Citation Nr: 1416247	
Decision Date: 04/11/14    Archive Date: 04/24/14

DOCKET NO.  08-12 516	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to a higher evaluation for soft tissue sarcoma left cervical region, rated as 20 percent disabling from November 1, 2007, to April 27, 2010, and as 30 30 percent disabling from April 28, 2010, forward.

2. Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse



ATTORNEY FOR THE BOARD

Jason A. Lyons, Counsel


INTRODUCTION

The Veteran served on active duty from January 1964 to January 1966.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, reducing the rating for service-connected soft tissue sarcoma left cervical region from 100 to 20 percent, from November 1, 2007.  In August 2009, a Travel Board hearing was held at the RO before the undersigned Veterans Law Judge.  

Whereas evaluation of the Veteran's service-connected disability was once characterized by the RO as a claim for increase, to include the propriety of reduction in rating from 100 to 20 percent as of November 1, 2007, the Board now clarifies that the issue is entirely that of an increased rating, given that reduction was expressly made in accordance with 38 C.F.R. § 4.73, Diagnostic Code 5329, providing for cessation of a 100 percent rating upon the end of active disease and/or treatment phase.  Accordingly, this claim is recharacterized as above on the title page.  

The Board previously remanded this case in November 2009, primarily for comprehensive VA Compensation and Pension examinations to ascertain all residuals of service-connected soft tissue sarcoma left cervical region (orthopedic, dermatologic, neurological, and other manifestations).  Following VA examination, the RO (through the Appeals Management Center (AMC)) granted separate disability compensation for associated bilateral hearing loss, cranial nerve V paralysis, cranial nerve VII disability, scar, left shoulder disability, and xerostemia.  The Veteran has not appealed the ratings and/or effective dates assigned for these disabilities.  The RO/AMC further increased the evaluation for the underlying service-connected soft tissue sarcoma left cervical region from 20 to 30 percent, effective April 28, 2010 (on the basis of muscle injury).  

The Board hereby takes appellate jurisdiction of an inextricably intertwined claim for a TDIU.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).    

The issue of a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC),          in Washington, DC.


FINDINGS OF FACT

1. From November 1, 2007 to April 27, 2010, the Veteran had severe muscle injury to Group XXII.  

2. Throughout the time period under review, the Veteran legally cannot be awarded a disability rating in excess of 30 percent for muscle injury involving the affected region.  There also has not been recurrence or metastasis of the soft tissue sarcoma.


CONCLUSIONS OF LAW

1. The criteria are met to establish a 30 percent evaluation, but no higher, for soft tissue sarcoma left cervical region, from November 1, 2007 to April 27, 2010.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.55, 4.56; 4.73, Diagnostic Codes 5322 and 5329 (2013).

2. The criteria are not met for a higher evaluation than 30 percent for soft tissue sarcoma left cervical region, since April 28, 2010.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.55, 4.56; 4.73, Diagnostic Codes 5322 and 5329 (2013).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A.             §§ 5100 , 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2013), sets forth VA's duties to notify and assist with development of a claim for compensation or other benefits.  See also, 38 C.F.R. §§ 3.102 , 3.156(a), 3.159 and 3.326 (2013).

Regarding the VCAA notice requirement, that is inapplicable here, given that       the Veteran appeals from the assigned disability rating following a grant of service connection.  See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008).  Moreover,       all measures have been undertaken to assist with development of this matter, including comprehensive VA examination.  During the Travel Board hearing,            the Veteran received proper assistance in developing his claim.  See Bryant v. Shinseki, 23 Vet. App. 488 (2010).  In sum, the record reflects that the facts pertinent to the claim have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. 

Disability evaluations are determined by the application of a rating schedule which is based, as far as can practically be determined, on the average impairment of earning capacity.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. § 4.1  (2013).  Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes.  38 C.F.R. § 4.27.  

Under Diagnostic Code 5329, sarcoma, soft tissue (of muscle, fat, or fibrous connective tissue) is rated as 100 percent disabling until after cessation of treatment.  Following the cessation of any surgery, radiation treatment, antineoplastic chemotherapy, or other therapeutic procedures, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months.  Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e).  If there has been no local recurrence or metastasis, the disability is rated on residual impairment of function. 38 C.F.R. § 4.73, Diagnostic Code 5329.

The RO has rated the Veteran's service-connected condition of soft tissue sarcoma left cervical region under Diagnostic Code 5329-5322, for soft tissue sarcoma rated under the provisions for muscle injury to Muscle Group XXII.  Whereas there are separate compensable ratings in effect for orthopedic, neurological and other impairment as residuals of excision of soft tissue sarcoma from the neck, the instant matter concerns muscle injury due to the underlying condition.

Muscle Group XXII encompasses rotary and forward movements of the head; respiration; deglutition and the following muscles of the front of the neck:                      (1) trapezius I; (2) sternocleidomastoid; (3) the "hyoid" muscles; (4) sternothyroid; and (5) digrastric.  A noncompensable evaluation is assigned for slight residual disability; a 10 percent rating is provided for a moderate residual disability; a 20 percent rating for a moderately severe residual disability; and a 30 percent rating for a severe residual disability.  38 C.F.R. § 4.73, Diagnostic Code 5322. 

The terms "moderate" and "severe" among other components of the rating criteria are not expressly defined in the rating schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6 .

Having reviewed the evidence in this case, the Board will award an increased evaluation from 20 to 30 percent for the Veteran's service-connected soft tissue sarcoma of the left cervical region for the time period from November 1, 2007 to April 27, 2010.  The report of an April 2010 VA Compensation and Pension examination underscores the presence of muscle pain, fatigability and weakness,   as well as loss of deep fascia or muscle substance.  There has been removal of              the left sternocleodomasid muscle, with several attendant consequences symptomatologically.  Indeed, the RO already granted a 30 percent rating on these same grounds, from April 28, 2010 (the examination date) onwards.  In the Board's view, it is reasonable to assume that a muscle injury of this nature was already present since the Veteran was treated for his sarcoma along the left neck region, and therefore the Board is awarding the higher 30 percent rating retroactive to November 1, 2007.

The basis for this increase having been set forth, a further increase is not available under the VA rating schedule throughout the entire rating timeframe under review (from November 1, 2007 to the present).  As to the potential availability of                  100 percent compensation the provisions of Diagnostic Code 5329 prescribe this maximum schedular evaluation for six months after cessation of therapeutic measures.  That timeframe has clearly been concluded in this case.  There also has not been recurrence of a cancerous tumor.  The Veteran maintains that his physicians were not able to verify cancer free status until having completed five years without recurrence, and that this should delineate the completion of eligibility for the 100 percent rating.  To this effect, however, the rating criteria is definitive in stating that the 100 percent rating will be assigned up until six months following cessation of therapy, and in any instance of local recurrence or metastasis.  See again, Diagnostic Code 5329.  See also, Bennett v. Brown, 10 Vet. App. 178, 183 (1997).  

Moreover, an evaluation of 30 percent is the highest assignable rating pursuant to Diagnostic Code 5322, for injury to Muscle Group XXII, the rating provision under which the underlying disability has been evaluated by analogy.  Even were it shown that the Veteran likewise had attendant injury to Muscle Group XXI, or some other region of the torso and/or neck, no separate compensable rating based on that additional muscle injury could be assigned inasmuch as the maximum allowable rating for muscle injuries in the same region by regulation is limited to below that corresponding to unfavorable ankylosis of that joint -- in this case, unfavorable ankylosis of the cervical spine, which is rated at 40 percent.  See 38 C.F.R. § 4.55(d).  Thus, a 30 percent rating is the highest assignable in regard to muscle injury throughout.    

This claim need not be referred for an extraschedular rating pursuant to 38 C.F.R.                     § 3.321(b).  See also Thun v. Peake, 22 Vet. App. 111, 114 (2008).  There is no indication of an exceptional disability picture such that the schedular evaluation for the Veteran's service-connected residuals of soft tissue sarcoma is inadequate.         The rating criteria applied definitively account for the nature and extent of muscle injury, and inasmuch as the Veteran has several instances of other pathology associated with his underlying service-connected disability, this has been duly recognized in distinct grants of service connection for orthopedic, neurological and other residuals.  As for muscle injury in particular, there is nothing which can outright be considered unusual or exceptional, beyond the severe impairment noted under the rating schedule.  For these reasons, referral for consideration of an extraschedular rating is not warranted in this case.


ORDER

A 30 percent evaluation, but no higher, for soft tissue sarcoma left cervical region, from November 1, 2007 to April 27, 2010 is granted, subject to the law and regulations governing the payment of VA compensation benefits.  

A higher evaluation than 30 percent for soft tissue sarcoma left cervical region since April 28, 2010 is denied.

REMAND

The May 2011 VA examination's notation that the Veteran had medically retired   as the consequence of service-connected disability raises an inextricably intertwined TDIU claim, requiring further development.

Accordingly, this claim is REMANDED for the following action:

1. Send the Veteran a VCAA letter regarding the claim for a TDIU, in accordance with 38 U.S.C.A. §§ 5102, 5103 and 5103A (West 2002 & Supp. 2013), and all other applicable legal precedent.

2. Send the Veteran a copy of VA Form 21-8940, Formal Application for a TDIU.  

3. Make arrangements to obtain the Veteran's complete VA treatment records, dated since April 2010.               

4. Then, schedule the Veteran for a VA general medical examination.  The claims folder must be made available for the examiner to review.  The examiner is then requested to provide an opinion as to whether the Veteran is incapable of securing and maintaining substantially gainful employment due to the severity of one or more of his service-connected disabilities.  In providing the requested determination, the examiner must consider the degree of interference with ordinary activities, including capacity for employment, caused solely by the Veteran's service-connected disabilities, as distinguished from any nonservice-connected physical or mental condition.  The requested opinion must also take into consideration the relevant employment history and educational history, or lack thereof.  If an opinion cannot be rendered without resorting to pure speculation, please explain why this is not possible.

5. Next, review the claims file.  If any of the directives specified in this remand have not been implemented, appropriate corrective action should be undertaken before readjudication.  Stegall v. West, 11 Vet. App. 268   (1998).

6. Finally, adjudicate the TDIU claim on appeal, based upon all additional evidence received.  If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to       the Board for further appellate consideration.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).




______________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs