another VA examination in January 2020, which showed similar findings. VA treatment record during the appeal period do no otherwise show complaints of hoarseness. The Board finds that the preponderance of the evidence is against finding that the service-connected status-post tonsillectomy has been productive of hoarseness with thickening or nodules of the cords, polyps, submucous infiltration, or pre-malignant changes on biopsy, or hoarseness with inflammation of cords of mucous membrane. The evidence of record does not otherwise show complaints, or clinical findings, of hoarseness. In addition, there was no total laryngectomy, no complete organic aphonia, no stenosis of the larynx, no injuries to the pharynx, no allergic or vasomotor rhinitis, no bacterial rhinitis, and no granulomatous rhinitis so as to warrant a separate rating under Diagnostic Codes 6518, 6519, 6520, 6521, 6522, 6523, or 6524. For all these reasons, the Board finds that the preponderance of the evidence is against the assignment of compensable rating for the Veteran’s service-connected status-post tonsillectomy. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt does not apply, and the appeal of this issue must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Entitlement to service connection for eye disability is remanded. Although the Board sincerely regrets the delay, additional development is required to comply with the previous remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran seeks to establish service connection for a bilateral eye disability. He maintains that his bilateral eye disability is related to service. The Board’s September 2018 remand, in pertinent part, instructed the AOJ to obtain an addendum opinion addressing whether it was at least as likely as not that the Veteran’s blepharitis is at least as likely as not related to his active military service, to include his Southwest Asia service in the Persian Gulf War and his presumed in-service exposure to burn pits. In January 2020, the AOJ obtained a VA opinion with respect to the Veteran’s bilateral eye disability. The examiner diagnosed the Veteran with mild dry eye syndrome and explained that the diagnosis is related to Lasik surgery performed on both eyes in January 2002, and that corrective surgery affects nerve innervation of the lacrimal gland and accessory lacrimal gland leading to dry eye syndrome. The examiner noted that that no diagnosis of mild blepharitis was made during the examination and no complaints related to blepharitis were presented by the Veteran upon examination. The examiner concluded that since the previous diagnosis of blepharitis made by a prior VA examiner was noted to be mild without current complaints related to blepharitis upon examination, the condition seems to be resolved, and, therefore, it is unlikely that mild blepharitis has been incurred due to dry eye during service. However, the examiner did not provide an opinion as to whether it was at least as likely as not that the Veteran’s blepharitis is related to his active military service, to include his Southwest Asia service in the Persian Gulf War and his presumed in-service exposure to burn pits. This omission renders the January 2020 VA examiner’s opinion incomplete because the Veteran was diagnosed with blepharitis during the appeal period. See, e.g., September 2014 VA examination report. When the Board remands an appeal, a claimant is entitled to substantial compliance with the remand directives. Stegall, 11 Vet. App. 268 (holding that a remand by the Board confers the right to compliance with remand orders); see also Dyment v. West, 13 Vet. App. 141 (1999). Here, there has been no substantial compliance with the September 2018 Board remand. As such, a remand is required in order to obtain an addendum opinion. The matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran may have received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed to the extent possible, arrange for the claims file to be reviewed by the VA examiner who prepared the January 2020 VA eye conditions examination report (or a suitable substitute if that VA examiner is unavailable). If the examiner finds that another examination of the Veteran is required, one should be undertaken. After reviewing the record, the examiner should provide an opinion as to whether the Veteran’s blepharitis is at least as likely as not related to his active service, to include his Southwest Asia service in the Persian Gulf War and his presumed in-service exposure to burn pits. The examiner should provide this opinion even if the Veteran does not currently have blepharitis because his blepharitis was diagnosed during the appeal period as noted in the September 2014 VA examination report. A complete rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. J. Ragheb Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Willis, 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.