Citation Nr: 1315239 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 11-19 408 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a rating higher than 10 percent for partial paralysis of the left vocal cord, including on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b)(1). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran served on active duty from April 1956 to May 1978. This appeal to the Board of Veterans' Appeals (Board/BVA) is from September 2009 and July 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The September 2009 RO decision confirmed and continued an existing 0 percent rating for the Veteran's left vocal cord disability, whereas the more recently issued July 2010 decision increased the rating for this disability from 0 to 10 percent retroactively effective from June 16, 2009, on the premise that records as of that date from the VA Medical Center (VAMC) in Oklahoma City, Oklahoma, showed the level of functional impairment - namely, hoarseness - allowing for assignment of this higher rating. He continued to appeal for an even higher rating. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (It is presumed a Veteran is seeking the highest possible rating for a disability unless and until he receives the highest possible rating or expressly indicates he is content with a lesser rating, albeit higher than he had). The Board remanded the claim in May 2012 so the Veteran could have a videoconference hearing before a Veterans Law Judge (VLJ) of the Board. The Veteran had this hearing in July 2012 before the undersigned VLJ. A transcript of the hearing is of record. The Board again remanded the claim in September 2012, this time to obtain and associate with the claims file additional treatment records maintained by the VAMC in Oklahoma City, specifically, those dated from May 2011 to the present, and then to have the Veteran undergo another VA compensation examination reassessing the severity of his disability. This additional development since has been completed, but the RO continued to deny the claim in a December 2012 supplemental statement of the case (SSOC), so the claim is again before the Board. Please also note 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). There is one other preliminary point also worth reiterating. As the Board previously explained when most recently remanding this claim in September 2012, the issue of entitlement to a total disability rating based on individual unemployability (TDIU) has not been raised by the Veteran or the record. Although he testified during his videoconference hearing before the Board that he had had to give up a job helping companies qualify for government contracts, which had "set him back" career wise, he stopped short of alleging that he is unemployable on account of this service-connected disability so as to also warrant considering and granting his entitlement to a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Mayhue v. Shinseki, 24 Vet. App. 273 (2011); and Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (collectively indicating that a derivative TDIU claim is raised when a Veteran alleges he is unemployable on account of the disability for which he is requesting a higher rating, meaning incapable of obtaining and maintaining substantially gainful employment because of it versus employment, instead, which would only be considered at most marginal in comparison). The basis of his hearing testimony, instead, concerned the reasons he believes he is entitled to a higher 30 percent rating for his disability, and this will be the focus of this decision, including considering whether he is entitled to additional compensation on an extra-schedular basis under the special provisions of 38 C.F.R. § 3.321(b)(1). FINDINGS OF FACT 1. Since one year before receipt of this increased-rating claim on May 13, 2009, so since May 13, 2008, the partial paralysis of the Veteran's left vocal cord has been manifested primarily by hoarseness of his voice, especially later in a given day with use, but without suggestion of thickening or nodules of his cords, polyps, submucous infiltration, or pre-malignant changes on biopsy or complete organic aphonia. 2. The schedular rating criteria contemplate the extent of his impairment attributable to this disability and have at all times pertinent to this appeal. CONCLUSION OF LAW The criteria are met for an earlier effective date of May 13, 2008, for the higher 10 percent rating for the partial paralysis of the left vocal cord (so earlier than the June 16, 2009, effective date initially assigned for this higher rating), but at no time since have the criteria been met for a greater rating for this disability, including on an extra-schedular basis. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.97, Diagnostic Codes (DCs) 6516, 6519 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA) describes VA's duties to notify and assist a claimant in substantiating a claim for VA benefits upon receipt of a complete or substantially complete application. 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). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant of the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant of the information and evidence that VA will obtain; and (3) inform the claimant of the information and evidence the claimant is expected to provide. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Ideally, this notice should be provided prior to an initial decision on the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case (SOC) or supplemental SOC (SSOC), is sufficient to "cure" the timing defect in the provision of this notice. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370 (2006). There also were changes during the pendency of this appeal to what is considered sufficient VCAA notice in response to an increased-rating claim. It initially was held that, for an increased-compensation claim, the Veteran must be notified that he must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on his employment and daily life. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant DCs, which typically provide for a range in severity of a particular disability from 0 percent, i.e., 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. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) (Vazquez-Flores I). The Federal Circuit Court subsequently held, however, that the notice described in 38 U.S.C. § 5103(a) need not be Veteran specific, i.e., it need not notify the Veteran of alternative DCs, and that the statutory scheme also does not require 'daily life' evidence for proper claim adjudication. Vazquez Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (Vazquez-Flores II) (vacating and remanding in part Vazquez-Flores I). Even more recently, the Court clarified that the notice must advise the Veteran to submit evidence demonstrating the effect that the worsening of his disability has on his employment. Vazquez-Flores v. Shinseki, No. 05-0355, (U.S. Vet. App. October 22, 2010) (Vazquez-Flores III). This most recent decision also held that, after a notice error, such as failing to inform the appellant to submit evidence demonstrating the effect that a worsening of the disability has on employment, is found in an increased-rating claim, his burden to demonstrate prejudice at the Court (CAVC) level does not shift to VA unless notice is not provided at all. A VCAA notice error is not presumptively prejudicial, even when shown to have occurred, rather, must be judged on a case-by-case basis. And as the pleading party attacking the agency's decision, the Veteran, not VA, bears this evidentiary burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Veteran was provided VCAA notice in June 2009 prior to the initial adjudication of his claim for a higher rating for the partial paralysis of his left vocal cord in the September 2009 and July 2010 rating decisions at issue, so in the preferred sequence. The letter indicated the types of evidence necessary to substantiate the claim and the division of responsibility between him and VA in obtaining this supporting evidence, including the information needed to obtain both his private and VA medical treatment records. The VCAA letter also explained how a disability rating is determined for a service-connected disability and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006). Further, the Veteran testified at a videoconference hearing before the Board in July 2012 that focused on the elements necessary to substantiate his increased rating claim. And in his hearing testimony and his representative's statements and testimony they demonstrated their actual knowledge of the elements necessary to substantiate this increased-rating claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate a claim). For example, when asked if a 30 percent rating would satisfy his appeal or did he want higher, the Veteran responded with "I was surprised they didn't approve it to that level considering the criteria [...], so yes." (See Hearing transcript, p. 6). As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the presiding VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) (2012) in terms of: (1) explaining fully the issues and (2) suggesting the submission of evidence that the claimant may have overlooked and that would be advantageous to his position. Indeed, following the hearing, the Board remanded the claim in September 2012 to obtain additional treatment records from the VAMC in Oklahoma City that had been cited as potentially pertinent to the claim, specifically, those dated since May 2011, and to then to have the Veteran undergo another VA compensation examination reassessing the severity of his disability. These additional VA treatment records were obtained, on remand, and the Veteran was provided VA compensation examinations - initially in July 2009 and again in April 2011, but also more recently in November 2012, so since his videoconference hearing before the Board. These medical reports are thorough and adequate for the purposes of deciding this claim, both insofar as addressing the applicable rating criteria and in terms of addressing the impact this disability has on the Veteran's functioning, including occupationally. The reports reflect that the examiners reviewed his relevant medical history, recorded his then current complaints, performed an appropriate physical examination, and rendered diagnoses and opinions consistent with the evidence of record. Neither the Veteran nor his representative has raised questions about the adequacy of these examinations. When an appellant does not challenge a VA medical examiner's competence or qualifications, VA need not affirmatively establish the examiner's competency. See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). But even when this is challenged, the Board may assume the competency of any VA medical examiner as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). Further, there was compliance with the May 2012 remand directives by scheduling the videoconference hearing before the Board and with the September 2012 remand directives by obtaining all outstanding VA treatment records - including especially those at the VAMC in Oklahoma City dated since May 2011 - but also by having the Veteran undergo the additional VA compensation examination mentioned reassessing the severity of his disability. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (the Veteran is entitled to compliance with remand directives, and the Board itself commits error as a matter of law in failing to ensure this compliance). But see, too, Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (discussing situations when it is acceptable to have "substantial", even if not "exact" or "total", compliance with remand directives). See, as well, D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). All relevant evidence necessary for an equitable resolution of this appeal has been identified and obtained, to the extent possible. The Veteran has not indicated that he has any further evidence to submit to VA, or that VA needs to obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The Veteran has been accorded ample opportunity to present evidence and argument in support of his appeal. All pertinent due process requirements have been met. Merits of the Claim Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate DCs. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). All reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). Where entitlement to compensation already has been established and increase in disability rating is at issue, the 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 that generated during the appeal period. A "staged" rating is appropriate for an increased-rating claim, however, when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). See also 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Effectively since June 16, 2009, the Veteran has had a 10 percent rating for the partial paralysis of his left vocal cord under 38 C.F.R. § 4.97, DC 6599-6516. In the assignment of DC numbers, hyphenated DCs may be used. Injuries generally will be represented by the number assigned to the residual condition on the basis of which the rating is determined. Diseases will be identified by the number assigned to the disease, itself, followed by a hyphen, with the residual condition listed last. So a hyphenated DC reflects a rating by analogy. See 38 C.F.R. §§ 4.20 and 4.27. Under DC 6516, which concerns chronic laryngitis, a 10 percent rating is warranted for hoarseness with inflammation of cords or mucous membrane. A higher 30 percent rating requires hoarseness with thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy. In assigning a higher 10 percent rating, but denying an even higher 30 percent rating, the RO concluded the Veteran does not have nodules on his vocal cords or the required thickening, etc., just instead hoarseness, which he steadfastly disputed while testifying during his July 2012 videoconference hearing before the Board. He maintained that "everything they [referring to the RO] gave as reason for not increasing it [the evaluation] to 30 percent are things that I actually was undergoing at the time." He asserted that he'd had nodules on his vocal cord, twice, and that his doctors took the first one off surgically but left the other in place. He also said he had undergone extensive treatment for his left vocal cord disability, including speech therapy, speaker systems (voice amplification, which he said was a "bust"), gortex implants, and two surgeries with possibly a third forthcoming. He claimed, and his wife also attested, that his voice was better in the beginning of the day but progressively decreased greatly in quality over the course of the day, becoming more and more raspy and hoarse, indeed, to the point that she often had to repeat what he said to others so they understood. (See July 2012 Hearing Transcript, p 6). VA treatment records dated in June 2009, which is the evidence the RO used to increase the rating for this disability from 0 to 10 percent, reflect that the Veteran presented with secretions adherent to the posterior true vocal cord. He also stated that he had experienced intermittent hoarseness since service and that several years later he underwent excision of the right TVC nodule and was told it was negative. He said some days he will have a normal voice, but that in more recent years his voice worsens as the day progresses. He had a VA compensation examination in July 2009, and the examiner observed that fiberoptic laryngoscopy revealed a normal nasopharynx, epiglottis, piriform sinuses, and base of tongue with a decongested left naris. The Veteran phonated with false vocal cords due to dysphonia plica ventricularis. His true vocal cords showed good movement, and he had some moderate edema and medial erythema consistent with reflux disease. There were complaints of hoarseness of the throat. He also complained of a weak raspy voice when trying to speak. He stated that his vocal cord disability was more problematic. He had been placed on voice rest with minimal results. A September 2009 VA treatment record noted no aspiration of dysphagia, no improvement with LPR treatment, a history of GERD, left vocal cord paralysis, nodule removed from left vocal cord in the 1980s, and the Veteran was unable to continue occupation as a speaker due to his loss of voice. His left vocal cord was thinner than the right. He was diagnosed with left true vocal cord medialization and right presbylarynges. VA treatment records dated in February 2010 reaffirmed that his left vocal cord appeared thinner than his right. Also in February 2010, at the time of the medialization of his left vocal cord with an implant, significant edema was observed. The record showed his right vocal cord was diagnosed by ENT as having presbylarynges. A March 2010 VA treatment record showed an assessment of dysphonia and presbylarynges, LPR s/p left TVC medialization with a gortex implant. The evaluating VA physician went on to note the Veteran's voice was still high pitched with poor strength, and there were signs of bowing posteriorly with the start of false cord phonation. A May 2010 VA treatment record noted the Veteran had had vocal cord surgery. He could not talk too loud. A July 2010 VA treatment record noted that he continued to have hoarseness that improved in high pitches. VA treatment records dated in August 2010 reflect a history of left vocal cord nodule removal in 1985. He was assessed with mild vocal hoarseness with slightly higher than normal fundamental frequency, good pitch control for most structured tasks, but some diplophonia at lower pitches, restricted pitch range, reduced breath support, and slight reduced intensity. The reduced diplophonia at higher pitches was consistent with increased vocal cord tension. He also had mild oropharyngeal dysphagia. The examiner indicated the Veteran had other conditions (e.g., COPD, cervical spine problems) that could also contribute to voice problems. None of the medical providers, however, have clearly distinguished the symptoms attributable to the service-connected vocal cord disability from those attributable to the other referenced disabilities (e.g., COPD, cervical spine problems, etc). Therefore, the reasonable doubt doctrine of 38 C.F.R. §§ 3.102 and 4.3 mandates that all signs and symptoms be attributed to the Veteran's service-connected condition. Mittleider v. West, 11 Vet. App. 181, 182 (1998). An October 2010 VA treatment record noted he continued to have problems with his vocal cords. He was working with a speech therapist. He underwent an evaluation by an ENT specialist and had speech therapy with no apparent or documented improvement. In January 2011, he was issued a personal voice amplifier. An April 2011 VA treatment record noted that he had unsuccessfully attempted a vocal cord injection and had most recently underwent left TVC medialization with gortex implant in February 2010. He reported that speech and throat exercises had not helped. During an additional VA compensation examination in April 2011, he reported that he awoke in the morning with some hoarseness, but that by noon or 1:00 p.m., if he was engaging in his normal daily activities, his voice worsened and became extremely hoarse by the end of the day. He was fitted with a voice amplifier. The voice amplifier did not perform an adequate job of increasing the volume of his voice, however. He stated that it interfered with his work in contracting airplane engine maintenance and working on airplane engine maintenance contracts. He said he had trouble speaking in group situations, in restaurants, and other situations where background noise drowns out his voice. The examiner acknowledged the Veteran did not have a normal voice and could not raise his voice to overcome background noise, which was a source of irritation and difficulty for him. But the VA compensation examiner also indicated that examination of the Veteran's nose was unremarkable for hypertrophy or polyps, or abnormal mucous formation, and that fiberoptic laryngoscopy revealed no abnormalities of the nasal cavity. The nasopharynx and hypopharynx were clear. The vocal cords were well visualized, the left cord did not coapt with the right cord in the posterior third, and there was a visible air gap at the posterior third of the glottis during phonation. A July 2011 VA treatment record reflects a "warty lesion" removed for one of the Veteran's vocal cords many years ago. Post-revision, the Veteran reported that his voice was stronger, but felt it was not "clear". He had difficulty with competing noises, but could speak louder and has had improved results with phone use. A November 2011 VA treatment record noted his voice had significantly improved in its clarity and that people could understand him much better on the telephone, but still with decreased strength. He could not order at drive-thru restaurants because it was too difficult to hear his voice. He had just finished an 18-month long work project. Overall, his vocal cord problem was better but not totally gone. He was still working with a speech therapist. His most recent VA compensation examination was in November 2012. A history of significant vocal dysfunction and dysphonia was noted that had been present since his initial procedure for removal of a vocal cord nodule on the left. The dysphonia manifested as a soft, breathy voice, and inability to maintain vocal strength for periods of speaking longer than 1-2 hours. The vocal cord paralysis, weakness, and bowing had been addressed with multiple procedures to attempt to medialize the left vocal cord to improve approximation of the phonatory surface of his vocal cords and improve phonation. The result had been unsatisfactory to the Veteran and surgeons to date, and the Veteran reported significant dysphonia. The VA examiner observed that fiberoptic stroboscopic examination of the larynx and vocal cords revealed the following: the voice exhibited breathy hoarseness with inability to significantly vary pitch or loudness. There were no vocal breaks, spasms, or tremors. The maximum phonatory time was less than 8 seconds, which was below the limits of normal. Fiberoptic examination of the larynx showed bilateral vocal cord motion, although it was significantly limited on the left side, while nearly normal on the right. The right true vocal cord was in normal position. The left true vocal cord had been surgically medialized anteriorly, but remained in a parmedian position posteriorly at the vocal process of the arytenoid cartilage. There was thinning and bowing of both vocal cords, but this was more pronounced on the left and resulted in failure of the true vocal cords to approximate during phonation, leaving a large posterior glottal gap through which air escapes. Epithelium of the larynx and bilateral vocal cords appeared healthy. Specifically, there were no nodules, polyps, and Reinke's edema, thickening of cords, submucous infiltration, leukoplakia or lesions that have malignant potential. The examiner also determined that it was as likely as not that the Veteran's present dysphonia/hoarseness was a result of the procedure performed for removal of a vocal cord nodule and not a result of the nodule itself, recurrent nodules, or other physical pathology. He stated that it was clear from the present examination findings and review of the Veteran's recent evaluation and treatment records that he does not currently have vocal nodules. The examiner explained the Veteran did in fact have one "nodule" that was surgically removed in the past, which possibly could have been polyp, papilloma, granuloma, contact ulcer, malignancy, or premalignant lesion, or truly a nodule all of which were distinct pathological entities with differing risks for recurrence. He stated that, based on the history and the fact the follow-up records continued to call the formerly excised lesion a "nodule", it was reasonable to assume it was in fact a benign vocal nodule. He also stated there were no oral or parenteral corticosteroid medications for the condition (i.e., no use of inhaled medications or oral bronchodilators, antibiotics, or outpatient oxygen therapy). No inflammation of cords or mucus membrane was noted, either. Considering this collective body of evidence, the Board finds that the criteria are not met for a rating higher than 10 percent for the Veteran's vocal cord disability and have not been met at any time since the year immediately preceding the filing of this increased-rating claim. In this regard, the medical evidence reflects that his voice is hoarse, getting more and more so as the day progresses, but there is no evidence of thickening or nodules of his vocal cords, polyps, submucous infiltration, or pre-malignant changes on biopsy that would warrant assigning the next higher 30 percent rating under DC 6516. This is the highest possible rating under this DC, and although the Veteran argues that he has most, if not all, of the requirements for this higher rating, the objective clinical findings do not support this notion. The Board also has considered the potential applicability of other DCs for rating this disability, but finds that no higher rating is assignable under these additional DCs either. The Veteran asserts that he had had ongoing problems with "aphonia." (See January 2012 Written Statement). However, a higher rating under DC 6519 for complete organic aphonia is not warranted because he does not have a complete loss of voice and there appears to be no organic etiology for the voice change. (See Hearing Transcript, p. 5, contending that he cannot speak above a whisper by the end of the day). He readily concedes being able to speak earlier in the day, however, albeit also with hoarseness. But the progressively worsening hoarseness throughout the day is the reason the RO increased the rating for his disability from 0 to 10 percent under DC 6516. Hence, the Board finds that his disability is more appropriately rated under DC 6516, pursuant to which his symptoms are consistent with a 10 percent rating. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of DC should be upheld if supported by explanation and evidence). See also Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992) (indicating that any change in DC must be specifically explained). The disability also has not been shown to involve impairment contemplated by any other DC. The Veteran is however entitled to an earlier effective date for the increase in the rating for this disability from 0 to 10 percent, so in this other respect he will receive additional compensation (additional back pay) for this disability. 38 U.S.C.A. § 5110(b)(2) states that the effective date of an increased rating "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." Under 38 C.F.R. § 3.400(o)(1), except as provided in paragraph (o)(2), the effective date is the "date of receipt of claim or date entitlement arose, whichever is later." Paragraph (o)(2) provides that the effective date is the "[e]arliest date as of which it is factually ascertainable that an increase in disability had occurred if a claim is received within one year from such date, otherwise, date of receipt of claim." It therefore follows that three possible effective dates for a higher rating may be assigned depending on the facts of the particular case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). See Harper v. Brown, 10 Vet. App. 125, 126 (1997). In Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. May 20, 2010), the Federal Circuit Court explained that the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans a one-year grace period for filing a claim following an increase in the severity of a service-connected disability. So determining the appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2). The provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received. And "date of receipt" means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r). The term "application" is not defined in the statute, but the regulations use the terms "claim" and "application" interchangeably, and they are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p); see Stewart v. Brown, 10 Vet. App. 15, 18 (1997); see also Servello v. Derwinski, 3 Vet. App. 196,198-99 (1992). The Court has held that 38 U.S.C.A. § 5110(b)(2) specifically links any effective date earlier than the date of application to: (1) evidence that an increase in disability had occurred; and (2) to the receipt of an application within one year after that increase in disability. The application referred to must be an application on the basis of which the increased rating was awarded, because there would be no reason to adjudicate the question of the effective date prior to the award of a rating increase, just as there would be no reason to assign a disability rating on a disability compensation claim until service connection had been awarded. 38 U.S.C.A. § 5110(b)(2) allows a claimant to be awarded an effective date up to one year prior to the filing of an application for an increase, if an increase to the next disability level is ascertainable, and if a claim is received within one year thereafter. In making this determination, VA must review all the evidence of record, not just evidence not previously considered. The Court has reaffirmed that 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where the increase precedes the claim for increase, provided also that the claim for increase is received within one year after the increase. The Court further stated that the phrase "otherwise, the effective date shall be the date of receipt of the claim" provides the applicable effective date when a factually-ascertainable increase occurred more than one year prior to receipt of the claim for increase. Hazan v. Gober, 10 Vet. App. 511 (1997). Here, primarily because of the Veteran's competent and credible hearing testimony under oath, also his wife's similarly attesting, and the written statements he also has submitted in support of his claim at other times during the pendency of this appeal, the Board finds that his vocal cord disability met the requirements for a 10 percent rating even as of the year immediately preceding the filing of his claim for a higher rating for this disability, so effectively since May 13, 2008, seeing as though VA received his increased-rating claim on May 13, 2009. The hoarseness the RO cited as reason for increasing the rating for this disability from 0 to 10 percent is something that he is competent to testify concerning, even as a layman, and so too is his wife since this is readily apparent even to their personal observation and experience. See Kahana v. Shinseki, 24 Vet. App. 428 (2011) (indicating the competency of lay evidence is determined on a case-by-case basis and entirely depends on the specific disability at issue). See, too, Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (clarifying that lay evidence is competent concerning simple conditions, such as a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), whereas it is not in more medically complex situations such as concerning a form of cancer). And there is no inherent reason to doubt the Veteran's and his wife's credibility as to him having experienced this hoarseness since even the year prior to the filing of his claim. So their lay testimony concerning this being both competent and credible is ultimately probative. The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether the evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Baldwin v. West, 13 Vet. App. 1, 8 (1999). The additional criteria needed to support a rating higher than 10 percent, however, namely, a showing of thickening or nodules of the vocal cords, submucous infiltration, or pre-malignant changes on biopsy, are essentially medical findings that are solely within the province of trained medical professionals, so beyond the lay competence of the Veteran and his wife. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Hence, while his complaints have been considered, they are not considered more persuasive on these additional points than the objective medical findings that, as explained, do not support assigning a rating higher than 10 percent. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). This decision to assign the higher 10 percent rating from an earlier effective date, May 13, 2008, rather than just as of June 16, 2009, is based on application of pertinent provisions of VA's rating schedule. Additionally, the Board finds that at no point relevant to this appeal has the disability under consideration been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability at issue is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. In this case, the Board finds that schedular criteria are adequate to rate the disability under consideration at all pertinent times. The rating schedule fully contemplates the described symptomatology (i.e., hoarseness of the voice, could barely speak above a whisper by the end of the day, difficulty talking on the phone, could not order fast food, history of nodule that was removed, diplophonia at lower pitches, restricted pitch range, reduced breath support, and slight reduced intensity, etc.), and provides for ratings higher than that assigned based on more significant functional impairment. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine and, when warranted, has applied it, including in electing to assign the higher 10 percent rating from an earlier effective date. But the preponderance of the evidence is against assignment of any higher rating, so doctrine has no further application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A rating higher than 10 percent for the partial paralysis of the left vocal cord, including on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b), is denied. However, the Veteran is entitled an earlier effective date of May 13, 2008, for this 10 percent rating for this disability, so not just as of June 16, 2009, subject to the statutes and regulations governing the payment of retroactive VA compensation. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs