Citation Nr: 1232329	
Decision Date: 09/19/12    Archive Date: 09/24/12

DOCKET NO.  06-34 386A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUE

Entitlement to an initial evaluation above 10 percent for chronic laryngitis, status post vocal cord polyp, from February 15, 2006.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran, his spouse Mrs. D.S., Mr. E.P., and Craig N. Bash, M.D.


ATTORNEY FOR THE BOARD

Bernard T. DoMinh, Counsel


INTRODUCTION

The Veteran served on active duty from July 1973 to June 1989.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Baltimore, Maryland, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, granted the Veteran service connection for chronic laryngitis.  The decision assigned a 30 percent evaluation for chronic laryngitis from December 21, 2005 (the date of VA's receipt of the Veteran's claim for VA compensation for laryngitis) to February 14, 2006, with a 10 percent evaluation effective thereafter, based on private medical records showing surgical excision of a vocal cord polyp on February 15, 2006.  

As a point of clarification, this particular disability is rated under 38 C.F.R. § 4.97, Diagnostic Code 6516, using the criteria for evaluating chronic laryngitis.  Diagnostic Code 6516 provides a maximum evaluation of 30 percent and no higher.  In the Veteran's statements addressing this aspect of his appeal, he essentially contends that his chronic laryngitis, status post vocal cord polyp, warrants the maximum 30 percent evaluation and is contesting only that part of the RO's decision that reduced the initial evaluation from 30 percent to 10 percent, effective February 15, 2006.  Under the circumstances of the current case, consideration must be given regarding whether the case warrants the assignment of separate ratings for chronic laryngitis for separate periods of time, from February 15, 2006, to the present, based on the facts found, a practice known as "staged" ratings.  See Fenderson v. West, 12 Vet. App. 119 (1999).

The Veteran, accompanied by his representative and witnesses, submitted oral testimony and medical evidence in support of his appeal at a March 2011 hearing conducted at the VA Central Office in Washington, D.C., before the undersigned Veterans Law Judge.  A transcript of this hearing has been obtained and associated with the Veteran's claims file for review and consideration by the Board.

In October 2011, the Board remanded the claim to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional evidentiary development that included providing the Veteran with a medical examination of his larynx to assess the current severity of his chronic laryngitis.  Following this development, the RO readjudicated the claim and confirmed the 10 percent initial evaluation for chronic laryngitis in a June 2012 supplemental statement of the case.  The case was thereafter returned to the Board and the Veteran now continues his appeal.


FINDINGS OF FACT

For the period from February 15, 2006 to the present, the clinical evidence shows that the Veteran's service-connected chronic laryngitis is manifested by hoarseness and inflammation of the vocal cords and adjacent mucous membranes, but does not objectively demonstrate the presence of thickening vocal cords, nodules of the vocal cords, polyps, submucous infiltration, or pre-malignant changes on biopsy. 


CONCLUSION OF LAW

The criteria for an initial evaluation in excess of 10 percent for chronic laryngitis, status post vocal cord polyp, for the period from February 15, 2006 to the present have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.97, Diagnostic Code 6516 (2011). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In accordance with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

Generally, the notice requirements of a claim have five elements: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must also: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim.  See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements).  During the course of the appeal, § 3.159(b) was revised and the requirement that VA request that the claimant provide any evidence in his possession that pertains to the claim was removed from the regulation.

The claim for an initial evaluation above 10 percent for chronic laryngitis, status post vocal cord polyp, from February 15, 2006, is a downstream issue from a rating decision dated in April 2007, which initially established service connection for this disability and assigned the staged 10 percent rating being contested and its effective date.  The United States Court of Appeals for Veterans Claims (Court) held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006), that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008).  Thusly, any defects in the current appeal of the initial rating assigned for the award of service connection for chronic laryngitis with regard to the statutorily prescribed VCAA notice requirements are deemed to be non-prejudicial to this specific claim.

VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate the claim.  38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim").  This duty includes assisting the Veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant).

VA informed the Veteran of its duty to assist in obtaining records and supportive evidence.  In this regard, the Board observes that the Veteran's private and VA medical and examination records pertinent to treatment of laryngitis received during  the period from February 15, 2006 to December 2011 have been obtained and associated with his claims file.  Furthermore, the Veteran was provided with a current VA examination to assess the present severity of his chronic laryngitis; this examination was conducted in December 2011, pursuant to the directives of the Board remand of October 2011.  In this regard, the Board notes that the evidentiary development undertaken by the RO/AMC is in substantial compliance with the October 2011 remand instructions and therefore no further remand for additional corrective development is necessary.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  The December 2011 examination itself was conducted following review of the pertinent clinical history contained in the Veteran's claims file, and all objective findings relating to his laryngitis and the criteria of the applicable Diagnostic Code used to rate laryngitis have been obtained and presented in the examination report in the context of this history.  Therefore, the Board finds no defects in the current examination that would render it inadequate for VA adjudication purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  

Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the Veteran in the evidentiary development of his claim decided herein, and thus no additional assistance or notification is required in this regard.  The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Board will therefore proceed with the adjudication of this appeal.

The Board notes that in addition to chronic laryngitis, the Veteran is currently service-connected for multiple disabilities of his sinuses and his musculoskeletal, digestive, cardiovascular, dermatological, and psychiatric systems, which jointly produce a combined 100 percent schedular evaluation under 38 C.F.R. § 4.25 (2011).  

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2011).  Separate diagnostic codes identify the various disabilities.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2011).  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.  Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support.  38 C.F.R. § 4.10 (2011).

The Veteran's service-connected laryngitis is rated under the criteria contained in 38 C.F.R. § 4.97, Diagnostic Code 6516, which provides for the assignment of a 10 percent evaluation for chronic laryngitis manifested by hoarseness, with inflammation of the vocal cords or mucous membrane.  Assignment of a 30 percent evaluation is warranted for chronic laryngitis manifested by hoarseness, with thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy.  

The clinical evidence reflects that prior to February 15, 2006, the Veteran's service-connected chronic laryngitis was manifested by vocal hoarseness and a pedunculated polyploid lesion located on his left superior vocal cord.  The objectively demonstrated presence of this polyp was the basis for the 30 percent schedular rating assigned for the period prior to February 15, 2006.  Thereafter, a private surgical report dated February 15, 2006, shows that on this date the aforementioned polyp was surgically excised.  Clinical records from both private and VA sources thereafter show no recurrence of laryngeal polyps.  Although the subsequent clinical records and the Veteran's hearing testimony of March 2011 reflect that he experienced continued vocal hoarseness as a primary symptom of his chronic laryngitis, with inflammation of the vocal cords and adjacent mucous membranes, the medical evidence shows no objective demonstration of actual thickening of the cords, or the presence of nodules or the recurrence of polyps on the cords, or the presence of submucous infiltration or pre-malignant changes on biopsy of the laryngeal tissues.  

The report of a December 2011 VA otolaryngological examination definitively determined that apart from audible vocal hoarseness, there was no thickening or nodules, no polyps, and no submucous infiltration of the affected vocal cords.  Biopsy of tissue samples taken from the larynx revealed no pre-malignant changes or any other indication of cancer or the presence of pre-cancerous cells.  The examining physician stated in his commentary that the occupational impact of the Veteran's chronic laryngitis was that it hampered his ability to verbally communicate clearly in his employment capacity as a federal housing inspector.  In this regard, the medical records show that throughout the pendency of this appeal, the Veteran was gainfully employed on a full-time basis.  An August 2009 treatment note shows that the Veteran reported having lost only two weeks of work in the past 12-month period because of various unspecified illnesses.

The Board has considered the evidence described above and concludes that it does not support the assignment of an initial evaluation above 10 percent for the Veteran's service-connected chronic laryngitis, status post vocal cord polyp, for the period from February 15, 2006 to the present.  The requisite criteria for an evaluation above 10 percent for chronic laryngitis have not been met at any time during the pendency of this claim, as the clinical evidence fails to objectively demonstrate the presence of thickening or nodules of cords, or the presence of polyps, submucous infiltration, or pre-malignant changes on biopsy, such that the assignment of a 30 percent evaluation would be warranted.  The Board does not find that the current medical evidence shows manifestations of chronic laryngitis that more closely approximates the criteria for a schedular evaluation above 10 percent.  Thusly, the claim must be denied.  Because the evidence in this case is not approximately balanced with respect to the merits of this claim, the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2011); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).    

The Board finds that there is no evidence of an exceptional or unusual disability picture associated with the Veteran's service-connected chronic laryngitis, status post vocal cord polyp, with such related factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards.  The clinical evidence establishes that the Veteran's service-connected chronic laryngitis, status post vocal cord polyp, does not produce a greater impact on his occupational capacity that renders impractical the criteria contemplated by the applicable rating schedule as contained in 38 C.F.R. § 4.97, Diagnostic Code 6516.  The clinical evidence indicates that the Veteran is currently employed on a full-time basis as a federal housing inspector.  Although the VA clinician who conducted the December 2011 examination noted that the occupational impact of the Veteran's hoarseness (which was his chronic laryngitis' primary symptom) was that it interfered with his ability to provide clear vocal communication, he was obviously still capable of maintaining full-time employment despite this persistent symptom.  Additional clinical evidence also does not indicate that he lost a significant amount of time from work due solely to his chronic laryngitis.  Thusly, the Board finds that the Veteran's level of occupational impairment due solely to symptoms associated with his service-connected chronic laryngitis, status post vocal cord polyp, is within the scope of the 10 percent evaluation currently assigned to it, based on Diagnostic Code 6516 of the rating schedule.  The Board further finds that the Veteran's chronic laryngitis, status post vocal cord polyp, does not present a disability picture that renders the applicable rating schedule inadequate to rate the disability at issue under the specific facts unique to this individual case.  Furthermore, the clinical evidence does not indicate that the Veteran's chronic laryngitis, status post vocal cord polyp, requires treatment through frequent hospitalizations.  The clinical evidence demonstrates that the level of industrial impairment individually attributable solely to the service-connected chronic laryngitis is adequately contemplated in the criteria of the applicable rating schedule.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Therefore, the Board is not required to discuss the possible application of an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) (2011).  See Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); Fisher v. Principi, 4 Vet. App. 53 (1993).


ORDER

The claim for an initial evaluation above 10 percent for chronic laryngitis, status post vocal cord polyp, from February 15, 2006 to the present, is denied.



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs