Citation Nr: 1333854 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 09-27 997A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an initial compensable disability rating for the service-connected squamous cell carcinoma of the right tonsil and left lateral tongue, status post radical neck dissections, tonsillectomy and left partial glossectomy prior to June 10, 2009. 2. Entitlement to an initial disability rating in excess of 40 percent for the service-connected atrophy of the right trapezius muscle. 3. Entitlement to an initial disability rating in excess of 20 percent for the service-connected osteoradionecrosis of the right mandible. 4. Entitlement to an initial disability rating in excess of 10 percent of the service-connected weakness of the extensor muscles of the right fingers and wrist. 5. Entitlement to an effective date earlier than June 10, 2009, for special monthly compensation based on housebound status. REPRESENTATION Appellant represented by: P. Michael Shanley, Esq. WITNESSES AT HEARINGS ON APPEAL The Veteran and the present Appellant ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from November 1959 to November 1966. The Veteran died in December 2011 during the course of his appeal; the Veteran's surviving spouse is the substitute Appellant in pursuing the appeal to resolution. These matters come before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in January 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York that granted service connection for squamous cell carcinoma of the right tonsil and assigned an initial noncompensable (0 percent) disability rating effective from November 21, 2003. Also on appeal is a July 2009 RO rating decision that in relevant part granted service connection for atrophy of the right trapezius muscle, osteoradionecrosis of the right mandible and weakness of the extensor muscles of the right fingers and wrist and assigned the initial ratings shown on the title page effective from November 21, 2003. The same rating decision granted special monthly compensation (SMC) at the housebound rate effective from June 10, 2009. In September 2011 the Veteran and the Appellant testified in a hearing before one of the undersigned, and in April 2013 the present Appellant testified before another of the undersigned. Transcripts of both hearings are of record. The Appellant declined the opportunity to have a hearing before a third Veterans Law Judge (VLJ) signing this panel decision. See generally Arneson v. Shinseki, 24 Vet. App. 379 (2011). In December 2011 the Board remanded the issues identified on the title page to the Agency of Original Jurisdiction (AOJ) for further development, which has been accomplished. Stegall v. West, 11 Vet. App. 268 (1998). A TDIU claim is part of an increased rating claim and is properly before the Board when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, during the course of this appeal, the Veteran, and now the Appellant, have attested that the Veteran was unable to work because of his service-connected disabilities. However, the record reflects that the Veteran was in receipt of a TDIU from November 21, 2003 until his death. The issue of entitlement to an earlier effective date for the grant of TDIU was denied by a December 2011 Board decision which neither the Veteran nor the current Appellant timely appealed. As such, the issue of entitlement to a TDIU is not before the Board at this time. The issues of initial evaluation of squamous cell carcinoma and earlier effective date for SMC are again REMANDED to the AOJ. VA will notify the Appellant if further action is required on her part. FINDINGS OF FACT 1. From November 21, 2003, and throughout the period under appellate review, the Veteran's atrophy of the right trapezius muscle was manifested by a disability picture that most closely approximated a severe impairment of Muscle Group I in the dominant extremity. 2. From November 21, 2003, and throughout the period under appellate review, the Veteran's osteoradionecrosis of the right mandible was manifested by definite sequestrum but not by frequent episodes with constitutional symptoms. 3. From November 21, 2003, and throughout the period under appellate review, the Veteran's weakness of the extensor muscles of the right [dominant] fingers and wrist was manifested by a disability picture that most closely approximated a severe impairment of function of muscle group VIII. CONCLUSIONS OF LAW 1. The criteria for assignment of an initial disability rating in excess of 40 percent for the service-connected atrophy of the right trapezius muscle are not met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.73, Diagnostic Code 5301 (2013). 2. The criteria for assignment of an initial disability rating of 30 percent, but not more, for the service-connected osteoradionecrosis of the right mandible are met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5000 (2013). 3. The criteria for assignment of an initial disability rating of 30 percent, but not more, for the service-connected weakness of the extensor muscles of the right fingers and wrist are met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.73, Diagnostic Code 5308 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Before addressing the merits of the claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The VA is required to assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The VA is required to notify a claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, the VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, the VA will attempt to obtain on behalf of the claimant. In addition, the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant be provided "at the time" of, or "immediately after," the VA's receipt of a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The present appeal arises from the initial award of service connection. The United States Court of Appeals for Veterans Claims (Court) has held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the pur pose that the notice is intended to serve has been fulfilled. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006); see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Thus, VA's duty to notify in this case has been satisfied. In any event, neither the Veteran nor the present Appellant has alleged or demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009 (reversing prior cases law imposing a presumption of prejudice on any notice deficiency and clarifying that the burden of showing harmful or prejudicial error normally falls on the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The record also reflects that service treatment records (STRs) and all available post-service medical evidence identified by the Veteran and the present Appellant have been obtained. The file contains adequate medical examinations and opinions to support final determinations of the issues. The Veteran and the present Appellant were afforded hearings before the Board. There are two duties imposed on the person who presides at a hearing: (1) the duty to fully explain the issues, and (2) the duty to suggest the submission of evidence that may have been overlooked; these duties are not impacted by the Veteran's receipt of a VCAA-compliant notice letter. 8 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010). Here, during the hearings the presiding Veterans Law Judges explicitly cited the bases for the prior determination and elicited testimony from the Veteran and the Appellant in regard to the Veteran's symptoms and resultant impairment of functioning, and to any existing evidence that should be pursued prior to adjudication of the appeal. During the hearings the Veteran and the present Appellant demonstrated actual knowledge of this information. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate the claim). The Board accordingly finds the Appellant is not prejudiced by any error associated with the hearings. The Appellant has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced her in the adjudication of this appeal. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield, 499 F.3d 1317. Therefore, the Board finds that duties to notify and assist have been satisfied and will proceed to the merits of the issues on appeal. Evaluation of Service-Connected Disabilities Applicable Laws and Regulations Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. In any increased rating claim, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the injury. 38 C.F.R. § 4.1; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In exceptional cases, where the evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned commensurate with the veteran's average earning impairment due to the service-connected disorder. Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The criteria for extraschedular evaluation are that there is a marked interference with employment, or frequent periods of hospitalization, rendering impractical the application of the regular rating schedule. 38 C.F.R. § 3.321(b); Fanning v. Brown, 4 Vet App. 225, 229 (1993). Entitlement to an extraschedular rating is a component of any claim for increased rating. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, id. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disabilities under review. Evaluation of atrophy of the right trapezius muscle The Veteran's disability is rated as an impairment of Muscle Group I (trapezius, levator scapulae and serratus magnus) under the provisions of 38 C.F.R. § 4.73, Diagnostic Code (DC) 5301. Under this DC, the currently-assigned 40 percent rating is the maximum schedular rating available, and is assigned for severe impairment of the dominant extremity. The Board has considered evidence of symptoms since the effective date of service connection, which in this case is November 21, 2003. Treatment notes from Oswego County Radiation Oncology, dated in September 2003, show the Veteran underwent radiation therapy to the neck and tonsil and radical neck dissection in 2001. Examination at the time showed severe muscle atrophy in the right pectoral girdle with weakness in the right shoulder and right arm causing the Veteran to be unable to raise his arm higher than shoulder level. The Veteran was evaluated by neurologist Dr. Jonathan Braiman in September 2003, who noted the Veteran had changes in his right proximal shoulders over the past two years that were either directly post-surgical or residual to the seven weeks of pre-operative radiation therapy. The Veteran had recently incurred increased pain and weakness in the right hand and arm. Dr. Braiman performed clinical evaluation and noted observations in detail; he also noted recent magnetic resonance imaging (MRI) of the cervical spine, sensory and motor nerve conduction studies of the right upper extremity (RUE) and electromyography (EMG) study of the RUE. Dr. Braiman's impression was possible lower trunk or medial cord brachial plexopathy (rule out carcinomatous infiltration of the brachial plexus), chronic mild C6-7 cervical radiculopathy and no right median neuropathy at the wrist or within the forearm. Thereafter, the Veteran had a consultation in September 2003 with neurosurgeon Dr. Jeffrey A. Winfield. The Veteran reported he felt there was "something wrong with his shoulder" immediately after his radical neck dissection surgery three years before. At minimum there was neuropraxia of the eleventh cranial nerve. In addition, over the last two years the Veteran had frank atrophy of almost the entire trapezius muscle mass and complete absence of muscle mass in the supra- and infra-spacular fossa. Dr. Winfield performed a motor/sensory examination and noted almost complete atrophy of the right trapezius muscle. Dr. Winfield's impression was thoracic outlet syndrome resulting in lower trunk neuropraxia. In October 2003 the Veteran had a follow-up with Dr. Jack Hsu, the surgeon who had performed the radical neck dissection three years earlier. Dr. Hsu noted the Veteran had postoperative right shoulder weakness that was worrisome for possible recurrence of carcinoma. The Veteran was also treated in October 2003 for injury to the right arm and chest suffered in a fall down several stairs. The right arm and shoulder were apparently not injured in the fall, but the clinical records noted reduced strength in the right arm due to nerve damage from previous neck surgery. The Veteran was examined in February 2004 by Industrial Medicine Associates, P.C., in conjunction with his claim for state disability benefits. The Veteran complained of nerve damage during surgery with resultant weakness and limitation of range of motion (ROM) in the right arm. He endorsed a history of right shoulder injury in the remote past that had necessitated partial removal of his right clavicle. Examination showed the Veteran to be in no acute distress. His stance was with the right shoulder lower than the left. ROM of the right shoulder was definitely decreased and he had a right-winged scapula. ROM of the right shoulder was to 90 degrees. There was full ROM of the elbows and forearms and the joints were stable and non-tender; upper extremity strength was 5/5. The clinical impression was status post cancer of the right tonsil, status post radiation therapy and surgery with nerve damage affecting the right shoulder and arm. The examiner stated the Veteran had moderate limitation of function in lifting and carrying. Treatment notes from Plank Road Medical Group dated in March 2004 show the Veteran had developed thoracic outlet syndrome as due to surgery for cervical lymph node cancer; the thoracic outlet syndrome left him with very little strength and movement in the right arm. Physical examination in relevant part showed very limited ROM of the right arm at the shoulder. In May 2007 the Veteran presented to Central New York Occupational Health Clinical Center (CNYOHCC) for evaluation of his squamous cell carcinoma of the tonsil. Examination showed the right neck to be atrophic, and the right shoulder to have winged scapula and very limited ROM. The Appellant testified before the Board in April 2013 that the Veteran had nerve damage during the surgery in 2001. Review of the file shows the Veteran's disability rating was 40 percent, the maximum possible rating under DC 5301. However, VA must consider potential applications of other diagnostic codes, whether or not raised by claimant. Schafrath, 1 Vet. App. 589, 593. In this case, the Board has considered whether the Veteran would benefit from evaluation of the service-connected disability as an orthopedic or neurological disability rather than a muscular disability. The Veteran's right shoulder disability could potentially be rated for limitation of motion of the right arm under 38 C.F.R. § 4.71a, DC 5201, but again the maximum available rating under that DC is 40 percent. A rating of 50 percent is available under DC 5200 (ankylosis of the scapulohumeral articulation) when abduction is limited to 25 degrees from the side, but the evidence of record does not show the Veteran to have had limitation of motion approximating these criteria; in fact, ROM of the right shoulder was to 90 degrees on the February 2004 examination. Turning to neurologic rating criteria, Dr. Winfield noted in September 2003 that the surgery had resulted in neuropraxia of the eleventh cranial nerve. Injuries to the eleventh cranial nerve are rated under the criteria of 38 C.F.R. § 4.124a, DC 8211. Under this DC, the maximum schedular rating available for complete paralysis of the nerve is 30 percent, which is less than the 40 percent currently assigned under the criteria for a muscle injury. Accordingly, alternative rating as a neurological disorder would not be of benefit to the Veteran. In sum, the Board has found no applicable diagnostic codes that would warrant a schedular rating higher than the currently-assigned 40 percent for the Veteran's right shoulder disability. Further, the Board has found no discrete time period during the period under review in which the criteria for evaluation higher than 40 percent were met. Accordingly, "staged" initial rating is not warranted. Fenderson, 12 Vet. App. 119. In December 2011 the Board directed the AOJ to forward the file to the Director of Compensation Service (Director) for extraschedular review. The Director responded with a June 2012 memorandum titled Administrative Review - Extra-Schedular Evaluation pursuant to 38 C.F.R. § 3.321(b)(1). The Director noted the Veteran's medical history, and the administrative history of the claim on appeal, in detail. The Director found that the Veteran had the highest rating (40 percent) available under the appropriate DC, but higher evaluations are available under other DCs. In this case there is no evidence the Veteran had complete loss of use, or loss of use comparable to use of a prosthetic. Further, there is no indication of record that the right trapezius disability resulted in frequent periods of hospitalization or an unusual disability picture that would warrant extraschedular evaluation, or that the regular rating criteria had been rendered impracticable. Based on the evidence and analysis above the Board finds that the criteria for an initial rating higher than 40 percent for the service-connected atrophy of the right trapezius muscle are not met. Accordingly, the claim must be denied. Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. Evaluation of osteoradionecrosis of the right mandible "Necrosis" is the pathologic death of one or more cells, or a portion of tissue or organ, resulting from irreversible damage. "Osteoradionecrosis" is necrosis of the bone produced by ionizing radiation and may be planned or unplanned. Stedman's Medical Dictionary, 27th Ed. (2000), pgs 1185, 1286. Chronic osteoradionecrosis of the maxilla is rated under the criteria of 38 C.F.R. § 4.150, DC 9900, which defers evaluation for the disorder to 38 C.F.R. § 4.71a, DC 5500 (acute, subacute or chronic osteomyelitis). In relevant part, the rating criteria are as follows. A rating of 20 percent (the currently-assigned rating) is assigned with discharging sinus or other evidence of active infection within the past five years. A rating of 30 percent is assigned with definite involucrum or sequestrum, with or without discharging sinus. A rating of 60 percent is assigned with frequent episodes, with constitutional symptoms. A rating of 100 percent is assigned with osteomyelitis of the pelvis, vertebrae, or extending to major joints or with multiple localizations or with long history of intractability and debility, anemia, amyloidal liver changes or other continuous constitutional symptoms. "Involucrum" as cited in the rating criteria above means a sheath of new bone that forms around a sequestrum. "Sequestrum" as cited in the rating criteria above means a piece of necrotic tissue, usually bone, which has become separated from the surrounding healthy tissue. Stedman's Medical Dictionary, 27th Ed. (2000), pgs 919 and 1622. The Board has considered evidence of symptoms since the effective date of service connection, which in this case is November 21, 2003. The Veteran underwent transoral sequestrectomy surgery at Oswego Hospital in July 2003 for osteoradial necrosis of the mandible, shown as due to radial beam radiation performed in 2001 prior to cancer surgery. Treatment notes from Oswego County Radiation Oncology, dated in September 2003, show the Veteran underwent radiation therapy to the neck and tonsil and radical neck dissection in 2001. Examination of the oral cavity showed an adequate amount of saliva. There was unhealed gum in the posterior aspect of the mandible on the right side, but it appeared to be healing in. The Veteran no longer had any bone chips coming out since undergoing hyperbaric oxygen chamber treatment. Treatment notes from oral surgeon Dr. Richard Fiese show the Veteran presented with a new area of exposed necrotic bone in June 2004; Dr. Fiese noted the Veteran had not modified his use of tobacco or alcohol. In July 2004 Dr. Fiese noted the Veteran had been noncompliant with medical requests that he refrain from high alcohol intake and continued to smoke 2-3 packs of cigarettes per day, and that continued use of tobacco would negate the benefits of hyperbaric oxygen treatment. In August 2004 the Veteran underwent sequestrectomy (debridement) of the right posterior mandible at Oswego Hospital, performed by Dr. Fiese. The pathology report showed acute osteomyelitis and actinomyces. Follow-up notes dated in September 2004 through April 2005 show the Veteran felt better after surgery; the wound was closing and the Veteran was eating well and gaining weight. Treatment notes from Plank Road Medical Group dated in August 2005 show the Veteran complained of decreased appetite secondary to increased infections in his mouth. The Veteran was noted to be still smoking 1.5 packs of cigarettes per day and drinking a case of vodka every three weeks. The Veteran had recently seen an oral surgeon and wanted to return there for removal of his upper plate. The Veteran denied difficulty swallowing but his daughters stated the Veteran did no chew or swallow well. The Veteran denied regurgitation of food but complained that the muscles in his throat did not work the same since radiation therapy. The Veteran was referred for consultation with an oral surgeon. Treatment notes from Dr. Fiese dated in October 2005 show the Veteran complained about his maxillary teeth, which had not been in the field of radiation. The Veteran was healing well from surgery and had no sign of infection or osteoradionecrosis but did have a number of buccal necroses. An October 2005 note from Dr. Fiese states he had recently removed multiple abscessed teeth that had supported a fixed prosthesis, and would thus require a removable prosthesis (denture) in the future; the Veteran's history was complicated by the development of osteoradionecrosis in the area and the prosthesis would be an important part of the Veteran's ability to take in adequate nutrition. A December 2005 treatment note from Dr. Fiese shows the Veteran had developed a right buccal space infection. The Veteran continued to smoke and drink, so hyperbaric oxygen treatment was not possible. Treatment records from Dr. Hsu in July 2006 state the Veteran had undergone repeated debridements and hyperbaric treatments, all of which were unsuccessful. Clinical examination showed a bony sequestrum that was too small to be accessed. Dr. Hsu stated, after reviewing recent CT films and PET scans, that there was an area or irregularity that appeared to be an old fracture rather than osteoradionecrosis. An area of bony sequestrum with intact inferior border was identified and marked for debridement. The Veteran underwent another debridement of the right mandible in August 2006. It was noted that recent CT scan of the head had not revealed any significant metastases but did show some uptake along the right mandibular body probably representing another sequestrum of osteoradionecrosis. Debridement was accomplished without complications. Postoperative follow-up one week later showed no exposed bone, mucosa healthy and intact, tongue mobile and midline and uvula elevating symmetrically. The Veteran had an infectious disease consult in August 2006 to follow-up the Veteran's problems with his right mandible. The consultant's impression was osteomyelitis of the mandible, versus infection from osteonecrosis from radiation therapy. The consultant recommended a regimen of antibiotics. In May 2007 the Veteran presented to Central New York Occupational Health Clinical Center (CNYOHCC) for evaluation of his squamous cell carcinoma of the tonsil. The Veteran complained of difficulty chewing and swallowing. Examination showed the Veteran to be edentulous. The left mandible was partially missing and the oral and pharyngeal mucosas were reddened. The nares, nasal mucosa and turbinates were normal. The Veteran had a VA examination in November 2007, performed in support of his claim for service connection for squamous cell carcinoma. Physical examination showed the Veteran to be alert and ambulatory, in no acute distress. Examination of the oral cavity and oral pharynx revealed no gross mucosal lesion. The Veteran was edentulous. The file contains a January 2008 letter from Dr. Fiese recounting the Veteran's history of osteoradionecrosis during the period September 2001 through May 2003. Dr. Fiese stated the Veteran should not have been working during that period and that the Veteran met the Social Security Administration (SSA) definition of "disability" during that period. The Veteran presented to the VA PCC in March 2009 requesting a dental consultation because his dentures did not fit; he explained all his teeth were extracted due to treatment for squamous cell carcinoma and normal dentures would not fit. A dental consultation was placed, but the Veteran was advised that due to the chronic nature of his listed dental condition, and lack of eligibility based on VA dental regulations, he would be referred to the private sector for dental treatment. The Veteran had a VA speech pathology consult in October 2009 for speech and swallowing evaluation. The Veteran's spouse stated the Veteran had lost significant weight since 2001. She stated the Veteran could eat foods that had been put through a foot processor but still had problems moving the food around in his mouth. Examination showed that a small portion of the left lateral tongue had been removed, thus reducing lingual movements to that side; lingual movements to the right were within normal limits. The Veteran reported it was difficult and uncomfortable to open his mouth, and the clinician noted that a portion of the mandibular alveolar ridge on the right side had been removed during surgical resections. The clinician ordered a TheraBite system to assist the Veteran with opening his mouth, which was his primary complaint. The Veteran had a VA dental evaluation in December 2009. The examiner noted the Veteran had undergone a left partial glossectomy that was subsequent to the development of osteoradionecrosis. The Veteran complained he could not wear the dentures that were made for him in the private sector, and he complained of lack of chewing ability. Examination was significant for the interridge distances on the left side and the Veteran's high risk of developing dental sores; the osteoradionecrosis was not mentioned as a significant factor. The Veteran was referred for prosthodontic evaluation. The Appellant testified before the Board in April 2013 that the Veteran had multiple jaw surgeries after 2001 because the jawbone did not stay closed. She testified the Veteran had trouble swallowing and chewing and would gag when he tried to eat. Review of the evidence shows the Veteran had definite sequestrum during the period under review, as demonstrated by the fact the he underwent debridement in August 2004 and again in August 2006 specifically for sequestrum. Accordingly, the criteria for a 30 percent rating are met. The Board has considered whether the criteria for a rating higher than 30 percent are met. Under DC 5000, a 60 percent rating may be assigned with frequent episodes of osteomyelitis with constitutional symptoms, but the Board finds that these criteria are not met. The Veteran had two episodes of sequestrum during the nine-year period under review, which cannot be characterized as "frequent," and there is no indication of additional sequestrum between August 2006 and the Veteran's death in December 2011. Further, the osteomyelitis/sequestrum appears to have been localized to the area of the mandible; there is no indication of constitutional symptoms of osteomyelitis The Board has also considered whether alternative rating under another applicable DC would be advantageous to the Veteran. Schafrath, 1 Vet. App. 589, 593. In this case, DC 5000 is the only applicable diagnostic code. The Board has found no discrete time period during the period under review in which the criteria for evaluation higher than 30 percent were met. Accordingly, "staged" initial rating is not warranted. Fenderson, 12 Vet. App. 119. In December 2011 the Board directed the AOJ to forward the file to the Director of Compensation Service (Director) for extraschedular review. The Director responded with a June 2012 memorandum titled Administrative Review - Extra-Schedular Evaluation pursuant to 38 C.F.R. § 3.321(b)(1). The Director noted the Veteran's medical history, and the administrative history of the claim on appeal, in detail. The Director noted that evaluations higher than 30 percent are available under DC 5000, but the Veteran did not meet the appropriate criteria (frequent episodes of constitutional symptoms) but rather only localized symptoms. The Director determined the Veteran's level of disability did not present such an unusual disability picture as to render the regular rating criteria impracticable, and also noted that the Veteran's last examination for this disability showed evidence of improvement and a favorable prognosis. Based on the evidence and analysis above the Board finds that the criteria are met for an initial rating of 30 percent, but not more, for the osteoradionecrosis of the right mandible. Accordingly, the claim is granted to that extent. Benefit of the doubt on this issue has been resolved in favor of the Appellant. Gilbert, 1 Vet. App. 49, 54. Schedular evaluation of weakness of the extensor muscles, right fingers and wrist The Veteran's disability is rated as an impairment of Muscle Group VIII under the provisions of 38 C.F.R. § 4.73, DC 5308. Under the criteria for the dominant hand, a rating of 10 percent is assigned for moderate disability. A rating of 20 percent is assigned for moderately severe disability, and a rating of 30 percent is assigned for severe disability. A note to DC 5308 states that the hand is so compact a structure that isolated muscle injuries are rare, being nearly always complicated with injuries of bones, joints, tendons, etc. Rate on limitation of motion, minimum 10 percent. The terms "moderate," "moderately severe" and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. In that regard, loss of use of the dominant hand is assigned a 70 percent evaluation under 38 C.F.R. § 4.71a, DC 5125. Limitation of motion of the wrist is rated under the provisions of 38 C.F.R. § 4.71a, DC 5215. Under this DC, a rating of 10 percent is the maximum schedular evaluation of limitation of motion of either the dominant or the non-dominant extremity. Limitation of motion of the dominant thumb is rated under the provisions of 38 C.F.R. § 4.71a, DC 5228. Under this DC, a rating of 10 percent is assigned for a gap of one to two inches (2.5 to 5.1 cm.) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. A rating of 20 percent is assigned for a gap of more than two inches (5.1 cm) under the same conditions. Limitation of motion of the dominant long finger is rated under the provisions of 38 C.F.R. § 4.71a, DC 5229. Under this DC, a rating of 10 percent is assigned for a gap of less than one inch (2.5 cm.) between the fingertip and the proximal transverse crease of the palm with the finger flexed to the extent possible and with extension limited by no more than 30 degrees. A rating of 20 percent is assigned for a gap of one inch or more between the fingertip and the proximal transverse crease of the palm with the finger flexed to the extent possible or with extension limited by no more than 30 degrees. The Board has considered evidence of symptoms since the effective date of service connection, which in this case is November 21, 2003. Treatment notes from Oswego County Radiation Oncology, dated in September 2003, show the Veteran underwent radiation therapy to the neck and tonsil and radical neck dissection in 2001. Current examination showed decreased strength in the right hand; coordination was also decreased. Thereafter, the Veteran had a consultation in September 2003 with neurosurgeon Dr. Jeffrey A. Winfield. The Veteran reported that about three weeks earlier he had been doing unaccustomed heavy work clearing brush; the next day he noticed marked increase in weakness in the intrinsic muscles of his hands and severe pain in the forearm. Since that time the Veteran's pain had almost completely subsided and his right hand strength seemed to be slowly improving. Motor examination showed subliminus testing of the right hand to be normal although intrinsic testing was still a bit weak, and there was give-way weakness in the extensors of the fingers and wrist. In October 2003 the Veteran had a follow-up with Dr. Jack Hsu, the surgeon who had performed the radical neck dissection three years earlier. Dr. Hsu noted the Veteran had postoperative right shoulder weakness that had progressed over the last few months to weakness of the right hand. The Veteran executed a disability questionnaire for the New York State Division of Disability Determinations in January 2004 in which he essentially reported being unable to work, write, type, play golf or do yard work. He stated he could not trim his own nails and could not do household chores due to inability to use his right hand, which rendered him unable to grasp or reach. The Veteran was examined in February 2004 by Industrial Medicine Associates, P.C., in conjunction with his claim for state disability benefits. The Veteran complained of nerve damage during surgery with resultant difficulty with fine movements of the right hand; the Veteran stated he was unable to write and complained of tingling and numbness in the third, fourth and fifth fingers of both hands. Examination showed the Veteran to be in no acute distress. There was decreased dexterity in the fingers of the right hand and weakness in the right hand grip strength to about 3/5. The Veteran was unable to fully extend the fingers of the right hand but was able to make a fist. There was full ROM of the wrists. Joints were stable and non-tender. The clinical impression was status post cancer of the right tonsil, status post radiation therapy and surgery with nerve damage affecting the right hand. The examiner stated the Veteran had definite decrease in the use of the right hand, especially with decreased manual dexterity. The Veteran submitted a Statement in Support of Claim in March 2004 asserting he was unable to write or to use his right and arm to perform most tasks, due to nerve damage on the right side of his body residual from cancer surgery. Treatment notes from Plank Road Medical Group dated in March 2004 show the Veteran had developed thoracic outlet syndrome as due to surgery for cervical lymph node cancer. Physical examination in relevant part showed good flexion of the fingers but lacking about 25 percent of extension. A disability determination by SSA in April 2004 granted disability benefits effective from May 2003, based primarily on the Veteran's limitation of function of the right hand and arm. In May 2007 the Veteran presented to Central New York Occupational Health Clinical Center (CNYOHCC) for evaluation of his squamous cell carcinoma of the tonsil. Examination showed that cranial nerves 2 through 12 were intact and sensation was normal to light touch. Strength was reduced in the RUE proximally and distally and in the grips. The file contains a letter dated in August 2007 by Mr. PE, a former co-worker of the Veteran. Mr. PE stated that the Veteran lost substantial motor function in his right arm after his cancer surgery, including loss of grip strength. Mr. PE stated that the weakness was so great the Veteran had difficulty using a screwdriver or holding a pencil. The VA pain management clinic noted in March 2010 that the Veteran reported arthritis in the hands but his primary complaint was bilateral numbness that made it difficult to write his name. The clinical impression was peripheral neuropathy, possibly from surgery for squamous tonsillar fossa cancer. The Veteran had a follow-up at the VA pain management clinic in May 2010 in which he endorsed constant pain and numbness in both hands, which he had been told was residual to nerve damage during his neck resection. The Veteran reported having dropped objects he was carrying in his left hand. The Veteran was noted to be right-hand dominant and to have trouble writing his name without help. On examination the Veteran had good sensation in the hands when tested. The clinical impression was peripheral neuropathy, reportedly due to surgery for head and neck cancer with radical neck resection. Review of the evidence above demonstrates the Veteran had loss of function of his dominant wrist/hand/fingers to the extent that he was unable to write his name or to hold tools. The Board finds this degree of disability equitably corresponds to a severe disability, and that a 30 percent initial rating is warranted under DC 5308. The Board has considered whether a rating higher than 30 percent is warranted, but 30 percent is the maximum rating available under DC 5308. The Veteran is shown to have had reduced grip strength and reduced extension of the fingers, but the evidence nonetheless shows the Veteran remained able to make a fist (and, thus, to grasp) and retained some degree of function; he accordingly did not approximate loss of use of the hand as envisioned by DC 5125. The Board has found no discrete time period during the period under review in which the criteria for evaluation higher than 30 percent were met. Accordingly, "staged" initial rating is not warranted. Fenderson, 12 Vet. App. 119. The Board has also considered whether alternative rating under another applicable DC would be advantageous to the Veteran. Schafrath, 1 Vet. App. 589, 593. The maximum benefit for limitation of motion of the wrist under DC 5215 is 10 percent, so alternative rating under this DC would be of no benefit to the Veteran. The Veteran is not shown to have had compensable limitation of motion of the right thumb or right long finger. Separate evaluations for limitation of motion of the wrist (DC 5215) and impairment of Muscle Group VIII (DC 5308) would essentially compensate the Veteran twice for the same symptoms and would thus constitute "pyramiding." 38 C.F.R. § 4.14; Brady v. Brown, 4 Vet. App. 203 (1993). In December 2011 the Board directed the AOJ to forward the file to the Director of Compensation Service (Director) for extraschedular review. The Director responded with a June 2012 memorandum titled Administrative Review - Extra-Schedular Evaluation pursuant to 38 C.F.R. § 3.321(b)(1). The Director noted the Veteran's medical history, and the administrative history of the claim on appeal, in detail. The Director noted that higher evaluations are available under DC 5308, and also noted that the Veteran's last examination for this disability showed evidence of improvement. The Director found the Veteran's disability did not present a disability picture so unusual as to render the regular rating criteria impracticable. Based on the evidence and analysis above the Board finds that the criteria are met for an initial rating of 30 percent, but not more, for the weakness of the extensor muscles in the right wrist and fingers. Accordingly, the claim is granted to that extent. Benefit of the doubt on this issue has been resolved in favor of the Appellant. Gilbert, 1 Vet. App. 49, 54. ORDER An initial disability rating in excess of 40 percent for atrophy of the right trapezius muscle is denied. An initial disability rating of 30 percent for osteoradionecrosis of the right mandible is granted, subject to the criteria applicable to the payment of monetary benefits. An initial disability rating of 30 percent for weakness of the extensor muscles of the right fingers and wrist is granted, subject to the criteria applicable to the payment of monetary benefits. REMAND The Board has determined that further development is required before the issue of initial evaluation of squamous cell carcinoma of the right tonsil and left lateral tongue can be adjudicated. The applicable Diagnostic Code (DC) for this disability is DC 6819, which stipulates that active residuals of a malignant neoplasm should be rated separately. In this case, the Appellant asserts the Veteran's service-connected carcinoma resulted in residuals in the form of a skin disability (to include rashes and skin cancer); weight loss; fatigue; pain; seizures; cold intolerance; cough; muscle aches and cramps; tingling; balance problems; seizures; and, depression and mood swings. Review of the file demonstrates that the Veteran did have skin problems (see treatment records by Dr. William Patrick documenting removal of carcinomas on the face and back in December 2010); pain (see VA pain management note in September 2010); and, cough, weight loss, fatigue, seizures, cold intolerance, muscle aches and cramps, balance difficulties, depression and mood swings (see treatment records from Central New York Occupational Health Clinical Center in May 2007). Accordingly, the question arises whether any of these symptoms constituted separately ratable disabilities secondary to the service-connected carcinoma of the tonsil. Because there is no medical opinion of record addressing this question, remand is required. 38 C.F.R. § 3.159(c)(4). Resolution of the question above has a significant impact on the issue of entitlement to earlier effective date for SMC, and would render any review of that decision meaningless and a waste of resources. Thus, the issues are significantly intertwined. Henderson v. West, 12 Vet. App. 11, 20 (1998), Harris v. Derwinski, 1 Vet. App. 180 (1991); Parker v. Brown, 7 Vet. App. 116, 118 (1994). Adjudication of the appeal for earlier effective date for SMC will accordingly be remanded along with the claim for increased initial rating for carcinoma of the right tonsil. Accordingly, the case is REMANDED to the AOJ for the following action: 1. Submit the file to a VA physician qualified to render an opinion in regard to residuals of carcinoma of the tonsil. The reviewing physician should review the claims file and determine whether during the period November 21, 2003, through June 10, 2009, the Veteran's service-connected carcinoma was manifested by any of the following residuals: skin disorder (to include rashes or skin cancer); weight loss; fatigue; pain; seizures; cold intolerance; cough; muscle aches and cramps; tingling; balance problems; seizures; and/or, depression and mood swings. To the extent that the symptoms noted above are shown to be secondary to the service-connected carcinoma of the tonsil, the reviewing physician should indicate whether such symptoms constitute an actual disability, as opposed to mere medical findings. If so, provide the appropriate diagnosis or diagnoses and also indicate the dates on which any such secondary disability or disabilities became manifest. The rationale for all opinions expressed should be provided, and if it is not possible to provide an opinion without resort to speculation, the reasons that is so should be explained. 2. Then, the AOJ should readjudicate the issues of initial evaluation for carcinoma of the tonsil and entitlement to earlier effective date for SMC. If any benefit sought on appeal is not granted to the Appellant's satisfaction, issue the Appellant and her representative a supplemental statement of the case and afford them the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Appellant need take no action until she is otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This REMAND must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _____________________________ ___________________________ MICHAEL A. PAPPAS STEVEN D. REISS Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals ___________________________ M. N. HYLAND Acting Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs