Citation Nr: 21025038 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-06 805 DATE: April 27, 2021 ORDER A disability rating in excess of 10 percent for service-connected chronic tonsillitis is denied. FINDING OF FACT For the entire period on appeal, the Veteran’s chronic tonsillitis has been manifested by hoarseness and evidence of inflammation of mucous membranes (edema). CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for service-connected chronic tonsillitis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6516. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from December 1955 to November 1957. In his February 2016 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge. The hearing was scheduled in October 2019, but the Veteran failed to appear. He has not offered good cause for his failure to appear or requested that it was rescheduled. Therefore, the Board considered his request for a hearing to be withdrawn. See 38 C.F.R. § 20.702(d); 20.704(d). In February 2021, the Board remanded the issues of entitlement to service connection for sleep apnea, to include as secondary to chronic tonsillitis, and entitlement to a compensable rating for chronic tonsillitis for further development. Following the additional development, in March 2021, the Regional Office (RO) granted service connection for sleep apnea, to include as secondary to chronic tonsilitis, and assigned a 50 percent disability rating, effective June 12, 2013. Because that decision represents a full grant of benefits sought on appeal it is no longer on appeal before the Board. Additionally, the RO increased the disability rating for chronic tonsillitis to 10 percent, effective June 12, 2013 (date of claim). As this is a partial grant of benefits sought on appeal, the Board will consider whether the Veteran’s chronic tonsillitis warrants a rating in excess of 10 percent. Increased Rating 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 evaluations shall be applied, the higher rating 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. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The United States Court of Appeals for Veterans Claims (Court) has held that “staged” ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to a disability rating in excess of 10 percent for service-connected chronic tonsillitis The Veteran is in receipt a 10 percent disability rating for his service-connected chronic tonsillitis, beginning on June 12, 2013, the date of his increased rating claim. The Veteran’s chronic tonsillitis is rated under Diagnostic Code 6516. 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, Diagnostic Code 6516. VA treatment records from November 2015 to March 2021 confirm ongoing diagnosis and treatment for rhinitis. A November 2015 VA treatment record showed non-tender, no edema, and no masses. A nasal endoscopy showed no polyps, no masses, and no discharge. Further, a direct nasopharyngoscopy showed no discharge, no neoplasia, and no collapse on reverse E maneuver. An oral examination showed mobile cords and mild edema. See VA treatment records, received February 2016. A VA examination of the Veteran’s chronic tonsilitis was performed in May 2014. However, as explained in the February 2021 Board remand, the examination report was found to be inadequate for rating purposes. The examiner did not address the applicable rating criteria under Diagnostic Code 6516 and did not elicit from the Veteran information that would allow a proper analogous rating. Following the February 2021 Board remand, another VA examination was performed to assess the severity of the Veteran’s chronic tonsillitis. The examination was completed in March 2021 and was based on a review of the claims file and a telephone interview because face to face examinations were suspended during the COVID-19 pandemic. The examiner diagnosed chronic tonsillitis. The examiner noted that since the last VA examination in May 2014, there was recorded evidence in the Veteran’s claims file that he continued to receive follow up treatment through VA. Further, it was noted that since the last endoscopy dated November 2016, the Veteran’s tonsillitis had included observations of no mucosal lesions, no masses and soft base of the tongue. Additionally, an indirect laryngoscopy showed mobile cords with mild edema. During the telephone interview with the Veteran, he reported that he currently suffered from daily episodes of throat pain and hoarseness, which he treated with natural products such as aloe with honeybee. He also indicated when the symptoms persisted more than 2-3 days, he required antibiotics. Such episodes happened with temperature changes or upon cold exposure, especially during the morning hours, daily, associated with cough and phlegm. The symptoms were extremely bothersome, and the Veteran felt shame when they happened. On examination, the examiner documented rhinitis as well as other nose, throat, larynx, or pharynx conditions. There was less than 50 percent obstruction of the nasal passage on both sides due to rhinitis, no evidence of permanent hypertrophy of the nasal turbinates, no nasal polyps, and no granulomatous conditions. There were no other pertinent physical findings, complications, conditions or signs or symptoms related to these conditions. Nasal and laryngeal endoscopies were noted to have been last performed in November 2016. The nasal endoscopy showed right septal deviation 60-80 percent obstructive with no mucosal lesions, no masses and soft base of the tongue. A laryngeal endoscopy showed mobile cords and mild edema. No biopsy of the larynx or pharynx had been performed. The examiner indicated that the Veteran’s sinus, nose, throat, larynx, or pharynx condition did not impact his ability to work. The examiner also stated it was important to note that the Veteran did complain of hoarseness during the VA examination and that there was evidence of inflammation of mucous membrane (edema) as reported during his last laryngoscopy from November 2016. The examiner also highlighted the Veteran’s reports of continued symptomatology related to his chronic tonsillitis, described as throat pain and hoarseness, and stated that this suggested periods of inflammation that in the examiner’s opinion was likely consistent with the clinical presentation reported during his evaluations for treatment and laryngoscopy findings. See March 2021 VA examination. Despite the fact the Veteran’s claim was received in 2013, the first pertinent adequate VA examination was not completed until 2021. The Veteran’s chronic tonsillitis symptoms consist of daily throat pain and hoarseness. The Veteran has been assigned a 10 percent rating based on evidence showing hoarseness and inflammation of mucous membranes (edema). After reviewing the record, the Board finds that a higher 30 percent rating under Diagnostic Code 6516 is not warranted as there is no evidence of hoarseness with thickening or nodules of cords, polyps, submucous infiltration or pre-malignant changes on biopsy. Alternative diagnostic codes under 38 C.F.R. § 4.97 have been considered; however, the Veteran’s chronic tonsillitis, as described above, is not manifested by symptoms that would warrant the assignment of a higher rating under any of the other diagnostic codes either. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Churchwell, 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.