Citation Nr: 21021203 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-53 391 DATE: April 12, 2021 ORDER Entitlement to a disability rating in excess of 30 percent for residuals of cancer of larynx is denied. REMANDED Entitlement to a total disability based on individual unemployability due to service-connected conditions (TDIU) is remanded. FINDING OF FACT The Veteran’s residuals for larynx cancer include hoarse voice and aspiration. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for residuals for larynx cancer have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, Diagnostic Code (DC) 6819-6516. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1965 to January 1969. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to a disability rating in excess of 30 percent for residuals of cancer of larynx 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 resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A Diagnostic Code (DC) identifies the criteria for the various ratings available for a specific disability. A veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings.” Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s laryngeal cancer with residuals of hoarseness is rated 30 percent disabling under diagnostic code 6819-6516. 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 assigned rating; the additional code is shown after the hyphen. Here, the hyphenated diagnostic code indicates that the Veteran’s laryngeal cancer (DC 6819) is rated under the criteria for chronic laryngitis (DC 6516). Under DC 6516, a 10 percent rating is warranted for hoarseness, with inflammation of cords or mucous membrane. A maximum 30 percent evaluation is assigned for chronic laryngitis with hoarseness, with thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy. The Veteran submitted a claim for service connection for larynx cancer in August 2007. He was granted service connection in November 2007 and assigned a 100 percent disability rating effective August 17, 2007 and a noncompensable disability rating effective August 28, 2007 under DC 6819. DC 6819 relates to malignant neoplasms of any part of the respiratory system and directs that, if there has been no local recurrences or metastasis, the residuals of the malignant neoplasms will be the basis of the rating. In a July 2009 rating decision, the RO granted a 30 percent disability rating effective August 28, 2007 under DC 6516. Under DC 6516, a 10 percent rating is warranted for hoarseness, with inflammation of cords or mucous membrane. The maximum 30 percent evaluation is assigned for chronic laryngitis with hoarseness, with thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy. The Board notes that the Veteran receives the highest rating allotted under DC 6516. Under DC 6518, a 100 percent evaluation is assigned for a total laryngectomy. Here, the medical evidence does not show that the Veteran has had a total laryngectomy during the period on appeal. Further, under DC 6519, a 60 percent rating is assigned for complete organic aphonia with a constant inability to speak above a whisper and a 100 percent rating is assigned for complete organic aphonia with a constant inability to communicate by speech. In this case, the Veteran has not asserted, nor has any treating or examining clinician found, that the Veteran has experienced aphonia with either constant inability to speak above a whisper or a constant inability to communicate by speech. The medical evidence notes that at times the Veteran had the inability to speak above a whisper and hoarseness at times. See March 2011 VA C&P Examination Note. While the medical evidence establishes that at times the Veteran was unable to speak above a whisper, it is not established that he was constantly unable to speak above a whisper at any time during the period on appeal. Therefore, the Board finds that a higher rating under DC 6519 is not warranted. Under DC 6520, a 60 percent evaluation is assigned for stenosis of larynx, including residuals of laryngeal trauma. Under this DC, a 60 percent rating is afforded when forced expiratory volume in one second (FEV-1) is 40- to 55-percent predicted with Flow-Volume Loop compatible with upper airway obstruction and a 100 percent rating is assigned when FEV-1 is less than 40 percent of predicted volume with Flow-Volume Loop compatible with upper airway obstruction or; permanent tracheostomy. During the February 2021 VA examination, the Veteran’s FEV-1 was noted to be 50 to 70 percent. This does not meet the required percentage for a higher disability rating under DC 6520. Furthermore, there is no evidence of record that the Veteran suffered from permanent tracheostomy. Therefore, the Board finds that a higher rating under DC 6520 is not warranted. The Board notes that the medical evidence of record establishes that at one point after treatment for his larynx cancer, the Veteran reported having trouble swallowing. See July 2009 VA Medicine Outpatient Follow-Up Note. The evidence establishes that this condition resolved until around July 2016, when the Veteran reported that his condition was worsening, and pills would get stuck when swallowing. See July 2016 VA Otolaryngology Outpatient Note. It was noted that this was due to dryness. See November 2018 VA Medicine Outpatient Follow-Up Note. The Board finds that this condition is accounted for in his 30 percent disability rating and does not warrant a separate or higher rating. Accordingly, after a thorough review of the evidence of record and a full consideration of the Veteran’s assertions, the Board finds that ratings in excess of 30 percent for the Veteran’s service-connected residuals for larynx cancer is not warranted. The preponderance of the evidence is against the Veteran’s claim for increased rating for residuals. The benefit of the doubt doctrine is not applicable and higher rating is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). This case raises no other issues, other than the TDIU claim described below. REASONS FOR REMAND TDIU may be assigned when the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran filed a claim for TDIU in November 2010, when he was subject to a 40 percent combined evaluation for his service-connected disabilities, 30 percent for residuals of cancer of the larynx, and 10 percent for scar, residuals status post radiation therapy larynx cancer. The Veteran does not meet the criteria for schedular consideration under 38 C.F.R. § 4.16(a). The Board is precluded from awarding TDIU under 38 C.F.R. § 4.16(b) without referring the matter to the Director for Compensation Service. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The medical treatment records note that the Veteran has significant residuals of his larynx cancer. His residuals consist of aspiration and hoarse voice. The records state that the Veteran would not be able to perform an occupation that would require a significant amount of oral communication due to his service-connected residuals of his larynx cancer. See March 2011 C&P Examination Note. Also, during the February 2021 VA examination, the examiner noted that the Veteran’s condition would impact his ability to work as his voice is hoarse and is difficult to understand at times. See February 2021 VA Sinusitis/Rhinitis and Other Conditions of the Nose, Throat, Larynx and Pharynx Disability Benefits Questionnaire (DBQ). As there is evidence that the Veteran is unable to work due to his service-connected residuals os his larynx cancer, the TDIU issue is remanded for referral to the Director, Compensation and Pension Service for extraschedular consideration. The matters are REMANDED for the following action: The claim for TDIU should be referred to the Director, Compensation and Pension Service, for extraschedular consideration. The response from this office must be included in the claims file. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Glaeser, Associate 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.