Citation Nr: 1813613 Decision Date: 03/07/18 Archive Date: 03/14/18 DOCKET NO. 14-09 877 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for service-connected status post laryngoplasty with residual left vocal cord paralysis. 2. Entitlement to an initial compensable rating for service-connected status post left lung sarcomatoid carcinoma removal with upper lobe resection residual scar prior to June 10, 2016. 3. Entitlement to an initial compensable rating for service-connected hypertension. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.L. Reid, Associate Counsel INTRODUCTION The Veteran had various periods of active service in the United States Navy and Army from June 1984 through June 2011. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. Jurisdiction has since been transferred to the Montgomery, Alabama RO (hereinafter, Agency of Original Jurisdiction (AOJ)). The AOJ granted service connection for status post laryngoplasty with residual left vocal cord paralysis (vocal cord disability), status post left lung sarcomatoid carcinoma removal with upper lobe resection residual scar (scar), and hypertension, effective June 16, 2011. In subsequent rating decisions, the Veteran's vocal cord disability was increased to 10 percent disabling, effective June 16, 2011. The Veteran presented testimony before the undersigned Veterans Law Judge (VLJ) at a December 2017 hearing. A transcript of that hearing is of record. At the hearing, the Board took jurisdiction of the issue of entitlement to a TDIU, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue of entitlement to an increased rating for a scar is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. The appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's vocal cord disability more nearly approximated hoarseness, vocal weakness, and the constant inability to speak above a whisper, reflective of the higher 60 percent rating. 2. The Veteran's medically controlled hypertension is not reflective of a history of diastolic blood pressure predominately 100 or more, or systolic pressure predominantly 160 or more. 3. The Veteran's service-connected disabilities preclude him from maintaining substantially gainful employment, beginning August 31, 2017. CONCLUSIONS OF LAW 1. Entitlement to a rating in excess of 60 percent for service-connected vocal cord paralysis is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.97, Diagnostic Code (DC) 6519 (2017). 2. The criteria for a compensable rating for hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.104, DC 7101. 3. Entitlement to a TDIU is granted, effective August 31, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. In this regard, the Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Duties to Notify and Assist The Board initially notes that VA has procedural requirements pursuant to The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096(Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). A review of the record does not disclose that the Veteran and his representative have specifically raised any procedural issues to the AOJ or the Board, even when construing the Veteran's contentions liberally. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (Board required to address only those procedural arguments specifically raised by the Veteran, though at the same time giving the Veteran's pleadings a liberal construction). Increased Rating Claims 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). I. Vocal Cord Disability The Veteran contends that his service-connected vocal cord disability warrants a disability rating higher than 10 percent for the entire appeal period. In this regard, the Veteran's lung cancer residuals of the larynx, particularly his vocal cord disability is presently rated under 38 C.F.R. § 4.97, DC 6516. Pursuant to DC 6518, following a partial laryngectomy, the residuals are to be rated under DC 6516 (laryngitis), DC 6519 (aphonia), or DC 6520 (stenosis of the larynx). 38 C.F.R. § 4.97, Diagnostic Code 6518. Under DC 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 changes on biopsy. 38 C.F.R. § 4.97, DC 6516. Under DC 6519, a 60 percent rating is warranted for the constant inability to speak above a whisper, and a 100 percent rating is warranted for the constant inability to communicate by speech. Under DC 6520, stenosis of larynx, including residuals of laryngeal trauma (unilateral or bilateral), a 100 percent evaluation is warranted if the evidence establishes that there is forced expiratory volume in 1 second (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. A 60 percent evaluation is warranted if the evidence establishes that there is FEV-1 of 40 to 55 percent predicted, with Flow-Volume Loop compatible with upper airway obstruction. A 30 percent evaluation is warranted if the evidence establishes that there is FEV-1 of 56 to 70 percent predicted, with Flow-Volume Loop compatible with upper airway obstruction. A 10 percent evaluation is warranted if the evidence establishes that there is FEV-1 of 71 to 80 percent predicted, with Flow-Volume Loop compatible with upper airway obstruction. For background purposes, the Board notes that the Veteran was medically boarded out of service partially due to his vocal cord disability. Specifically, the physical evaluation board report described the Veteran's disability as chronic weak voice and chronic hoarseness, as well as an inability to speak above a whisper. In connection with his service connection claim, the Veteran underwent examination in May 2011. The examiner noted that the Veteran's left vocal cord was paralyzed in the paramedian position. Despite this, the Veteran's voice was noted to have gotten better subsequent to injection thyroplaty by an otolaryngologist, with occasional instances of dysphonia, vocal fatigue, and breathing difficulties. In September 2012, the Veteran reported that his voice was hoarser ever since his last treatment and described his major symptoms as hoarseness and air escape. In a September 2012 letter, the Veteran's private physician noted that his vocal cord disability was a permanent injury. On examination in June 2016, the Veteran was noted to have symptoms of daily constant hoarseness, fatigue, cough, and issues while eating, potentially leading to choking. The examiner noted that the Veteran had tumors or neoplasms, specifying that his neoplasm is malignant, though his treatment had ceased. To this end, the examiner noted that the Veteran was currently in waiting status. Lastly, the examiner denied the occurrence of inflammation of the vocal cords, mucous membrane, thickening, nodules, submucous infiltration of vocal cords, and vocal cord polyps. At his December 2017 hearing, the Veteran reported difficulty communicating as his voice swells up after using it for as little as half of the day. Specifically, he referenced difficulties within the workplace and at restaurants, and noted that he experiences total vocal paralysis up to fifteen times per month while employed. The Veteran's testimony regarding the manifestation and severity of the symptoms associated with his readily observable disability are competent and credible evidence. Moreover, the Board observes that an appropriate consideration in this case involves the impression of the Veteran's demeanor by the undersigned at his December 2017 hearing. See Arneson v. Shineki, 24 Vet. App. 379 (2011) citing Leatherbury v. Dep't of Army, 524 F.3d 1293, 1304 (Fed. Cir. 2008) ("This requirement to defer to the [administrative judge's] credibility findings spring[s] from a fundamental notion of fairness ... [that] great deference must be granted to the trier of fact who has had the opportunity to observe the demeanor of the witnesses, whereas the reviewing body looks only at cold records.") To this end, the undersigned noticed that he could hear the breath of the Veteran entering and exiting his body, affirming his contention of experiencing air escape. The Board finds that based on observations at the Veteran's Board hearing and persuasive evidence of the Veteran's medical board proceedings, just prior to the effective date of the Veteran's claim, coupled with lay testimony of his intermittent inability to speak, his disability more nearly approximates the criteria of the aphonia Diagnostic Code. Specifically, the Veteran's chronic vocal weakness and an inability to speak above a whisper with air escape, during the periods when he is able to speak at all, are reflective of the 60 percent criteria under DC 6518. As such, the Board finds that the Veteran's a 60 percent rating is warranted for the Veteran's vocal cord disability, effective June 16, 2011. 38 C.F.R. § 4.97, DC 6519. However, the criteria for the next higher 100 percent rating is not warranted as the Veteran is capable of communicating by speech for significant periods of time and his testimony establishes that he does not manifest constant inability to communicate by speech. There is no further doubt to be resolved in the Veteran's favor. 38 U.S.C. § 5107(b). II. Hypertension The Veteran's service-connected hypertension is rated as noncompensable from June 16, 2011, under DC 7101. 38 C.F.R. § 4.104, DC 7101 (2017). Pursuant to DC 7101, a 10 percent disability rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominately 100 or more who requires continuous medication for control. A 20 percent disability rating is warranted for diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. A 40 percent disability rating is warranted for diastolic pressure predominantly 120 or more warrants a 40 percent rating. A maximum schedular 60 percent disability rating is warranted for diastolic pressure predominantly 130 or more. Id. Turning to the relevant medical records within the appeal period, the Veteran was diagnosed with essential hypertension immediately after service, while on examination for other disabilities. To this end, the Veteran's blood pressure readings were 130/89, 130/82, 122/88, and on the second day his readings were 130/90, 128/94, and 132/88. The record indicates that the Veteran's blood pressure was checked periodically when he sought medical treatment for all his service-connected conditions. Accordingly, the Veteran's blood pressure was 143/88 in June 2011, 100/59 in April 2012, 105/71 in September 2012, 120/77 in April 2015, and 124/81 in August 2016. More particularly, at the June 2016 VA examination, the Veteran was noted to be on Lisinopril 5mg, to treat his hypertension. On physical examination, the Veteran's blood pressure readings were as follows, 142/96, 138/88, and 136/92. As such, the examiner noted that the Veteran does not have a history of diastolic blood pressure of 100 or more, or systolic pressure predominantly 160 or more. The Veteran testified at his December 2017 hearing to seeing his doctor for hypertension treatment every three to six months, who prescribed medication to be taken twice per day. The Veteran reported side effects of the medication including dizziness, feeling slow and angering easily. However, he notes that the dizziness may be the result of his loss of oxygen from his other service-connected disability. He does not report at any time during the appeal a history of diastolic blood pressure of 100 or more, or systolic pressure predominantly 160 or more. Notably, the Board acknowledges that the Veteran's blood pressure would likely be elevated without medication; however the effect of medication is a factor to be considered when rating hypertension. Jones v. Shinseki, 26 Vet. App. 56, 62 (2012). Consequently, entitlement to a compensable rating for service-connected hypertension is not warranted. 38 C.F.R. § 4.104, DC 7101. III. TDIU The Veteran asserts that his service-connected disabilities, particularly his vocal cord disability prevent him from securing and maintaining substantially gainful employment. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided, that if there is only one such disability, this disability shall be ratable as 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age, or to the impairment caused by non-service-connected disabilities. Id. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Additional considerations are noting that for a TDIU, marginal employment is not to be considered substantially gainful employment. 38 C.F.R. § 4.17. The Board took jurisdiction of the issue of entitlement to a TDIU at the December 2017 hearing, pursuant to Rice v. Shinseki, which noted that a TDIU claim cannot be considered separate and apart from an increased rating claim, but rather as part of a claim for benefits for the underlying disability. Rice, 22 Vet. App. 447 (2009). As the record stands now, the Veteran is service connected for sixteen disabilities. The Veteran's combined evaluation prior to this adjudication is 60 percent from June 16, 2011, 70 percent from June 10, 2016, and 90 percent from October 5, 2017. Per 38 C.F.R. § 4.16, if the Veteran has more than one service-connected disability, he would need to possess at least one disability ratable at 40 percent or more, and additional disabilities which bring his combined total to 70 percent or more to meet the schedular criteria for a TDIU. At present, the Veteran's combined 70 percent, and 90 percent evaluations beginning June 10, 2016, meets the schedular criteria for consideration of a TDIU on the merits. 38 C.F.R. § 4.16(a). The Veteran's January 2018 VA Form 21-4192, indicated that the Veteran last worked in August 2017, as an assistant general manager, working fifty hours per week. As such, the Board will consider entitlement to a TDIU, effective August 31, 2017. The Veteran reported at his December 2017 hearing that his vocal cord disability resulted in total vocal paralysis up to fifteen times per month, when he was working making it nearly impossible to communicate in any previous workplace. Additionally, he recalled his vocal cords swelling up to a degree where he had to cease all speaking, after communicating as little as a half of a day. Additionally, as the VLJ pointed out at the Veteran's hearing, he witnessed the Veteran's air escape, which he contends makes him dizzy, coupled with the side effects of the Veteran's hypertension medication, including dizziness, feeling extremely slow, and being quick to anger; the Board finds this mix of service-connected symptomatology is likely to preclude the Veteran from maintaining substantially gainful employment, particularly in his trained field as an aircraft electrician. To this end, while not binding, but informative to adjudicating the claim, the Veteran medically retired from the military, and his March 2011 medical board proceedings report indicated that the Veteran's vocal cord disability manifested by chronic weak voice and chronic hoarseness, as well as the inability to speak above a whisper, causing the incapacity to effectively communicate in any loud environment. To the contrary, the Social Security Administration (SSA) determined that the Veteran was disabled due to his lung cancer and was granted benefits while undergoing chemotherapy. However, SSA noted that as of July 2016, the Veteran was no longer deemed disabled per their criteria, as his additional disabilities of chronic obstructive pulmonary disease (COPD), vocal cord, and back disabilities would not preclude him from working his past employment positions based on the evidence provided to them. The Board disagrees. Considering the Veteran's November 2017 VA examination for his peripheral nerves where the examiner noted that the Veteran is physically unable to lift tires, bend, or squat, which are typically job related duties as an aircraft electrician. Additionally, at his December 2017 hearing, the Veteran testified that while he began teaching aviation, he is unable to lift, be around chemicals due to breathing difficulties, and even stand for prolonged periods of time, coupled with his total vocal paralysis up to fifteen times per month, the Board finds that the Veteran is likely unable to maintain substantially gainful employment, mostly due to his inability to effectively communicate caused by the unique challenges of his vocal cord disability. Accordingly, as the Veteran is eligible for TDIU on a schedular basis as of June 10, 2016, but continued working until August 30, 2017, entitlement to a TDIU is granted, effective August 31, 2017. 38 C.F.R. § 4.16. ORDER Entitlement to a rating in excess of 60 for service-connected vocal cord paralysis is granted. Entitlement to an initial compensable rating for service-connected hypertension is denied. Entitlement to a TDIU is granted. REMAND Although the Board regrets the additional delay, remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). Regarding the Veteran's claim for an increased rating for his scar associated with the upper lobe resection residual obstructive lung disease, the claim must be remanded to the AOJ. The Board notes that as of the November 2017 rating decision code sheet the Veteran is granted service connection for two scars, namely painful scar, anterior trunk due to upper lobe resection rated as noncompensable, effective June 16, 2011, and 10 percent disabling effective June 10, 2016; and status post medi port placement residual scar rated as noncompensable effective June 16, 2011. The Veteran expressed interest in seeking entitlement to an earlier effective date for his scar. As the Board acknowledges that the Veteran has multiple scars, the Board defers consideration of this issue in accordance with the Rating Schedule which incorporates the number of scars as pertinent information to rating the Veteran's scars. Moreover, as the issue of entitlement to an earlier effective date has not been appealed to the AOJ, the claim shall be remanded to allow the opportunity to appeal the effective date of award assigned. Accordingly, the case is REMANDED for the following action: 1. Advise the Veteran of his right to appeal the claim for entitlement to an effective date earlier than June 10, 2016 for the award of service connection for painful scar of the anterior trunk associated with the upper lobe resection residual obstructive lung disease. 2. Upon completion of the above and expiration of the appeal period for the claim of the claim for entitlement to an effective date earlier than June 10, 2016 for the award of service connection for painful scar of the anterior trunk associated with the upper lobe resection residual obstructive lung disease, and any additional development deemed appropriate, the AOJ should readjudicate the remanded issue. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response, the appeal must be returned to the Board for appellate review. 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 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. §§ 5109B, 7112 (2012). ______________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs