Citation Nr: 1125240 Decision Date: 07/05/11 Archive Date: 07/14/11 DOCKET NO. 08-34 869 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether the RO properly discontinued the 100 percent rating for squamous cell carcinoma of the supraglottic larynx. 2. Entitlement to a rating in excess of 30 percent for residuals of cancer of the larynx from March 1, 2008. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to March 1970. This appeal to the Board of Veterans' Appeals (Board) arises from a December 2007 rating decision in which the RO reduced the Veteran's assigned initial rating of 100 percent from September 7, 2006 to a rating of 30 percent from March 1, 2008. In February 2008, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in September 2008, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2008. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the matters on appeal have been accomplished. 2. Since March 1, 2008, the Veteran's service-connected residuals have included complaints of hoarseness with no complaints of difficulty breathing and no local reoccurrence or metastasis of the Veteran's larynx cancer. 3. The RO's decision to reduce the Veteran's evaluation for residuals of squamous cell carcinoma of the supraglottic larynx, from 100 percent to 30 percent beginning March 1, 2008 is supported by the evidence contained in the record and was made in compliance with applicable due process laws and regulations. CONCLUSIONS OF LAW 1. The reduction of the assigned 100 percent rating for squamous cell carcinoma of the larynx was proper. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.105(e), 4.97, Diagnostic Code 6819 (2010). 2. The criteria for a schedular rating in excess of 30 percent for residuals of squamous cell carcinoma of the larynx from March 1, 2008 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §4.97, Diagnostic Codes 6516, 6518, 6519, 6520, and 6819. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled. In this case, a rating action in May 2007 proposed to decrease the Veteran's disability rating for residuals of larynx cancer. In a December 2007 decision, the RO decreased the Veteran's rating from 100 percent to 30 percent for residuals of larynx cancer. A timely appeal ensued. Thereafter, the claim was reviewed and a supplemental statement of the case (SSOC) was issued in April 2011. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Mayfield v. Nicholson (Mayfield III), 499 F.3d 1317 (Fed. Cir. 2007). The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008, removing the sentence in subsection (b)(1) stating that VA will request the claimant provide any evidence in the claimant's possession that pertains to the claim. Subsection (b)(3) was also added and notes that no duty to provide § 5103(a) notice arises "[u]pon receipt of a Notice of Disagreement" or when "as a matter of law, entitlement to the benefit claimed cannot be established." See 73 Fed. Reg. 23,353-23,356 (Apr. 30, 2008). During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), found that the VCAA notice requirements applied to all elements of a claim. Notice as to this matter was provided in September 2009. The Veteran has been made aware of the information and evidence necessary to substantiate his claims and has been provided opportunities to submit such evidence. A review of the claims file also shows that VA has conducted reasonable efforts to assist him in obtaining evidence necessary to substantiate his claims during the course of this appeal. His service treatment records, all relevant VA and private treatment records pertaining to his claims have been obtained and associated with his claims file. He has also been provided with multiple VA and fee-based medical examinations to assess the current state of his service-connected cancer of the larynx and residuals. Furthermore, the Veteran has not identified any additional, relevant evidence that has not otherwise been requested or obtained. He has been notified of the evidence and information necessary to substantiate his claims, and he has been notified of VA's efforts to assist him. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating his claims. Law and Regulations The Veteran was granted service connection for squamous cell carcinoma of the larynx in February 2007. The RO reduced the Veteran's assigned initial 100 percent disability rating in a December 2007 decision. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The procedural framework set forth in 38 C.F.R. § 3.105(e) governing rating reductions are required to be followed by VA before it issues any final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). Pursuant to 38 C.F.R. § 3.105(e), when a reduction in evaluation of a service-connected disability is considered warranted, and a reduction will result in a decrease of compensation benefits being made, a rating proposal of the reduction will be prepared setting forth all material facts and reasons, and the beneficiary will be notified and furnished detailed reasons therefore and given 60 days for presentation of additional evidence to show that compensation should be kept at the current level. If additional evidence is not received within that period, a final rating action will be taken and rating will be reduced to the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). Specific requirements must be met in order for VA to reduce certain ratings assigned for service-connected disabilities. See 38 C.F.R. § 3.344. The requirements for reduction of ratings in effect for five years or more are set forth at 38 C.F.R. § 3.344(a) and (b), which prescribe that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction; these provisions prohibit a reduction on the basis of a single examination. See Brown v. Brown, 5 Vet. App. 413, 417-18 (1995). However, with respect to other disabilities that are likely to improve (i.e., those in effect for less than five years), re-examinations disclosing improvement in disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c). In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Cf. Dofflemyer, 2 Vet. App. at 281-282. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Diagnostic Code 6819 governs malignant neoplasms of any specified part of the respiratory system. Under Diagnostic Code 6819, a rating of 100 percent continues for beyond the cessation of any surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure. Six months after the discontinuance of such treatment, the appropriate disability rating is determined by mandatory VA examination. If there has been no local recurrence or metastases, the rating is based on residuals. 38 C.F.R. § 4.97, Diagnostic Code 6819 (2010). Under Diagnostic Code 6516, chronic laryngitis manifested by hoarseness with inflammation of cords or mucous membrane is rated as 10 percent disabling and chronic laryngitis manifested by hoarseness, with thickening or nodules of cords, polyps, submucous infiltration or pre-malignant changes on biopsy is rated as 30 percent disabling. 38 C.F.R. § 4.97, Diagnostic Code 6516 (2010). Factual Background and Analysis The Veteran was granted service connection for cancer of the larynx in a February 2007 RO rating decision. In a May 2007 VA examination, the examiner noted that the Veteran started having chronic hoarseness and was diagnosed with cancer of the larynx in December 2005. He was treated with chemotherapy and radiation. Since his treatments ended a year ago, he was better for a while, until about three to four months ago when he starting having throbbing pain in his throat and the hoarseness came back. Ever since the treatment he has had difficulty making saliva and has to sip on liquids continually, eat slowly, and take small bites of food. On examination, the examiner found some hoarseness, but no sinusitis, soft palate abnormality, signs of nasal obstruction, or history of laryngectomy. The examiner referred to an April 2007 ear, nose and throat physician (ENT) note which noted an examination with mirror could not be performed due to obduration with the edematous, a post-radiation twisted epiglottis, and a fiberoptic examination through the right nasal airway found the post-radiation edema with twisting of the left side of the epiglottis and foreshortening of the eryepiglottic fold. The examiner noted no residuals of an injury to the pharynx, and the examination of the neck showed hyperpigmentation and thickening of the skin from the radiation. Tissues were firm and slightly tender to palpation. The examiner diagnosed residuals of hoarseness and pain status-post treatment for larynx cancer. In a June 2007 VA oncology note, the Veteran complained of dysphagia, difficulty swallowing, thick secretions, and some pain in the right side of his neck. Upon examination, the examiner noted that he could not evaluate posterior pharyngeal wall because of gagging, there were some post-radiation changes, and some slight tenderness on the right side of the neck. The examiner reported that the Veteran was last seen by ENT in April 2007 and the examination was essentially unchanged other than some edema which was attributed to post radiation changes. The examiner further stated that at that time there was no evidence to correlate with recurrent disease. A July 2007 private computed tomography (CT) report indicated the Veteran had circumferential soft tissue thickening in the supraglottic region as has been previously described on the diagnostic CT. The impression included supraglottic soft tissue thickening associated with elevated radiotracer activity likely representing active neoplasia. There was no evidence of abnormal focal activity outside of the direct region of interest. A July 2007 private pathology report found benign stratified squamous mucosa with parakeratosis and acanthosis, as well as benign non-keratinizing stratified squamous mucosa and unattached parakeratotic tissue fragments. In a January 2008 VA progress note, the examiner noted that the Veteran was still having discomfort with swallowing, thickened secretions, dysphonia, and dysphagia. His wife reported that at night he has noisy respirations and sounds of obstructive breathing. Upon examination, the examiner found septum irregular without obstruction, thickened epiglottis that is smooth and pale in appearance with slight twisting posteriorly that obdurate the larynx. The examiner noted negative post-treatment biopsies dated in July 2007 with no evidence of tumor currently. In August 2008 the Veteran underwent another CT scan, which found circumferential abnormal soft tissue in the supraglottic area markedly narrowing the airway, suspicious for possible neoplastic process. No significant interval change. During an August 2008 VA follow-up, the examiner found radiation changes in the submandibular area, no anterior or posterior cervical or supraclavicular adenopathy, prolonged expiratory phase, and scattered expiratory wheeze. The examiner noted that the Veteran has had biopsies of the area in the last six months, which were apparently negative for any residual cancer. A January 2009 VA CT scan found abnormal circumferential soft tissue in the supraglottic area slightly more prominent on the right narrowing the airway which measures 4.5 mm in its narrowest section. The impression noted the marked narrowing of the airway suspicious for possible neoplastic process with no significant interval change. A July 2009 VA follow-up indicated that Veteran recently underwent a CT scan which found some fullness of the supraglottic laryngeal area. The Veteran complained of dry mouth with secretions and hoarseness. The examiner also noted no progressive symptomatology. Upon examination, the physician noted a flexible laryngoscopy was performed and findings reveal thickening of the false cords with false cords coming together prior to the true cords. There was no evidence for neoplasm, the epiglottis was slightly swollen, but nothing resembling a neoplasm. Both vocal cords moved normally, the pharyngeal wall, base of the tongue and vallecula are all free of disease. There was no adenopathy on palpation of the neck, and some woody induration of the laryngeal area. The examiner diagnosed post-radiation symptomatology with chronic mucosal thickening and xerostomia. During an October 2009 VA examination, the Veteran complained of continuous dry mouth, hoarseness, and a feeling of fullness in the neck. A laryngoscopy dated in July 2009 showed post-radiation symptomatology with chronic mucosal thickening and xerostomia. There was no evidence of recurrent tumor. The Veteran further reported no history of neoplasm, no history of sinusitis, no breathing difficulty, and a speech impairment consisting of hoarseness. Upon examination, the examiner found no soft palate abnormality, moderate hoarseness, some signs of nasal obstruction, no larygnectomy, and some thickening of the cords of the larynx. The examiner further reported dry mucous membranes, and indicated that the examination of the neck showed hyperpigmentation and thickening of the skin from the radiation. Tissues were firm/hard and tender to palpation. The examiner referred to the July 2009 report. The diagnosis was residuals of radiation treatment of squamous cell carcinoma of the larynx, with mild effects on feed, but no other effects on usual daily activity. Analysis Based on a review of the procedural history, it appears that the RO complied with all of the requirements of 38 C.F.R. § 3.105(e). The Veteran was notified of his rights and was given an opportunity for a hearing and time to respond by way of a May 2007 letter. A December 2007 letter and rating decision notified the Veteran of the final reduction, and the reduction was made effective no sooner than permitted by current law and regulations ("the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires"). 38 C.F.R. § 3.105(e). Thus, the Board finds that the reduction from 100 percent was proper. The Veteran asserts that his residuals of squamous cell carcinoma of the larynx warrant a rating in excess of 30 percent. The Board notes that the May 2007 and October 2009 VA examinations are adequate. The opinions are based upon consideration of the Veteran's prior medical history and examinations, and also describe the disability, in sufficient detail so that the Board's evaluation of the disability will be a fully informed one. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The examination report is also probative as the physician had access to the claims file and provided a thorough opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Based on the foregoing, the Board finds that an increased evaluation is not warranted. The objective medical evidence does not show recurrence or metastases, as such, the Board considered the residuals of the squamous cell carcinoma. The objective medical evidence shows no gross abnormality. There was inflammation, hoarseness and thickening of the false cords, which is consistent with the current 30 percent disability evaluation. Under Diagnostic Code 6516, a 30 percent is the maximum rating. See 38 C.F.R. § 4.97, Diagnostic Code 6516 (2010). Additionally the Board notes that the Veteran's residuals could be rated under Diagnostic Code 6519 for aphonia, however, there is no indication that the Veteran has the constant inability to speak above a whisper. The Veteran complained of hoarseness, but there were no complaints of inability to communicate. Finally, while the Veteran could also be evaluated under Diagnostic Code 6520 for stenosis of the larynx, including residuals of laryngeal trauma, there is no evidence that the Veteran had a forced expiratory volume in one second (FEV-1) less than 40 percent of predicted value, with Flow-Volume Loop compatible with upper airway obstruction or permanent tracheostomy. The Board notes that the January 2009 VA CT scan report found narrowing of the airway; however, during the October 2009 VA examination, the Veteran denied breathing difficulties. As such, a rating in excess of 30 percent is not warranted under Diagnostic Codes 6519 and 6520. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). Based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has considered whether a staged rating is appropriate. However, in the present case, the Veteran's symptoms remained constant throughout the course of the period on appeal and as such staged ratings are not warranted. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Shinseki, F.3d 1366 (Fed. Cir. 2009). Here, as discussed above, the rating criteria for the disability at issue reasonably describe the Veteran's disability level and symptomatology. Thus, as the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral for an extraschedular evaluation is required. Id. Thus, under the circumstances of the instant case, the Board must find that the preponderance of the evidence is against the claims; the benefit of the doubt doctrine is inapplicable and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The reduction of the 100 percent evaluation for residuals of squamous cell carcinoma of the larynx was proper, and the restoration of the 100 percent rating is denied. A schedular rating in excess of 30 percent for residuals of squamous cell carcinoma of the larynx, from March 1, 2008 is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs