Citation Nr: 0812388 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 04-26 143 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Whether the rating reduction from 100 to 10 percent for squamous cell carcinoma of the left vocal cord was proper. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Horrigan INTRODUCTION The veteran, who is the appellant, served on active duty from November 1965 to August 1967. This matter is before the Board of Veterans Appeals (Board) on appeal of a rating decision in June 2003 of a Department of Veterans Affairs (VA) Regional Office (RO). In a statement, dated in March 2007, the veteran's representative raised the claim for increase for the residuals of squamous cell carcinoma of the left vocal cord, which is referred to the RO for appropriate action. FINDING OF FACT On VA examination in January 2003, there was no evidence of local recurrence or metastasis of squamous cell carcinoma of the left vocal cord and there was no evidence of thickening, nodules, polyps, or submucous infiltration. CONCLUSION OF LAW The rating reduction from 100 to 10 percent for squamous cell cancer of the throat was in accordance with the facts and law. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.105(e), 3.344, 4.104, Diagnostic Codes 6516, 6819 ( 2007). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Under 38 C.F.R. § 3.159, VA must request that the claimant provide any evidence in the claimant's possession that pertains to the claim. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the notice provisions pertaining to a rating reduction are governed by 38 C.F.R. § 3.105(e), which provide that where the reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction of compensation payments currently being made, a rating proposing the reduction will be prepared setting forth all material facts and reasons. The veteran will be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. And if additional evidence is not received within that period, final rating action will be taken and the award will be reduced effective the last day of the month in which a 60-day period from the date of notice to the veteran of the final rating action expires. Where as here, the notice provisions of 38 C.F.R. § 3.105(e), rating reduction, essentially mirror the notice requirements of the VCAA, compliance with the notice provisions of the VCAA are rendered moot. Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. The veteran was afforded a VA examination required for the rating reduction in this case to be proper under Diagnostic Code 6819. As the veteran has not identified any additional evidence pertinent to this claim, not already of record, and as there are no additional records to obtain, the Board concludes that no further assistance to the veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Factual and Procedural Background Private medical records disclose that the veteran was diagnosed with squamous cell carcinoma via a biopsy on May 23, 2002. The lesion was removed and thereafter, veteran underwent a course of irradiation therapy to the larynx from June 6, 2002, to July 22, 20002. In a rating decision in November 2002, the RO granted service connection for squamous cell carcinoma of the left vocal cord, effective August 26, 2002, on a presumptive basis as a disease associated with exposure to Agent Orange as the veteran served in Vietnam during the Vietnam era. On VA examination in January 2003, there was no evidence of local recurrence of the cancer. The pertinent findings were no evidence of a tumor or palpable lymph nodes. The diagnosis was squamous cell carcinoma of the left vocal cord status post removal and radiation with residuals. In April 2003, the RO notified the veteran of the proposed to decrease the rating for squamous cell cancer of the throat from 100 to 10 percent. In a rating decision in June 2003, the RO implemented the reduction, effective from September 1, 2003. The basis for the reduction were the findings on the VA examination of January 2003. Analysis Under Diagnostic Code 6819, malignant neoplasms of the respiratory system, which includes the vocal cords, are rated 100 percent disabling beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. 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 residuals. Partial removal of a vocal cord is rated as chronic laryngitis under Diagnostic Code 6515. Under Diagnostic Code 6515, hoarseness with thickening or nodules of the vocal cords, polyps, or submucous infiltration warrants a 30 percent rating. Hoarseness with inflammation of the vocal cords or mucous membrane warrants a 10 percent rating. As explained, the RO complied with the notice provisions of 38 C.F.R. § 3.105(e). Also, the reduction was also in compliance with the criteria of Diagnostic Code 6819 in that the reduction was accomplished more than 6 months after the discontinuance of therapy for throat cancer which was terminated in July 2002. Moreover, the decision to reduce the rating was based on the VA examination of January 2003 that clearly showed no local recurrence of the cancer. And although some hoarseness and inflammation were found, there was no evidence of the criteria for a 30 percent rating, namely, thickening or nodules of the vocal cords, polyps, or submucous infiltration. In view of the above, the Board concludes that the reduction of the rating for squamous cell carcinoma of the left vocal cord from 100 to 10 percent was properly executed in accordance with facts and law. ORDER The rating reduction from 100 to 10 percent for squamous cell carcinoma of the left vocal cord was proper, and the appeal is denied. ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs