Citation Nr: 18146126 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 15-27 196A DATE: October 30, 2018 ORDER Entitlement to a 60 percent rating for service-connected dysphonia prior to January 12, 2015 is granted. FINDING OF FACT The competent evidence of record demonstrates that the Veteran displayed a constant inability to speak above a whisper throughout the entire appeal period. CONCLUSION OF LAW The criteria for entitlement to a 60 percent rating for service-connected dysphonia have been met for the entire appeal period. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.97, Diagnostic Codes 6516, 6518, 6519 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service in the U.S. Navy from July 1969 to January 1973. The agency of original jurisdiction (AOJ) granted entitlement to service connection for dysphonia as a residual of the Veteran’s laryngeal squamous cell carcinoma of the left true vocal fold (glottis) and status post (s/p) laryngectomy and assigned a 30 percent rating effective January 31, 2013. A subsequent AOJ rating decision awarded a 60 percent rating effective January 12, 2015. On October 15, 2018, the Veteran and his representative appeared before the undersigned at a Travel Board hearing conducted in Boston, Massachusetts. The hearing transcript will reflect that the Veteran and his representative clearly expressed that the appeal would be satisfied with the assignment of a 60 percent rating for the entire appeal period. The Board has reviewed the record and finds that the criteria for a 60 percent rating have been met for the entire appeal period. As such, may adjudicate this claim under the One Touch Program which allows for adjudication prior to the preparation of a hearing transcript (which will eventually be associated with the claims folder) when the benefit sought on appeal can be granted in full. 1. Entitlement to a rating in excess of 30 percent for service-connected dysphonia prior to January 12, 2015 The Veteran contends that his service-connected dysphonia is more disabling than currently evaluated. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id.; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49(1990). The Veteran’s vocal disability is initially rated under Diagnostic Code (DC) 7343-6516, and is presently rated under DC 6519. Pursuant to DC 6518, following a partial laryngectomy, the residuals are to be rated under Diagnostic Code 6516 (laryngitis), DC 6519 (aphonia), or DC (stenosis of the larynx). 38 C.F.R. § 4.97, DC 6518. After reviewing the evidence of record, the Board finds that the Veteran’s disability picture more nearly approximates the criteria of a 60 percent under DC 6519 for the entire appeal period. Specifically, the Veteran himself stated that there was no distinguishable change in his ability to speak above a whisper since his operation in September 2010, and the medical evidence of record confirms that he suffered an immobile left vocal fold since then per a medical evaluation from that same month. The Veteran underwent VA examination in August 2014 which noted his medical history of dysphonia, leading eventually to laryngoscopy showing a fixed left true cord. The Veteran exhibited soreness, and was referred for speech therapy. October 2014 private records note that due to treatment, the Veteran experienced significant and permanent voice loss. The physician further described the Veteran’s condition as “significant dysphonia” and despite undergoing voice therapy the Veteran had a base line deficit of pliable vocal cord tissue and therefore at a disability given his voice status. March 2015 private records note that the Veteran had considerable laryngeal irritation and inflammation due to prior radiating effects, which results in the Veteran resorting to aphonic whisper for much of his communication. Subsequently on the Veteran’s August 2015 substantive appeal, he reiterates that his voice has remained the same way since his operation. The November 2015 VA examination report revealed that the Veteran could barely speak due to aphonia from vocal cord damage caused by his completed surgery and radiation in 2010. The Veteran’s voice was described as a hoarse whisper. Upon providing a medical opinion, the examiner added that the Veteran’s voice does not rise above a whisper due to the hoarseness and distortion. The undersigned also had an opportunity to witness the Veteran speaking at the October 2018 hearing and finds that the private examination reports accurately describe the Veteran’s aphonic whisper for communication. Additionally, his testimony of no appreciable change in his aphonic whisper since 2010 is consistent with the medical evidence and finds that the only variance in the evidence is the subjective descriptions of the VA examiners. Thus, the Board finds that a 60 percent rating for service-connected dysphonia is warranted for the entire appeal period. In finding so, the Board notes that the evidence of record is void of any significant shift in the Veteran’s disability prompting the AOJs assignment of a staged rating of 60 percent beginning January 12, 2015. As there is no significant worsening of the Veteran’s condition beginning in 2015, rather evidence reveals a consistent inability to speak above a whisper. Thus, entitlement to a 60 percent rating for dysphonia is granted. 38 C.F.R. § 4.97, DC 6519. Lastly, as discussed above, the Veteran limited his appeal to a 60 percent schedular rating for the entire appeal period. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.L. Reid, Associate Counsel