Citation Nr: 1341468 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 07-18 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a compensable rating for residuals of a tonsillectomy. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Rutkin, J.M. INTRODUCTION The Veteran served on active duty in the U.S. Navy from November 1968 to November 1972. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this claim in January 2011, August 2011, and January 2013 to arrange for the Veteran to testify at a hearing before the Board and to conduct additional evidentiary development. The Veteran provided testimony in support of his claim at a hearing in April 2011 before the undersigned Veterans Law Judge. He also earlier had testified at an April 2007 hearing before a local Decision Review Officer (DRO). Transcripts of both hearings are in the claims file. The record raises the issue of entitlement to service connection on a direct-incurrence basis for rhinitis and sinusitis, including insofar as whether recurrent sore throat and other symptoms in service leading to the tonsillectomy at issue also evidenced an overlaying but distinct disorder later diagnosed as rhinitis/sinusitis (see, e.g., March 2004 VA examination report). This issue has not been initially addressed by the RO, however, as the Agency of Original jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, so is referring it to the RO for appropriate action. See 38 C.F.R. § 19.9(b) (2013). Further concerning this additional claim, the U. S. Court of Appeals for Veterans' Claims (Court/CAVC) has clarified the meaning of the terms frequently used to determine the scope of a claim properly on appeal before the Board. Hillyard v. Shinseki, 24 Vet. App. 343, 355 (2011). A "claim" seeks entitlement to a benefit, a "theory" is a means of establishing entitlement to the benefit sought, and a "matter" is the entire subject under consideration. Id. All theories pertaining to the same benefit for the same disability are part of the same claim. Id.; but see Jarrell v. Nicholson, 20 Vet. App. 326, 332 (2006) (distinguishing requests for revision of a decision on the grounds of clear and unmistakable error (CUE) under 38 U.S.C.A. § 5109(a) (West 2002)). As the meaning of the term encompasses the entire subject under consideration by the adjudicatory body, the scope of the matter may be different at different stages of adjudication. Hillyard, 24 Vet. App. at 355. Accordingly, the Board has jurisdiction to adjudicate the merits of different theories, or questions, on a single matter because the Veteran's appeal properly brings all means of establishing entitlement to the benefit sought before the Board. Godfrey v. Brown, 7 Vet. App. 398, 409 (1995); see also Hillyard, 24 Vet. App. at 355. However, a Notice of Disagreement (NOD) and Substantive Appeal (VA Form 9 or equivalent statement) filed by the Veteran cannot confer jurisdiction on the Board to review claims that are wholly separate and distinct from the claim presented to and adjudicated by the RO. Jarrell, 20 Vet. App. at 332; Godfrey, 7 Vet. App. at 409. As an example, with regards to claims for benefits for psychiatric disorders, 38 C.F.R. § 4.125(b) cautions that a change in the diagnosis of a mental disorder may represent a progression of the prior diagnosis, correction of an error in the prior diagnosis, or development of a new and separate condition. Accordingly, in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Court found that the scope of a claim for posttraumatic stress disorder (PTSD) benefits included other diagnosed mental disorders as a Veteran does not file a claim to receive benefits for a particular diagnosis, but for the affliction suffered. Consequently, a single claim for disability compensation can encompass more than one condition. Id.; see also Young, 25 Vet. App. at 202 (holding that the scope of a PTSD claim encompassed a claim for benefits for a generalized anxiety disorder (GAD) where the evidence developed during the processing of the claim indicated the symptoms alleged were caused by the GAD and not PTSD). The Court explained that treating separate diagnoses as separate claims where separate diagnoses are rendered for the same reported symptoms during the initial processing of a claim for benefits disadvantage the Veteran by unnecessarily multiplying the procedural requirements involved in filing, developing, and adjudicating a claim, as well as risking an erroneous assignment of a later effective date. Clemons, 23 Vet. App. at 8; but see Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008) (treating separate diagnoses as separate claims in the context of a petition to reopen a previously denied claim). Critically, there would be a significant risk that "the nature of the appellant's current condition may never be properly adjudicated by the Secretary," as piecemeal adjudication of separate diagnoses that may relate to same disability may not properly account for the possibility that "multiple diagnoses may represent subjective differences of opinions of examiners, rather than multiple conditions." Id. at 8-9 (also explaining that this holding applies where the original diagnosis was the subject of a final rating decision that pre-dated the new diagnosis); see also Ephraim v. Brown, 82 F.3d 399, 401-02 (Fed. Cir. 1996) (holding that a claim for service connection for PTSD was separate from an appeal of a rating reduction for depressive neuroses where PTSD was not diagnosed prior to the date the rating issue was brought within the Court's jurisdiction by the filing of the NOD). One should also bear in mind this appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this claim should take into consideration the existence of this electronic record. FINDING OF FACT There are no current residuals of the Veteran's tonsillectomy, including as examples inflamed cords or mucous membranes, signs and symptoms associated with rhinitis and sinusitis, and scarring due to an unrelated neck surgery. CONCLUSION OF LAW The criteria for a compensable rating for residuals of the tonsillectomy have not been met at any point during the pendency of this claim. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.97, Diagnostic Code 6516 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Procedural Due Process A. The Duties to Notify and Assist VA's duties to notify and assist under the Veterans Claims Assistance Act of 2000 (VCAA) have been satisfied. See 38 U.S.C.A §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2013). A March 2006 letter provided all notice required under the VCAA, and was followed by adequate time for the Veteran to submit information and evidence in support of his claim before it was adjudicated by the RO. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 97-103 (2010); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Veteran's service treatment records and VA treatment records have been obtained. He has not identified any other records or evidence he wished to submit or have VA obtain. See 38 C.F.R. § 3.159(c). VA examinations were performed in September 2011, April 2012 and August 2013 that include consideration of the Veteran's medical history and set forth findings that enable the Board to make a fully informed decision on this claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); 38 C.F.R. §§ 3.159(c)(4), 3.326(a), 3.327 (2013). There is no evidence indicating that there has been a material change in the severity of any residuals of the Veteran's tonsillectomy since he was last examined. See 38 C.F.R. § 3.327(a). Indeed, as discussed below, the record shows that there are no residuals of this operation or of the tonsil infection he had in service. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007); VAOPGCPREC 11-95 (April 7, 1995) (both holding that a new VA examination is not required simply because of the passage of time since an otherwise adequate examination was conducted). In sum, the Veteran has had a meaningful opportunity to participate in the processing of this claim, and there is no indication of prejudicial error with regard to VA's duties to notify and assist. See Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009); Vogan v. Shinseki, 24 Vet. App. 159, 163 (2010). B. The Board's Remand Directives The Board's remand directives to obtain the Veteran's outstanding VA treatment records dated since 2004 and provide VA examinations assessing whether his rhinitis and sinusitis or associated symptoms are related to his tonsillectomy, or whether there are any other residuals of his tonsillectomy, have been accomplished. Therefore, there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). C. The Hearing Officer's Duties At the April 2011 Board hearing and April 2007 DRO hearing, the Veteran had an opportunity to provide testimony in support of his claim for an increased rating, facilitated by questioning from the hearing officer and his representative. There is no indication of outstanding records or other evidence that might support the claim. Thus, given the development undertaken by VA, including the provision of VA examinations to assess any residuals of the Veteran's tonsillectomy, and in light his testimony at the hearing, the "clarity and completeness of the hearing record [is] intact" and there is no prejudicial error with regard to the hearing officer's duties under C.F.R. § 3.103(c)(2) (2013). See Bryant v. Shinseki, 23 Vet. App. 488, 498 (2010) (holding, in pertinent part, that the rule of prejudicial error applies in assessing any deficiency with respect to the hearing officer's duties under section 3.103(c)); see also Sanders, 556 U.S. at 407, 410. II. Analysis VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2013). The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013). Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2013). Otherwise, the lower rating will be assigned. Id. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The schedule recognizes that disability from distinct injuries or diseases may overlap. See 38 C.F.R. § 4.14 (2013). However, the evaluation of the same disability or its manifestation under various diagnoses, which is known as pyramiding, is to be avoided. Id. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations, if supported by the evidence of record. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); see also Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (concerning staged ratings in initial-rating cases). The Veteran's tonsillectomy residuals have been rated by analogy under Diagnostic Code (DC) 6516, which pertains to chronic laryngitis. 38 C.F.R. § 4.97; see also 38 C.F.R. § 4.20 (2013); Vogan v. Shinseki, 24 Vet. App. 159, 161 (2010). The Board has not found a more appropriate diagnostic code for evaluating this disability, as the rating criteria do not directly address tonsillectomy residuals and, moreover, the Veteran does not have any such residuals, as discussed below. Under DC 6516, a10 percent rating is assigned for hoarseness, with inflammation of cords or mucous membrane. A 30 percent rating is assigned for hoarseness, with thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy. 38 C.F.R. § 4.97. The evidence does not show any residuals of the Veteran's tonsillectomy. In the August 2013 VA examination report, the examiner found after reviewing the claims file and examining the Veteran that he had no residual laryngitis, no inflammation, nodule, polyps, thickening of vocal cords, or pre-malignant changes. The examiner concluded that the Veteran did not have any residuals of his tonsillectomy. The examiner also confirmed the findings of the April 2012 examiner that the Veteran's rhinitis and sinusitis and associated symptoms were not related to his tonsillectomy residuals. Rather, as found by the April 2012 examiner, the Veteran's allergic rhinitis and post-nasal drip were associated with a genetic pre-disposition to sensitivity to certain seasonal and environmental allergies, and not related to his tonsillectomy. The examiner further observed that the Veteran's productive coughing and spitting up of mucous "could easily be secondary" to the Veteran's rhinitis or congestive heart failure. The examiner concluded that the Veteran's "sinusitis/rhinitis complaints" were "not likely" (i.e. less likely than not, when this phrase is considered in context) a result of residuals of tonsillitis and the resultant tonsillectomy. There is no evidence showing inflammation of the Veteran's vocal cords or mucous membrane during the pendency of this claim, and his rhinitis/sinusitis signs and symptoms were found by two VA examiners to be entirely unrelated to his service-connected tonsillitis and tonsillectomy. Although a March 2006 VA examination report also discusses the Veteran's rhinitis/sinusitis, the VA examiner who conducted that examination did not suggest that these conditions were related to the Veteran's tonsillectomy residuals, and indeed did not provide an opinion at all on this issue. Thus, this examination report is not inconsistent with the subsequent examinations clarifying that the Veteran does not have residuals of his tonsillitis and tonsillectomy. The findings in the VA examination reports are consistent with other evidence of record. For example, a March 2004 VA examination report reflects an examiner's finding that the Veteran's sinusitis and rhinitis were not residuals of his tonsillectomy but rather were due to allergies. Notably, VA treatment records dated in 1973 show complaints of laryngitis and pharyngitis which were not attributed to his tonsillectomy residuals. While a June 1973 VA treatment record brings the possibility up as a question (and it is not clear whether the source of this question came from the author of the record or the Veteran), there was no actual finding of such a relationship. Indeed, in an April 1973 VA treatment record, the Veteran's sore throat and cold symptoms were attributed to his rhinitis and sinusitis, and subsequent VA treatment records associate the Veteran's symptoms with rhinitis/sinusitis. Moreover, there are no findings in these records that the Veteran's rhinitis/sinusitis signs or symptoms were related to his tonsillectomy. Thus, further inquiry into this issue is not warranted. As a nurse, the Veteran's statements regarding medical matters are more competent than those of someone who has no background (and thus considered a lay person) in the field of medicine. Nevertheless, two different VA examiners found that the Veteran did not have rhinitis/sinusitis or other residuals of his tonsillitis and tonsillectomy based on examination, which included diagnostic imaging studies, a review of the Veteran's medical history, and their own medical expertise. One of the VA examiners is a doctor specializing in otolaryngology. The evidence does not show that the Veteran has comparative expertise in this area. Thus, the Board gives more weight to the objective findings in the VA examination reports than to the Veteran's statements in support of his claim, which are not supported by any other evidence apart from his own assertions. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Prejean v. West, 13 Vet. App. 444, 448 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias. . . ."). Accordingly, in the absence of inflammation or other pathology of the vocal cords or mucous membrane related to the tonsillectomy or tonsillitis, or indeed of any residuals thereof, a compensable rating under DC 6516 is not warranted. See 38 C.F.R. § 4.97. In a March 2006 statement, the Veteran also asserted that he had numbness and tingling in the right side of his face and ear due to the tonsillectomy surgery. However, there is no other evidence that these symptoms are associated with the Veteran's tonsillectomy, and VA treatment records dating back to the early 1970's do not show complaints or findings of these symptoms in connection with this surgery. Moreover, the VA examiners did not find any residuals of the Veteran's tonsillectomy, which would include such symptoms. Thus, the Board does not find that these reported symptoms are associated with the tonsillectomy. The Board has considered other diagnostic codes, including those pertaining to scars under 38 C.F.R. § 4.118 (2013). There is no evidence of compensable scarring associated with the Veteran's tonsillectomy, including painful or unstable scars, or scars resulting in disfigurement. See id., DC's 7800, 7804. The Veteran did submit photographs of scarring of the neck in March 2006. However, in the September 2011 and April 2012 VA examination reports, the examiners found that the scarring was not consistent with a tonsillectomy, and the April 2012 VA examiner observed in this regard that there was a more recent Warthin's tumor removal that was "completely unrelated" to the Veteran's tonsillectomy. Indeed, the record shows that in January 2006 the Veteran underwent neck surgery at a private facility for lymphadenopathy and hilar adenopathy. Accordingly, a separate rating for scars associated with the tonsillectomy is not warranted as there is no evidence of scarring from this surgery. As there is no evidence of any other residuals of the Veteran's tonsillitis and tonsillectomy, further consideration of other diagnostic codes, including those under 38 C.F.R. § 4.97 pertaining to diseases of the nose and throat, is not warranted. There is no evidence showing tonsillectomy residuals that meet the criteria for a compensable rating at any point during the pendency of this claim. Thus, staged ratings are not appropriate. See Hart, 21 Vet. App. at 509-10. As there is no evidence of residuals of the Veteran's tonsillectomy or tonsillitis, an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization is not shown. Therefore, referral for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111, 114 (2008). Consideration of entitlement to a total disability rating based on individual unemployability (TDIU) is not necessary, as there is no evidence of unemployability related to the Veteran's tonsillectomy residuals. See 38 C.F.R. §§ 3.340, 4.16 (2013); Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In sum, the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and entitlement to a compensable rating for residuals of a tonsillectomy is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102; 4.3 (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER The claim of entitlement to a compensable rating for residuals of a tonsillectomy is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs