Citation Nr: 21011166 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-07 684 DATE: March 1, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for right true vocal cord carcinoma status post (s/p) right hemicolectomy (vocal cord disability) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1964 to August 1968. This matter comes before the Board of Veteran’s Appeals (Board) from a February 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in June 2018 when the claims were remanded for a VA examination. The Board finds the June 2018 remand directives have not been substantially complied with, and the matter must be remanded again. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to an initial disability rating in excess of 10 percent for right true vocal cord carcinoma status post right hemicolectomy is remanded. The Veteran seeks an initial disability rating in excess of 10 percent for his vocal cord disability. The Veteran contends that his condition is more severe than reflected by the 10 percent disability rating currently assigned. As this is an appeal stemming from the initial disability rating assigned to the Veteran’s disability, the appeal period is from the effective date of the award of service connection for his vocal cord disability, August 25, 2010, forward. Regulations provide that, when the disability being rated is not specifically provided for in the rating schedule, it will be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Further, the provisions of 38 C.F.R. § 4.27 provide that unlisted disabilities requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and “99.” 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 a hyphen. The Veteran’s disability has been rated under Diagnostic Code (DC) 6599-6516. Under DC 6516, a 10 percent rating is assigned for chronic laryngitis with hoarseness, with inflammation of cords or mucous membrane. A 30 percent rating is assigned for chronic laryngitis with hoarseness, with thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy. 38 C.F.R. § 4.97, DC 6516. The Veteran’s medical records have been associated with the claims file. In July 2010, the Veteran’s private otolaryngologist subscribed a medical opinion where he noted he had been treating the Veteran since January 2006 for complaints of chronic hoarseness. The physician noted that a biopsy of a suspicious lesion on the Veteran’s left vocal cord was performed which returned as precancerous and that following additional biopsies the Veteran was diagnosed with a right true vocal cord carcinoma. He underwent 2 resections, including a right hemicolectomy. The physician noted that the Veteran remained cancer-free following the resections and that he has excellent voice quality. See private medical opinion of July 2010. In July 2012, September 2013 and August 2014, the Veteran’s private otolaryngologist subscribed medical letters where he noted that the Veteran developed a T1, N0, M0 carcinoma of the right vocal cord which was resected and later recurred. The recurrence required a complete right cordectomy. The physician noted the Veteran currently vocalizes using only his left vocal cords. See medical letter by Dr A. of September 2013 associated with the claims file in March 2016, medical letter dated August 2014 and medical letter dated July 2012 associated with the claims file in February 2017. In July 2019, the Veteran was administered a Sinusitis/Rhinitis and Other Conditions of the Nose, Throat, Larynx and Pharynx Disability Benefits Questionnaire (Throat DBQ). In this examination, the Veteran’s diagnosis of right true vocal cord carcinoma / right hemicolectomy was noted as well as his medical history and his current symptomatology of hoarseness and decreased projection. Hoarseness of voice and decreased volume of voice were the only residuals of the condition noted. See Throat DBQ of July 2019. The examiner noted in this Throat DBQ of July 2019, that the Veteran underwent a right hemicolectomy in May 2012. In December 2019, an addendum to the Throat DBQ of July 2019 was associated with the claims file. In this addendum, the examiner noted that the Veteran does not have or had a laryngectomy nor laryngeal stenosis, including residuals of laryngeal trauma (unilateral or bilateral). The examiner also noted the Veteran does not have complete organic aphonia either; nor has he had a permanent tracheostomy, injury to the pharynx, vocal cord paralysis or any other pharyngeal or laryngeal conditions. This addendum clarified that the Veteran does indeed have incomplete organic aphonia with inflammation of vocal cords. See VES Addendum to Provider dated December 2019. In October 2020, the Veteran underwent another Throat DBQ. In this examination, the Veteran’s medical history was noted including his 2 surgeries. The examiner noted that the Veteran underwent a right hemicolectomy in 2010 and that the Veteran currently has hoarseness, difficulty speaking, and loss of projective volume as residuals of the surgery. The examiner also noted that the Veteran underwent pulmonary function testing to assess for upper airway obstruction due to laryngeal stenosis which revealed forced expiratory volume in one second (FEV-1) of 56 to 70 percent predicted. The Flow-Volume Loop was noted to not be compatible with upper airway obstruction. No other significant findings were noted. See Throat DBQ of October 2020. In November 2020 an addendum opinion to the Throat DBQ of October 2020 was associated with the claims file. In this addendum, the examiner noted the Veteran does not have chronic laryngitis, laryngeal stenosis, complete organic aphonia, nor has had a permanent tracheostomy. It was also noted that the Veteran underwent a partial laryngectomy; with hoarseness and difficulty with vocal projection the only noted residual. The examiner further noted the Veteran has incomplete organic aphonia characterized as continuous hoarseness and continuous loss of projective volume. Finally, the examiner noted that the Veteran had an injury to the pharynx consisting of the right hemicolectomy and that the procedure caused decreased vocal projection and hoarseness. See Addendum of November 2020. As the November 2020 addendum opinion is in conflict with the December 2019 addendum opinion, the Board finds a remand is necessary to fairly decide the Veteran’s claim. Specifically, the Board notes that according to the November 2020 addendum opinion the Veteran underwent a partial laryngectomy and had an injury to the pharynx. However, the December 2019 addendum opinion noted that the Veteran does not have or has had a laryngectomy nor laryngeal stenosis, including residuals of laryngeal trauma (unilateral or bilateral) nor injury to the pharynx nor vocal cord paralysis or any other pharyngeal or laryngeal conditions. As these addendum opinions are conflicting, the matter must be remanded for clarification. Additionally, the Board finds these opinions do not fully comply with the June 2018 remand directives as the examiners did not opine on whether the Veteran has any […], thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy. See June 2018 remand instructions. The Board notes that it is imperative that the Veteran’s diagnosis, as well as the clinical findings, are correctly noted in the examination report as the findings can affect the applicability of the diagnostic codes which determine whether the Veteran is entitled to a higher disability rating. To this point, the Board notes that residuals of a partial laryngectomy can be rated as: (1) laryngitis (DC 6516); (2) aphonia (DC 6519); or (3) stenosis of the larynx (DC 6520). See 38 C.F.R. § 4.97, DC 6520. Therefore, it is imperative that the examiners clarify whether the Veteran’s hemicolectomy is considered a partial laryngectomy or an injury to the pharynx or whether the hemicolectomy otherwise resulted in a partial laryngectomy or injury to the pharynx. The Board also notes that in the Throat DBQ of July 2019, the examiner noted the Veteran underwent surgery in May 2012. However, there are not medical records in the claims file that would support that finding. Upon remand, the RO must seek clarification from the Veteran whether he underwent a surgical procedure in May 2012 regarding his vocal cord disability and request that the Veteran submit medical records in support, if necessary. The matter is REMANDED for the following actions: 1. Update existing medical records. Contact the Veteran and ask him to provide sufficient information and necessary authorization in order to obtain copies of any outstanding records of treatment by VA or non-VA health care providers for any of the disabilities on appeal. The letter should invite the Veteran to submit any pertinent medical evidence in support of his claim. If the Veteran provides the necessary information and authorizations, obtain any outstanding clinical records and incorporate them into the electronic claims file. a. Please clarify the dates the Veteran underwent surgical intervention for his vocal cord carcinoma and clarify whether the Veteran has undergone any other treatment or surgery for his vocal cord disability during the appeal period, from August 25, 2010 forward. 2. Schedule the Veteran for a new VA examination to determine the severity of the service-connected vocal cord disability. Any necessary testing should be conducted. The physician is asked to specifically comment on the following: a. Any hoarseness, thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy that the Veteran may have. If the Veteran does not have any of these conditions, the report must state so. b. Whether the Veteran underwent a partial laryngectomy; if so, please note any and all residuals. c. Whether the Veteran has or had stenosis of the larynx or laryngeal trauma (unilateral or bilateral). If so, i. Please state the forced expiratory volume in one second (FEV-1) and whether the flow volume loop is compatible with upper airway obstruction. d. Whether the Veteran has or had an injury to the pharynx to include: i. stricture or obstruction of pharynx or nasopharynx or, ii. absence of soft palate secondary to trauma, chemical burn or granulomatous disease or iii. paralysis of the soft palate with swallowing difficulty (nasal regurgitation) and speech impairment. The examiner is asked to provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion(s) without resorting to speculation, the report should expressly indicate this, and the examiner should explain why an opinion cannot be provided without resorting to speculation. If the inability to provide an opinion is the result of a need for additional information, the physician must identify the additional information needed. 3. After completing the above requested actions, and any additional notification and/or development deemed warranted, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Gonzalez-Maldonado 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.