Citation Nr: 21003211 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 15-04 259A DATE: January 19, 2021 ORDER Entitlement to an initial compensable rating prior to April 10, 2018, for service-connected laryngeal cancer is denied. Entitlement to a 100 percent disability rating from April 10, 2018, to January 27, 2019, for service-connected laryngeal cancer is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a 10 percent disability rating from January 28, 2019, to March 7, 2019, for service-connected laryngeal cancer is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT 1. Prior to April 10, 2018, the Veteran’s service-connected laryngeal cancer was not manifested by inflammation of the vocal cords or mucous membrane; thickening or nodules of the cords, polyps, submucous infiltration, or premalignant changes on biopsy; a laryngectomy; aphonia; or a forced expiratory volume in 1 second (FEV-1) 80 percent or less predicted. 2. The recurrence of the Veteran’s service-connected laryngeal cancer was demonstrated by biopsy on April 10, 2018, and he underwent surgery on July 27, 2018. 3. From January 28, 2019, to March 7, 2019, the Veteran’s service-connected laryngeal cancer was manifested by hoarseness with inflammation of the mucous membrane; however, it was not manifested by thickening or nodules of the cords, polyps, submucous infiltration, or premalignant changes on biopsy; a complete laryngectomy; aphonia; or a FEV-1 70 percent or less predicted. CONCLUSION OF LAW 1. Prior to April 10, 2018, the criteria for an initial compensable rating for service-connected laryngeal cancer are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Codes 6516-6520 (2019). 2. From April 10, 2018, to January 27, 2019, the criteria for a 100 percent disability rating for service-connected laryngeal cancer are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6819. 3. From January 28, 2019, to March 7, 2019, the criteria for a 10 percent disability rating, but no higher, for service-connected laryngeal cancer are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6516. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1964 to September 1975. Increased Ratings 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. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In the December 2012 rating decision on appeal, the agency of original jurisdiction (AOJ) granted service connection for the Veteran’s laryngeal cancer and assigned an initial noncompensable disability rating under Diagnostic Code 6819-6520, effective March 29, 2012, the day his claim for service connection was received. 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; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2019). In a November 2018 rating decision, the AOJ assigned a temporary total disability rating to the Veteran’s laryngeal cancer, effective July 27, 2018, under 38 C.F.R. § 4.30 (2019). Thereafter, a noncompensable rating was assigned September 1, 2018. In an October 2020 rating decision, the AOJ awarded an increased disability rating of 100 percent to the Veteran’s service-connected laryngeal cancer from April 10, 2018, to December 31, 2018. The AOJ noted that April 10, 2018, was the date when the Veteran’s laryngeal cancer was shown to have recurred, and that December 31, 2018, represented six months after his surgery. The AOJ also awarded a 100 percent disability from March 8, 2019, to the present under Diagnostic Code 6518-6519. Under Diagnostic Code 6819, a 100 percent disability rating is assigned for malignant neoplasms of any specified part of the respiratory system, including the larynx. See 38 C.F.R. § 4.97. Diagnostic Code 6819 also contains a temporal element for the continuance of a 100 percent rating for respiratory system cancer residuals. In the absence of local reoccurrence or metastases, the 100 percent rating ceases to exist six months after discontinuance of the treatment described in the rating criteria, and the disability is to be rated based on its residuals. See Rossiello v. Principi, 3 Vet. App. 430, 432-33 (1992) (finding that a 100 percent rating for mesothelioma ceased to exist by operation of law because the applicable Diagnostic Code [6819] involved contained a temporal element for that 100 percent rating). Under Diagnostic Code 6516, chronic laryngitis manifested by hoarseness with inflammation of cords or mucous membrane is rated as 10 percent disabling and chronic laryngitis manifested by hoarseness, with thickening or nodules of cords, polyps, submucous infiltration or pre-malignant changes on biopsy is rated as 30 percent disabling. The 30 percent rating is the maximum rating under this Diagnostic Code. 38 C.F.R. § 4.97. Under Diagnostic Code 6518, a total laryngectomy is rated as 100 percent disabling. The residuals of a partial laryngectomy are to be rated as laryngitis (Diagnostic Code 6516), aphonia (Diagnostic Code 6519), or stenosis of the larynx (Diagnostic Code 6520). Under Diagnostic Code 6519, complete organic aphonia with constant inability to speak above a whisper is rated as 60 percent disabling, and the constant inability to communicate by speech warrants a 100 percent rating. Incomplete aphonia is to be evaluated as laryngitis, chronic, under Diagnostic Code 6516. 38 C.F.R. § 4.97. Under Diagnostic Code 6520, a 10 percent rating is warranted where FEV-1 is from 71 to 80 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 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 100 percent evaluation is warranted if the evidence establishes that there is 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. The Veteran’s VA treatment records show that he was diagnosed with squamous cell carcinoma in the right anterior true vocal cord following a May 2011 biopsy. His private treatment records reflect that he completed radiation therapy to treat his diagnosis on August 12, 2011. A May 2012 VA treatment record noted that the Veteran was doing well, and he denied otalgia, dysphonia, dysphagia, odynophagia, or hemoptysis. Upon examination, his mucosa was pink and moist. Similar findings were noted in June 2012 and November 2012. A June 2012 VA treatment record noted that he had no new problems, and that his hoarseness had improved. He denied dysphagia, esophagitis, odynophagia, shortness of breath, or any other changes in overall health. Upon examination, his neck was supple and nontender, and there was no palpable lymphadenopathy. His mucous membranes were moist, with no oral cavity or pharyngeal lesions. In December 2012, the Veteran underwent a VA examination, and the examiner noted his diagnosis of laryngeal cancer, and the Veteran indicated that he was asymptomatic. Upon examination, there was no evidence of inflammation of the vocal cords or mucous membrane, thickening or nodules of the vocal cords, submucous infiltration of the vocal cords, vocal cord polyps, or any other problems. There was no evidence of laryngeal stenosis, including residuals of a laryngeal trauma; complete or incomplete organic aphonia; permanent tracheostomy; or any injury to pharynx. The examiner then noted the Veteran’s vocal cord biopsy in June 2011, as well as his completion of radiation therapy in August 2011. There were no current residuals associated with the Veteran’s cancer or its treatment, and there was no functional impairment. March 2013 and June 2013 VA treatment records note that the Veteran was doing well, and he denied otalgia, dysphonia, dysphagia, odynophagia, or hemoptysis. Upon examination, his mucosa was pink and moist. Flexible laryngoscopies were clear, with no masses or lesions noted. September 2013 and March 2014 VA treatment records noted that the Veteran was doing well, and he denied otalgia, dysphonia, dysphagia, odynophagia, or hemoptysis. The Veteran stated that, overall, he felt great. Upon examination, his mucosa was pink and moist. A June 2018 private treatment record noted that the Veteran had a recurrence of his laryngeal cancer, and that he underwent a direct laryngoscopy and removal of the tumor. A July 2018 letter from the Veteran’s VA treatment provider noted that he had been treating the Veteran since August 2011 after he completed a course of primary radiation. The treatment provider went on to say that the Veteran was disease free until March 2018, when he developed difficulty swallowing pills and was noted to have a new left posterior pharyngeal wall mass which was later revealed to be squamous cell carcinoma of the hypopharynx/posterior pharyngeal wall. This was treatment with a transoral laser microsurgical excision, and neck dissection was scheduled for later that month, and private treatment records confirm that the dissections were performed on July 27, 2018. During his August 2018 hearing before the undersigned Veterans Law Judge, the Veteran stated that he underwent a laryngectomy in June 2018. The Veteran then reported ongoing hoarseness after the surgery and swelling. He reported changes in his voice, shortness of breath, and fatigue. An August 2018 private treatment record noted that the tumor board had recommended a total laryngectomy partial pharyngectomy, bilateral neck dissection, and a free flap reconstruction. An August 2018 private treatment record noted that the Veteran’s FEV-1 was 93 percent predicted. A February 2019 VA treatment record noted that the Veteran had a history of cancer, but that he was doing well and had no complaints. He denied dysphonia and dysphagia. Upon examination, his nasopharynx, oropharynx, and hypopharynx were normal without suspicious masses or lesions. There was full mobility of the bilateral true vocal cords with a small right bruise/hemorrhage. The subglottis was widely apart, and the vallecula was free of lesions. There was no pooling of secretion, and there was a small mucosa irregularity in the left post cricoid area. A March 2019 VA treatment record notes that review of the Veteran’s airway was abnormal due to the presence of hoarseness. Private and VA treatment records reflect that the Veteran underwent a total laryngectomy on June 24, 2019. In December 2019, the Veteran underwent another VA examination, and the examiner noted his diagnosis of laryngeal cancer. The Veteran reported that his laryngeal cancer recurred in 2017 or 2018, and that he underwent laser surgery to treat his problem. He suffered another recurrence in 2019, and he underwent a complete laryngectomy. He stated that his symptoms had worsened, and that he suffered from aphonia, dysphagia, and difficulty sleeping. Again, the examiner noted that the Veteran underwent a total laryngectomy in 2019, and that he now has a permanent tracheostomy. Based on the evidence of record, the Board finds that a 100 percent disability is warranted for the period from April 10, 2018, to January 27, 2019, under Diagnostic Code 6819. As noted above, in the October 2020 rating decision, the AOJ indicated that December 31, 2018, represented six months after his surgery. However, the Veteran’s VA and private treatment records confirm that his surgery was performed on July 27, 2018. Six months following this surgery would be January 27, 2019. As such, pursuant to Diagnostic Code 6819, the Board finds a 100 percent rating is warranted from April 10, 2018, to January 27, 2019. Furthermore, after resolving all reasonable doubt in the Veteran’s favor, the Board finds that a 10 percent disability rating is warranted for the period from January 28, 2019, to March 7, 2019, under Diagnostic Code 6516 based on the presence of a small mucosa irregularity in the left post cricoid area and hoarseness in the February 2019 and March 2019 VA treatment records. As noted above, a 10 percent disability rating is warranted under Diagnostic Code 6516 when there are manifestations of hoarseness with inflammation of cords or mucous membrane. However, for the period prior to April 10, 2018, and the period from January 28, 2019, to March 7, 2019, the Board finds that the preponderance of evidence is against a finding that higher ratings are warranted. With regard to Diagnostic Code 6819, as noted above, the evidence of record indicates that the Veteran completed radiation therapy on August 12, 2011, which is more than six months before the Veteran filed his claim for service connection on March 26, 2012 (effective date of the award of service connection). However, prior to April 10, 2018, and from January 28, 2019, to March 7, 2019, the evidence does not show that he had a local recurrence or metastasis; thus, a compensable rating under Diagnostic Code 6819 is not warranted. With regard to Diagnostic Code 6516, although the Veteran has consistently reported experiencing hoarseness, there in nothing in the record to suggest that his disability was manifested by inflammation of cords or mucous membrane or thickening or nodules of cords, polyps, submucous infiltration or pre-malignant changes on biopsy. To the contrary, the December 2012 VA examiner specifically noted that there was no evidence of inflammation of the vocal cords or mucous membrane, thickening or nodules of the vocal cords, submucous infiltration of the vocal cords, or vocal cord polyps. Furthermore, the Veteran’s treatment records consistently note that the Veteran’s mucosa was pink and moist, and that examination failed to reveal any masses or lesions. As such, a compensable rating under Diagnostic Code 6516 is not warranted. With regard to Diagnostic Codes 6518 and 6519, the Board notes there is nothing in the record to suggest that the Veteran underwent a laryngectomy, partial or total, prior to April 10, 2018, and there is nothing in the record to suggest that he suffered from organic aphonia. As such, a compensable rating under either Diagnostic Code 6518 and/or Diagnostic Code 6519 is not warranted. Finally, with regard to Diagnostic Code 6520, there is nothing in the record to suggest that the Veteran’s FEV-1 was 80 percent predicted. In fact, in July 2014, the Veteran’s VA treatment provider concluded that his pulmonary function testing would not be abnormal enough to qualify him for disability given his experience with the Veteran and his symptoms. As such, a compensable rating under Diagnostic Code 6520 is not warranted. With regard to the period from January 28, 2019, to March 7, 2019, and Diagnostic Code 6516, although the Veteran experienced hoarseness, there in nothing in the record to suggest that his disability was manifested by thickening or nodules of cords, polyps, submucous infiltration or pre-malignant changes on biopsy. To the contrary, while the February 2019 VA treatment record noted a small mucosa irregularity in the left post cricoid area, nasopharynx, oropharynx, and hypopharynx were normal without suspicious masses or lesions. Furthermore, there was full mobility of the bilateral true vocal cords with a small right bruise/hemorrhage, the subglottis was widely apart, the vallecula was free of lesions, and there was no pooling of secretion. As such, the competent evidence of record fails to demonstrate thickening or nodules of cords, polyps, submucous infiltration or pre-malignant changes on biopsy so as to warrant a 30 percent disability rating under Diagnostic Code 6516. With regard to Diagnostic Codes 6518 and 6519, the Board notes there is nothing in the record to suggest that the Veteran underwent a laryngectomy, partial or total, prior to March 7, 2019, and there is nothing in the record to suggest that he suffered from organic aphonia. As such, a higher rating under either Diagnostic Code 6518 and/or Diagnostic Code 6519 is not warranted. Finally, with regard to Diagnostic Code 6520, there is nothing in the record to suggest that the Veteran’s FEV-1 was 80 percent predicted. In fact, in July 2014 VA treatment record the Veteran’s treatment provider concluded that his pulmonary functioning testing would not be abnormal enough to qualify him for disability given his experience with the Veteran and his symptoms. As such, a compensable rating under Diagnostic Code 6520 is not warranted. In assessing the severity of the Veteran’s laryngeal cancer, the Board has considered his assertions regarding his symptoms, including his reports of swelling, changes in voice, shortness of breath, and fatigue, which he is certainly competent to provide. See Layno v. Brown, 6 Vet. App. 465 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Nevertheless, the competent medical evidence described above contains detailed, specialized determinations pertinent to the rating criteria that is probative in evaluating the symptoms associated with his laryngeal cancer, and such does not support higher ratings than those currently assigned. Finally, the Board notes that Diagnostic Code 6819 directs that any change in evaluation shall be subject to the notice provisions of 38 C.F.R. § 3.105(e). In this case, however, because the award of the 100 percent and discontinuance of the 100 percent rating were effectuated in the same rating decision, VA had no requirement to notify the Veteran of decreased rating in this case. Likewise, where a Diagnostic Code requires assignment of a 100 percent rating for a definite period of time, followed by the requirement that the disability thereafter be rated based on residuals, the assignment of a lower disability rating based on the residuals does not constitute a rating reduction. See Rossiello v. Principi, 3 Vet. App. 430 (1992). (Continued on Next Page) In sum, after resolving all reasonable doubt in the Veteran’s favor, the Board finds that a 100 percent disability rating is warranted for his service-connected laryngeal cancer for the period from April 10, 2018, to January 27, 2019, under Diagnostic Code 6819. Furthermore, a 10 percent disability rating is warranted for his service-connected laryngeal cancer for the period from January 28, 2019, to March 7, 2019, under Diagnostic Code 6516. However, the Board finds that the preponderance of the evidence is against the assignment of higher ratings at any other point during the period under review, to include prior to April 10, 2018. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Springer, 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.