Citation Nr: 0411740 Decision Date: 05/05/04 Archive Date: 05/14/04 DOCKET NO. 03-20 124 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an increased disability evaluation for the residuals of cancer of the larynx, currently evaluated as 60 percent disabling. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD C. Trueba-Sessing, Counsel INTRODUCTION The veteran has active military service from February 1964 to February 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee (RO). At present, the veteran's case is before the Board for appellate review. The Board notes that, in an August 2001 substantive appeal, the veteran perfected his appeal regarding the issue of entitlement to an increased rating for restrictive lung disorder. However, in a January 2003 VA form 21-4138 (Statement in Support of Claim), he further indicated that he desired to withdraw his claim for an increased rating. As such, the veteran's claim has been withdrawn, and is not before the Board for appellate review. See 38 C.F.R. § 20.204 (2003). FINDINGS OF FACT 1. The VA has fulfilled its duty to assist the veteran by obtaining and fully developing all relevant evidence necessary for the equitable disposition of the issue addressed in this decision. 2. The service-connected residuals of cancer of the larynx are not characterized by total laryngectomy, or complete aphonia. The veteran is able to communicate by speech, and has not shown evidence of recurrent or new cancer of the larynx. CONCLUSION OF LAW The criteria for the assignment of a disability evaluation in excess of 60 percent for the veteran's residuals of cancer of the larynx have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.350, 4.1-4.14, 4.97, Diagnostic Codes 6518, 6519, 6819 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION Pursuant to the Veterans Claims Assistance Act (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)), VA first has a duty to notify the appellant and the accredited representative of any information and evidence necessary to substantiate his/her claims for VA benefits. See generally 38 U.S.C.A. §§ 5102, 5103 (West 2002). In this regard, the veteran has been informed of the evidence needed to show his entitlement to an increased disability evaluation for the residuals of cancer of the larynx via the January 2003 rating decision, and the June 2003 statement of the case. Specifically, the appellant has been informed of the need to provide evidence showing that his disability is more disabling than currently evaluated. Finally, via a July 2002 RO letter and the June 2003 statement of the case, the veteran was provided with specific information concerning changes in the law and regulations per the VCAA. Therefore, the notification requirement has been satisfied. See Quartuccio, supra. Secondly, VA has a duty to assist the claimant in obtaining evidence necessary to substantiate the case. 38 U.S.C.A. § 5103A (West 2002); 66 Fed. Reg. 45,630-45,632 (Aug. 29, 2001) (codified as amended at 38 C.F.R. § 3.159(c)). In this case, all available and identified medical records have been obtained, including private and VA treatment records, and October 2001 and December 2002 VA examination reports. No additional evidence, which may aid the veteran's claim or might be pertinent to the bases of the claim, has been identified. Thus, the duty to assist requirement has been satisfied. See Quartuccio, supra. In Pelegrini v. Principi, 17 Vet. App. 412 (2003), the United States Court of Appeals for Veterans Claims (Court) held that a notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. Upon review of the claims folder, the Board notes that the veteran was supplied with a letter explaining the VCAA in July 2002 before his January 2003 rating decision, such that the concerns raised in Pelegrini are not applicable here. Disability evaluations are determined by evaluating the extent to which the veteran's service-connected disabilities affect the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2003). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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. See 38 C.F.R. § 4.7 (2003). In this case, in a December 1999 rating decision, the veteran was granted service connection for cancer of the larynx, and was assigned a 10 percent rating, effective October 1999 (the date of claim), under Diagnostic Codes 6819 and 6516. Subsequently, in a July 2000 rating decision, the veteran's disability was recharacterized as residuals of cancer of the larynx, and his award was increased to 60 percent, effective October 1999 (the date of claim), under Diagnostic Codes 6819, 6519. Later still, service connection was separately established for restrictive lung disease, and in January 2003, the veteran was awarded a total disability rating based on individual unemployability, effective from November 2002. At present, the veteran is seeking an increased rating in excess of 60 percent for his larynx cancer residuals. With respect to the evidence, it shows that in May 1995 the veteran underwent microsuspension laryngoscopy and biopsy of the left vocal cord. In July 1995, he completed radiation therapy. In April 1997, he underwent left laryngectomy. And in July 1997, he had a portion of redundant supraglottic tissue excised. Additionally, records from Dr. May dated from 1991 to 2002, records from the Tennessee Consolidated Retirement System dated August 2001, and records from Vanderbilt University Medical Center dated from 1997 to 2002, all describe the treatment the veteran received over time for various disorders including diabetes, colon and larynx cancer, and renal problem. Specifically, August 2001 notations from the Vanderbilt University Medical Center indicate the veteran underwent a flexible fiberoptic nasopharyngoscopy due to excessive gag reflex, and this showed he had a normal nasal cavity, nasopharynx and oropharynx. He was found to be free of any new or recurrent disease. Furthermore, record from the Mountain Home VA Medical Center (VAMC) dated in 2001 describe the treatment the veteran received for various disorders including adjustment disorder, respiratory problems, and colon and neck cancer. An October 2001 VA examination report reveals the veteran presented evidence of partial laryngectomy. His left vocal cord moved well, and his fold on the right side functioned as a vocal cord. He had not aspiration, and although his voice was weak, he certainly could be understood. He had no nodes in his neck. A CT scan showed no evidence of adenopathy, or recurrent disease. The veteran was diagnosed to have partial laryngectomy secondary to squamous cell carcinoma since 1996. Lastly, a December 2002 VA examination report indicates the veteran underwent examination by flexible fiberoptic laryngoscopy. He had a very serviceable voice, although it was very hoarse. He was not dyspneic at rest, although reported dyspnea on exertion. He had not had additional treatment for his laryngeal cancer since 1997. On physical examination, he had no evidence of new or recurrent cancer on the remaining complete and careful head and neck examination, although he had scar tissue in the anterior lower neck secondary to previous tracheostomy and the surgical exposure for his partial laryngectomy. In this respect, the Board notes that the veteran is currently rated separately as 10 percent disabled for a scar of the anterior neck, under Diagnostic Code 7800, effective October 1999 (the date of claim), and the evaluation of the scar is not on appeal. With respect to the applicable criteria, as noted above, the veteran is currently rated under Diagnostic Codes 6519 and 6819. For an increased rating in excess of 60 percent under Diagnostic Code 6519, the veteran must suffer from constant inability to communicate by speech due to his disability. As noted in the December 2002 VA examination report, he has a very serviceable voice, although it was very hoarse. As such, the veteran's disability does not meet the criteria for the assignment of an increased rating in excess of 60 percent under Diagnostic Code 6519. 38 C.F.R. § 4.97, Diagnostic Code 6519. Similarly, for the assignment of an increased rating in excess of 60 percent under Diagnostic Code 6819, the veteran's disability must be characterized by neoplasms, malignant, any specified part of the respiratory system exclusive of skin growths. Again, per the last VA examination in December 2002, the veteran had not had additional treatment for his laryngeal cancer since 1997, and on physical examination he had no evidence of new or recurrent cancer on the remaining complete and careful head and neck examination. Hence, the criteria for a disability rating in excess of 60 percent under Diagnostic Code 6819 have not been met. 38 C.F.R. § 4.97, Diagnostic Code 6819. In evaluating the veteran's residuals of cancer of the larynx under other potential Diagnostic Codes, see Butts v. Brown, 5 Vet. App. 532 (1993), the Board notes that Diagnostic Code 6518 allows for an increased rating in excess of 60 percent for total laryngectomy. However, as the veteran has had only partial laryngectomy, an increased rating under Diagnostic Code 6518 is not appropriate. 38 C.F.R. § 4.97, Diagnostic Code 6518. Lastly, special monthly compensation under 38 U.S.C.A. § 1114(k) is payable for each anatomical loss or loss of use of one hand, one foot, both buttocks, one or more creative organs, blindness of one eye having only light perception, deafness of both ears, having absence of air and bone conduction, or complete organic aphonia with constant inability to communicate by speech. This special compensation is payable in addition to the basic rate of compensation otherwise payable on the basis of degree of disability, provided that the combined rate of compensation does not exceed the monthly rate set forth in 38 U.S.C.A. § 1114(l) when authorized in conjunction with any of the provisions of 38 U.S.C.A. § 1114 (a) through (j) or (s). 38 U.S.C.A. § 1114(k) (West 2003); 38 C.F.R. § 3.350(a) (2003). Complete organic aphonia is deemed to exist where there is a disability of the organs of speech which constantly precludes communication by speech. 38 C.F.R. § 3.350(a)(6). In this respect, per the October 2001 VA examination report, although the veteran's voice was weak, he certainly could be understood. And, per the December 2002 VA examination report, he had a very serviceable voice, although it was very hoarse. As such, the veteran does not have complete organic aphonia, and his disability does not meet the requirements for a grant of additional benefits under 38 C.F.R. § 3.350(a). For the foregoing reasons, the Board finds that the preponderance of the evidence is against the assignment of a disability evaluation in excess of 60 percent, for the veteran's residuals of cancer of the larynx. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002). As such, the veteran's claim must be denied. In making its determination, the Board has considered 38 U.S.C.A. § 5107(b). Section 5107(b) expressly provides that the benefit of the doubt rule must be applied to a claim when the evidence submitted in support of the claim is in relative equipoise. The evidence is in relative equipoise when there is an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. When the evidence is in relative equipoise, the reasonable doubt rule must be applied to the claim, and thus, the claim must be resolved in favor of the claimant. See Massey v. Brown, 7 Vet. App. 204, 206-207 (1994); Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In this case, after reviewing the evidence of record, the Board finds that the evidence is not in relative equipoise, and thus, the benefit of the doubt rule does not apply to this case. The potential application of various provisions of Title 38 of the Code of Federal Regulations (2003) have been considered whether or not they were raised by the appellant as required by the decision reached in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board has considered whether an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1) (2003) is warranted. In the instant case, the veteran has already been assigned a total disability rating based on his unemployability due to service connected disabilities, and in any event, there has been no showing that the veteran's residuals of cancer of the larynx alone have caused marked interference with employment (i.e., beyond that contemplated in the currently assigned evaluation) or the need for frequent periods of hospitalization, or have otherwise rendered impracticable the application of the regular schedular standards. In essence, the Board finds that no evidence currently of record shows that there is an exceptional or unusual disability picture in this case, which renders impracticable the application of the regular schedular standards. Accordingly, referral for consideration for extra-schedular evaluations is not warranted here. See Bagwell v. Brown, 9 Vet. App. 237, 239 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A disability evaluation in excess of 60 percent for the residuals of cancer of the larynx is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2