Citation Nr: 21016185 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 20-21 609 DATE: March 22, 2021 ORDER Service connection for a tonsil disorder with residuals is denied. REMANDED The issue of service connection for a respiratory disorder, to include mild obstructive disease, is remanded. FINDING OF FACT The weight of the competent and probative evidence is against finding that the Veteran has had a current disability of a tonsil disorder with residuals at any time during the period on appeal. CONCLUSION OF LAW The criteria for service connection for a tonsil disorder with residuals are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1963 to November 1965. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). These issues were before the Board and remanded for additional development in July 2020. There is substantial compliance with remand directives and additional remands are not warranted for the issue of service connection for a tonsil disorder. This case has been advanced on the docket pursuant to 38 C.F.R. § 20.902(c). 1. Service connection for a tonsil disorder with residuals Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The Veteran is competent to report symptoms and experiences he can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). The VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. The Veteran contends he has a tonsil disorder with residuals that began during service. The Veteran indicates that he self-treats with over the counter medications. December 11, 2017, Notice of Disagreement (NOD); June 8, 2020, Appellate Brief. The weight of the competent and probative evidence is against finding a current disability of a tonsil disorder with residuals. Service treatment records indicate that the Veteran was treated for tonsillitis and complaints of sore throat during service, but symptoms were treated and resolved. The November 1965 separation examination did not note any tonsil symptoms. VA treatment records contain no complaints or treatment related to a tonsil disorder or any other condition of the nose, throat, larynx or pharynx. The Veteran was afforded a new VA examination in October 2020 for sinusitis/rhinitis and other conditions of the nose, throat, larynx and pharynx, with an addendum opinion in November 2020. The examiner opined that the Veteran had no current tonsil disorder with residuals. See November 10, 2020, VA Examination. Without competent evidence of a current tonsil disability, the preponderance of the evidence is against the claim and the claim must be denied. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. REASONS FOR REMAND 1. The issue of service connection for a respiratory disorder, to include pneumonia with residuals is remanded. The Veteran contends that he developed a respiratory disorder as a result of pneumonia during service. The Veteran further states that respiratory symptoms have continued since separation from service and he treats the symptoms with over-the-counter medications. See December 17, 2017, Notice of Disagreement (NOD); June 2020, Appellate Brief. The Veteran was afforded a VA examination and pulmonary function testing (PFT), in October 2020. The medical doctor who administered the PFT concluded the spirometry measurements revealed mild obstruction. November 4, 2020, C&P Examination. The VA examiner noted the results of the PFT but determined the results were within normal limits. November 5, 2020, VA Examination. The examiner opined that the Veteran did not have a respiratory diagnosis and did not render an etiology opinion. Id. In addition to conflicting opinions regarding a current diagnosis, in an addendum opinion for the Veteran’s heart condition, the examiner opined that the Veteran has shortness of breath due to abnormal ventricular contractions, reasonably raising the theory of secondary service connection. See December 21, 2020, VA Examination; see also Robinson v. Peake, 21 F.3d 545, 553 (Fed. Cir. 2008). A remand for a medical opinion is necessary. Service treatment records demonstrate that the Veteran was hospitalized with pneumonia, lobar, left lower lobe during service in July 1964. A medical opinion is warranted to determine the nature and etiology of any respiratory disorder. The matters are REMANDED for the following action: 1. Obtain a medical opinion from the appropriate clinician to determine the nature and etiology of the Veteran’s respiratory disorder, to include mild obstructive disease. The clinician should review the virtual file and address the following: Whether it is at least as likely as not (a 50 percent or greater probability) that the current respiratory disorder (including mild obstructive disease) manifested during or is otherwise related to the Veteran’s period of active service—including his pneumonia in service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, he or she must provide a reason for doing so. A rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Monica Ball Jackson, 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.