Citation Nr: 0003410 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 95-20 795 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUE Entitlement to an increased (compensable) rating for residuals of carcinoma of the larynx. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Kimberly E. Harrison Osborne, Counsel INTRODUCTION The veteran had active military service from July 1965 to December 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1995 rating decision by the RO which denied an increased (compensable) rating for residuals of carcinoma of the larynx. FINDINGS OF FACT It has been over two years since completion of radiation treatment for carcinoma of the larynx, and there has been no recurrence of the cancer. The residuals of carcinoma of the larynx are now manifested by moderate hoarseness on extended use of the voice and thick mucus on the true vocal cords. CONCLUSION OF LAW The criteria for a 10 percent rating for residuals of carcinoma of the larynx have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.97, Diagnostic Codes 6516, 6517, 6519, 6819 (1996); 38 C.F.R. § 4.97, Diagnostic Codes 6516, 6519, 6819 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran served on active duty from July 1965 to December 1989, including service in Vietnam. A February 1992 medical report reveals the veteran had a 6 week history of progressive hoarseness and sore throat. He underwent diagnostic laryngoscopy, bronchoscopy and esophagoscope and biopsy of a right true vocal cord lesion. Evaluation of the vocal cord tumor revealed differentiated squamous cell carcinoma. In an April 1992 letter, Lawrence R. Coia, M.D. stated the veteran was under his care for an early stage cancer of the vocal cord. He related the veteran was currently receiving radiation therapy which should be completed in early May. Dr. Coia stated the veteran should recover from the side effects of this treatment possibly one month later and that his overall prognosis was excellent. In May 1992, the veteran filed a claim for service connection for cancer of the larynx. A June 1992 VA ear, nose, and throat consultation noted the veteran's history of carcinoma of the larynx and subsequent radiation therapy. In November 1992, the veteran complained of his throat being irritated. He also complained of developing phlegm. Outpatient private treatment reports from 1993 note the veteran was doing well with no reoccurrence of the carcinoma. On one occasion in 1993, his voice was weak and the examiner noted he had a recent upper respiratory infection. In September 1994, the RO granted service connection for residuals of carcinoma of the larynx, assigning a 100 percent rating effective from May 1992 (when the claim for service connection was filed) to June 1994 (over two years after radiation therapy for the cancer was completed), and effective from July 1994 the condition was rated noncompensable. The grant of service connection was based on a finding that the condition was due to Agent Orange exposure during Vietnam service. On an October 1994 VA examination, the veteran reported that since his radiation treatment he had neck cramps at night. He also reported having reflux symptoms which awoke him from sleep. The examiner noted the veteran had a hoarse baseline of his voice. The diagnosis was laryngeal carcinoma, questionable stage, treated with radiation therapy. The examiner stated there was no evidence of recurrence. In a follow-up report in February 1995, the examiner of the October 1994 examination stated the veteran had done well since his radio therapy for larynx cancer. He reported there was no evidence that he had metastatic disease. He reported there was no interference with his breathing and that the veteran told him he was no longer hoarse. He stated the veteran could use his voice normally but could not "shout at the top of his lungs for two hours." The RO, in a March 1995 decision, continued the noncompensable rating for residuals of carcinoma of the larynx. In an April 1995 notice of disagreement, the veteran stated that he worked in an environment which aggravated his larynx condition and prevented him from satisfactorily performing his job. Scott Busch, D.O., in a June 1995 letter, stated that the veteran had been under his observation for two years and that his larynx condition had remained relatively stable. He noted the veteran had experienced some discomfort in the affected area which was to be expected. He also noted that any yelling or continuous conversation over the telephone and radio over-exerted the vocal cords and caused cramps and hoarseness which reduced his voice power by fifty to eighty percent. He reported that exposure to second hand cigarette smoke would also cause a reduction of voice power by the same margin but with disastrous long term effects. It was noted that regular examinations would be needed to detect any new lesions as early as possible. During an August 1995 RO hearing, it was noted that the veteran completed radiation treatment for larynx cancer in May 1992. The veteran reported that he worked as a dispatcher, that his employment duties involved making many telephone calls, and that such caused problems with his voice. However, he said he was able to function at work. He stated his condition was also aggravated when he raised his voice at his children. He stated that his throat got dry and that his throat would cramp up. He testified that he had to be mindful of saving his voice. He reported his voice power was reduced to 40 to 60 percent. He claimed he lost his voice approximately 2 to 3 times a year. In 1995 and 1996, the veteran received follow-up treatment for his larynx condition. It was reported that there was no recurrence of the larynx carcinoma. On an August 1999 VA examination, it was noted the veteran was status post laryngeal cancer resection and radiation therapy. The examiner stated that currently the veteran had no symptoms. Physical examination revealed his neck had no tenderness, and his texture was within normal limits. There was no ulceration or breakdown of the skin. There was no elevation or depression of the scar. The underlying tissue was within normal limits. There were no masses palpated. There was no inflammation, keloid, or edema demonstrated. The color of the scar molded nicely with the background color. There was no disfigurement that could be realized on external examination. Examination demonstrated he had thick mucus on the true vocal cords, which was consistent with status post radiation therapy. The examiner related that the remainder of the examination was symmetric. His true vocal cords were mobile bilaterally. There was no pooling of saliva. The diagnosis was status post vocal cord excision, no evidence of recurrence and no evidence of surgical scar or disfigurement. II. Analysis The veteran's claim for an increased (compensable) rating for his service-connected residuals of carcinoma of the larynx is well grounded, meaning plausible. The file shows that the RO has properly developed the evidence, and there is no further VA duty to assist the veteran with his claim. 38 U.S.C.A. § 5107(a). When rating the veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the present level of disability is of primary concern in a claim for an increased rating; the more recent evidence is generally the most relevant in such a claim, as it provides the most accurate picture of the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The criteria for rating respiratory conditions changed on October 7, 1996, during the pendency of the present appeal. Either the old or new rating criteria may apply, whichever are more favorable to the veteran. Karnas v. Derwinski, 1 Vet.App. 308 (1990). Under the old rating criteria in effect prior to October 7, 1996, malignant new growths of a specified part of respiratory system, exclusive of skin growths, are rated 100 percent for 2 years following the cessation of surgical, X- ray, antineoplastic chemotherapy or other therapeutic procedure; at this point, if there has been no local recurrence or metastases, the rating will be made on residuals. 38 C.F.R. § 4.97, Code 6819 (1996). The new rating criteria, effective October 7, 1996, are less generous, and essentially provide that the 100 percent rating will continue for 6 months after anti-cancer therapy is completed, and then the condition is rated based on residuals. 38 C.F.R. § 4.97, Code 6819 (1999). The medical evidence shows the veteran completed radiation treatment for carcinoma of the larynx in May 1992, and there has been no recurrence of cancer since then. The RO assigned a 100 percent rating from May 1992 to June 1994 (over 2 years). At this point, the condition is to be rated based on residuals, under other diagnostic codes. Under the old criteria of 38 C.F.R. § 4.97, Code 6517 (1996), healed injuries of the larynx are rated as interference with voice (aphonia) or respiration. The veteran does not allege and the medical evidence does not show respiratory problems due to larynx carcinoma, and thus a rating under pulmonary codes is not warranted. The veteran maintains he has problems with his voice. The old and new versions of Code 6519 of 38 C.F.R. § 4.97 (1996 and 1999) are essentially the same and provide that complete organic aphonia, with a constant inability to speak above a whisper, is rated 60 percent; and partial (incomplete) aphonia is rated as chronic laryngitis. The medical evidence clearly shows that the veteran is able to speak above a whisper, and thus there is no basis for a 60 percent rating under Code 6519. The veteran's residuals of larynx cancer are thus to be rated as chronic laryngitis under 38 C.F.R. § 4.97, Code 6516. The old version of Code 6516 (1996) provides that chronic laryngitis is rated 10 percent when moderate, with catarrhal inflammation of cords or mucous membrane, and moderate hoarseness; a 30 percent rating is assigned for severe laryngitis, with marked pathological changes, such as inflammation of cords or mucous membrane, thickening or nodules of cords or submucous infiltration, and marked hoarseness. The new version of Code 6516 (1999) provides that chronic laryngitis is rated 10 percent when there is hoarseness, with inflammation of cords or mucous membrane; a 30 percent rating is assigned when there is hoarseness, with thickening or nodules of cords, polyps, submucous infiltration, or premalignant changes on biopsy. A review of the record shows that on an October 1994 VA examination, the veteran was noted to have a hoarse baseline of his voice. A follow-up report in February 1995 indicates he was not hoarse. The examiner indicated the veteran could use his voice in a normal fashion but could not raise his voice for a prolonged period. In a June 1995 letter, Dr. Busch stated that any yelling or continuous conversation over-exerted the vocal cords and caused cramps and hoarseness, reducing his voice power by fifty to eighty percent. The veteran testified in August 1995, that his job required him to frequently talk and such caused problems with his voice. On an August 1999 VA examination, the veteran did not have any complaints. However, physical examination revealed he had thick mucus on the true vocal cords which was consistent with status post radiation therapy. The evidence as a whole shows the veteran generally has full use of his voice for ordinary conversation, but he becomes moderately hoarse on extended use of his voice (more so than an individual not having residuals of larynx cancer), and examination also shows thick mucus on the true vocal cords due to earlier radiation treatment. Bearing in mind the benefit of the doubt rule, 38 U.S.C.A. § 5107(b), the Board finds that the criteria for a 10 percent rating have been met under either the old or new version of Code 6516. The Board finds that a rating in excess of 10 percent is not warranted under either the old or the new version of Code 6516, as the medical evidence, detailed above, does not reveal signs and symptoms listed for a higher rating of 30 percent under such code. Moreover, this case does not involve an exceptional or unusual disability picture, with such factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular rating standards; thus, referral of the case to appropriate VA officials, for consideration of an extra-schedular rating, is not warranted. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996). There have been no recent hospitalizations for this condition, and there is no evidence of marked interference with employment in recent years, due to residuals of carcinoma of the larynx, beyond the industrial impairment acknowledged by the 10 percent schedular rating which the Board has assigned. ORDER An increased 10 percent rating for residuals of carcinoma of the larynx is granted. L. W. TOBIN Member, Board of Veterans' Appeals