Citation Nr: 1307889	
Decision Date: 03/08/13    Archive Date: 03/11/13

DOCKET NO.  06-24 071	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to a compensable evaluation for postoperative tonsillectomy.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and his son


ATTORNEY FOR THE BOARD

Christopher Murray, Counsel


INTRODUCTION

The Veteran had active military service from June 1943 to December 1945.

This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

The Veteran and his son testified before the Board at an April 2010 hearing conducted at the RO.  A transcript of the hearing is of record.

This case was last before the Board in June 2012, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim.  The case is once again before the Board for appellate consideration of the issue on appeal.

A review of the Virtual VA paperless claims processing system reveals additional VA treatment records from April 2012 to August 2012.  Some of these records were generated after the Board remanded this case in June 2012.  In the December 2012 Supplemental Statement of the Case, the RO specifically stated that the Veteran's VA treatment records from April 2012 to August 2012 were reviewed prior to the adjudication of the claim. Therefore there is no prejudice to the Veteran in the Board's adjudication of his claim. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

Affording the Veteran the benefit of the doubt, service-connected residuals of postoperative tonsillectomy is manifested by occasional complaints of a sore throat and no more than mild dysphagia; there are no symptoms of hoarseness or inflammation of the cords or the mucous membrane found to be related to the post-operative tonsillectomy.


CONCLUSION OF LAW

The criteria for a compensable evaluation for residuals of post-operative tonsillectomy have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.20, 4.27, 4.97, Diagnostic Code 6516 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

However, if proper notice was not provided prior to the initial adjudication of the claim or if provided, was inadequate or incomplete, such an error can be "cured" by providing any necessary notice and then readjudicating the claim, including in a Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given ample opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).  Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication.  Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. __ (2009).

VA's duty to notify has been satisfied through numerous notice letters sent to the appellant that fully addressed all notice elements.  See September and November 2004, July 2010 and June 2012 letters.  These letters informed the appellant of what evidence was required to substantiate his claim, and of the appellant's and VA's respective duties for obtaining evidence.  The post-decisional July 2010 letter informed the Veteran that to substantiate his claim for an increased evaluation, he needed to show that his disability had increased in severity.  It also informed him of the disability rating and effective date elements of a service connection claim.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).  His claim was then readjudicated in the December 2011 and December 2012 SSOCs. See Mayfield IV; see also Prickett, 20 Vet. App. at 376. 

The appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond.  In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters.

VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012).

Service treatment records are associated with claims file.  All post-service treatment records identified by the Veteran have also been obtained.  The Veteran has not identified any additional records that should be obtained prior to a Board decision.  Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied.  He has been afforded VA examinations to determine the severity of his service-connected disability, with addendum opinions obtained addressing current symptomatology.  See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002).  These VA examinations are adequate for the purposes of evaluating the Veteran's disability as they involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and provides an adequate discussion of relevant symptomatology.  See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  

As noted above, the current claim was previously remanded, specifically to obtain a medical opinion addressing conflicting opinions regarding whether the Veteran's current symptomatology is related to his service-connected disability.  See, e.g., June 2012 Board remand.  While an addendum opinion was sought in June 2012, the examiner determined that an opinion could not be rendered without resorting to speculation.  As discussed below, the Board will resolve all doubt in favor of the Veteran and attribute the symptomatology noted by prior VA examinations to the Veteran's service-connected disability.  Therefore, while the requested opinion has not been obtained, there is no prejudice to the Veteran in the Board proceeding to adjudicate his claim.  See generally Stegall v. West, 11 Vet. App. 268, 271 (1998).

In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist.  38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159.

Analysis

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular Diagnostic Code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  The Veteran's entire history is reviewed when making disability evaluations.  See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period.  Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts).  See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999).

The RO has evaluated the Veteran's disability by analogy under 38 C.F.R. § 4.97, Diagnostic Code 6516, pertaining to laryngitis.  Under this Diagnostic Code, a 10 percent evaluation contemplates hoarseness, with inflammation of cords or mucous membrane.  A maximum 30 percent evaluation is assigned for hoarseness, with thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy.  

The Veteran has testified that his residuals of a tonsillectomy results in an occasional sore throat one to two times a week, mostly at night.  See Board hearing transcript at 18.  He also asserts he occasionally feels like his throat is swollen, or that something is caught in the back of his throat.  This leads to occasional difficulty in swallowing both liquids and solids.  Id. at 16.  He testified that he does not seek treatment for his condition.  

VA treatment records indicate the Veteran occasionally complained of a chronic sore throat, but consistently find no dysphagia (difficulty swallowing), and no effects on his diet.  Further, while the Veteran complained to his private treatment provider of symptoms of hoarseness, which he himself attributed to his prior tonsillectomy, the private physician did not think the hoarseness had anything to do with his previous tonsillectomy.  See November 2005 private treatment record.

A June 2005 VA examination indicates the Veteran reported a sore throat on a daily basis, and at times strangling, three to four times a month.  He denied any respiratory complaints.  The VA examiner noted an assessment of a previous upper respiratory infection, status post tonsillectomy, with nil to mild impairment.  A May 2009 VA examination noted the Veteran's prior tonsillectomy without breathing difficulty or speech impairment with bilateral soft palate/adenoid tissue fullness encroaching but not touching the uvula.  An August 2010 VA examination report noted the Veteran's subjective complaints, and found his larynx to be normal.  A diagnosis of tonsillectomy with residual pharyngalgia (pain in the throat) was rendered, with moderate effects on feeding.

A September 2011 addendum report finds it is less likely as not that there are residuals of a tonsillectomy (i.e., no sore throat or dysphagia).  A March 2012 addendum specifically notes there was no chronic laryngitis with hoarseness or inflammation of the cords or mucous membrane found on examination, nor was there any identified pharyngalgia and/or dysphagia.  Finally, a June 2012 addendum opinion, which was sought to address the conflicting evidence regarding current symptomatology, determined that an opinion could not be rendered without resorting to speculation.

The evidence discussed above is conflicting regarding whether the Veteran's subjective complaints of an occasional sore throat and dysphagia can be attributed to his service-connected disability, and a VA examiner could not resolve this conflict without resorting to speculation.  As such, resolving all doubt in favor of the Veteran, the Board will consider his complaints of an occasional sore throat and dysphagia as attributable to his service-connected residuals of a tonsillectomy.  However, despite such an attribution, the Board nevertheless finds that a compensable evaluation is not warranted in the instant case. 

In this regard, there is no evidence of hoarseness or inflammation of the cords or the mucous membrane and, as such, a compensable evaluation is not warranted under Diagnostic Code 6516.  38 C.F.R. § 4.97.  Due to the Veteran's complaints of occasional dysphagia, the Board has considered the potential applicability of 38 C.F.R. § 4.114, Diagnostic Code 7203, pertaining to stricture of the esophagus.  However, the minimum 30 evaluation available under this code requires moderate stricture of the esophagus.  The words "slight," "moderate" and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just."  38 C.F.R. §§ 4.6.  It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6.

Even though the August 2010 VA examination notes the Veteran's condition results in a "moderate" effect on feeding, given the Veteran's occasional subjective complaints of dysphagia, without an effect on his diet as reflected by VA treatment records, the Board finds the Veteran's residuals of a tonsillectomy do not more closely approximate "moderate" stricture of the esophagus.

In summary, the evidence does not support a finding of symptomatology sufficient to warrant a compensable evaluation under Diagnostic Code 6516 or any other potentially applicable diagnostic criteria at any point during the appeal period.  See Hart, supra.  To the extent the Veteran complained of hoarseness to his private physician, this symptom is not reflected in any VA examination or VA treatment records, and the private physician found such symptomatology is not related to his residuals of a tonsillectomy.  

Further, the Veteran has submitted no evidence showing that this disorder has markedly interfered with his employment status; there is no indication that this disorder has necessitated frequent, or indeed any, periods of hospitalization during the pendency of this appeal.  As such, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1), which concern the assignment of extra-schedular evaluations in "exceptional" cases.  See Thun v. Peake, 22 Vet. App. 111 (2008).

Overall, the evidence does not support a compensable evaluation for postoperative residuals of a tonsillectomy, and the claim for that benefit must be denied.  38 C.F.R. §§ 4.3 , 4.7.

When entitlement to a total disability rating based on individual unemployability (TDIU) under the provisions of 38 C.F.R. § 4.16 is raised during the adjudicatory process of evaluating the underlying disabilities, it is part of the claim for benefits for the underlying disabilities. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001).

In this case, the Veteran has not asserted, and the evidence does not show that his residuals of a tonsillectomy have caused unemployability.  Because there is no evidence of unemployability, further consideration of entitlement to TDIU is not required.  Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). 


ORDER

A compensable evaluation for status postoperative residuals of a tonsillectomy is denied.



____________________________________________
D. MARTZ AMES
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs