Citation Nr: 1401547 Decision Date: 01/13/14 Archive Date: 01/31/14 DOCKET NO. 12-11 807 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to restoration of a 30 percent disability rating (evaluation) for laryngitis, to include the propriety of the reduction from December 1, 2010. 2. Entitlement to an increased (compensable) rating for squamous cell carcinoma of the vocal cords. WITNESSES AT HEARING ON APPEAL Appellant (Veteran); Veteran's Wife ATTORNEY FOR THE BOARD L. Buchs, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from June 1968 to June 1971. The Veteran served in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the VA Regional Office (RO) in Roanoke, Virginia, in which the RO reduced the rating for laryngitis from 30 percent to 10 percent and established the rating for squamous cell carcinoma as non-compensable six months after discontinuance of treatment. In October 2012, the Veteran testified in a Travel Board hearing in Roanoke, Virginia, before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The Veteran specified in written statements and during the October 2012 Travel Board hearing that he sought restoration of the 30 percent rating for his laryngitis from December 1, 2010. Thus, the Board's grant of a 30 percent rating for laryngitis for the period from December 1, 2010 to September 11, 2012 (day prior to total laryngectomy) is a full grant (restoration) of the benefits sought on appeal. This case is distinguishable from A.B. v. Brown, 6 Vet. App. 35 (1993) because, in this case, the Veteran has expressly stated that he is only seeking restoration of a 30 percent evaluation for laryngitis for the relevant period beginning December 1, 2010. As such, the issue is restoration of the 30 percent rating for laryngitis rather than one for increased rating in excess of 30 percent for laryngitis, for the relevant period. The issue of an increased rating for squamous cell carcinoma of the vocal cords 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. The RO complied with the procedural requirements for reducing the Veteran's disability rating for laryngitis on December 1, 2010, to include providing proper notification of the proposal to reduce the disability rating, and giving the Veteran the opportunity to submit evidence. 2. The evidence of record, lay and medical, did not show material improvement in service-connected laryngitis warranting the reduction of the 30 percent rating from December 1, 2010. 3. For the rating period from May 2007, the Veteran's laryngitis was manifested by inflammation of mucous membranes, thickening of the cords on the left, and edema of vocal cords and the posterior arytenoids resulting in hoarseness of the voice, particularly at the end of the day. 4. For the rating period from December 1, 2010 to September 11, 2012, the Veteran's laryngitis was manifested by inflammation of the mucous membranes, inflammation of the vocal cords on both sides, and red, hypertrophied posterior commissure of the interarytenoid space, resulting in hoarseness of voice and an inability to perform public speaking and training 5. The Veteran underwent a total laryngectomy on September 12, 2012. CONCLUSIONS OF LAW 1. The reduction of the 30 percent rating for laryngitis, from December 1, 2010, was procedurally proper. 38 C.F.R. §§ 3.105(e), 3.344 (2013). 2. Resolving reasonable doubt in the Veteran's favor, for the rating period from December 1, 2010 to September 11, 2012, the criteria for restoration of a 30 percent disability rating for laryngitis have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.344, 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6516 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). In the present case, the Board is restoring a 30 percent rating from December 1, 2010 to September 11, 2012 (day prior to total laryngectomy) for laryngitis. The Veteran has stated that he sought restoration of the 30 percent rating from December 1, 2010. Therefore, this decision constitutes a full grant of the benefits sought on appeal, and no further discussion regarding VCAA notice or assistance duties is required. Propriety of the Reduction The Veteran was notified in December 2009 that a routine future examination would be scheduled to evaluate the severity of his laryngitis associated with his service-connected squamous cell carcinoma. In May 2010, the Veteran was provided a VA examination to evaluate his laryngitis. In July 2010, the RO proposed to reduce the rating for laryngitis from 30 percent to 10 percent, and notified the Veteran of the intent to reduce in a letter and proposed rating decision. The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in the evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. The regulations provide that the RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The veteran must then be given 60 days to submit additional evidence and request a predetermination hearing. If a hearing is not requested or the veteran requests a predetermination hearing but fails to appear without good cause and reduction is considered to be still warranted, a rating action will be taken to effectuate the reduction. The effective date of the reduction will be the last day of the month in which a 60 day period from the date of notice to the veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2) (2013). The Board finds that the RO complied with the procedural requirements for reducing the Veteran's disability rating for laryngitis, to include providing proper notification of the proposal to reduce the disability rating and giving the Veteran the opportunity to submit evidence. The Veteran was notified of the RO's intent to reduce the 30 percent evaluation for laryngitis in July 2010. The Veteran was afforded an opportunity to have a predetermination hearing and was given at least 60 days in which to present additional evidence. 38 C.F.R. § 3.105(e), (i). Final action to reduce the 30 percent evaluation to 10 percent was taken pursuant to 38 C.F.R. § 3.105(e) and the Veteran was informed of this decision in September 2010. The reduction was made effective beginning December 1, 2010. Based on a review of this procedural history, the Board finds that the RO complied with all of the requirements of 38 C.F.R. § 3.105(e). The Veteran was notified of his rights, and was given an opportunity for a hearing and time to respond. Finally, the reduction was made effective no sooner than permitted by current law and regulations ("the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires"). 38 C.F.R. § 3.105(e). For these reasons, the Board finds that the reduction of a 30 percent rating for laryngitis to 10 percent was procedurally proper. As such, the Board will address the propriety of the reduction on its merits. Disability Rating Laws and Regulations Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013). In order to evaluate the level of disability and any changes in condition it is necessary to consider the complete medical history of the veteran's condition. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where an increase in the level of a service-connected disability is at issue, however, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the veteran. 38 C.F.R. § 4.3. 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. 38 C.F.R. § 4.7. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Laryngitis, chronic, is rated under Diagnostic Code 6516, which provides for a 10 percent rating where there is hoarseness with inflammation of cords or mucous membrane. A 30 percent rating is warranted where there is hoarseness with thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy. 38 C.F.R. § 4.97. Restoration of 30 Percent Rating for Laryngitis The Veteran contends that his laryngitis warrants a 30 percent disability rating from December 1, 2010, and that the evaluation should not have been reduced. The Veteran stated that the "drastic reduction in compensation percentage" did not represent his current "vocal ability" and that the reduction was wrong. The Board is required to ascertain in any rating reduction case, based upon review of the entire record, whether the evidence reflects an actual change in the disability, whether the examination reports reflecting such change are based upon thorough examination, and whether any improvement actually reflects improvement in the Veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420 (1993). In this case, the evidence shows the Veteran's 30 percent disability rating for laryngitis was in effect less than five years at the time of the rating reduction; therefore, the provisions of 38 C.F.R. § 3.344(a), which set forth regulatory requirements for evaluations in effect for five or more years, are not for application. See 38 C.F.R. § 3.344(c) (2013). Because the Veteran's disability rating was in effect for less than five years, the Board finds that the provisions of 38 C.F.R. § 3.344(c) are for application. 38 C.F.R. § 3.344(c) provides that, for disabilities which have not become stabilized and are likely to improve, reexaminations disclosing improvement in these disabilities will warrant a reduction in rating. The Board finds that the evidence of record, lay and medical, did not show material improvement in service-connected laryngitis warranting the reduction of the 30 percent rating from December 1, 2010. After a review of all the evidence, lay and medical, the Board finds that from May 2007 the Veteran's laryngitis was manifested by inflammation of mucous membranes, thickening of the cords on the left, and edema of vocal cords and the posterior arytenoids resulting in hoarseness of the voice, particularly at the end of the day. The Board further finds that from December 1, 2010 the Veteran's laryngitis was manifested by inflammation of the mucous membranes, inflammation of the vocal cords on both sides, and red, hypertrophied posterior commissure of the interarytenoid space, resulting in hoarseness of voice and an inability to perform public speaking and training. The specific changes in the symptomatology of the Veteran's laryngitis do not reflect any actual improvement in the Veteran's ability to function under the ordinary conditions of life and work. At a May 2010 VA examination the Veteran reported loss of about 70 percent of his voice secondary to treatment for squamous cell carcinoma and that he could no longer conduct trainings or engage in public speaking. Upon physical examination, the Veteran's larynx revealed both inflammation of mucuous membranes and inflammation of the vocal cords, as well as, red, hypertrophied posterior commissure of the interarytenoid space. In written statements in June 2006 and May 2012 the Veteran stated that the cancer had "left [him] with barely any voice power," that it was "very difficult to speak," and "at times [he could not] speak at all due to weakness and pain." The Veteran further stated that the second cancer surgery in 2009 made his voice worse and that the reduction of his evaluation for laryngitis did not reflect the current condition of his voice. The Board also finds that the Veteran underwent a total laryngectomy on September 12, 2012, resulting in the Veteran being unable to speak. In October 2012 the Veteran testified at a Travel Board Hearing using the assistance of a pre-recorded message on a computer and with the assistance of his wife. During the hearing the Veteran's wife testified that the Veteran's voice is normally more of a whisper"; however, when he spoke publicly he would force his voice to be stronger. The Veteran's wife further stated that the Veteran's voice worsened during the day the "more talking he was forced to do," but the overall condition of the Veteran's voice did not worsen. The Veteran testified that the evaluation for his laryngitis should have remained 30 percent and not been reduced. The Board finds that the Veteran and his wife provided competent, credible lay testimony regarding the condition of the Veteran's voice. For these reasons, the Board finds that the May 2010 VA examination does not reflect actual change in the severity of the Veteran's disability and did not disclose material improvement in service-connected laryngitis. Resolving doubt in favor of the Veteran, from December 1, 2010 to September 11, 2012, the Board finds that the restoration of a 30 percent rating for laryngitis is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. ORDER For the period from December 1, 2010 to September 11, 2012, restoration of a 30 percent rating for laryngitis is granted. REMAND A review of the record reveals a need for further development prior to appellate review on the claim for an increased rating for squamous cell carcinoma of the vocal cords. VA's duty to assist in the development of the claim has not been satisfied as additional records may exist which have not been obtained and associated with the record. The Veteran contends that his service-connected squamous cell carcinoma should receive an increased (compensable) rating. A written statement from a private physician received October 2012 reports that the Veteran was diagnosed with recurrent laryngeal carcinoma status post radiation therapy and underwent a total laryngectomy in September 2012. No records reporting the date of the Veteran's diagnosis or any treatment records for this carcinoma have been associated with the claims file. Remand is necessary to obtain these records. Accordingly, the issue of increased rating for squamous cell carcinoma is REMANDED for the following action: 1. First, request an Authorization and Consent to Release Information to VA (VA Form 21-4142) from the Veteran for any private treatment of his squamous cell carcinoma. 2. Upon receipt of any signed and dated release form, request the Veteran's private treatment records. Associate any records received with the claims file. Note in the claims file any negative responses. 3. Notify the Veteran in accordance with 38 C.F.R. § 3.159(e) if private treatment records are unavailable. 4. Identify any pertinent VA treatment records for the Veteran's squamous cell carcinoma from May 2010 to the present, and associate these records with the claims file. 5. Then, readjudicated the issue of an increased rating for squamous cell carcinoma of the vocal cords. If the benefit sought on appeal remains denied, the Veteran should be provided a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. The Veteran 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 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. 2012). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs