Citation Nr: 21071705 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 16-24 495A DATE: December 1, 2021 ORDER Entitlement to a disability evaluation of 30 percent for laryngopharangeal reflux associated with gastroesophageal reflux disease (GERD) prior to June 17, 2021 is granted. Entitlement to a disability evaluation in excess of 30 percent for laryngopharangeal reflux associated with GERD from June 17, 2021 is denied. FINDINGS OF FACT 1. Prior to June 17, 2021, the Veteran's laryngopharangeal reflux was manifested by hoarseness, with inflammation of vocal cords and laryngeal polyps. 2. From September 17, 2010, the Veteran is in receipt of the maximum rating allowable under Diagnostic Code (DC) 6516; the Veteran has no history of laryngectomy. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability evaluation of 30 percent for laryngopharangeal reflux associated with GERD prior to September 17, 2010 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, DC 6516. 2. The criteria for entitlement to a disability evaluation in excess of 30 percent for laryngopharangeal reflux associated with GERD from September 17, 2010 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, DC 6516. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to July 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The matter was before the Board in July 2019, at which time it was remanded for development. It returns to the Board for appellate review. The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to a disability evaluation in excess of 10 percent for laryngopharangeal reflux associated with GERD prior to June 17, 2021, and to an evaluation in excess of 30 percent therefrom. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation 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. The Veteran is service connected for a laryngeal disorder on a schedular basis under DC 6516, which assigns a 10 percent rating for chronic laryngitis manifested by hoarseness with inflammation of cords or mucous membrane, and a 30 percent rating is warranted for chronic laryngitis with hoarseness with thickening of nodules of cords, polyps, submucous, infiltration, or pre-malignant changes on biopsy. 30 percent constitutes the highest evaluation available under DC 6516. As an initial matter, the Board observes that the Veteran is in receipt of the maximum 30 percent evaluation from June 17, 2021, and no other DC is applicable to his condition, diagnosed as laryngopharangeal reflux associated with GERD. For instance, the Veteran's disability is not manifested by laryngeal stenosis, and he has no history of laryngectomy. Accordingly, there is no basis for a rating in excess of 30 percent for any portion of the period herein on appeal. However, the Board finds that the criteria associated with a 30 percent evaluation have been present throughout the appeal period, and thus an increase is warranted for that period prior to June 17, 2021. A VA examiner with whom the Veteran met in March 2016 noted the Veteran's chronic laryngitis, with history of vocal disturbance, and critically, the presence of laryngeal polyps. An October 2018 VA examiner did not address adequately the symptomatology associated with the disability herein on appeal; thus the report associated with that examination is of limited value. A June 2021 examiner confirmed the March 2016 findings, to include of laryngeal polyps, with no indication that their present was a recent phenomenon. Whereas the June 2021 examination report is more thorough than the previous reports, and makes manifest the Veteran's entitlement to a 30 percent evaluation on the basis of hoarseness with laryngeal polyps, the Board finds that the Veteran's symptomatology has, by his own account, and as reflected by the record, remained relatively static throughout the appeal period. The record showing the presence of hoarseness and laryngeal polyps associated with the Veteran's service-connected laryngeal disability prior to June 17, 2021, the Board finds warranted entitlement to a 30 percent evaluation for the entirety of the appeal period, the maximum rating available under DC 6516, and to that extent the appeal for increase is granted. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sahraie, 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.