Citation Nr: 0813523 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 07-03 658 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an increased rating for dysphonia, currently rated at 10 percent disabling. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T.S. Willie, Associate Counsel INTRODUCTION The veteran served on active duty from November 1987 to July 1995 with additional service in the reserves. This case initially comes before the Board of Veterans' Appeals (Board) on appeal of an April 2005 rating decision rendered by the Los Angeles, California, Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran testified before the undersigned Veterans Law Judge in January 2008. A transcript of the hearing is of record. FINDING OF FACT Aphonia is manifested by the veteran's inability to project or raise her voice. CONCLUSION OF LAW The criteria for a rating of 60 percent disabling for aphonia have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.159, 4.97, Diagnostic Code 6519 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA As explained below, the Board has determined that the evidence and information currently of record are sufficient to substantiate the veteran's claim. Therefore, no further development is required to comply with the notice or duty to assist provisions of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) [codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2007)], or the regulations implementing it. Legal Criteria and Analysis Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2007). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). Where an award of service connection for a disability has been granted, separate evaluations can be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 126 (2001), see also Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1 (2007). After careful review of the evidentiary record, the Board concludes that the veteran's condition has not significantly changed and a uniform evaluation is warranted. The veteran seeks a disability rating in excess of 10 percent disabling for dysphonia. Dysphonia is not listed on the Rating Schedule and the RO assigned Diagnostic Code 6599 pursuant to 38 C.F.R. § 4.27, which provides that unlisted disabilities requiring rating by analogy will be coded first the numbers of the most closely related body part and "99". See 38 C.F.R. § 4.20. The RO determined that the most closely analogous Diagnostic Code is 38 C.F.R. § 4.97, Diagnostic Code 6516, used to evaluate chronic laryngitis. Diagnostic Code 6516 provides that chronic laryngitis productive of hoarseness, with inflammation of cords or mucous membrane, is rated as 10 percent disabling. A 30 percent disability evaluation is warranted for hoarseness, with thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on a biopsy. The veteran sustained a head concussion and strangulation injury while on active duty. A February 2008 evaluation noted that since the injury the veteran maintains that her voice tires and that she is unable to project her voice or raise it. It was noted during this evaluation that the veteran holds a teaching credential, but the tone and quality of her voice prevents her from performing daily classroom work. It was further noted that the veteran tutors a small group of children and after work she relates that her voice is very tired and that she is unable to converse throughout the evening. The examiner maintained that given that the veteran's injury (which took place six and a half years ago) has not improved, the injury to her larynx and voice is a permanent condition. The examiner maintained that the veteran will be unable in the future to utilize her teaching credential in a large classroom situation. A November 2006 compensation and pension examination noted that the veteran has a long term chronic inability to speak louder than a soft speaking voice. A diagnosis of chronic laryngitis with limited ability to project her voice was given. In light of the above, the Board finds that a higher disability rating under DC 6516 have not been met, since hoarseness, with thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on a biopsy have not been shown. However, based on the record, the Board finds that the veteran's disability picture more nearly approximates the criteria under DC 6519 which grants a rating of 60 percent for complete organic aphonia with constant inability to speak above a whisper and 100 percent rating for the constant inability to communicate by speech. The Board finds that a 60 percent rating under DC 6519 is warranted. The record shows that the injury to veteran's larynx and voice is a permanent condition and that she unable to project her voice or raise it. The most recent VA examination showed that the veteran has a long term chronic inability to speak louder than a soft speaking voice. Under the circumstances, a 60 percent disability rating under DC 6519 is granted. The Board notes that a 100 percent rating under DC 6519 is not warranted because there is no showing of the constant inability to communicate by speech. 38 C.F.R. § 4.97, Code 6519. The Board has considered whether the case should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration under the provisions of 38 C.F.R. § 3.321(b)(1) (2007). However, the Board notes that the record reflects that the veteran has not required frequent periods of hospitalization for this disability and that the manifestations of the disability are contemplated by the schedular criteria. Therefore, there is no reason to believe that the average industrial impairment from the disability would be in excess of that contemplated by the schedular criteria. Therefore, referral of the case for extra-schedular consideration is not in order. ORDER Entitlement to a rating of 60 percent disabling for aphonia is granted, subject to the controlling regulations applicable to the payment of monetary benefits. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs