Citation Nr: 1801698	
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO.  14-17 558	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to an initial compensable evaluation for service-connected tonsillectomy.  

2.  Entitlement to service connection for a chronic ear disability, to include bilateral hearing loss, to include as secondary to service-connected tonsillectomy. 

3.  Entitlement to service connection for a chronic headache disability to include as secondary to service-connected tonsillectomy.    


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States




ATTORNEY FOR THE BOARD

S. Sorathia, Counsel


INTRODUCTION

The Veteran served on active duty from January 1957 to May 1958.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2012 and November 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. 

The issues of entitlement to service connection for an ear disability and a headache disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

Inflammation of the vocal cords or mucous membrane, or thickening or nodules of cords, polyps, submucous infiltration, and constant inability to speak above a whisper or communication by speech have not been shown. 


CONCLUSION OF LAW

Entitlement to a compensable rating for tonsillectomy is not warranted.  38 U.S.C. 
§ 1155 (2012); 38 C.F.R. §§ .4.7, 4.20, 4.27, 4.97, Diagnostic Code 6518 (2017).      




REASONS AND BASES FOR FINDING AND CONCLUSION

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity.  Separate diagnostic codes (DC) identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  

In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31.

The Veteran is currently service-connected for a tonsillectomy and has been assigned a noncompensable rating under 38 C.F.R. § 4.97, Diagnostic Code 6599-6518.  

When an unlisted disease is encountered, rating by analogy is permitted pursuant to 38 C.F.R. § 4.20.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned.  38 C.F.R. § 4.27. 

Under DC 6518, a 100 percent evaluation is assigned for a total laryngectomy.  Here, the medical evidence does not show that the Veteran had a total laryngectomy. 

DC 6518 states that for a partial laryngectomy, a rating under DC 6516, DC 6519, or DC 6520 is appropriate.  

Under DC 6516, a 10 percent is assigned for chronic laryngitis with hoarseness, with inflammation of cords or mucous membrane.  A 30 percent evaluation is assigned for chronic laryngitis with hoarseness, with thickening or nodules of cores, polyps, submucous infiltration, or pre-malignant changes on biopsy.  38 C.F.R.
 § 4.97, DC 6516.

Under DC 6519, a 60 percent is assigned for complete organic aphonia with a constant inability to speak above a whisper.  A 100 percent is assigned for complete organic aphonia with a constant inability to communicate by speech.  38 C.F.R. 
§ 4.97, DC 6519.  

Under DC 6520, a 10 percent evaluation is assigned for stenosis of the larynx with forced expiratory volume in one second (FEV-1) of 71 to 80 percent predicted, with Flow-Volume Loop compatible with upper airway obstruction.  A 30 percent evaluation is assigned for stenosis of the larynx with FEV-1 of 56 to 70 percent predicted, with Flow-Volume Loop compatible with upper airway obstruction.  A 60 percent evaluation is assigned for stenosis of the larynx with FEV-1 of 40 to 55 percent predicted, with Flow-Volume Loop compatible with upper airway obstruction.  A 100 percent evaluation is assigned for FEV-1 less than 40 percent of predicted value, with Flow-Volume Loop compatible with upper airway obstruction, or; permanent tracheostomy.  38 C.F.R. § 4.97, DC 6520.  

During an October 2011 VA examination, the Veteran denied having complications or residuals after the tonsillectomy and denied having chronic infections.  The Veteran did not have breathing difficulty or speech impairment.  The examiner stated that there was no evidence of residuals or complications from the tonsillectomy, as well as no evidence of chronic infections or throat problems.  The Veteran was afforded another VA examination in November 2012 and the examiner stated that there was no evidence of complications, symptoms, or treatment related to tonsillectomy.  

VA treatment records also do not reveal any residuals or complications specifically related to tonsillectomy.  VA treatment records show that the Veteran repeatedly denied having hoarseness and that he has normal bilateral vocal cord motion and an essentially normal spirometry.  See February 2013 and April 2014 VA treatment records.  The Veteran did have a sore throat in March 2013 but the sore throat resolved and was not associated with the tonsillectomy.  An April 2014 VA treatment record revealed that the Veteran had an ear, nose, and throat consultation for a thyroid condition, but no symptoms or complications were associated with his tonsillectomy at that time.     
In August 2012, the Veteran stated that he was having problems with his throat but did not specify what problems he was having with his throat.  

Based on the foregoing, the Veteran is not entitled to a compensable rating for his tonsillectomy.  As the evidence shows that the Veteran does not have current residuals of the service-connected tonsillectomy, a compensable rating is not warranted.  In reaching the conclusion that a compensable rating is not warranted, the Board has considered the benefit-of-the-doubt rule.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 53-56 (1990).  Furthermore, staged ratings are not warranted in the present case as a compensable rating is not warranted at any point during the appeal period.  


ORDER

Entitlement to an initial compensable disability rating for service-connected tonsillectomy is denied.  


REMAND

It appears that it is the Veteran's contention that he has an ear disability and a headache disability that is secondary to his service-connected tonsillectomy.  In August 2013, the Veteran stated that he gets frequent headaches.  VA treatment records show a diagnosis of bilateral sensorineural hearing loss.  Upon remand, the Veteran should be afforded a VA examination to determine the nature, onset, and etiology of any ear or headache disability found to be present.  McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  In this regard, it should be noted that the Veteran's service treatment records were involved in a fire and the best available copy of the records were provided.  The Veteran's ears were marked abnormal on what appears to be the Veteran's entrance examination report.  Mildly excoriated ear canals were noted but he had a 15/15 bilateral whisper test.          

Upon remand, associate with the claims file records of VA treatment dated since April 2014.  
 
Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Associate records of VA treatment dated since April 2014 with the claims file.  

2.  Afford the Veteran an additional opportunity to identify or submit any pertinent private treatment records.  The identified records should be sought.  Negative responses should be associated with the claims file.  

3.  Afford the Veteran an appropriate VA examination to determine the nature, onset, and etiology of any ear or headache disability found to be present.  

(a) If the Veteran has a chronic headache disability, opine as to whether the disability had its onset in service or is otherwise related to service. 

(b) If the Veteran has a chronic headache disability, opine as to whether the disability is caused or aggravated by his service-connected tonsillectomy.  

(c) If the Veteran has a chronic ear disability other than hearing loss, the examiner should state the likelihood that any ear disability found to be present existed prior to service.  

If the examiner concludes that the ear disability found to be present existed prior to service, the examiner should indicate that likelihood that the disability worsened during service.  

If the examiner diagnoses the Veteran as having an ear disability that did not pre-exist service, the examiner must opine as to whether it is at least as likely as not that the condition is related to or had its onset during service.

(d) If the Veteran has a chronic ear disability other than hearing loss, the examiner should opine as to whether it is at least as likely as not that the ear disability other than hearing loss is caused or aggravated by his service-connected tonsillectomy.    

4.  Afford the Veteran a VA audiology examination to determine the nature, onset, and etiology of any hearing loss found to be present.  

(a) Determine if the Veteran has a hearing loss disability pursuant to VA regulations.  

(b) If the Veteran has a hearing loss disability pursuant to VA regulations, opine as to whether it is at least as likely as not that the hearing loss had its onset in service, within one year of separation from service, or is otherwise related to service.     

(c) If the Veteran has a hearing loss disability pursuant to VA regulations, opine as to whether it is at least as likely as not that the hearing loss is caused or aggravated by his service-connected tonsillectomy.  

5.  Readjudicate the appeal.  If the benefits sought on appeal remain denied, the RO should issue the Veteran and his representative a Supplemental Statement of the Case.  Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.      

The Veteran has the right to submit additional evidence and argument on the matters 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 2014).




______________________________________________
Cynthia M. Bruce
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs