Citation Nr: 0529680 Decision Date: 11/04/05 Archive Date: 11/14/05 DOCKET NO. 04-38 817 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a rating in excess of 60 percent, on appeal from the initial award of service connection for residuals of larynx cancer, status post-partial laryngopharyngectomy and bilateral neck dissections with permanent tracheostomy and cannula. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD W.L. Pine, Counsel INTRODUCTION The veteran had active service from November 1952 to November 1956 and from August 1958 to August 1973. This appeal is from rating decisions of the Department of Veterans Affairs (VA) St. Louis, Missouri, Regional Office (RO). The appeal is advanced on the docket of the Board of Veteran's Appeals for good cause. 38 C.F.R. § 20.900(c) (2005). FINDING OF FACT The veteran has stenosis of his post-laryngopharyngectomy larynx, and he has a permanent tracheostomy. CONCLUSION OF LAW A schedular 100 percent rating from the effective date of service connection is warranted for residuals of larynx cancer, status post-partial laryngopharyngectomy and bilateral neck dissections with permanent tracheostomy and cannula, rated as stenosis of the larynx with permanent tracheostomy. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.97, Diagnostic Code 6819-6520 (2005). REASONS AND BASES FOR FINDING AND CONCLUSION This appeal is from the initial rating assigned to a disability upon awarding service connection. The entire body of evidence is for equal consideration. Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999); cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (where an increased rating is at issue, the present level of the disability is the primary concern). The RO did not consider a staged rating per se. Under the facts of this case, and the result in this decision, any question of prejudice is moot. The veteran has had a single VA compensation examination in this case. It was performed in June 2003 in conjunction with his initial claim for service connection, which VA initially denied. The report is uninformative about the severity of the disability; it merely provided the examiner's opinion whether the veteran's larynx cancer was related to service. The veteran subsequently established service connection by application of a statutory presumption of exposure to Agent Orange. The evidence of record reveals the veteran had a nearly complete laryngectomy in 1995. An April 2000 report of a privately done direct laryngoscopy noted he had "near-total laryngectomy" had left him with "no true larynx." His airway was described as "fistulous." The tracheostomy was characterized as temporary in a May 1996 VA outpatient note. An October 1998 report noted a failed attempt at decannulation 10 months previously and a poor prognosis for future decannulation. Repeated laryngoscope examinations describe the remaining larynx as with post-radiation changes. An October 1999 office note reported post-operative and post- radiation changes in the larynx, with subsequent report in July 2002 and February 2003 indicating no change in the post- operative and post-radiation changes. A January 2005 report of direct laryngoscopy with neo-laryngeal dilation included pre- and post-operative diagnoses of neo-laryngeal stenosis, noting post-operative and radiation changes appropriate for near total laryngectomy. The veteran testified to the limitations in his ability to speak, demonstrating that he could not constantly speak at a whisper, in that he could not constantly speak at all. Speech required that he use a finger of one hand to cover his tracheostomy, which rendered his speech possible, but barely useful for communication; his wife afforded considerable interpretation for him. The veteran's cancer is rated for the post-treatment residuals once treatment is complete and six months have passed without remission. 38 C.F.R. § 4.97, Diagnostic Code 6819 (2005). The veteran was in remission for more than five years when he applied for disability compensation, so the rules for reduction of a 100 percent rating during active disease and treatment do not apply in this case. Id. The veteran is currently rated 60 percent disabled for organic aphonia with his ability to speak constantly at a whisper. 38 C.F.R. § 4.97, Diagnostic Code 6519 (2005). The veteran argued at his hearing as to the near completeness of his speech limitations, which warranted rating at 100 percent, or, alternatively, that he would be more appropriately rated for stenosis of the larynx with a permanent tracheostomy. 38 C.F.R. § 4.97, Diagnostic Code 6520 (2005). The evidence summarized above shows that the veteran meets the criteria for rating his post-cancer residuals as stenosis of the larynx with permanent tracheostomy. Juxtaposition of the January 2005 laryngoscopy report with the earlier reports that identify post-operative and post-radiation changes in the remaining larynx is persuasive that the post-operative and post-radiation changes are stenosis, which pre-dates the veteran's claim for service connection. Likewise, the October 1998 report of failed decannulation in about January 1998, and the acknowledgment in the October 2004 VA rating decision of the permanent tracheostomy in 1998 are sufficient to satisfy the permanent tracheostomy criterion of Diagnostic Code 6520. In sum, the veteran's residuals of larynx cancer, status post-partial laryngopharyngectomy and bilateral neck dissections with permanent tracheostomy is best rated for stenosis of the larynx with permanent tracheostomy at the 100 percent level from the effective date of service connection. 38 C.F.R. § 4.97, Diagnostic Code 6520 (2005). Whereas this decision affords a complete grant the benefit sought, any question whether VA discharged its duties to assist the veteran to prosecute his claim is moot. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2002). ORDER A schedular 100 percent disability rating for 100 residuals of larynx cancer, status post-partial laryngopharyngectomy and bilateral neck dissections with permanent tracheostomy and cannula is granted from the effective date of service connection, subject to the regulations governing payment of monetary benefits. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs