Citation Nr: 20060702 Decision Date: 09/15/20 Archive Date: 09/15/20 DOCKET NO. 15-45 125 DATE: September 15, 2020 ORDER Entitlement to a rating in excess of 10 percent for laryngeal carcinoma with hoarseness/dysphasia is denied. Entitlement to a total rating based on individual unemployability due to service-connected disorders (TDIU) is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s laryngeal cancer with hoarseness/dysphasia has been manifested by vertigo, nose bleeds, hoarseness, dysphagia and neck stiffness but without anatomical changes such as thickening or nodules of cords, polyps, submucous infiltration or pre-malignant changes. 2. The preponderance of the evidence indicates that the Veteran’s service-connected disabilities do not preclude him from obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for laryngeal carcinoma with hoarseness/dysphasia have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.97, Diagnostic Codes (DCs) 6519-6516 (2019). 2. The criteria for entitlement to TDIU are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 4.16, 4.19 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to May 1969. In February 2019, the procedural history as to this case was provided. At that time, the claims were remanded for additional evidentiary development. As reported in the Board’s remand and repeated here for clarity, a May 2017 VA examiner opined that the Veteran’s laryngeal carcinoma did not impact his ability to work. It was noted that he could do yoga, walk about 30-60 minutes, shoot basketball and mow the lawn if he went slow and took breaks. The record showed that the Veteran had consistently reported he was unable to work due to symptoms of neck pain/stiffness, difficulty swallowing, throat cramping, frequent nose bleeds, intermittent vocal cord spasms (causing interruptions of speech and affecting quality of voice), occasional vertigo/ dizziness, sleep disturbance, and functional impairment, to include difficulty driving. See statements dated November 2012 and December 2012; VA treatment records dated January 2013, February 2013, May 2013, September 2013, June 2014, February 2015; VA examination reports dated May 2013 and May 2017. As noted by the Board, it appeared that the May 2017 VA examiner did not consider all of the reported symptoms and their impact on the Veteran’s ability to work. Moreover, the May 2013 VA examiner opined that the Veteran’s disability did impact his ability to work. As such, additional development was warranted, to include the obtainment of a contemporaneous VA examination to assess the current severity of the Veteran’s laryngeal carcinoma. Also, the examiner was to discuss the impact that the condition and associated symptoms, to include dizziness, vertigo, nose bleeds, voice loss, hoarseness, difficulty swallowing, neck pain/stiffness, sleep disturbance, difficulty driving, had on his ability to work. The requested development was accomplished as summarized below, and the issues have now been returned to the Board for further appellate consideration. Increased Ratings – In General Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2019). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. § 4.1, 4.2 (2019); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2019). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2019). In Hart v. Mansfield, 21 Vet. App. 505, (2007), the United States Court of Appeals for Veterans Claims (Court) recognized entitlement to staged ratings to claims for increased disability ratings where “the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.” The Board has reviewed all the evidence in the Veteran’s claim file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, 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 claim. Entitlement to a Rating in Excess of 10 Percent for Laryngeal Carcinoma with Hoarseness/Dysphasia. By way of background, a September 2009 rating decision awarded service connection for laryngeal carcinoma associated with herbicide exposure and assigned a 100 percent rating pursuant to DC 6819, effective July 13, 2009. Thereafter, following a March 2010 VA examination, a rating decision that same month proposed a reduction to 10 percent which was promulgated in a July 2010 rating decision. Thus, the 100 percent rating for laryngeal carcinoma (now classified to include hoarseness/dysphasia) was decreased to 10 percent pursuant to DCs 6819-6516, effective November 1, 2010. See 38 C.F.R. § 4.27 (2019). The current appeal period before the Board begins on October 29, 2011, one-year prior October 29, 2012, the date VA received his claim for an increased rating. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Veteran contends that he is entitled to a rating in excess of 10 percent for laryngeal cancer with hoarseness/dysphasia. The record reflects that in June 2009, he was found to have vocal cord squamous cell carcinoma, and he started radiation therapy. In March 2010, he underwent a fiberoptic laryngoscopy, and was subsequently found to be free of disease. Post-procedure, the Veteran complained of hoarseness and dysphasia. The Veteran’s disability has been rated under DC 6819-6516. DC 6819 governs malignant neoplasms of any specified part of the respiratory system. Under DC 6819, a rating of 100 percent continues beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. Six months after the discontinuance of such treatment, the appropriate disability rating is determined by mandatory VA examination. If there has been no local recurrence or metastases, the rating is based on residuals. 38 C.F.R. § 4.97, DC 6819 (2019). 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, DC 6518 (2019). Pursuant to DC 6516, a 10 percent disability rating is warranted for chronic laryngitis manifested by hoarseness with inflammation of cords or mucous membrane. 38 C.F.R. § 4.97, DC 6516 (2019). A maximum 30 percent rating is warranted for chronic laryngitis with hoarseness, with thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy. Id. Upon in-person examination by VA in early October 2019, it was noted that the claims file was also reviewed. It was noted that his laryngeal carcinoma was in remission, but he continued to have residual pain (muscle cramps) in his neck. He also experienced hoarseness and had difficulty swallowing. He complained of dizziness, vertigo, nose bleeds, neck stiffness, sleep disturbance, and difficulty driving. The examiner noted that the Veteran had completed treatment for his laryngeal cancer, but on examination, he reported the symptoms as listed above. The examiner found no other pertinent physical findings, complications, conditions, signs or symptoms related to the laryngeal cancer. Additional VA treatment records reflect that later in the month of October 2019, the Veteran was again seen at VA for continued follow-up care. He was “doing well,” and endorsed longstanding dysphagia post radiation. There was no new odynophagia, otalgia, weight loss, dyspnea, or changes in voice. Based on the preponderance of the evidence of record, the Board concludes that a rating in excess of 10 percent for the residuals of his laryngeal cancer is not warranted. As noted above, he continues to experience persistent hoarseness, dysphagia, neck pain, difficulty swallowing, (and other symptoms as summarized above). However, the evidence does not show the anatomical changes required for a 30 percent rating. There is no indication in the records of thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy. Because the anatomical changes required for a 30 percent evaluation are not evident in the Veteran’s medical records, a 30 percent rating is not warranted. The Board has considered whether a higher rating may be available under any other diagnostic codes but concludes that they are not warranted. 38 C.F.R. § 4.97, DC 6519 provides 60 percent and 100 percent ratings for aphonia, the loss of voice or mutism. Dorland’s Illustrated Medical Dictionary 115 (32nd ed. 2012). DC 6519 directs that complete aphonia is to be rated as either the constant inability to speak above a whisper, which warrants a 60 percent evaluation, or the constant inability to communicate by speech, which warrants a 100 percent evaluation. Symptoms less than that contemplated by the 60 percent criteria are to be rated under DC 6516, which has already been discussed. In light of the foregoing, the Board concludes that the preponderance of the evidence shows that the Veteran’s residuals of laryngeal cancer most closely approximate a 10 percent rating. Entitlement to a TDIU. As already reported, the claim for a TDIU was remanded in 2019 for a VA examination with opinion as to whether the Veteran’s service-connected disabilities precluded his gainful employment. TDIU – In General In order to establish entitlement to TDIU due to service-connected disability(ies), there must be impairment so severe that an average person is unable to secure and follow a substantially gainful occupation. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2019). 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). 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 nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2019); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The regulatory scheme for TDIU provides both objective and subjective criteria. Hatlestad, supra; VAOPGCPREC 75-91 (Dec. 27, 1991), 57 Fed. Reg. 2317 (1992). The objective criteria provide for a total rating when there is a single disability or a combination of disabilities that result in a 100 percent schedular evaluation. Subjective criteria provide for a TDIU when, due to service-connected disability, a Veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2019). In exceptional circumstances, where the Veteran does not meet the percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b) (2019). It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b) (2019). Rating boards are required to submit to the Director, Compensation and Pension (C&P) Service, for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a) (2019). Id. The Court has clarified that, where a claimant does not meet the schedular requirements of 4.16(a), the Board has no authority to assign a TDIU rating under 4.16(b) and may only refer the claim to the C&P Director for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). Pertinent to the appeal period, the Veteran has had a combined 70 percent disability evaluation rating from November 1, 2010. Specifically, service connection has been in effect for mood disorder, rated as 30 percent disabling; shell fragment wound (SFW), muscle Group (MG) XI, posterior and lateral crural muscles, with mild neuropathy, left lower leg, rated as 20 percent disabling; SFW, MG XIII and XVII, posterior thigh and buttocks, left, rated as 10 percent, disabling; SFW, left forearm, with neuropathy, left ulnar nerve, mild, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; radiation dermatitis, anterior cervical region, rated as 10 percent disabling; laryngeal carcinoma, with hoarseness/dysphasia, rated as 10 percent disabling; and multiple SFW scars, rated as noncompensable. In effect, the criteria for consideration of a schedular TDIU are met for the period from November 1, 2010. 38 C.F.R. § 4.16(a) (2019). After a careful review of the Veteran’s competent evidence of record, the Board finds the preponderance of the evidence shows that the Veteran’s service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation. As noted, the Veteran has consistently reported that he is unable to work due to symptoms of neck pain,/stiffness, difficulty swallowing, throat cramping, frequent nose bleeds, intermittent vocal cord spasms (causing interruptions of speech and affecting quality of voice), occasional vertigo/ dizziness, sleep disturbance, and functional impairment, to include difficulty driving. See 2012, 2013, and 2017 statements. With respect to the Veteran’s education and experience, the record reflects that he has a college education and was a truck driver. As noted upon VA examination in June 2007, he retired in 1999 not due to a physical ailment, but because his mother needed assistance due to health issues. In February 2019, the remand directives included request for a VA examiner to discuss the impact the Veteran’s laryngeal carcinoma had had on his ability to work. The requested examination was conducted in October 2019, and there is a May 2020 addendum provided by another VA examiner. The 2019 examiner opined that the Veteran was able to perform light work. The 2020 examiner, who reviewed the claims file, opined that the Veteran’s laryngeal cancer would have no functional impairment in a sedentary work setting. Although he reported dizziness when standing, this symptom was found to be vascular in nature and unrelated to his service-connected disorder. Moreover, other symptoms (difficulties with swallowing, neck pain and stiffness sleep problems, dizziness) were reported subjectively, but were not noted in clinical records as chronic residuals. The Veteran’s occasional nosebleeds and hoarseness/voice loss were noted to improve with hydration and resulted in no functional impairment in a work setting. The evidence of record shows that the Veteran’s service-connected disorders prevent him from performing manual labor jobs, including his previous job as a truck driver. Nevertheless, the preponderance of the evidence reflects that the Veteran’s service-connected laryngeal cancer is in remission, and residuals of the condition do not preclude sedentary employment that involves light work. Current manifestations of other service-connected disorders have primarily not been reported in recent years. Still, those conditions and any manifestations resulting, have been considered. For example, his mood disorder in years past, resulted in some signs of depression, but he has never been described as unoriented to time, place, person, or situation. VA report from 2020 continues to list recurrent major depression as an ongoing condition. Moreover, in his medical history, there were signs of mild neuropathy, but significant associated symptoms in recent years have not been reported. He continues to suffer from tinnitus. The Board notes that the Veteran is currently unemployed and that he may have difficulty finding employment. The sole fact that a Veteran is unemployed or has difficulty finding employment is not enough to award TDIU, however, particularly given that his 70 percent combined rating is recognition that the impairment makes it difficult to obtain and keep employment. Nevertheless, given his college education and his continued ability to perform light work in a sedentary position, the Board finds the Veteran is likely capable of performing the physical and mental acts required for some form of employment. Therefore, based on the foregoing, the Board finds the preponderance of the evidence is against a finding that the Veteran’s service-connected disorders prevent him from securing and maintaining substantially gainful employment and, as such, his service-connected disabilities do not render him unemployable. Under these circumstances, the Board finds that the claim for a TDIU must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2019), Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hal Smith, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.