Citation Nr: 0632204 Decision Date: 10/16/06 Archive Date: 10/25/06 DOCKET NO. 03-24 159 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to a rating in excess of 10 percent for residuals of larynx cancer. REPRESENTATION Appellant represented by: Nevada Office of Veterans' Services ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The appellant is a veteran who served on active duty from June 1959 to June 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2003 rating decision by the Reno, Nevada, Regional Office (RO) of the Department of Veterans Affairs which granted service connection for cancer of the larynx (associated with herbicide exposure) and assigned an initial noncompensable evaluation. In June 2004, the RO increased the rating to 10 percent effective from the date of claim; January 11, 2002. In August 2005 the case was remanded for further development. FINDINGS OF FACT The veteran's laryngeal cancer is in complete remission with residuals limited to hoarseness of voice. CONCLUSION OF LAW A rating in excess of 10 percent for residuals of laryngeal cancer is not warranted. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.97, Diagnostic Codes (Codes) 6516, 6819 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duty to notify and assist claimants in substantiating a claim for benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2006). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his/her representative of any information, and any medical or lay evidence, that is necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) West 2002); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). The statute and regulations regarding notice require that a claimant be given the required information prior to VA's decision on the claim, and in a form that enables a claimant to understand the process, the information needed, and who is responsible for obtaining that information. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). However, in circumstances where such notice was not provided, the focus must be directed as to whether the timing defect has resulted in harmful error to the claimant. Id. See generally 38 C.F.R. § 20.1102 (2006). A letter substantially complying with the VCAA requirements was sent to the veteran in April 2002 in connection with his original application for service connection for larynx cancer. The purposes of the VCAA-mandated notice were met as the RO granted service connection in February 2003. Thereafter, the veteran appealed the "downstream" issue of entitlement to a higher initial rating. A July 2003 statement of the case (SOC) advised the veteran of the applicable schedular criteria and provided him with specific information as to why his claim was being denied, and of the evidence that was lacking. A February 3, 2005 RO letter informed the veteran of the types of evidence and/or information necessary to substantiate a claim for a higher evaluation for cancer of the larynx and the relative duties on the part of himself and VA in developing the claim. He was further advised "If there is any other evidence or information that you think will support your claim, please let us know. If the information or evidence is in your possession, please send it to us." The claim was remanded by the Board in August 2005, and an additional VCAA letter was sent to the veteran on August 16, 2005. The claim has been readjudicated since compliant notice has been sent, and there has been no showing or argument that a notice deficiency both exists and has resulted in prejudicial error to the veteran. A uniform rating has been in effect during the appeal period and any failure to inform him about the evidence and information necessary to establish effective dates of award is harmless error. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding the duty to assist, VA has assisted the veteran by seeking all records he identified. In August 2005, the Board remanded the claim to obtain additional VA clinic records and VA examination in response to a June 2005 clinician note that suggested the possible recurrence of laryngeal cancer. There are no outstanding requests to obtain any additional evidence and/or information that may be relevant to the claim on appeal. The evidence and information of record, in its totality, provides the necessary information to decide the case, and there is no reasonable possibility that any further assistance to the veteran would be capable of substantiating his claim. II. Initial rating The veteran seeks a rating in excess of 10 percent for residuals of laryngeal cancer. A claimant bears the burden to present and support a claim of benefits. 38 U.S.C.A. § 5107(a). In evaluating claims, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Historically, in September 1998 the veteran reported for VA treatment for a complaint of hoarseness of voice. Examination revealed a left vocal cord lesion that returned a biopsy diagnosis of squamous cell carcinoma of the larynx. He was treated with radiation therapy involving 7000 Centigray in 35 treatments over the course of 51 days. An ear, nose and throat (ENT) visitation in January 1999 noted his improved voice with a good ability to swallow. Thereafter, he presented for monitoring examinations with no residuals of laryngeal cancer identified. On January 11, 2002, the veteran filed a claim of entitlement to service connection for laryngeal cancer. On VA examination in January 2003, he primarily reported hoarseness of voice since his treatment for larynx cancer. On physical examination, his vocal cords were symmetrical and moved well. There was no mention of growth or extra tissue in the laryngeal box. There was evidence of allergic rhinitis and chronic sinusitis. By a rating decision in February 2003, the RO granted service connection for cancer of the larynx as due to exposure to herbicides in service. A noncompensable rating under Code 6819 was initially assigned from the date of claim, January 11, 2002. The veteran's VA clinical records document continued monitoring for recurrence of laryngeal cancer. April 2003 computed tomography (CT) scan of the neck demonstrated an area of enhancement in the false vocal cords resulting in an impression of possible recurrence of laryngeal cancer with a referral for a specialist consultation based on a provisional diagnosis of malignant neoplasm of laryngeal cartilages. On May 2003 consultation, the veteran endorsed only a symptom of a dry throat, and denied symptoms such as voice change, dysphagia, odynophagia, dyspnea or weight change. Physical examination was significant for a hoarse, raspy voice. There were caked on dried secretions on the anterior ery-arytenoid folds and radiation therapy (xrt) changes in the supraglottic larynx. The assessment was no evidence of recurrent disease (NERD). A December 2003 clinic visit for a complaint of right ear pain was significant for physical findings of a 1.5 cm. firm, tender mass in the right inferior masoid/mandibular area and increased throat pain with opening of his mouth. He was given a primary diagnosis of recurrence of laryngeal cancer. In January 2004, the veteran underwent VA examination wherein he reported having hoarseness of voice following his radiation treatment. He also reported instances of sinusitis treated with antibiotics twice a year. The examiner reported the following findings: There was no facial disfigurement. There was no stenosis of the larynx, but a fiberoptic laryngoscopy was done to evaluate the larynx for recurrent cancer. The nasopharynx was clear. Lingual tonsils, base of tongue, valleculae, piriform sinuses also appeared clear. Posterior and lateral hypopharyngeal walls were seen without lesions. At the level of the larynx, the true cords did not move well, they had decreased movement, and the right cord looked mildly swollen. Of note, is that the patient has continued to smoke after his diagnosis and radiation therapy. The patient had his previous exam on May 2nd, 2003, at which time, the exam showed a hoarse, raspy voice, and no cervical lymphadenopathy, and fiberoptic exam showed caked on dried secretions bilaterally on the anterior aryepiglottic folds, and some radiation changes in the supraglottic larynx. The vocal cords were seen to move well and they looked normal at this time. Based on the fact that the exam in May appeared to be different by different examiners than my exam of the cords, I would recommend that [the veteran] be evaluated once again by a head and neck surgeon. The fact that he has continued to smoke after diagnosis and treatment course puts him in an increased risk for developing a recurrence of his cancer. A June 2004rating decision increased the rating for laryngeal cancer residuals to 10 percent under Codes 6819-6516, effective January 11, 2002. Subsequent VA clinic records include a report of a February 2004 visit for a complaint of a sore throat. Physical examination was significant for hard nodes on both sides of the neck with inject mucosa assessed as laryngitis. A March 2004 evaluation revealed that the laryngeal cancer was entirely stable without complaint except for mild xerostomia and rhinitis. A May 2005 evaluation for chronic obstructive lung disease noted an incidental finding of a slightly strained voice. A follow-up consultation in August 2005 noted the veteran's report of occasional sore throat from air conditioning, but no symptoms such as voice changes, ear pain or swallowing difficulties. On physical examination, his voice was minimally hoarse but unchanged from the last six month evaluation. His neck was supple with post-radiation change. No masses were present. An indirect laryngoscopy was significant for some fullness of the right true vocal cord (TVC) and bilateral damping. His arytenoid cartilage area of epiglottic folds, epiglottis, vallecula, piriform fossa, hypopharynx, oropharynx and nasopharynx were entirely within normal limits. The assessment was laryngeal cancer in complete remission. In November 2005, the veteran underwent VA examination with benefit of review of the claims folder. He endorsed symptoms of voice problems with instances of dysphoria being difficult to understand at times of infection. On physical examination, he spoke with a hoarse voice. His neck was supple, and absent venous distension, adenopathy or thyromegaly. Dysphonia was identified as a residual of laryngeal cancer. Subsequent VA clinic records do not show or suggest recurrence of the laryngeal cancer. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The determination of whether a higher evaluation is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The RO has evaluated the veteran's residuals of laryngeal cancer 10 percent under Codes 6819-6516. Under Code 6819 malignant neoplasms of any specified part of the respiratory system, exclusive of skin growths, warrant a 100 percent rating. 38 C.F.R. § 4.97. A note following indicates that the 100 percent rating shall continue beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. Six months after discontinuance of such treatment, the appropriate rating shall be determined by mandatory VA examination. If there has been no local recurrence or metastasis, the rating shall be based on residuals. Code 6516 provides a 10 percent rating for chronic laryngitis with inflammation of cords or mucous membrane. A 20 percent rating is warranted for chronic laryngitis with hoarseness, with thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy. 38 C.F.R. § 4.97. Although it has been clinically noted that the veteran's continued smoking puts him at increased risk for recurrence of the laryngeal cancer (and possible recurrence was suspected in 2003, subsequent regular evaluations have established that recurrence had not occurred. Consequently, the disability must be rated based on residuals shown. See Code 6819. The only identified residual is a chronic hoarse voice, with laryngoscopy findings significant for mild swelling, dried secretions, and some fullness of the right true vocal cord. There has been no evidence of thickening, nodules, polyps or submucous infiltration of the larynx. There is also been evidence of pre-malignant changes of the larynx, and the current assessment is that the laryngeal cancer is in complete remission. As there is no evidence of stenosis of the larynx or of a chronic inability to speak above a whisper, the schedular criteria for rating based on stenosis of the larynx or aphonia do not apply. See 38 C.F.R. § 4.87, Codes 6519, 6520. As this appeal is from the initial rating assigned with a grant of service connection, "staged ratings' are for consideration. However, as actual (vs. suspected) recurrence of the laryngeal cancer is not shown at any time during the appellate period, a "staged rating" under Code 6819 for malignant laryngeal growths is not warranted for any period of time under consideration. Likewise residuals warranting a higher rating under Codes 6516, 6519,6520 (for laryngitis, aphonia, stenosis) are not shown at any point during the evaluation period. Consequently, staged ratings are not indicated. While the veteran is competent to describe his symptoms such as hoarseness of voice, loss of voice and dryness of throat he lacks the requisite medical training and expertise to establish that he has had recurrence of his larynx cancer or clinical manifestations that require observation by a medical professional (e.g., pre-malignant changes on biopsy). Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The preponderance of the evidence is against the veteran's claim. Consequently, the benefit of the doubt rule does not apply. The claim must be denied ORDER A rating in excess of 10 percent for residuals of laryngeal cancer is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs