Citation Nr: 1818337 Decision Date: 03/27/18 Archive Date: 04/04/18 DOCKET NO. 14-19 886A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether the reduction from 100 percent to 10 percent for squamous cell carcinoma to the left acute vocal cord was proper. 2. Entitlement to a total disability rating based on individual umemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Slovick, Counsel INTRODUCTION The Veteran served on active duty from August 31, 1965 to February 28, 1969, from December 8, 1969 to November 7, 1975 and from January 19, 1977 to May 31, 1988. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milawaukee, Wisconsin. The Veteran testified before the Board at a March 2017 travel Board hearing. A transcript of that hearing is of record. The issue of entitlement to an increased rating for entitlement to an increased rating for residuals of squamous cell carcinoma to the left acute vocal cord was raised at the Veteran's March 2017 hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2017). The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. A rating decision dated in August 2013 reduced the 100 percent disability rating assigned for squamous cell carcinoma to the left acute vocal cord, effective December 1, 2013 to a noncompensable rating. Thereafter, a 10 percent rating was assigned for that disability with the same effective date. 2. At the time of the reduction, a 100 percent rating for the Veteran's squamous cell carcinoma to the left acute vocal cord had been in effect since June 5, 2009, less than five years. 3. At the time of the reduction, the Veteran's squamous cell carcinoma to the left acute vocal cord was in remission with residual hoarseness. CONCLUSION OF LAW The criteria for restoration of a 100 percent disability rating for squamous cell carcinoma to the left acute vocal cord have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.105(e), 3.344, 38 C.F.R. § 4.97, Diagnostic Code 6819 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C. § 5103 (a) (2012); 38 C.F.R. § 3.159 (b) (2017). There are specific procedural requirements applicable to rating reductions. If a reduction in the evaluation is considered warranted and the lower evaluation would result in a reduction or discontinuance of the compensation payments currently being made, the RO must issue a rating proposing the reduction and setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). A period of 60 days is allowed for response. Id. The RO must notify the beneficiary that he or she will be given 60 days to present evidence to show that compensation payments should be continued at the present level. Id. Additionally, the beneficiary must be notified as to the right to a predetermination hearing. 38 C.F.R. § 3.105 (i). Furthermore, 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 beneficiary of the final rating action expires. 38 C.F.R. § 3.105 (e), (i). The RO sent the Veteran a notice letter in June 2013. This correspondence informed him of the proposal to reduce the rating assigned for squamous cell carcinoma of the left vocal cord from 100 percent to noncompensable. The RO attached a copy of the May 2013 rating decision that made the proposal. The Veteran was provided with detailed reasons for the proposed reduction and the type of information or evidence he could submit in response. He was informed of his right to a personal hearing on this matter. This letter also informed the Veteran that if no additional evidence was received within 60 days, the rating would be reduced effective on the first day of the third month following notice of the final decision. The Board finds that VA has complied with the notice procedures of 38 C.F.R. § 3.105 (e). With respect to VA's duty to assist, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed. The Board has reviewed such the Veteran's statements and concludes that no available outstanding evidence has been identified. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. II. Reduction The Veteran argues that the reduction from 100 percent for squamous cell carcinoma to the left acute vocal cord, was not proper. The Veteran's squamous cell carcinoma to the left acute vocal cord is rated under the provisions of 38 C.F.R. § 4.97, Diagnostic Code 6819. Under Diagnostic Code 6819, a 100 percent evaluation shall be assigned for malignant neoplasms of any part of the respiratory system. 38 C.F.R. § 4.97. A note to Diagnostic Code 6819 provides that the 100 percent evaluation shall continue beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105 (e). If there has been no local recurrence or metastasis, the disability is rated based on the residuals. 38 C.F.R. § 4.97, Diagnostic Code 6819. Based on a thorough review of the record, and for the reasons detailed below, the Board concludes that the reduction in the assigned disability rating for the Veteran's squamous cell carcinoma to the left acute vocal cord from 100 percent to 10 percent, effective December 1, 2013, was done in a procedurally correct manner, and that the evidence does not demonstrate that a continuation of the 100 percent rating is appropriate. An August 2009 rating decision granted service connection for squamous cell carcinoma to the left acute vocal cord, evaluated as 100 percent disabling, effective June 5, 2009. The 100 percent rating was reduced, by a rating decision in August 2013, effective December 1, 2013. Hence, the 100 percent rating was in effect for less than five years. Therefore, the provisions of 38 C.F.R. § 3.344 (a) and (b) do not apply, and a single reexamination disclosing improvement in the disability is sufficient to warrant reduction in a rating. 38 C.F.R. § 3.344 (c). The evidence shows that the Veteran was diagnosed as having squamous cell carcinoma to the left acute vocal cord in March 2009 and was treated with radiation treatment from April 2009 to May 2009 and re-excision of leukoplakia and voice therapy occurred thereafter. Biopsies following completion of radiation were unremarkable. A February 2013 VA examination demonstrates that the Veteran was found to increased hoarseness of the voice. The Veteran reported repetitive issues with voice clarity, hoarseness and increased breath effort to activate the vocal cords. The examiner found that the Veteran's condition did not affect his lungs. A May 2013 VA examination included the Veteran's report that he had a benign growth in January 2013 and now had incomplete closure of the true vocal cords. The Veteran stated that he had to work harder to speak. It was noted that the Veteran had competed radiation treatment in 2009 and his current symptoms were chronic hoarseness and voice fatigue with prolonged speaking. It was noted that the Veteran's treatment had completed and that he was in the watchful waiting status. August 2014 reports from the Mayo Clinic demonstrate that the Veteran had radiation completed in May 2009 status post re-excision of leukoplakia on May 2014 with poor wound healing and continued hoarseness. The Veteran's voice was reported as about 25 percent of normal. At his March 2017 Board hearing, the Veteran testified that as far as he was aware he did not have active cancer. The Veteran stated that his voice became too unstable to work following his treatment. In light of the evidence, including the VA opinions demonstrating that the Veteran's squamous cell carcinoma to the left acute vocal cord is in remission and treatment ended in 2012, the Board finds that the preponderance of the evidence establishes that the reduction from the previously assigned 100 percent rating was warranted. See Brown v. Brown, 5 Vet. App. 413, 420 (1993); Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). The medical evidence of record shows that the Veteran does have hoarseness as a residual from treatment of squamous cell carcinoma to the left acute vocal cord. For these residuals, a disability rating of 10 percent for squamous cell carcinoma to the left acute vocal cord which was assigned effective December 1, 2013, by the May 2014 rating decision. Initially, the Board finds that the RO complied with the procedural requirements of 38 C.F.R. § 3.105. In this regard, the RO provided the Veteran with a letter in June 2013 notifying him of the proposed reduction in the corresponding rating decision, his right to present additional evidence within 60 days, and his right to request a hearing. The August 2013 rating decision that implemented the reduction was not issued until the appropriate time period had elapsed, and the effective date of the discontinuance was in accordance with applicable criteria. Thus, the Board finds that the requirements of 38 C.F.R. § 3.105 (e) were met. Furthermore, the Veteran underwent a VA examination to assess the current nature and severity of his condition more than six months after discontinuance of his treatment, as required by 38 C.F.R. § 4.117 Diagnostic Code 6819. As discussed above, the VA and private medical evidence of record shows that the Veteran completed his treatment. In addition, the February 2013 and May 2013 VA examinations found no recurrence or metastasis of cancer. Moreover, the private medical evidence of record does not suggest any recurrence or metastasis at that time, and the Veteran has not contended otherwise. As such, in the absence of recurrence or metastases, the 100 percent evaluation ceased by operation of law. Based on the foregoing, the Board finds that the 100 percent evaluation under Diagnostic Code 6819 was properly reduced. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The discontinuance of the 100 percent evaluation for squamous cell carcinoma to the left acute vocal cord was proper. REMAND The Veteran contends that he is unable to maintain employment following treatment for his squamous cell carcinoma due to the fact that he is often hoarse. At his March 2017 Board hearing, the Veteran explained that he was employed as an air traffic controller for forty years but that he was unable to pass the requisite tests following his cancer treatment. The Veteran's employment information, however, is currently unavailable. On remand, the Veteran should be asked to complete an updated TDIU application (VA Form 21-8940) clearly identifying periods of unemployability due to service-connected disabilities, and the AOJ should, as necessary, solicit employment information from the employers identified. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran complete and return VA Form 21-8940 (an official TDIU application), providing his employment history with salary information, average hours worked, etc., and clearly identify periods of unemployability due to his service-connected disabilities throughout the entire period on appeal. 2. After completing the above and any other development deemed necessary by the AOJ, readjudicate the issue remaining on appeal in light of any additional evidence added to the record, including, if appropriate, referral of the claim for extraschedular consideration. If the claim remains denied, send the Veteran and his representative a Supplemental Statement of the Case (SSOC), and give them time to respond to it before returning the file to the Board for further appellate consideration of this claim. The appellant 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. §§ 5109B, 7112 (2012). ______________________________________________ M.H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs