Citation Nr: 1139971 Decision Date: 10/27/11 Archive Date: 11/07/11 DOCKET NO. 03-20 124 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an increased disability evaluation for aphonia as a result of laryngeal cancer, currently evaluated as 60 percent disabling. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran had active military service from February 1964 to February 1966. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision. The Board issued a decision in May 2004 that was set aside by the Court of Appeals for Veterans Claims (Court) in July 2006. The Court remanded the Veteran's claim to the Board for consideration of whether the Veteran warranted an extraschedular rating for the residuals of the Veteran's cancer of the larynx. The Board subsequently remanded the Veteran's claim twice. First for a referral to the Director of Compensation and Pension for a determination of whether an extraschedular rating was warranted; and then for additional records based on statements made by the Veteran that there were outstanding records. In a May 2009 decision, the Board denied the claim for an evaluation in excess of 60 percent for aphonia. The Veteran appealed the decision to the Court. In April 2011, the Court granted a Joint Motion for Remand, vacated the Board's May 2009 decision, and remanded the matter to the Board for action consistent with the Joint Motion. The Board notes that although a number of VA medical reports, dated between 2008 and 2011, have been associated with the claims files since the most recent supplemental statement of the case (SSOC), dated in March 2009, and although a waiver of RO review has not been received in conjunction with this evidence, this evidence is not "pertinent" as defined at 38 C.F.R. § 20.1304(c) (2011), and a remand for RO consideration is not required. FINDINGS OF FACT 1. The service-connected residuals of cancer of the larynx are not characterized by a total laryngectomy. 2. The Veteran is able to communicate by speech, and has not shown evidence of recurrent or new cancer of the larynx. 3. The schedular criteria are inadequate and there are exceptional factors such as marked interference with employment; the Veteran's aphonia also includes symptoms of loss of energy, memory loss, sleepiness, depression, anxiety, agoraphobia, and insomnia, resulting in a level of disability analogous to one productive of deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for the assignment of a schedular rating in excess of 60 percent for aphonia have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.97, Diagnostic Codes 6518, 6519, 6819 (2011). 2. The criteria for the assignment of a 70 percent extraschedular rating for residuals of laryngeal cancer have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321(b), 4.130 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, service connection was granted for cancer of the larynx by a December 1999 rating decision, and a 10 percent rating was assigned, effective October 1999 (the date of claim), under Diagnostic Codes 6819 and 6516. Subsequently, in a July 2000 rating decision, the Veteran's disability was recharacterized as residuals of cancer of the larynx, and his award was increased to 60 percent, effective October 1999 (the date of claim), under Diagnostic Codes 6819 and 6519. The Veteran then withdrew his appeal in August 2000, before subsequently reinitiating his claim in June 2002. It is noted that service connection was eventually separately established for restrictive lung disease secondary to the cancer by an October 2000 rating decision (now rated at 30 percent and not currently at issue). However, because restrictive lung disease has been adjudicated separately, this decision will only deal with the residual of laryngeal cancer that has resulted in the Veteran only being able to speak in a whisper (namely aphonia). It is also noted that in January 2003 the Veteran was awarded a total disability rating based on individual unemployability (TDIU), effective from November 2002. (He is separately service connected for diabetes.) At present, the Veteran is seeking a rating in excess of 60 percent for aphonia. Under 38 C.F.R. § 4.97 , DC 6819, malignant neoplasm, on any specified part of respiratory system exclusive of skin growths are temporarily rated at 100 percent. The note accompanying the diagnostic code indicates that a rating of 100 percent 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 disability rating shall be determined by mandatory VA examination; and if there has been no local recurrence or metastasis, the Veteran is to be rated based on any residuals. Here, there has been no evidence of any new or recurrent cancer. For example, in an April 2000 letter Dr. James L. Netterville indicated that the Veteran was living cancer free; at VA examinations in October 2001 and December 2002, the Veteran was noted to have had no evidence of recurrence of the cancer; at an outpatient treatment session in June 2004 no recurrence was noted; and most recently, at a VA examination in November 2008 no evidence of any recurrence was shown by either a CT scan or a fiber optic nasolaryngoscope. Given the absence of any recurrence of the Veteran's cancer, his disability is to be rated on the residuals of the cancer. As indicated above, the Veteran is currently rated at 60 percent under 38 C.F.R. § 4.97, DC 6519 based on organic aphonia and at 30 percent under 38 C.F.R. § 4.97, DC 6520 based on restrictive lung disease. Under DC 6519 a 60 percent rating is assigned for the constant inability to speak above a whisper; while the next higher evaluation, a 100 percent rating is assigned when there is constant inability to communicate by speech. However, while the Veteran's speaking is clearly impaired, the evidence fails to show that he has a constant inability to communicate by speech. In April 2000, Dr. Netterville indicated that since the operations to address his vocal cord carcinoma, the Veteran's voice was very poor due to the loss of significant portions of his voice box. Dr. Netterville added that the Veteran could not speak above a whisper and he worked very hard to push his whispered voice to try to make himself understood. At a VA examination in August 2000, the Veteran was noted to have significant hoarseness in his voice; and a similar finding was made at a February 2002 VA examination. At a VA examination in December 2002, the examiner indicated that the Veteran had a very serviceable voice, although it was very hoarse. The examiner concluded that the Veteran's voice was adequate. The Veteran submitted a statement in June 2002 arguing that a 100 percent rating was warranted, because the surgery had removed 3/4 of his voice box leaving him with only a whispered voice. The Veteran suggested that while he was still working, that a higher rating was warranted as his condition would render the "average" person incapable of working. He submitted an August 2001 note from Dr. Netterville indicating that his condition rendered him unemployable. The Veteran was provided with a VA examination in November 2008 at which it was noted that he had significant voice weakness, including weakness in volume. However, at no point during the course of the Veteran's appeal has it been suggested that the Veteran had a constant inability to communicate by speech. It is recognized that having one's voice reduced to only a whisper is debilitating; however, a 60 percent rating is assigned in recognition of exactly that. As such, the Veteran's disability does not meet the schedular criteria for the assignment of an increased rating in excess of 60 percent under Diagnostic Code 6519. As noted above, the Veteran is also currently rated at 30 percent for stenosis of the larynx (or a restrictive lung disease) under 38 C.F.R. § 4.97, DC 6520, as this was considered to be an additional residual of the Veteran's laryngeal cancer. The Board also notes that special monthly compensation under 38 U.S.C.A. § 1114(k) is payable for each anatomical loss or loss of use of one hand, one foot, both buttocks, one or more creative organs, blindness of one eye having only light perception, deafness of both ears, having absence of air and bone conduction, or complete organic aphonia with constant inability to communicate by speech. This special compensation is payable in addition to the basic rate of compensation otherwise payable on the basis of degree of disability, provided that the combined rate of compensation does not exceed the monthly rate set forth in 38 U.S.C.A. § 1114(l) when authorized in conjunction with any of the provisions of 38 U.S.C.A. § 1114 (a) through (j) or (s). 38 U.S.C.A. § 1114(k) (West 2003); 38 C.F.R. § 3.350(a). Complete organic aphonia is deemed to exist where there is a disability of the organs of speech which constantly precludes communication by speech. 38 C.F.R. § 3.350(a) (6). However, as discussed above, while the Veteran's voice is weak, he can communicate by speech; and therefore, he does not meet the requirements for a grant of additional benefits under 38 C.F.R. § 3.350(a). Extra-Schedular Consideration The Joint Motion indicated that the Board should again address the issue of whether the Veteran is entitled to an extra-schedular evaluation for his service connected aphonia. An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Under Thun, there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96. In July 2008, the Court issued a memorandum decision ordering further extra-schedular consideration be given. Consistent with this directive, the Board referred the Veteran's claim to the VA Director of Compensation and Pension (Director) for extra-schedular consideration. After reviewing the Veteran's claim, the Director concluded in October 2007 that an extra-schedular rating was not warranted in the Veteran's case. As such, the extra-schedular consideration has been returned to the Board. The Board is permitted to review the entirety of the proceedings and has jurisdiction to review whether the decision not to award an extraschedular rating was appropriate. Anderson v. Shinseki, 22 Vet. App. 423, 428 (2009). As noted above, an extra-schedular rating is assigned to accord justice in unusual cases where the schedular rating criteria are rendered insufficient. Here, the Veteran underwent treatment for his laryngeal cancer; his chief complaints stemming from this treatment are diminished speech volume and increased difficulty breathing. The Veteran can still speak, and therefore he was rated under a diagnostic code that provided a rating for the inability to speak above a whisper. Additionally, he was provided a separate rating for respiratory difficulty, based on the results of a pulmonary function test. The record contains a September 2002 letter from Dr. Netterville, in which he wrote that he considered the Veteran to be totally and permanently unemployable based on the loss of 3/4 of his voice box requiring him to speak in a whisper, shortness of breath, throat cramping, pain after eating, difficulty swallowing, daily coughing spells, 75 percent loss of energy, falling asleep when sitting to rest, getting sleepy when driving, memory loss/depression, anxiety, agoraphobia, and insomnia. In his November 2002 application for increased benefits, the Veteran indicated that his time lost from work included all of his sick and vacation leave, plus an additional two months each year for the past four years. The Board finds that the Veteran's symptoms as identified by Dr. Netterville, taken together, present an exceptional or unusual disability picture as to warrant an extra-schedular rating due to marked interference with employment. In this regard, there are symptoms identified Dr. Nettleton that are not encompassed in the current ratings for aphonia (or restrictive lung disease). Specifically, the Veteran's throat cramping, pain after eating, difficulty swallowing, loss of energy, memory loss, sleepiness, depression, anxiety, agoraphobia, and insomnia. In considering these symptoms, the Board notes that under the criteria set out in Diagnostic Code 9400, a 70 percent evaluation is assigned where disability is productive of occupational and social impairment with deficiencies in most areas, due to various symptoms. In this light, considering the above mentioned evidence suggestive of marked interference with employment due to the disability at issue, together with the obvious social impact these same symptoms would have on the Veteran, the Board finds that an increased, extra-schedular evaluation of 70 percent is warranted in this case. As already described, a higher 100 percent schedular evaluation is not warranted since there is specific criteria under the rating code for such an evaluation, constant inability to communicate by speech, which symptom is not shown. Furthermore, the opinion expressed by Dr. Nettleton that the disability at issue caused the Veteran to be unemployable is patently incorrect since the Veteran was employed at the time it was asserted, as he had been for many years prior to then. In addition, the Veteran's attempt to bolster this opinion by asserting in November 2002, that he had "used all vacation & sick leave plus 2 months each year for past 4 years," is shown to be incorrect by his 2002 Daily Attendance Record, apparently submitted by his employer as an attachment to VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits). The attendance record showed that between January and October 2002, [he retired 14 Nov.2002] the Veteran earned 150 hours of annual leave, and that he used only 46 hours. Similarly, he earned 75 hours of sick leave, and used 66 hours. In addition, it showed the Veteran had 281 hours of annual leave remaining at the end of October 2002, which strongly suggest a large carryover of annual leave from prior years. Thus, the Board does not find the Veteran's assertion credible. II. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159 and 3.326(a) (2011). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b) ; Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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 to provide; (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1) . This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486 . VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Further, if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Here, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the RO. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial RO decision by way of letters sent to the Veteran in July 2002 and September 2008 that informed him of what evidence was required to substantiate the claims and of the Veteran's and VA's respective duties for obtaining evidence. Specifically regarding the increased rating claim, the Veteran has fully demonstrated that he is aware of the need to submit evidence showing that the residuals of his laryngeal cancer are more severe than they are currently rated, and he has repeatedly raised arguments based on how his disability impacts both his employment and daily life. The diagnostic codes pertaining to residuals of laryngeal cancer have been provided on several occasions including the statement of the case in June 2003; and the Veteran has repeatedly based arguments on how the rating criteria are inadequate and why an extra-schedular rating is warranted. Although the notice letters were not sent before the initial RO decision in these matters, the Board finds that the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the Veteran been afforded a meaningful opportunity to participate effectively in the processing of his claims and given ample time to respond, but the RO also readjudicated the case by way of supplemental statements of the case, issued most recently in March 2009, after the notice was provided. Thus, while the timing of the VCAA notice is presumed to be prejudicial, VA has overcome the burden of prejudicial error by giving the Veteran actual notice of what was needed to support his claim. The purpose behind the notice requirement has been satisfied and the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. With respect to the Dingess requirements, the claimant was provided with notice of the type of evidence necessary to establish an effective date for the disability on appeal by correspondence dated in March 2006. Additionally, it is noted that while the Board's decision was previously vacated, there has been no allegation raised that the notice given to the Veteran was in any way inadequate. Based on the foregoing, adequate notice was provided to the Veteran prior to the transfer and certification of the Veteran's case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) . Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159 . Private and VA treatment records have been obtained. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file). Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Board also remanded the Veteran's claim to the Director of Compensation and Pension to obtain an opinion as to the adequacy of the schedular rating criteria in this case. For the reasons discussed above, no further notice or assistance to the Veteran is required. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER A schedular increased disability rating for the residuals of laryngeal cancer (aphonia), currently evaluated as 60 percent disabling, is denied. An increased 70 percent evaluation for residuals of laryngeal cancer (aphonia) is granted on an extraschedular basis, subject to those provisions governing the payment of monetary benefits. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs