Citation Nr: 1326020 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 04-22 358 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether the reduction of the disability rating for partial left hemilaryngectomy, residual of squamous cell carcinoma of the larynx from 100 percent to 30 percent effective October 1, 2003, was proper. 2. Entitlement to a rating in excess of 30 percent, effective from October 1, 2003, and a rating in excess of 50 percent, effective from November 29, 2005, for partial left hemilaryngectomy, residual of squamous cell carcinoma of the larynx. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The veteran served on active duty from May 1955 to January 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that in a June 2002 rating decision, the RO originally granted service connection for squamous cell carcinoma of the larynx and assigned a 100 percent rating from May 2, 2002. In February 2003, the RO proposed to reduce the disability rating to non-compensable. In a March 2003 letter, the veteran indicated that he did not agree with that action; however, since the action had not been taken, that correspondence was not a Notice of Disagreement (NOD). In July 2003, the RO reduced the disability rating to non-compensable effective October 1, 2003. The veteran submitted an NOD to that decision. The RO thereafter increased the disability rating to 10 percent effective October 2, 2003. See April 2004 rating decision. The veteran perfected an appeal to all actions. The case was remanded to the RO for additional development in January 2007 and November 2007. In September 2008, the Board issued a decision which found that the reduction in the rating for partial left hemilaryngectomy, residual of squamous cell carcinoma of the larynx, from 100 percent to 10 percent, was proper, and denied a rating in excess of 10 percent for partial left hemilaryngectomy, residual of squamous cell carcinoma of the larynx. The Veteran filed a timely notice of appeal with the U.S. Court of Appeals for Veterans Claims (Court). Thereafter, the parties filed a Joint Motion for Remand. In November 2009, the Court granted the Joint Motion, vacated the Board's September 2008 decision, and remanded the case for readjudication in compliance with the Joint Motion. In April 2010, the Board again remanded this matter to the RO. In a September 2011 rating decision, the RO granted service connection for scars on the neck, as residuals of the service-connected partial hemilaryngectomy, and assigned a separate 10 percent rating, effective from May 2, 2002. That matter is not on appeal. In the September 2011 rating decision, the RO also granted a 30 percent rating, effective from October 1, 2003, and 50 percent rating, effective from November 29, 2005, for the service-connected partial left hemilaryngectomy, residual of squamous cell carcinoma of the larynx. The Veteran continued his appeal for higher ratings for the service-connected partial left hemilaryngectomy, residual of squamous cell carcinoma of the larynx. The issues are now as indicated on the front page of this decision to reflect those increases. In March 2012, the Board remanded this case. At that time, the Board notes that the issue of a total disability rating based on individual unemployability had been raised in conjunction with the issues on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In a March 2013 rating decision, this issue was granted. Please 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). FINDINGS OF FACT 1. In a February 2003 rating decision, the RO proposed to reduce the Veteran's 100 percent disability rating for squamous cell carcinoma of the larynx, to non-compensable. 2. In a March 2003 letter, the Veteran was notified of the proposed reduction. 3. In a July 2003 rating decision, the RO reduced the disability rating from 100 percent to non-compensable effective October 1, 2003; at the time of the reduction, a 100 percent rating for the Veteran's service-connected laryngeal carcinoma had been in effect less than five years. 4. The RO followed the appropriate procedural requirements and the criteria for rating respiratory cancers to effectuate the reduction, and the reduction for the Veteran's laryngeal cancer was based on a reexamination as well as treatment records; this medical evidence showed material and sustained improvement with no recurrence of cancer or further need for a breathing tube. 5. In an April 2004 rating decision, the noncompensable rating was increased to 10 percent effective October 1, 2003, and the Veteran's disability was recharacterized as partial hemilaryngectomy, residual of squamous cell carcinoma of the larynx. 6. In a September 2011 rating decision, the RO granted a 30 percent rating, effective from October 1, 2003, and 50 percent rating, effective from November 29, 2005, for the service-connected partial left hemilaryngectomy, residual of squamous cell carcinoma of the larynx. 7. From October 1, 2003 to February 18, 2005, the Veteran's service-connected partial left hemilaryngectomy, residual of squamous cell carcinoma of the larynx was manifested by chronic laryngitis manifested by hoarseness, with thickening or nodules of cords, and polyps, but the Veteran did not have a constant inability to speak above a whisper nor did he demonstrate pulmonary studies showing an FEV-1 of 40- to 55-percent predicted, with Flow-Volume Loop compatible with upper airway obstruction. 8. As of February 18, 2005, the Veteran's service-connected partial left hemilaryngectomy, residual of squamous cell carcinoma of the larynx was manifested by a constant inability to speak above a whisper, but he is still able to communicate by speech via whispering; he has not had pulmonary studies showing an FEV-1 of 40- to 55-percent predicted, with Flow-Volume Loop compatible with upper airway obstruction. CONCLUSIONS OF LAW 1. The reduction in the rating for partial left hemilaryngectomy, residual of squamous cell carcinoma of the larynx from 100 percent to 30 percent, effective from October 1, 2003, was proper. 38 U.S.C.A. § 5112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.105, 3.343, 3.344(c), 4.97, Diagnostic Code 6819 (2012). 2. Prior to February 18, 2005, the criteria for a rating in excess of 30 percent for partial left hemilaryngectomy, residual of squamous cell carcinoma of the larynx, have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.97, Diagnostic Codes 6516, 6519, 6520 6819 (2012). 3. From February 18, 2005, the criteria for a rating of 60 percent for partial left hemilaryngectomy, residual of squamous cell carcinoma of the larynx, have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.97, Diagnostic Codes 6516, 6519, 6520 6819 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an 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). The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The notice requirements under 38 U.S.C.A. § 5103 underwent significant changes during the pendency of the Veteran's appeal. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) recently held that, for increased rating claims, notice provided to the Veteran under 38 U.S.C.A. § 5103 need not be "veteran specific," and that VA is not required to notify the Veteran that he may submit evidence of the effect of his worsening disability on his daily life, nor is VA required to notify the Veteran of diagnostic codes that his disability may be rated under. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). VCAA letters were sent in January and December 2007 as well as December 2012. The letters, especially in combination, indicated the type of evidence and information needed to substantiate the claim and apprised the Veteran of the Veteran's and VA's respective responsibilities in obtaining this supporting evidence. The letters also complied with Dingess. The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims ("the Court") held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ did not specifically note the bases of the prior determination or the elements that were lacking to substantiate the claims. The VLJ asked specific questions, however, directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating and sought to identify any pertinent evidence not currently associated with the claims. The Veteran also volunteered his treatment history and symptoms. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Regarding the duty to assist, the Veteran's pertinent medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the record. The case has been remanded to ensure a complete record and the Board finds that to the extent possible, the record is complete. Further, there is no objective evidence indicating that there has been a material change in the service-connected disability since the Veteran was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. As noted, the claim was previously remanded to include for VA examinations. The recent examination reports are thorough and supported by the record. These examinations are adequate as the claims file was reviewed, the examiners reviewed the pertinent history, examined the Veteran, provided findings in sufficient detail, and provided rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, the examinations in this case are adequate upon which to base a decision. The Veteran was specifically examined to assess and then reassess the severity of this disability in question. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995). The records satisfy 38 C.F.R. § 3.326. In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). Reduction In rating reductions, when VA contemplates reducing an evaluation for a veteran's service-connected disability or disabilities, it must follow specific procedural steps prior to such discontinuance. 38 C.F.R. § 3.105(e); see O'Connell v. Nicholson, 21 Vet. App. 89, 93 (2007) (noting that "Congress enacted section 5112(b)(6) so that veterans receiving disability compensation would be notified in advance that their benefits would be diminished, thus enabling them to (1) adjust to the diminished expectation and (2) submit evidence to contest the reduction," and that § 3.105(e) "furthers Congress's intent" in this regard). As enumerated in 38 C.F.R. § 3.105(e), "[w]here the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons." 38 C.F.R. § 3.105(e). In addition, "[t]he beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level." 38 C.F.R. § 3.105(e). The beneficiary also will receive notification that "he or she will have an opportunity for a pre-determination hearing," 38 C.F.R. § 3.105(i), and thereafter, a "final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires." See 38 C.F.R. §§ 3.105(e); 3.500(r). In addition to satisfying the procedures outlined above, the RO must gather evidence to establish that a rating reduction is proper. Pertinent to the instant case, according to 38 C.F.R. § 3.344(c), where a rating or ratings have been in effect for less than five years, as here, "[r]eexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating." 38 C.F.R. § 3.344(c); see also Faust v. West, 13 Vet. App. 343, 351 (2000) (noting that § 3.344(c) sets forth the provisions relating to disabilities which are likely to improve, and states that "[t]he provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more)"); see also Brown v. Brown, 5 Vet. App. 413, 417 (1993) (holding that five-year period in § 3.344(c) is to be measured from effective date of rating not from date of RO decision assigning that rating). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time that it effectuated the reduction, although the Board may consider post-reduction medical evidence in the context of evaluating whether the condition had demonstrated actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). In addition, the Board notes that with respect to reductions of certain total (100 percent) disability ratings, 38 C.F.R. § 3.343 sets forth additional protective procedures that the RO must follow prior to implementing a proposed rating reduction. It provides that such total ratings "will not be reduced, in the absence of clear error, without examination showing material improvement in physical or mental condition." 38 C.F.R. § 3.343(a). This regulation applies only to [t]otal disability ratings, when warranted by the severity of the condition and not granted purely because of hospital, surgical, or home treatment, or individual unemployability. 38 C.F.R. § 3.343(a). In the instant case, the RO granted a 100 percent rating for squamous cell carcinoma of the larynx, in a June 2002 rating decision. The 100 percent rating was assigned for his then-malignant carcinoma and related treatment under the provisions of 38 C.F.R. § 4.97, Diagnostic Code 6819 (malignant neoplasms of any specified part of the respiratory system). This Diagnostic Code requires that "[s]ix months after discontinuance of [any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure], the appropriate disability rating shall be determined by mandatory VA examination," and that "[a]ny change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e)." Because the Veteran received his temporary 100 percent evaluation under Diagnostic Code 6819, which specifically contemplates that such malignancies are likely to improve after treatment, the additional protective provisions outlined in 38 C.F.R. § 3.343 relating to total disability rating reductions upon which a Veteran has come to rely arguably do not apply. In a February 2003 rating decision, the RO proposed to reduce the Veteran's percent disability rating for squamous cell carcinoma of the larynx, to non-compensable. In a March 2003 letter, the Veteran was notified of the proposed reduction. He was informed that he could submit medical or other evidence to show that this change should not be made. He was told of the types of evidence to submit. He was notified that if such evidence was not received within 60 days, his evaluation would be reduced. He was also notified that he could request a hearing. The Veteran previously was diagnosed with laryngeal cancer. He underwent a vertical partial laryngectomy with tracheotomy in April 2002. In January 2003, he was afforded a VA examination. At that time, it was noted that he was some 6 months post partial laryngectomy secondary to a positive biopsy for squamous cell carcinoma and hemilaryngectomy. At that time, the Veteran had minimal to no complaints. He had cut back on smoking and alcohol imbibing, but had not ceased. Head, ear, eye, nose, and throat examination was essentially normal with a raspy, breathy kind of voice which appeared to be improving. He was able to consume liquids with no difficulty. He stated that he had minimal problems other than discomfort and anxiety, secondary to his habit attempted modifications. He reported that he had not had coughing or dyspnea on exertion. This was all precipitated by lingering chronic hoarseness which led to the discovery of the squamous cell carcinoma. On physical examination, head, ear, eye, nose, and throat examination revealed erythema and sensitivity to the upper airway. There was no thick mucus or infected-looking area. The Veteran had experienced chronic sinusitis for a period of time, and he might have had a little sinusitis at this time. No abnormalities were felt in the neck and the examination was otherwise negative. Cardiopulmonary evaluation was without abnormalities. The examiner stated that at this time, the Veteran was some 6 months post partial hemilaryngectomy, and was stable and hopefully doing better on a day to day basis. His largest problem appeared to be one of attempts to modify habits. Further laboratory testing would be needed in 6 months. Thereafter, April and May 2003 VA records showed that the Veteran was doing fairly well, postoperative, with no choking or coughing. The Veteran stated that he had stopped smoking. A flexible scope was used to view the Veteran's nasal cavity and nasopharynx. There was no evidence of disease. The testing was within normal limits. In July 2003, the Veteran testified at a hearing. At that time, the Veteran reported that his sinuses would drain to the back of his throat. He also had heartburn. He also experienced some coughing as well as difficulty breathing properly. The Veteran believed that his respiratory distress was due to his larynx issues. In a July 2003 rating decision, the disability rating was reduced to non-compensable. The RO based the reduction on the VA medical records, post surgery. At the time of the January 2003 VA examination, the Veteran had discontinued surgical treatment for his laryngeal cancer for 6 months. The Board further notes that the Veteran continued treatment over the next decade, as detailed below. He has not had cancer recurrence or metastasis. As a preliminary matter, the Board determines that the RO followed the proper procedural protocol for rating reductions, as mandated by 38 C.F.R. § 3.105(e). In particular, as noted above, in the February 2003 rating decision and the March 2003 notification letter, the RO prepared a proposed reduction, which set forth "all material facts and reasons," to include a discussion of current medical treatment records and the applicable rating criteria. In addition, the RO correctly informed the Veteran about the proposed rating reduction, that he could partake in a hearing, could submit evidence in support of not reducing his disability rating, as well as the pertinent 60-day timeline for submission of such evidence. The RO effectuated its reduction decision in July 2003, and it issued a notice of this decision also in July 2003, informing the Veteran that it made the reduction effective October 1, 2003. Thus, the notification complied with 38 C.F.R. § 3.105(e). Having determined that the RO followed the proper procedures for a rating reduction as required by 38 C.F.R. § 3.105(e), the Board must now determine whether the evidence of record supports such a reduction. The Board concludes that it does. As contemplated by 38 C.F.R. § 3.344(c), the Veteran underwent a VA examination in January 2003, which disclosed improvement in his disability, and subsequent medical records similarly related an improvement of his symptoms. These records showed material improvement as the Veteran no longer had any malignancy and the clinical findings were noted to be minimal and also related to his smoking habit. Those records disclosed no recurrence of cancer or need for surgery, radiation or chemotherapy or other similar treatment. The additional outpatient medical records confirmed sustained improvement. It is important to note that, in addition the relevant medical findings, the reduction was based upon the applicable rating criteria, which specifically mandates that the evaluation be based upon residuals of the cancer 6 months after cancer treatment provided there is no recurrence of the malignancy. 38 C.F.R. § 4.97, Diagnostic Code 6819. Under that code, the Veteran's laryngeal (respiratory) cancer was properly rated 100 percent disabling for six months beyond the cessation of the treatment of his cancer, to include radiation and chemotherapy, and the appropriate disability rating was then determined by VA reexamination in January 2003. Diagnostic Code 6819 further states that, if there has been no recurrence or metastasis, as in this case, the disability is rated based on residuals. See Diagnostic Code 6819. As explained in more detail below, the residuals of the Veteran's laryngeal cancer have been appropriately considered under potential Diagnostic Codes 6516, 6519 and 6520. The Board thus finds that the reduction was proper. Such is the case even with consideration of 38 C.F.R. § 3.343 because, with no recurrence of cancer or further need for radiation or chemotherapy or a breathing tube, material, sustained improvement has been demonstrated by the relevant medical evidence. Ratings 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 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. However, if VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. Cf. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (Board finding that veteran had disability "at some point during the processing of his claim," satisfied service connection requirement for manifestation of current disability); Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007). In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court found no basis for drawing a distinction between initial ratings and increased rating claims for applying staged ratings. Accordingly, it was held that ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. In December 2003 and January 2004 VA medical records, it was noted that he Veteran was having gastroesophageal reflux (GERD). However, there was no evidence of current disease (the malignancy). The nasal cavity and nasopharynx were all within normal limits. Significant interarytenoid edema remained. In March 2004, it was noted that the Veteran had gained weight. He had pain in his throat, with resting and swallowing. Fiberoptic examination revealed significant purulence in the basal cavity with draining into the oropharynx. There was larynx edematous throughout with anterior commissure fullness. The Veteran coughed vigorously. It was noted that there was a suspicion of a recurrent lesion. In an April 2004 rating decision, the noncompensable rating was increased to 10 percent effective October 1, 2003, and the Veteran's disability was recharacterized as partial hemilaryngectomy, residual of squamous cell carcinoma of the larynx. 38 C.F.R. § 4.97, Diagnostic Code 6819-6516 (2012). Thereafter, VA medical records dated from April to October 2004 showed that the Veteran underwent a computerized tomography (CT) which was compared to an earlier February 2002 CT as well as a fiberoptic examination and a bronchoscopy examination. It was determined that the Veteran had a leukoplakia. The fiberoptic examination revealed no abnormality of the nose, nasopharynx, oropharynx, or hypopharynx. There was no evidence of disease. Thus, no recurrent of malignancy was confirmed. With regard to current symptoms, the Veteran indicated that he did not have voice changes, pain, dysphasia, aspiration, weight loss, or neck masses. An April 2004 neck VT showed no evidence of adenopathy in the neck, no abnormalities of the vocal cord. On February 18, 2005, the Veteran was afforded a VA examination. The examiner noted that post-surgery, the Veteran had experienced chronic hoarseness which had worsened in the last 6 months and was accompanied by swelling. Significant postcricoid edema was shown when he underwent a biopsy in August 2004 of his right remaining true vocal cord and the anterior commissure. However, pathology revealed no recurrence of the cancer. He did have dysplasia in the right true vocal cord and commissure. The Veteran related that he had to strain to talk and also had difficulty swallowing. He was eating soft food and had a choking sensation when lying down. Physical examination was essentially benign, but the examiner could not view the larynx or any of the vocal cord region without a laryngoscope which the examiner did not have. The examiner referred to the prior outpatient findings including the presence of severe or moderate posterior cricoid edema, dysplasia, and leukoplakia. The diagnosis was status post left partial hemilaryngectomy secondary to squamous cell carcinoma with current cricoid edema and mild to moderate dysplasia of the right true vocal cord with no known metastasis of the cancer and no recurrence of the cancer. A December 2005 chest x-ray revealed no acute disease and a stable nodular lesion in the left base. The Veteran was seen on an outpatient basis in February 2006 and May 2006. The Veteran complained of increased hoarseness over the past 3 months and difficulty swallowing with a 6-7 pound weight loss in a month. The Veteran reported having voice changes, dysphasia, and weight loss. He did not have pain, aspiration, or neck masses. Physical examination revealed no lymphadenopathy. Examination of the oral cavity revealed no lesions on mucosa. Fiberoptic examination revealed normal mucosa and a deviated septum of the nose. The nasopharynx had normal mucosa. The oropharynx had normal base of tongue, posterior pillars. The hypopharynx had normal vallecula, pyroform fossae. The larynx had post-surgical changes. The vocal cord motion was unchanged. There was no leukoplakia. There was marked cricoid and supraglottic edema. There were no focal lesions. A CT revealed thickening and irregularity of the right vocal cord, anterior commissure, and anterior left cord. Recurrent neoplasm was not excluded. There was marked narrowing of the supraglottic airway. An April 2006 PET/CT revealed no evidence for recurrent or metastatic disease. There was a nodular lesion in the left lower lobe which demonstrated focal areas of calcification which was most indicative of a granulomatous process. This demonstrated no significant hypermetabolic uptake. An assessment of the neck, chest, abdomen, and pelvis was otherwise negative. In June 2006, the Veteran testified at a Travel Board hearing. The Veteran testified that he had trouble speaking, trouble swallowing, and shortness of breath. He related that he was unable to eat properly. He also needed to cough and clear his throat which was demonstrated at the hearing. He related that he felt like his throat was closed up and he had reflux. In addition, he stated that he had lost 20 pounds in about a year. In August 2006, the Veteran complained of increased hoarseness and mild weight loss. A neck mass was discovered. A CT was performed and the examiner indicated that there was no additional suspicion of recurrent local disease. In January 2007, The Veteran was noted in January 2007 to have thickening and irregularity of the right vocal cord, anterior commissure and anterior left cord. Recurrent neoplasm was not excluded. In October 2007, the Veteran underwent CT testing. A CT of the abdomen revealed pancreatitis; chest pain, rule of myocardial infarction; history of chronic tobacco use; history of chronic alcohol use; renal cysts; and left intrarenal calcifications. An acute abdominal series was unremarkable. Chest x-rays showed chronic findings without acute infiltration identified. A February 2008 CT of the neck revealed thickening of the anterior commissure of the larynx and mild thickening of the right true vocal cord. The previous vocal cord nodularity was no longer seen; however, and the airway was more patent, nevertheless residual or recurrent malignancy could not be entirely ruled out. There was prominence of the left side of the thyroid isthmus, stable in appearance, but suspicious for a nodule. A spiculated nodule in the anterior left apex which had not previously been present was noted in an addendum report. In March 2008, the Veteran was afforded a VA examination in order to determine the residual and current severity of the Veteran's partial left hemilaryngectomy. The claims file was reviewed. It was noted that in May 2006, a CT showed no metastatic disease and a nodular lesion in the left lower lobe of the lung demonstrated local areas of calcification which were indicative of granulomatous process. This demonstrated no significant hypermetabolic uptake. Assessment of the neck, chest, abdomen, and pelvis was otherwise negative. A February 2008 record of the ear, nose, and throat clinic revealed that the Veteran complained of having a weaker voice and some weight loss. Also, he related that he had unintentional choking. He had swelling of the throat and found it hard to swallow. He indicated that he strangled on fluid. He had shortness of breath on exertion and could only walk 3-4 blocks before experiencing shortness of breath. The Veteran had coughing with sputum, but the sputum was clear. It was noted that the Veteran had gained weight and had a normal appetite. He stopped smoking several years ago after having a pack a day habit for 50 years. The examiner noted that records revealed that oropharynx was partially edentulous with poor dentition. The floor of the mouth and base of the tongue were without lesions or masses. In the neck, there were no discrete masses or lymphadenopathy noted and the cranial nerves were grossly intact. He had a flexible scope to check for any recurrence of laryngeal cancer. No masses or lesions were noted. A CT scan revealed some abnormalities. Current examination revealed a 7 centimeter horizontal scar over the middle of the anterior neck which was well-healed, superficial, and stable. There was no keloid formation. The Veteran also had a 3.5 by 1.0 centimeter tracheotomy scar in the suprasternal notch which was stable. There was no keloid formation. There was no cervical adenopathy. There were no neck masses. The mouth was normal. The examiner could not visualize the pharynx due to inability to depress the tongue. There were no masses in the mouth or of the tongue. Pulmonary function testing (PFT) was performed. In pertinent part, forced expiratory volume in one second (FEV-1) was 60 percent of predicted. Following bronchodilator, it was 63 percent. There were a minimal obstructive lung defect and mild restrictive lung defect. There was a moderate decreased in diffusing capacity. There was mild response to bronchodilator. The diagnoses were residuals, post left hemilaryngectomy for squamous cell carcinoma with hoarseness of voice and dysphasia. There was no recurrence of cancer; nodule of the left lower lobe of the lung which was indicative of granulomatous process; and COPD, mild, which was most likely due to smoking. The March 2008 examination did not include examination by a laryngoscope and the examiner did not render an opinion as to whether it was at least as likely as not that any currently identified respiratory impairment was related to the service-connected partial left hemilaryngectomy nor was it clear if the examiner was a pulmonologist. Further, the examiner did not state to what extent the service-connected condition attributed to the Veteran's breathing difficulties as shown on PFT. An April 2008 CT of the chest revealed that the Veteran's chest nodule had been stable since 2002 and was calcifying, as were other nodules/masses in the left upper and left lower lobes. These were consistent with scars or granulomas. There were also stable minor adrenal changes. A September 2009 chest x-ray revealed moderate COPD and a stable 2 centimeter density in the left lower lobe when compared with prior study, Thereafter, in May 2010, the Veteran was afforded a VA respiratory examination, including a claims file review. At that time, with regard to gastrointestinal symptoms, the Veteran indicated that he developed problems with reflux prior to his surgery in 2000. Currently, he had heartburn in his throat and upper chest on a daily basis. The symptoms were not as bad when he took Omeperazole. He also reported that he did not have regurgitation of food, nausea, vomiting-hematomatous, or melena. He did have dysphasia for food and liquids every time he ate, and tried to eat soft foods. With regard to respiratory symptoms, the Veteran reported that he had shortness of breath. He did not have a productive cough, sputum, hemoptysis production, or dyspnea at rest. He did have dyspnea on exertion. He could walk 1/2 block or climb 10 steps before getting short of breath. There was no history of anorexia, asthma, use of oxygen, or current treatment for shortness of breath. Physical examination revealed that the Veteran weighed 190 pounds. His pulse oximetry was 93 percent room air. Examination of his oropharynx was benign. Reference was made to a September 2009 chest x-ray which showed moderate COPD and a stable 2 centimeter density in the left lower lobe. The aorta was tortuous and calcified. There was no evidence of active pulmonary disease or cardiomegaly. The impression was chronic pulmonary changes. PFTs were also performed. Effort and cooperation were good. FVC was normal at 88 percent; FEV1-SBC was normal; FEV1 was normal at 87 percent; flow volume loop indicated no variable upper airway obstruction. MVV was really reduced. Lung volumes indicated mild restriction. TLC was 73 percent and no air trapping was seen. DOCO was moderately reduced at 45 percent. The overall impression was mild restriction without obstruction and no moderate diffusion impairment was noted. An upper gastrointestinal series revealed a small sliding hiatal hernia as well as small spontaneous GE reflux in the supine position. There was no esophageal ulceration. The diagnoses were: (1) residuals of partial hemilaryngectomy residuals squamous cell carcinoma of the larynx with laryngopharynx reflux with chronic laryngitis and leukoplakia of the right true vocal cord; (2) gastroesophageal reflux disease on Omeperazole; (3) scars from surgery; and (4) COPD with no functional impairment. The examiner opined that the Veteran's gastroesophageal reflux disease was not caused by, related to, or worsened beyond natural progression by the hemilaryngectomy or squamous carcinoma. The examiner indicated that gastroesophageal reflux disease is the result of incompetence of the lower esophageal sphincter, which was markedly inferior to the repair affected by the hemilaryngectomy. The examiner opined that there was no nexus between the upper respiratory tract surgery and the COPD, which was an obstructive process involving the lower airway/lungs. Therefore, it was his opinion that the Veteran's COPD was not cause by, related to, or worsened beyond natural progression by his diagnosis of carcinoma of the larynx of its treatment. Subsequently, the Veteran reported having problems swallowing and with choking on saliva. His voice was breathy and dysphonic. In March 2011, a VA medical opinion was provided. The claims file was reviewed. The examiner indicated no changes since the last VA examination. In a September 2011 rating decision, in pertinent part, the disability rating following the reduction, was increased from 10 to 30 percent effective October 1, 2003, and then to 50 percent from November 29, 2005. See 38 C.F.R. § 4.97, Diagnostic Codes 6819-6521 (2012). It was noted that although the Veteran was not service connected for gastroesophageal reflux disease, his dysphagia was considered to also be a symptom of his partial hemilaryngectomy. The RO indicated that the grant to 30 percent was reflective of the records which showed hoarseness with interarytenoid edema. The subsequent increase to 50 percent reflected the Veteran's difficulty talking with a hoarse voice and difficulty swallowing. The RO indicated that a higher rating was not warranted as the Veteran did not meet the reparatory criteria for a 60 percent rating. In March 2012, the Board remanded this case. The Board noted that the Veteran underwent a VA examination in May 2010, which addressed the pulmonary/respiratory, GERD/digestive, and scar residual aspects of his service-connected disability, but did not specifically address the otolaryngological aspects. The Board observed that the May 2010 VA examination report, however, made references to an "ENT evaluation." It was unclear as to what "ENT evaluation" had been performed. The Board further noted that the March 2011 addendum report merely provided an updated opinion, but the Veteran was not examined. In the March 2011 report, the VA examiner opined that there was no change warranted in the opinions noted previously, but he provided no specific findings. Thus, the claim was remanded. Thereafter, a May 2010 ENT valuation was received. The examiner noted that the Veteran had a very husky, brisk, breathy voice, mostly a whisper, and was difficult to understand. The Veteran stated that he was unable to talk in long sentences. He could speak 5 or 6 words, but then had to take a break. The Veteran also had dysphasia for liquids or soft foods. If he did not eat slowly, he would strangle and aspirate his food. He also had tightness in the pharyngeal and laryngeal areas. Physical examination revealed that the neck vessels were normal, the thyroid was normal, and there was no adenopathy. The oral cavity was clear. A nasal laryngoscopy was performed which revealed an absent left vocal cord and movement of the right vocal cord. There was a granular appearance to the larynx. There was no pus or polyps. The diagnosis was status post hemilaryngectomy, squamous cell carcinoma of the left vocal cord. It was the examiner's opinion that the Veteran did not have any recurrence of his tumor. He did have an increased difficulty with speaking with a very hoarse, breathy voice, difficulty in talking, dysphasia secondary to his surgery, mainly for liquids and soft foods with aspiration. The examiner opined that his secondary symptoms or side effects seemed to be worsening by history. The Veteran was also afforded new VA examination in January 2013, with a February 2013 opinion. The claims file was reviewed. The ENT examination reviewed the past surgical history and discussed current symptoms. It was noted that the Veteran had chronic laryngitis, incomplete organic aphonia, hoarseness, and an absent vocal cord (left). The examiner noted that a recurrence of the cancer was absent on CT. In addition, a laryngeal endoscopy revealed an absent vocal cord with no evidence of a tumor present. The examiner stated that the Veteran had dysphasia with severe problems eating and no useful voice except for a barely audible husky whisper. The examiner indicated that the Veteran had undergone a partial laryngectomy for squamous cell carcinoma of the left vocal cord. Subsequent to the surgery, the examiner stated that the Veteran had a significantly impaired voice with only whispered hoarse speech making it difficult to communicate. Also, he had persistent swallowing problems requiring a pureed diet and dietary supplements. Normally, after partial laryngeal surgery, the examiner stated that there was some amount of limited employment anticipated; however, with the Veteran's problems with swallowing and diet, he was unemployable. Other examinations including general, skin, ear, and rectal examinations were performed, but pertained primarily to other matters. The Veteran's disability, following the reduction, has been assigned a 30 percent rating under Diagnostic Codes 6819-6521 until November 29, 2005, and then a 50 percent rating under the same code. Diagnostic Code 6819, as noted, governs malignant neoplasms of any specified part of the respiratory system. Under Diagnostic Code 6819, a rating of 100 percent continues for beyond the cessation of any surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure. Six months after the discontinuance of such treatment, the appropriate disability rating is determined by mandatory VA examination. If there has been no local recurrence or metastases, the rating is based on residuals. 38 C.F.R. § 4.97, Diagnostic Code 6819. Turning to the residuals, pursuant to Diagnostic Code 6518, following a laryngectomy, the residuals are to be rated under Diagnostic Code 6516, Diagnostic Code 6519, or Diagnostic Code 6520. Under Diagnostic Code 6516, chronic laryngitis manifested by hoarseness with inflammation of cords or mucous membrane is rated as 10 percent disabling and chronic laryngitis manifested by hoarseness, with thickening or nodules of cords, polyps, submucous infiltration or pre-malignant changes on biopsy is rated as 30 percent disabling. The 30 percent rating is the maximum rating. As such, the Veteran cannot be assigned a higher rating under this code. The rating code directs that Diagnostic Code 6519 then be considered. Diagnostic Code 6519 governs aphonia. Complete organic aphonia with constant inability to speak above a whisper is rated as 60 percent disabling, and the constant inability to communicate by speech warrants a 100 percent rating. 38 C.F.R. § 4.97, Code 6519. In this case, as of the February 18, 2005 examination, the Veteran has had the constant inability to speak above a whisper. While "complete organic aphonia" is not noted, the overall disability picture reflects a progressive disintegration in his speaking ability. On his February 18, 2005 examination, he reported that he had to strain to speak. The subsequent outpatient records continued to report his vocal changes, which were not previously reported in the records dated prior to that examination. The progression has been rapid and the Veteran has significant difficulty speaking at this point, but he does not have the constant inability to communicate by speech. He is able to communicate via whispering and does not forego communication by speech. Thus, under the codes relative to speech, a rating in excess of 30 percent was not warranted prior to February 18, 2005, but a higher 60 percent rating was warranted as of that date. Turning to the other applicable code, Diagnostic Code 6520 provides ratings for stenosis of the larynx, to include residuals of bilateral or unilateral laryngeal trauma, which provides for a 10 percent rating when a veteran has FEV-1 of 71- to 80 percent predicted, with Flow-Volume Loop compatible with upper airway obstruction. A 30 percent evaluation is warranted for an FEV-1 of 56- to 70-percent predicted, with Flow-Volume Loop compatible with upper airway obstruction. A 60 percent rating is assigned for an FEV-1 of 40- to 55-percent predicted, with Flow-Volume Loop compatible with upper airway obstruction, and a maximum 100 percent rating will be awarded for FEV-1 of less than 40 percent with Flow-Volume Loop compatible with upper airway obstruction; or a permanent tracheotomy. 38 C.F.R. § 4.97, Diagnostic Code 6520. With regard to the period prior to February 18, 2005, a rating in excess of 30 percent is not warranted as there are no PFT studies to review. That being noted, it is clear that the Veteran's disability has been progressing over time and is worse at this time than in earlier years. The Veteran was subsequent afforded PFT studies. However, even accepting that the PFTs were the same in earlier years, at no time did those studies indicate that a higher, 60 percent rating was met as the Veteran's breathing capacity met the 30 percent criteria, but was significantly better than the criteria for the 60 percent rating. Thus, in sum, prior to February 18, 2005, the criteria for a rating in excess of 30 percent are not met under any of the applicable diagnostic codes. However, as of February 18, 2005, the criteria for a 60 percent rating under Diagnostic Code 6519 are met. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his service-connected disability. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. Medical evidence is generally required to address questions requiring medical expertise; lay assertions do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the veteran's claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the preponderance of the evidence is against a rating in excess of 30 percent prior to February 18, 2005, but supports a rating of 60 percent as of February 18, 2005. In considering the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran'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." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's partial left hemilaryngectomy, residual of squamous cell carcinoma of the larynx disability are not shown to cause any impairment that is not already contemplated by the relevant diagnostic codes, as cited above, and the Board finds that the rating criteria reasonably describe his disability. The Board has already referred this case for consideration of a total disability rating based on individual unemployability, which has been granted. See March 2013 rating decision. Therefore, referral for consideration of an extraschedular rating is not warranted. ORDER The reduction of the disability rating for partial left hemilaryngectomy, residual of squamous cell carcinoma of the larynx from 100 percent to 30 percent effective October 1, 2003, was proper; the appeal as to this issue is denied. Prior to February 18, 2005, a rating in excess of 30 percent for partial left hemilaryngectomy, residual of squamous cell carcinoma of the larynx from October 1, 2003, is denied. From February 18, 2005, a rating of 60 percent for partial left hemilaryngectomy, residual of squamous cell carcinoma of the larynx , is granted, is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs