Citation Nr: 1337585 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 08-09 657 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for residuals of cancer of the larynx prior to March 30, 2012. 2. Entitlement to a rating in excess of 30 percent for residuals of cancer of the larynx since March 30, 2012. 3. Entitlement to an initial rating in excess of 10 percent for residuals of prostate cancer other than erectile dysfunction prior to March 30, 2013. 4. Entitlement to a rating in excess of 20 percent for residuals of prostate cancer other than erectile dysfunction since March 30, 2013. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1964 to September 1968. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Board remanded the case in March 2012. The remand directives have been completed, in part, and the case is again before the Board for adjudication. In December 2012 the Veteran was issued a rating decision that raised the evaluation for residuals of cancer of the larynx to 30 percent and the evaluation for residuals of prostate cancer to 20 percent, effective March 30, 2012. The Board also notes that the Veteran is currently in receipt of a total schedular rating plus special monthly compensation at the housebound rate. An increase in the ratings for residuals of cancer of the larynx and prostate cancer for the staged period since March 30, 2012 will not result in an increase in his current combined schedular rating or the compensation he receives. See 38 C.F.R. § 4.25 (2013). Nonetheless, as the Veteran has asserted that his service-connected residuals of cancer of the larynx and prostate cancer are not currently appropriately evaluated, and as the maximum allowable rating for each of these issues has not been granted, the issues remain on appeal. See AB v. Brown, 6 Vet. App. 35 (1993) (a claimant is presumed to be seeking on appeal the maximum evaluation denominated by the rating schedule and other applicable law for the disability in concern). A review of Virtual VA reveals that it contains an October 2013 Written Brief Presentation relevant to the issues on appeal. The issue of entitlement to a rating in excess of 30 percent for residuals of cancer of the larynx since March 30, 2012 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to March 30, 2013, the Veteran's service-connected residuals of cancer of the larynx were primarily manifested by hoarseness of the voice, thickening of the vocal chords, and arytenoid edema, but without evidence of complete organic aphonia or stenosis of the larynx. 2. Prior to March 30, 2013, the Veteran's service-connected residuals of prostate cancer other than erectile dysfunction were manifested by incomplete and frequent voiding and awakening 2 times per night to urinate. 3. Since March 30, 2013, the Veteran's service-connected residuals of prostate cancer other than erectile dysfunction are manifested by incomplete and frequent voiding, daytime voiding intervals of 1 to 2 hours, and awakening 3 to 4 times per night to urinate. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the appellant's favor, the criteria for an initial rating of 30 percent, but no more, for residuals of cancer of the larynx prior to March 30, 2013, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.20, 4.21, 4.97, Diagnostic Codes 6516, 6519, 6520 (2013). 2. The criteria for an initial rating in excess of 10 percent for residuals of prostate cancer other than erectile dysfunction prior to March 30, 2012 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.21, 4.115a, 4.115b, Diagnostic Code 7528. 3. The criteria for a rating in excess of 20 percent for residuals of prostate cancer other than erectile dysfunction since March 30, 2012 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.21, 4.115a, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in an April 2007 letter the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims, including what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter advised the Veteran to submit evidence from medical providers, statements from others who could describe their observations of his disability level, and his own statements describing the symptoms, frequency, severity and additional disablement caused by his disability and the effect that the disability has on his employment. The notice also provided examples of pertinent medical and lay evidence that the Veteran may submit (or ask the Secretary to obtain) relevant to establishing entitlement to a disability evaluation. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The case was last adjudicated in December 2012. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, private medical records, VA treatment records, the reports of VA examinations, and statements of the Veteran. As noted, the Veteran's claim was remanded for additional development in March 2012. Additional records were requested or acquired, and new VA examinations were held in March 2012. All new evidence was considered in an October 2012 supplemental statement of the case. The Board finds that there was substantial compliance with the remand directives, fulfilling the duty to assist, as to the matters decided herein. See Stegall v. West, 11 Vet. App. 268 (1998). As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Thus, the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Relevant Laws and Regulations Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2 (2013). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). VA's Schedule of Disability Ratings will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, 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 claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's 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 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 Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Residuals of Cancer of the Larynx The Veteran essentially contends that his residuals of cancer of the larynx, which is manifested by extreme hoarseness and difficulty speaking, warrants a rating in excess of 10 percent prior to March 30, 2012. Because the Veteran's symptoms associated with residuals of cancer of the larynx are hoarseness and occasional inability to speak, the Veteran's disability has been rated as equivalent to chronic laryngitis, pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6516. VA regulations provide that when an unlisted condition is encountered, it is permissible to rate under a closely related disease or injury in which the functions affected, anatomical localization, and symptomatology are closely analogous. 38 C.F.R. § 4.20. Under Diagnostic Code 6516, a 10 percent rating is warranted for hoarseness with inflammation of cords or mucous membrane. A 30 percent rating is warranted for hoarseness with thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changed on biopsy. 38 C.F.R. § 4.97, Diagnostic Code 6516. The related condition of complete organic aphonia is rated under Diagnostic Code 6519. When complete organic aphonia is present, a 60 percent rating is warranted for constant inability to speak above a whisper, and a 100 percent rating is warranted for constant inability to communicate by speech. 38 C.F.R. § 4.97, Diagnostic Code 6519. In a March 2008 statement accompanying his substantive appeal, the Veteran stated that he is "virtually unable" to use his voice. He stated that he had difficulty using the telephone or conducting business transactions, that it has caused him great frustration and anxiety, and that it has "taken a toll" on his personal relationships. The Veteran's private treatment records show that in 2005 he was found to have a tumor of the larynx which extended into his vocal chords. In September 2005 he was noted to have hoarseness and thickening of the vocal chords and esophagus. In December 2005 the Veteran underwent chemoradiation to treat the tumor. In January 2007 the Veteran was noted to sound "a bit more raspy" than previously, and right nasal arytenoid edema was found. At a September 2008 follow-up examination, no clinical evidence of larynx cancer was found, but the Veteran was noted have bilateral arytenoid edema in the larynx. The physician advised the Veteran to discontinue his tobacco use, as it contributed to his arytenoid edema and hoarseness. A January 2006 VA treatment record notes that the Veteran's voice was "raspy but able to be understood clearly." The Veteran was afforded a VA examination in June 2007. The Veteran reported that had difficulty breathing through his nose, purulent discharge, and a speech impediment that gave him a "husky, low-tone voice," which the examiner noted to be spoken in a whisper. The Veteran also reported that it was difficult for him to communicate with people and to use the telephone. The examiner found that his nostrils and throat appeared normal, and diagnosed him with laryngeal cancer in remission. In a December 2007 statement, the Veteran's private physician stated that the appellant has chronic hoarseness and that his "best vocal projection is equal to a loud whisper." In a September 2008 statement, a private physician stated that the Veteran's hoarseness is expected to be permanent in nature and "interferes with his voice quality and use of the telephone." Based on this evidence, the Board finds that an initial rating of 30 percent, but no higher, is warranted for the period prior to March 30, 2012. The medical evidence reflects that the Veteran's voice is consistently hoarse or raspy and that he has been found to have thickening of the vocal cords and swelling of the arytenoid cartilage, the portion of the larynx to which the vocal cords are attached. Thirty percent is the maximum allowable schedular rating for laryngitis under 38 C.F.R. § 4.97, Diagnostic Code 6518. The Board has also considered the applicability of other Diagnostic Codes for rating this disability, but finds that no higher rating is assignable. While the Veteran has asserted that it can be very difficult for him to be understood by others and he has been noted to speak in a whisper, at no time has the Veteran been found to have complete organic aphonia (loss of voice), nor has he ever asserted that he has had a complete loss of voice. See 38 C.F.R. § 4.97, Diagnostic Code 6519. There is also no evidence prior to March 30, 2012 that the Veteran had any stenosis of the larynx, which would allow for rating under 38 C.F.R. § 4.97, Diagnostic Code 6520. Hence, the Board finds that the Veteran's disability is most appropriately rated under Diagnostic Code 6516, pursuant to which the Veteran's symptoms are consistent with a 30 percent rating. The Board acknowledges the Veteran's lay statements regarding the difficulties that his laryngitis causes in his daily life, and the Board has considered these assertions. The Veteran, as a layperson, is competent to report on matters observed or within her personal knowledge, such as his symptoms of hoarseness and difficulty speaking. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, a probative medical opinion on whether the Veteran has such disorders as complete organic aphonia or stenosis of the larynx requires the specialized training of a medical professional. As a layperson not shown to possess appropriate medical training and expertise, the Veteran is not competent to render persuasive or competent medical opinion on whether he has these conditions. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2006) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Hence, to the extent that the Veteran has claimed entitlement to a higher rating under an alternate Diagnostic Code, these contentions are not considered more persuasive on than the objective medical findings which, as indicated above, do not support the claim a for an initial rating higher than 30 percent. The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher, 4 Vet. App. at 60. Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology. There are no additional symptoms which have been raised for the period prior to March 30, 2013 which are etiologically caused by the Veteran's cancer of the larynx. The Veteran has not reported any interference with his occupational or social functioning beyond general communication challenges, including difficulty using the telephone, and such interference with communication is already sufficiently contemplated by the rating schedule criteria for laryngitis. The record does not show that the Veteran has required any hospitalization or significant treatment for his residuals of cancer of the larynx during the period on appeal. The assigned schedular evaluation is, therefore, adequate. See Thun, 22 Vet. App. 111. Consequently, referral for extraschedular consideration is not warranted. Based on the foregoing, the Board finds that the Veteran meets the criteria for an initial rating of 30 percent, but no higher, for the period prior to March 30, 2012 for residuals of cancer of the larynx. There is no basis or alternate rating criteria by which the Veteran's residuals of cancer of the larynx can be assigned a rating in excess of 30 percent prior to March 30, 2013. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against assignment of a rating higher than 30 percent for residuals of cancer of the larynx prior to March 30, 2012, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Residuals of Prostate Cancer The Veteran also claims that his residuals of prostate cancer other than erectile dysfunction warrant a rating in excess of 10 percent prior to March 30, 2012, and in excess of 20 percent since March 30, 2012. In a March 2008 statement, he indicated that he frequently has to use the bathroom throughout the day and night and is unable to take long trips. The Veteran's private treatment records show that he was found to have a prostate adenocarcinoma in August 2003. In January 2004 the Veteran was again evaluated for prostrate cancer, and he reported having difficulty initiating a stream, but denied any dysuria or nocturia. Following seed implant radiation therapy, in April 2005 the Veteran reported symptoms of urgency on occasion. In September 2008 the Veteran reporting that he had increasing dysuria and that he "voids and then dribbles several times thereafter." He felt that he "must void several times prior to emptying his bladder." At a January 2006 evaluation at the Bath VA Medical Center, the Veteran reported that his bowels were moving normally and that he was "urinating well." The Veteran was afforded a VA genitourinary examination in June 2007 and was found to have frequency of urination and nocturia two times per night. The Veteran denied any dysuria, hesitancy, or incontinence. The Veteran also denied any history of kidney stones, infection, or disease. Upon physical examination, the examiner found normal penis, testicles, epididymis, and spermatica. In a September 2008 letter, the Veteran's private physician wrote that the Veteran's side effects of treatment for prostate cancer were erectile dysfunction and dysuria characterized by incomplete emptying. The Veteran was afforded an additional VA examination in March 2012. After physical examination, the examiner found that the Veteran did have voiding dysfunction, but did not require the wearing of absorbent material. The voiding dysfunction caused daytime voiding with intervals between 1 and 2 hours and nighttime awakening to void 3 to 4 times per night. The examiner also noted that the Veteran had voiding hesitancy, slow or weak stream, and decreased force of stream. Prostate cancer is rated under 38 C.F.R. § 4.115a, Diagnostic Code 7528, which provides for a 100 percent rating for malignant neoplasms of the genitourinary system. Following the cessation of surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of 6 months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e). If there has been no local reoccurrence or metastasis, the disability is to be rated on residuals, such as voiding dysfunction or renal dysfunction, whichever is predominant. The Veteran did not apply for service connection for prostate cancer until April 2007, more than 6 months after his prostate cancer was successfully treated with seed implant radiation therapy. The medical evidence of record indicates that there has been no local reoccurrence or metastasis of the Veteran's prostate cancer since it was treated, nor has the Veteran alleged that there has been. Therefore, a 100 percent rating under 38 C.F.R. § 4.115a, Diagnostic Code 7528 is not warranted. The Veteran has asserted only that his residuals of prostate cancer have resulted in erectile dysfunction, which has been rated separately and is not currently on appeal, and voiding dysfunction/frequency. The Veteran has not been shown to have renal dysfunction. As voiding dysfunction/frequency is the predominant feature of the Veteran's residuals of prostate cancer, his prostate cancer residuals have been appropriately rated based on reported symptoms of voiding dysfunction. Voiding dysfunction is to be rated as urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a. For continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence, a 20 percent disability rating is warranted when there is voiding dysfunction that requires the wearing of absorbent materials that must be changed less than two times per day. A 40 percent disability rating is warranted when there is voiding dysfunction that requires the wearing of absorbent materials that must be changed two to four times per day. A 60 percent disability rating is warranted when there is voiding dysfunction that requires the use of an appliance or the wearing of absorbent materials that must be changed more than four times per day. Id. For urinary frequency, a 10 percent disability rating is warranted when there is a daytime voiding interval between two and three hours; or, awakening to void two times per night. A 20 percent disability rating is warranted when there is a daytime voiding interval between one and two hours; or, awakening to void three to four times per night. A 40 percent disability rating is warranted when there is a daytime voiding interval of less than one hour; or, awakening to void five or more times per night. Id. Obstructed voiding warrants a maximum schedular disability rating of 30 percent for urinary retention requiring intermittent or continuous catheterization. A 10 percent disability rating is warranted for less severe symptoms. Id. Based on a review of the current record, there is no evidence to support an evaluation greater than 10 percent prior to March 30, 2012 or greater than 20 percent since March 30, 2012. Throughout the entire period on appeal, the Veteran's private treatment records show only that the Veteran has had difficulty with completely emptying his bladder, and due to incomplete voiding, he required increased frequency of voiding. There is no indication that he has at any time during the period on appeal required the use of absorbent material, catheterization, or other appliance. The VA examiners also did not find that the Veteran has ever required the use of absorbent material, catheterization, or other appliance. Prior to March 30, 2012, there is no evidence that indicates that the Veteran met the criteria for a rating higher than 10 percent. The Veteran's private treatment records indicate that he has had difficulty with complete voiding since the time of his radiation treatment. Without the assistance of catheterization, obstructed voiding warrants only a 10 percent rating. Id. Evaluating the Veteran's urinary dysfunction on the basis of urinary frequency, the Veteran reported at his June 2007 VA examination that he voided two times per night, which again warrants the assignment of a 10 percent rating. At no time prior to March 30, 2012, does the evidence indicate that the Veteran required repeated voiding at a greater frequency which would warrant a higher rating. At the Veteran's March 30, 2012 VA examination, he stated that he required the use of the bathroom at intervals between 1 and 2 hours and had nighttime awakening to void 3 to 4 times in a night. Under the criteria for urinary frequency, this warrants a rating of 20 percent. There is no evidence of record indicating that the Veteran has ever had urinary frequency greater than that indicated at the March 2012 VA examination, and therefore there is no basis to assign a rating higher than 20 percent. The Veteran's lay statements have asserted only that he has to use the bathroom "numerous times" during the day, but he did not indicate any specific number of times other than what he reported at his June 2007 and March 2012 VA examinations. While the Veteran is competent to report on his frequency of urination, he has not provided any statements which indicate that he has experienced symptoms which would warrant a rating in excess of 10 percent prior to March 30, 2012 or in excess of 20 percent since March 30, 2012. See Layno, 6 Vet. App. at 470. The Board has also considered whether this disability presents an exceptional or unusual disability picture as to warrant referral for consideration of extra-schedular rating. See 38 C.F.R. § 3.321(b)(1); Bagwell, 9 Vet. App. at 338-39. In this case, the rating criteria accurately describe the Veteran's disability level and symptomatology. The Veteran's erectile dysfunction has been rated separately, and there are no additional symptoms which have been raised which are etiologically related to the Veteran's residuals of prostate cancer. The Veteran has not reported any interference with his occupational or social functioning, and the record does not show that the Veteran has required any hospitalization for prostate cancer during the period on appeal. The Veteran's disability picture therefore is sufficiently contemplated by the rating schedule, and referral for extraschedular consideration is not warranted the assigned schedular evaluation is adequate. See Thun, 22 Vet. App. 111. In sum, the Board finds that there is no basis by which the Veteran's residuals of prostate cancer can be assigned a rating in excess of 10 percent prior to March 30, 2012 or in excess of 20 percent since March 30, 2012. As such, the claims must be denied. In reaching this conclusion, the Board has again considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against assignment of higher ratings, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. ORDER An initial rating of 30 percent, but no more, for residuals of cancer of the larynx prior to March 30, 2012 is granted, subject to the controlling regulations governing the payment of monetary benefits. Entitlement to an initial rating in excess of 10 percent for residuals of prostate cancer other than erectile dysfunction prior to March 30, 2012 is denied. Entitlement to a rating in excess of 20 percent for residuals of prostate cancer other than erectile dysfunction since March 30, 2012 is denied. REMAND In March 2012 the Veteran was afforded a VA examination in order to determine the current severity of his service-connected residuals of cancer of the larynx. Upon examination, the examiner noted that the Veteran had laryngeal stenosis. Although the Disability Benefits Questionnaire instructed the examiner that if laryngeal stenosis was found, pulmonary function testing to assess upper airway obstruction must be performed, no such testing was done. The Board notes that stenosis of the larynx is rated under 38 C.F.R. § 4.97, Diagnostic Code 6520, and requires pulmonary function with Flow-Volume Loop testing in order to rate. As this testing has not been performed, the March 2012 is inadequate to evaluate the current claim, and the issue must be remanded for a new examination. Laryngeal stenosis had not been previously demonstrated, which allowed a decision on the earlier period to be entered. Additionally, the record indicates that the Veteran has received occasional treatment at the Bath VA Medical Center. VA treatment records were last acquired and associated with the claims file in March 2012. Any outstanding, pertinent VA treatment records dated since March 2012 should be obtained and associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (Records generated by VA facilities that may have an impact on the adjudication of a claim are constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file.). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain from the Bath VA Medical Center all outstanding, pertinent records of medical treatment of the Veteran since March 2012. The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding the requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Thereafter, arrange for the Veteran to undergo an appropriate VA examination performed by a qualified examiner to determine the severity of his residuals of cancer of the larynx. The entire claims file must be provided to the examiner, and the examination report should reflect consideration of the Veteran's documented medical history and assertions. All indicated tests should be accomplished, and all clinical findings reported in detail. The examiner should identify all residuals of cancer of the larynx. The examiner should specifically state whether the Veteran's chronic residual laryngitis is currently manifested by hoarseness with thickening or nodules of the cords, polyps, submucous infiltration, pre-cancerous changes, complete organic aphonia, or stenosis of the larynx. If stenosis of the larynx is found, pulmonary function testing, including Flow-Volume Loop testing, must be performed and the results documented. The examiner should set forth all examination findings, together with the complete rationale for the comments and opinions expressed. 3. The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further adjudication. 5. After completing the requested actions, the RO/AMC should readjudicate the claim in light of all pertinent evidence. If the benefit sought on appeal remains denied, the Veteran and his representative shall be provided with a supplemental statement of the case, with appropriate time allowed for response. The Board intimates no opinion as to the outcome in this case by the action taken herein The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs