Citation Nr: 21062227 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 18-48 257 DATE: October 6, 2021 ORDER A higher initial disability rating in excess of 10 percent for status post cerebrovascular accident with slowed speech (slowed speech) is denied. A higher (compensable) initial disability rating for status post cerebrovascular accident with residual swallowing difficulties associated with asbestosis (swallowing difficulties) is denied. REMANDED A higher initial disability rating in excess of 10 percent for asbestosis is remanded. A higher initial disability rating in excess of 30 percent for right upper extremity weakness (right upper extremity weakness) is remanded. A higher initial disability rating in excess of 20 percent for left upper extremity weakness (left upper extremity weakness) is remanded. A higher (compensable) initial disability rating for bilateral hearing loss is remanded. Service connection for tinnitus is remanded. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. For the entire initial rating period on appeal from February 9, 2018, the Veteran's slowed speech has not manifested in thickening or nodules of the vocal cords, polyps, submucous infiltration, pre-malignant changes on biopsy, an inability to speak above a whisper, stenosis of the larynx, or the need for a laryngectomy. 2. For the entire initial rating period on appeal from February 9, 2018, the Veteran's swallowing difficulties have not manifested in moderate stricture of the esophagus. CONCLUSIONS OF LAW 1. For the entire initial rating period on appeal from February 9, 2018, the criteria for a higher initial disability rating in excess of 10 percent for slowed speech have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.20, 4.21, 4.97, Diagnostic Codes 6516-6520. 2. For the entire initial rating period on appeal from February 9, 2018, the criteria for a higher (compensable) initial disability rating for swallowing difficulties have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.10, 4.21, 4.114, Diagnostic Code 7203. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from September 1974 to June 1978. Disability Rating Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. 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. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. 1. Rating slowed speech For the entire initial rating period on appeal from February 9, 2018, the Veteran is in receipt of an initial 10 percent rating for slowed speech under 38 C.F.R. § 4.97, Diagnostic Code 6516. The Veteran contends that a higher initial rating is warranted due to symptoms of laryngitis that occur every morning upon waking. See June 2021 Board hearing transcript. Under Diagnostic Code 6516, a 10 percent rating is assigned for hoarseness, with inflammation of cords or mucous membrane, and a 30 percent rating is assigned for hoarseness, with thickening or nodules of the vocal cords, polyps, submucous infiltration, or pre-malignant changes on biopsy. 38 C.F.R. § 4.97. After review of all the evidence, lay and medical, the Board finds that the weight of the evidence is against finding that the service-connected slowed speech has manifested in symptoms of thickening or nodules of the vocal cords, polyps, submucous infiltration, or pre-malignant changes on biopsy, as required for a higher 30 percent rating. The Veteran underwent a VA examination in March 2018, the examination report for which reflects findings of slightly slowed speech resulting from a stroke the Veteran suffered in 2008. Neither the March 2018 VA examination report nor the VA treatment records throughout the relevant rating period on appeal reflect symptoms of thickening or nodules of the vocal cords, polyps, submucous infiltration, or pre-malignant changes on biopsy. Instead, VA treatment records reflect that the Veteran's speech has been observed to be normal in rate, tone, and volume. See e.g., June 2017 VA treatment record; August 2017 VA treatment record; October 2017 VA treatment record. Further, the Board has considered whether a higher initial rating may be assigned under a different diagnostic code related to disorders of the larynx. Diagnostic Code 6518 provides disability ratings for a total laryngectomy, and Diagnostic Code 6520 provides disability ratings for stenosis (narrowing) of the larynx. 38 C.F.R. § 4.97. Having reviewed all the relevant evidence of record, lay and medical, the Board finds that that the Veteran's slowed speech did not result in the need for a laryngectomy, and there is no evidence of stenosis of the larynx. VA treatment records do not show that the Veteran has undergone a laryngectomy or that he has stenosis of the larynx; the record also does not reflect that the Veteran has ever asserted that he has stenosis of the larynx or needed to undergo a laryngectomy. For these reasons, the Board finds that a higher initial disability rating under either Diagnostic Code 6518 or 6520 is not warranted. 38 C.F.R. § 4.97. Under Diagnostic Code 6519, a 60 percent rating is warranted for complete organic aphonia that results in an inability to speak above a whisper, and a 100 percent rating is warranted for a constant inability to communicate by speech. While the evidence reflects that the stroke residuals did impede the Veteran's speech, it does not reflect that, at a minimum, the Veteran was unable to speak above a whisper as evidenced by the VA treatment records discussed above noting the Veteran's speech to be normal in rate, tone, and volume. The foregoing evidence demonstrates that, for the entire rating period on appeal from February 9, 2018, the Veteran's slowed speech has not been manifested by thickening or nodules of the vocal cords, polyps, submucous infiltration, pre-malignant changes on biopsy, an inability to speak above a whisper, stenosis of the larynx, or the need for a laryngectomy. For these reasons, the Board finds that the weight of the evidence is against finding that the criteria for a higher initial disability rating in excess of 10 percent for slowed speech have been met or more nearly approximated at any time during the rating period on appeal from February 9, 2018. 38 C.F.R. §§ 4.3, 4.7, 4.97, Diagnostic Codes 6516-6520. 2. Rating swallowing difficulties For the entire initial rating period on appeal from February 9, 2018, the Veteran is in receipt of an initial noncompensable (0 percent) disability rating for swallowing difficulties under 38 C.F.R. § 4.114, Diagnostic Code 7203. The Veteran generally contends that a higher initial rating is warranted due to swallowing difficulties. See June 2021 Board hearing transcript. Diagnostic Code 7203 provides that moderate esophageal stricture warrants a 30 percent rating. A 50 percent rating is assigned where there is severe esophageal stricture, permitting liquids only. An 80 percent rating is assigned when esophageal stricture permits passage of liquids only, with marked impairment of general health. 38 C.F.R. § 4.114. After review of all the evidence, lay and medical, the Board finds that the weight of the evidence is against finding that the service-connected swallowing difficulties manifest in moderate esophageal stricture, as required for a higher initial 30 percent rating at any time during the rating period on appeal. The Veteran underwent a VA examination in March 2018, the examination report for which reflects findings of mild swallowing difficulties following a stroke the Veteran suffered in 2008. Additionally, VA treatment records throughout the relevant rating period on appeal do not show that the swallowing difficulties have manifested in symptoms of moderate esophageal stricture. Instead, VA treatment records show the Veteran denied symptoms of dysphagia (difficulty swallowing). See e.g., May 2017 VA treatment record; July 2017 VA treatment record. As the foregoing evidence demonstrates that for the entire initial rating period on appeal from February 9, 2018 the Veteran's swallowing difficulties have not been manifested by moderate esophageal stricture, the Board finds that the weight of the evidence is against finding that the criteria for a higher initial rating of 30 percent for difficulty swallowing have been met or more nearly approximated at any time during the initial rating period on appeal. 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Code 7203. REASONS FOR REMAND 3. Rating asbestosis is remanded. 4. Rating right upper extremity weakness is remanded. 5. Rating left upper extremity weakness is remanded. 6. Rating bilateral hearing loss is remanded. The Veteran is currently in receipt of an initial 10 percent rating for the service-connected asbestosis under 38 C.F.R. § 4.97, Diagnostic Code 6833; initial 30 percent and 20 percent disability ratings, respectively, for right and left upper extremity weakness under 38 C.F.R. § 4.124A, Diagnostic Code 8514; and an initial noncompensable disability rating for bilateral hearing loss under 38 C.F.R. § 4.85, Diagnostic Code 6100. During the June 2021 Board hearing, the Veteran testified to worsening symptoms of asbestosis, right and left upper extremity weakness, and bilateral hearing loss. Specifically, the Veteran testified that symptoms of asbestosis had worsened since he last underwent a pulmonary function test in 2017 and that he now suffers shortness of breath that is more pronounced in the winter and summer months. The Veteran also testified that the right and left upper extremity weakness have now progressed to include symptoms of numbness and limited ranges of motion. Finally, the Veteran testified that the bilateral hearing loss has worsened since the last VA audiometric examination in 2017, and that he can only hear out of his right ear. Because the Veteran testified to specific worsening symptoms of asbestosis, right and left upper extremity weakness, and bilateral hearing loss, the Board finds that further examination is required so the decision is based on a record that contains current examinations. 7. Service connection for tinnitus is remanded. The Veteran underwent a VA audiometric examination in April 2017, and a VA addendum opinion was provided in May 2017. The May 2017 VA addendum opinion contains the VA examiner's opinion that it is less likely than not that the Veteran's tinnitus is etiologically related to the acoustic trauma experienced during service as service treatment records are silent for tinnitus complaints and because the Veteran reported tinnitus symptoms had their onset after service. However, service treatment records show that the Veteran endorsed trouble hearing and hearing noises in his ears during active service. See May 1977 service treatment record. Additionally, the May 2017 VA examiner did not provide opinions as to whether the claimed tinnitus was either caused or worsened beyond its normal progression by the service-connected bilateral hearing loss. As the May 2017 VA addendum opinion incorrectly states that service treatment records are silent for tinnitus complaints and does not address the theory of secondary service connection, the Board finds that remand for a new VA opinion is needed. 8. A TDIU is remanded. A claim for a TDIU is part of a rating issue when such claim is raised by the record or the veteran during the rating period. Rice v. Shinseki, 22 Vet. App. 447 (2009). During the June 2021 Board hearing, the Veteran testified that he has not been able to maintain employment due to the service-connected asbestosis and stroke residuals. See also August 2021 VA Form 21-8940. Thus, the issue of entitlement to a TDIU is inextricably intertwined with the adjudication of rating the asbestosis and right and left upper extremity weakness. The matters are REMANDED for the following actions: 1. Schedule the appropriate VA examination(s) in order to assist in determining the current level of severity and functional impairment of the service-connected asbestosis, right and left upper extremity weakness, and bilateral hearing loss. 2. Request that a VA medical professional review the electronic file and provide the VA addendum opinions requested below for the claimed tinnitus. If the VA examiner determines that additional examination(s) of the Veteran is necessary to provide reliable opinions as to causation, such examination(s) should be scheduled; however, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The VA examiner should provide the following opinions: a) It is at least as likely as not (i.e., 50 percent probability or greater) that the current tinnitus is etiologically related to service, including to the in-service acoustic trauma that caused the service-connected bilateral hearing loss, and/or the symptoms of hearing noises in the ears reported during service? b) Is it at least as likely as not (i.e., 50 percent probability or greater) that the current tinnitus was caused by the service-connected bilateral hearing loss? (Continued on the next page) c) Is it at least as likely as not (i.e., 50 percent probability or greater) that the current tinnitus was worsened beyond its natural progression by the service-connected bilateral hearing loss? J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Choi, 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.