Citation Nr: 1303231 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 09-46 475 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether the reduction in the evaluation for laryngeal carcinoma from 100 percent to 10 percent effective April 1, 2009, was proper, and entitlement to an increased rating for residuals of laryngeal carcinoma. REPRESENTATION Veteran represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1966 to August 1969. He received several commendations for that service, to include a Combat Action Ribbon and a Purple Heart Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran's 100 percent rating for laryngeal carcinoma was reduced, effective April 1, 2009, to a 10 percent rating for residuals of laryngeal carcinoma. The Board has reviewed the Veteran's claims file and his Virtual VA electronic claims file. Entitlement to service connection for left ear hearing loss, to include as secondary to radiation therapy, was raised by the Veteran in November 2009. Entitlement to service connection for type II diabetes with secondary peripheral neuropathy was raised by him in October 2012. However, it appears that neither issue has been adjudicated by the Agency of Original Jurisdiction (AOJ) yet. Therefore, the Board does not have jurisdiction over those issues. They are referred to the AOJ for appropriate action. FINDING OF FACT The reduction from a 100 percent rating for laryngeal carcinoma to a 10 percent rating for residuals of laryngeal carcinoma complied with applicable due process statutes and regulations and was supported by the evidence of record at that time and a rating greater than 10 percent is not warranted. CONCLUSION OF LAW The reduction of the evaluation for laryngeal carcinoma from 100 percent to an evaluation of 10 percent for residuals thereof effective April 1, 2009, was proper, and a rating greater than 10 percent is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.97, Diagnostic Codes 6516, 6519, 6520, 6819 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA handles cases affected by change of medical findings or diagnosis so as to produce the greatest degree of stability in disability evaluations consistent with the laws and regulations governing compensation. 38 C.F.R. § 3.344(a) (2012). A variety of requirements thus must be met in order for an evaluation reduction to be proper. These include both procedural requirements and substantive requirements. VA has a duty to notify claimants about and to assist them in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159 (2012). Proper notice from VA must inform the claimant prior to the initial unfavorable decision any evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Information regarding the assignment of an evaluation and effective date also must be included. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Proper assistance involves aiding the claimant in the procurement of pertinent records, whether or not they are in Federal custody, and conducting a medical examination or obtaining a medical opinion when necessary. 38 U.S.C.A. §§ 5103A (West 2002); 38 C.F.R. §§ 3.159(c) (2012). Proper procedure concerning notification for a reduction in rating begins with the preparation of a rating proposing the reduction or discontinuance and setting forth all material facts and reasons for it. 38 C.F.R. § 3.105(e) (2012). In addition to notification of the contemplated action, the Veteran must be notified in writing that he may request a predetermination hearing, provided that the request is received within 30 days of the date of the notice, and that he has 60 days to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. §§ 3.105(e), (i) (2012). If after consideration of any additional evidence timely received, to include that from any predetermination hearing, a reduction or discontinuance of benefits still is found warranted, a final rating action setting forth the evidence and reasons will be issued. 38 C.F.R. § 3.106(i)(2) (2012). The effective date of the reduction or discontinuance of benefits shall be the last day of the month in which a 60-day period from the date of the notice to the Veteran expires. 38 U.S.C.A. § 5112(b)(6) (West 2002); 38 C.F.R. § 3.105(i)(2)(i) (2012). The aforementioned provisions apply where a reduction in rating is considered warranted and the lower rating would result in a reduction or discontinuance of compensation payments currently being made. They do not apply where a reduction in rating is considered warranted and the lower rating would not result in a reduction or discontinuance of compensation payments currently being made. 38 C.F.R. § 3.105(e) (2012). Here, the above provisions apply because the reduction in the Veteran's 100 percent rating for laryngeal carcinoma to 10 percent rating for residuals of laryngeal carcinoma resulted in a decrease in his overall disability compensation payments. However, the RO complied with the reduction requirements. A rating decision proposing the reduction was issued and mailed to the Veteran in November 2008. It set forth the relevant facts and the reasons for the proposal. Accompanying the rating decision was a letter notifying the Veteran of his right to request a predetermination hearing and to submit evidence showing the current evaluation should be maintained. He did not request a hearing, and he submitted nothing additional. The aforementioned January 2009 rating decision constituted a final determination effectuating the reduction. The RO took the relevant facts into consideration and set forth reasons for the determination made. Notification of the rating decision further was mailed to the Veteran in January 2009. The reduction was made effective no sooner than the first allowable date of March 31, 2009, the last day of March, during which the 60 day period expired. Proper procedure for assisting the Veteran has not been set forth in any statute or regulation. Pertinent VA treatment records dated have been obtained by VA. No pertinent private treatment records have been obtained by VA. No such records have been identified by the Veteran or his representative. The Veteran, and his representative, have not submitted any pertinent private treatment records. Finally, VA examinations were conducted in October and December 2008. An examination forming the basis of a reduction must be adequate. Tucker v. Derwinski, 2 Vet. App. 501 (1992). Neither examiner reviewed the Veteran's claims file, but each reviewed his medical records. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (review of the claims file is not required if the examiner otherwise was familiar with the Veteran's history); D'Aries v. Peake, 22 Vet. App. 97 (2008). Each examiner also interviewed him about his relevant history and current symptomatology as well as performed a physical assessment. All questions necessary to render the determination made herein accordingly were answered. It follows that the examinations were adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Of note is that the post-reduction evidence includes an October 2012 VA examination which included review of the Veteran's claims file and medical records in addition to all of the other aforementioned actions. Significantly, neither the Veteran nor his representative has identified any further notification or assistance necessary for fair adjudication that has not been completed. The record also does not indicate any such notification or assistance. Adjudication thus may proceed without prejudice to the Veteran. Statutes and regulations governing assignment of ratings generally are applicable for determining the propriety of reducing a rating. Brown v. Brown, 5 Vet. App. 413 (1993). Ratings represent as far as practicably can be determined the average impairment in earning capacity due to a service-connected disability. 38 U.S.C.A. § 1155 (West 2002). Consideration of the entire history of the disability is necessary so that the rating accurately compensates the elements of disability present and the effects of it upon the Veteran's ability to function under the ordinary conditions of daily life. 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If two ratings are potentially applicable, the higher rating 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 (2012). A rating shall not be reduced unless improvement is shown to have occurred. 38 U.S.C.A. § 1155 (West 2002); Greyzck v. West, 12 Vet. App. 288 (1999). Both medical and non-medical indicators of improvement may be considered. Faust v. West, 13 Vet. App. 342 (2000). Though improvement generally must be shown by the evidence of record at the time of the reduction, post-reduction evidence also must be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). The standard for establishing improvement varies depending on amount of time the Veteran has been in receipt of the rating. The relevant timeframe is calculated from the effective date of the former rating to the effective date of the reduction. Brown v. Brown, 5 Vet. App. 413 (1993). For ratings that have been in effect less than five years, such as those that have not become stabilized and are likely to improve, reduction is warranted when reexamination discloses improvement. 38 C.F.R. § 3.344(c) (2012). For ratings that have been in effect for five years or more or that are total, reduction is warranted when reexamination discloses sustained material improvement. 38 C.F.R. § 3.344(a) (2012). Determining that there is material improvement requires comparison of the Veteran's previous and current condition as reflected by examinations. Hohol v. Derwinski, 2 Vet. Ap. 169 (1992). Therefore, reduction on the basis of a single examination generally is prohibited. Brown v. Brown, 5 Vet. App. 413 (1993). The examinations upon which a reduction is based must be full and complete. 38 C.F.R. § 3.344(a) (2012). They cannot be less full or complete than those upon which compensation was authorized or continued. 38 C.F.R. § 3.344(a) (2012). Determining that material improvement will be sustained requires consideration of whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a) (2012). If doubt remains regarding either whether there is material improvement or whether such improvement will be sustained, the disability evaluation in effect is continued subject to reexamination in 18, 24, or 30 months. 38 C.F.R. § 3.344(b) (2012). The standard for establishing improvement additionally varies from the above if the rating is total. Total ratings will not be reduced, in the absence of clear error, without examination showing material improvement. 38 C.F.R. § 3.343(a) (2012). Examinations will be considered in addition to the other evidence of record, with particular emphasis on whether there is improvement under the ordinary conditions of life, such as while working or actively seeking work. 38 C.F.R. § 3.343(a) (2012). VA is required to apply all relevant statutes and regulations appropriate to the particular matter before it. Wilson v. West, 11 Vet. App. 383 (1998); Crowe v. Brown, 7 Vet. App. 238 (1994). Accordingly, reduction of a rating generally is void ab initio where VA has failed to follow them. Greyzck v. West, 12 Vet. App. 288 (1999); Brown v. Brown, 5 Vet. App. 413 (1993); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Here, service connection was granted and a 100 percent rating assigned for laryngeal carcinoma effective November 28, 2007, in a December 2007 rating decision, under Diagnostic Code 6520-6819. 38 C.F.R. § 4.97 (2012). Hyphenated Diagnostic Codes are used when a rating for a particular disability under one Diagnostic Code is based upon rating under another Diagnostic Code. 38 C.F.R. § 4.27 (2012). The four digits before the hyphen is the Diagnostic Code for the disability. 38 C.F.R. § 4.27 (2012). Diagnostic Code 6520 concerns stenosis of the larynx to include residuals of unilateral or bilateral laryngeal trauma. The four digits after the hyphen is the Diagnostic Code for the disability specifically found to be most analogous. 38 C.F.R. § 4.27 (2012). Diagnostic Code 6819 concerns malignant neoplasms of any specified part of the respiratory system exclusive of skin growths. Diagnostic Code 6819 provides for a 100 percent rating. That 100 percent rating shall continue for at least six months beyond the cessation of surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedure with a mandatory VA examination at that time to determine the appropriate rating thereafter. If there has been no local recurrence or metastasis, residuals shall be rated. Any change in rating is subject to 38 C.F.R. § 3.105(e) (2012). 38 C.F.R. § 4.97, Diagnostic Code 6819 (2012). A reduction from 100 percent not required after 6 months, only an examination which might form the basis of a reduction. Further, the procedural provisions governing reductions specifically are noted to apply if the 100 percent rating is changed. It follows that the substantive provisions governing reductions also apply. The Veteran's 100 percent rating was reduced to 10 percent effective April 1, 2009. The 100 percent rating was not in effect for more than five years. However, it was a total rating. Therefore, material improvement as opposed to improvement or sustained material improvement must be shown for the reduction to be found proper. The Board finds that the reduction in the rating for the Veteran's laryngeal carcinoma from 100 percent was proper. The Veteran's 100 percent rating was not based upon an examination. That is because the presence of malignancy otherwise had been detected. VA treatment records show that laryngeal carcinoma was diagnosed in November 2007. Those records further show that he underwent radiation therapy, which was completed in January 2008. The Veteran's rating was reduced over six months later because he no longer had laryngeal carcinoma. The October and December 2008 VA examinations did not find active carcinoma. VA treatment records dated around that time were negative for carcinoma recurrence. In sum, there was material improvement in that the Veteran had carcinoma when the 100 percent rating was assigned and then did not have carcinoma when the rating was reduced to 10 percent. That improvement was under the ordinary conditions of life. VA treatment records indicate that the Veteran retired years before his carcinoma was detected. However, it is notable that these records also indicate his radiation treatment occurred Monday through Friday for seven weeks. It accordingly would have been difficult to hold down a job while undergoing treatment. After the completion of treatment, VA treatment records reveal that the Veteran was seen for periodic follow-up. He thus would have been able to work once his treatment ceased. The Veteran does not dispute the determination that his rating for laryngeal carcinoma properly was reduced from 100 percent. He instead contends that the rating should not have been reduced to the extent it was because his residuals of laryngeal carcinoma were and remain of greater severity than contemplated by a 10 percent rating. Therefore, this claim has also been developed as a claim for an increased rating and the Board will consider entitlement to an increased rating concurrent with consideration of whether reduction to a 10 percent rating was the appropriate reduction. With respect to these residuals, a few Diagnostic Codes are applicable. Diagnostic Code 6520 provides that a 10 percent rating is warranted for forced expiratory volume in one second (FEV-1) of 71 to 80 percent of predicted value with flow-volume loop compatible with upper airway obstruction. A 30 percent rating is warranted if FEV-1 is 56 to 70 percent predicted with flow-volume loop compatible with upper airway obstruction. A 60 percent rating is warranted for FEV-1 of 40 to 55 percent predicted with flow-volume loop compatible with upper airway obstruction. A 100 percent evaluation is warranted for FEV-1 of less than 40 percent predicted with flow-volume loop compatible with upper airway obstruction or there has been a permanent tracheostomy. Post-bronchodilator results shall be used unless these results are poorer than the pre-bronchodilator results. 38 C.F.R. § 4.96(d)(5) (2012). In that circumstance, the pre-bronchodilator results shall be used. 38 C.F.R. § 4.96(d)(5) (2012). Diagnostic Code 6516 addresses chronic laryngitis. 38 C.F.R. § 4.97 (2012). A 10 percent rating is warranted for hoarseness with inflammation of cords or mucous membrane. The maximum 30 percent rating is warranted for hoarseness with thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy. Diagnostic Code 6519 addresses complete organic aphonia. 38 C.F.R. § 4.97 (2012). It sets forth a 60 percent rating for constant inability to speak above a whisper. The maximum 100 percent rating requires constant inability to communicate by speech. The Board must account for evidence that it finds to be persuasive or unpersuasive and provide reasons for rejecting any material evidence favorable to the Veteran. Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, an assessment of the probative value of the lay evidence in addition to the medical evidence must be undertaken. Lay evidence indeed may be sufficient by itself. Barr v. Nicholson, 21 Vet. App. 303 (2007). That is the case where the evidence is both competent and credible. Competency is a legal concept determining whether testimony may be heard and considered whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6. Vet. App. 465 (1994). A lay person is competent to provide testimony or statements relating to facts of events that the lay person observed or that is within the realm of personal knowledge. Layno v. Brown, 6. Vet. App. 465 (1994). In weighing credibility, discounting of competent testimony or statements from a lay person may occur in the light of its own inherent characteristics and its relationship to other items of evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). Factors for consideration include a showing of interest, self-interest, bias, inconsistent statements, inconsistency with other evidence of record, facial implausibility, bad character, malingering, desire for monetary gain, and witness demeanor. Pond v. West, 12 Vet. App. 341 (1999); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991). The Board cannot determine that lay testimony or a lay statement lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence in combination with other factors may lead to the determination the lay testimony or statement is not credible. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, reasonable doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran prevails when the evidence supports his claim or is in relative equipoise, but does not prevail when the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board finds that the reduction in the rating for the Veteran's laryngeal carcinoma to 10 percent for residuals of laryngeal carcinoma was proper. Although all the evidence was reviewed, only the most salient evidence is discussed in this regard. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The Veteran's residuals by and large have been stable from the time of the reduction. The evidence dated at the time of the reduction, though most relevant, thus will be supplemented with discussion of the evidence dated thereafter. No bronchodilator results dated at or near the time of the reduction are of record. One set was obtained at the October 2012 VA examination. The Veteran's post-bronchodilator FEV-1, which was not poorer than his pre-bronchodilator FEV-1, was 91 percent of its predicted value. The Veteran does not meet the criteria for a 10 percent rating for his laryngeal carcinoma residuals under Diagnostic Code 6520. Regarding Diagnostic Code 6519, the weight of the evidence does not show that the Veteran's residuals of laryngeal carcinoma included a constant inability to speak above a whisper at the time of the reduction or since. He has complained that he could not speak above a whisper if he speaks for more than a few minutes at the December 2008 VA examination. He is competent to have so asserted because those residuals would be personally experienced by him. He further is credible because there is no significant reason to doubt him. Though the Veteran is self-interested in that a favorable outcome to this matter would result in his financial gain, that he would be unable to speak above a whisper is facially plausible in light of his laryngeal carcinoma. Yet his sole complaint of that is accompanied by his lack of complaint on numerous occasions. Because he was undergoing periodic follow-up both at the time of the reduction and subsequently, it is unlikely he would have omitted mention of an inability to speak above a whisper if such existed, or that a physician would not have noted that symptom in the medical records. Buczynski v. Shinseki, 24 Vet. App. 221 (2011) (a lack of notation of symptoms where such notation would normally be expected may be considered as evidence that the symptoms did not exist). VA treatment records and examinations do not show that any medical professional ever noted any lack of ability to speak above a whisper. The inability to speak above a whisper that was experienced by the Veteran accordingly can only be characterized as only temporary. It follows that not even the lowest rating of 60 percent is merited for his laryngeal carcinoma residuals pursuant to Diagnostic Code 6519. Pursuant to Diagnostic Code 6516, although the Veteran has complained of occasional difficulty swallowing sometimes leading to choking and the loss of his Adam's apple, his primary complaints from the time of the reduction on have been speech problems in the form of hoarseness or raspiness and dry throat. He further has complained that the residuals result in soreness, pain, an inability to speak in the morning before drinking, and seeking alleviation by drinking all day. He is competent to complain of those symptoms. He also is credible because there is no significant reason to doubt him. Despite his self-interest in financial gain, that he would experience hoarseness and dry throat is facially plausible. His complaints are consistent with one another in that he never denied the residual. They are consistent with the other evidence in that VA treatment records and examinations reflect that hoarseness was noted by medical professionals. Also noted by medical professionals was edema. Medical professionals noted thickened secretions to include saliva. That is akin to inflammation of the mucous membrane. However, at no point has thickening or nodules of cords, polyps, or submucous infiltration been noted. There have been no enlarged nodes, masses, or lesions shown. Pre-malignant changes on biopsy further have not been detected. It follows that a 10 percent rating is warranted. However, the Veteran's symptoms do not meet the criteria for a higher 30 percent rating for residuals of laryngeal carcinoma. The assignment of a particular Diagnostic Code is completely dependent on the facts of a particular case. Butts v. Brown, 5 Vet. App. 532 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in a Diagnostic Code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Diagnostic Code 6520 is listed as having been used to evaluate the Veteran's laryngeal carcinoma residuals, but it was Diagnostic Code 6516 that actually was used in the January 2009 rating decision effectuating the reduction. The above discussion reveals that Diagnostic Code 6516 is most appropriate. It directly concerns one of the Veteran's primary complaints, unlike Diagnostic Codes 6520 and 6519 which also are applicable. It further is the only one of the aforementioned Diagnostic Codes that results in the Veteran's receipt of any compensable rating. VA has a well-established duty to maximize a claimant's benefits. Buie v. Shinseki, 24 Vet. App. 242 (2011); AB v. Brown, 6 Vet. App. 35 (1993). Acknowledgement is given to the Veteran's assertion that his residuals of laryngeal carcinoma include lost teeth. However, service connection for the loss of teeth to include as secondary to radiation therapy was denied in a September 2009 rating decision. That decision has not been appealed. Acknowledgement finally is given to the Veteran's assertion that his residuals of laryngeal carcinoma include a neck scar or neck scars. None were found upon the October 2012 VA examination. Yet VA treatment records reveal the possibility of a scar in that a biopsy performed in November 2007 assisted in diagnosing laryngeal carcinoma. Diagnostic Code 7800 addresses scars of the head, face, or neck. 38 C.F.R. § 4.118 (2012). It lists eight characteristics of disfigurement, at least one of which must be present for a 10 percent rating, to include: a scar of 5 inches (13 centimeters) or more in length, a scar at least 1/4 inch (0.6 centimeters) wide at the widest part, surface contour of a scar being elevated or depressed on palpation, a scar adherent to underlying tissue, skin hypo- or hyper-pigmented in an area exceeding 6 square inches (39 square centimeters), abnormal skin texture (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 square inches (39 square centimeters), underlying soft tissue missing in an area exceeding 6 square inches (39 square centimeters), and skin indurated and inflexible in an area 6 square inches (39 square centimeters). There is no indication from VA examinations and treatment records that any one of these characteristics ever has been manifested by the Veteran, as would be expected if present. Buczynski v. Shinseki, 24 Vet. App. 221 (2011). All that has been noted is a mild post-radiation effect on the right neck and mild woody changes throughout the neck. Diagnostic Code 7804 addresses scars that are unstable or painful. 38 C.F.R. § 4.118 (2012). It provides for a 10 percent rating for one or two such scars. The An unstable scar as one where, for any reason, there is frequent loss of covering of the skin over the scar. To the extent the Veteran has a scar from his biopsy, there is no indication it ever has been unstable. Pain and tenderness of a roughly quarter-sized area of his right neck were detected near the time of the reduction at the December 2008 VA examination. Nevertheless, that was not attributed to any scar. No scar pain or tenderness has been noted upon VA examination or in VA treatment records. Buczynski v. Shinseki, 24 Vet. App. 221 (2011). Any biopsy scar thus would merit only a 0 percent rating. Therefore a separate compensable rating for scar residuals of laryngeal carcinoma is not warranted. The Board finds that the preponderance of the evidence is against the claim for restoration of a 100 percent rating. The reduction effective April 1, 2009, was procedurally proper. Furthermore, the Board finds that a rating greater than 10 percent is not warranted The preponderance of the evidence is against the assignment of any higher rating for residuals of laryngeal carcinoma. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has also considered whether the claim should be referred for consideration of any extraschedular rating. However, the evidence of record does not show that the diagnostic criteria are inadequate, or that the disability caused marked interference with employment or frequent hospitalization. Therefore, referral for consideration of an extraschedular rating is not warranted. 38 C.F.R. § 3.321(b)(1) (2012). ORDER The reduction in rating for laryngeal carcinoma from 100 percent to 10 percent for residuals of laryngeal carcinoma, effective April 1, 2009, was proper, and restoration of the 100 percent rating and entitlement to an increased rating greater than 10 percent are denied. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs