Citation Nr: 22013316 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 14-28 939 DATE: March 9, 2022 ORDER Entitlement to a rating greater than 30 percent for residuals of larynx cancer, prior to April 9, 2019, is denied. Entitlement to a rating of 80 percent for residuals of larynx cancer beginning the earlier effective date of April 9, 2019, is granted. Entitlement to a rating greater than 80 percent for residuals of larynx cancer, to include on an extraschedular basis, is denied. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. Prior to April 9, 2019, the Veteran's larynx cancer residuals were manifested by moderate stricture of the esophagus. 2. Beginning April 9, 2019, the Veteran's larynx cancer residuals were manifested by marked impairment of general health. 3. The Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation beginning April 9, 2019. CONCLUSIONS OF LAW 1. Prior to April 9, 2019, the criteria for a rating greater than 30 percent for residuals of larynx cancer have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.113 (Diagnostic Code 7203). 2. Beginning April 9, 2019, the criteria for a rating of 80 percent (but not higher) for residuals of larynx cancer have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.113 (Diagnostic Code 7203). 3. Beginning April 9, 2019, the criteria for a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1966 to August 1969 and from November 1969 to June 1978. This matter comes before the Board of Veterans' Appeals (Board) from the August 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a September 2017 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. This matter was previously before the Board in November 2021 and was remanded to obtain outstanding private treatment records. Subsequently, in December 2021, an authorization form to obtain private records was sent to the Veteran to be completed. To date, no response has been received. The Board notes that the issue of entitlement to a separate compensable rating for restriction of airway due to residuals of larynx cancer was separately remanded by the Board in November 2021. That issue will be the subject of a future Board decision. 1. Entitlement to a rating greater than 30 percent for residuals of larynx cancer prior to August 20, 2019, a rating greater than 50 percent prior to September 9, 2021, and a rating greater than 80 percent beginning September 9, 2021, to include on an extraschedular basis The Veteran contends that the residuals of his larynx cancer warrants a higher rating throughout the appeal period. The Veteran is currently in receipt of service connection for residuals of larynx cancer with difficulty swallowing, hoarseness, and dry mouth evaluated as 30 percent disabling beginning October 24, 2011, evaluated as 50 percent disabling beginning August 20, 2019, and 80 percent disabling beginning September 9, 2021. 38 C.F.R. § 4.113, Diagnostic Code 7203. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2017). The Rating Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 199 (1999). Under DC 7203, moderate stricture warrants a 30 percent rating. Severe stricture, permitting liquids only, warrants a 50 percent rating. A maximum 80 percent rating is warranted when stricture permits passage of liquids only, with marked impairment of general health. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7 (2017). Prior to April 9, 2019 In January 2012, the Veteran underwent a VA larynx examination. The examiner stated that the Veteran is diagnosed with benign or malignant neoplasm of the larynx and the Veteran's larynx cancer residuals does not affect his ability to work. The examiner stated that the Veteran's treatment is completed, and his cancer is in remission. The Veteran completed an August 2013 functional esophagram study with a private physician. It was noted that the Veteran underwent posterior cervical decompression in July 2013. The Veteran reported that he had trouble swallowing for years, but since having surgery, he had more trouble. The results revealed moderate dysphagia due to post laryngeal cancer with radiation treatment, smoking, and post-surgery. An August 2016 VA swallowing test procedure noted that the Veteran presented with mild pharyngeal dysphagia. The physician recommended a diet of thin liquids using aspiration precautions. The physician also stated that the prognosis for improved swallow is poor. A July 2017 VA treatment note reports difficulty swallowing. However, later treatment records note no difficulty with swallowing (November 2017, March 2018 VA treatment notes). The Board finds that prior the medical and lay evidence demonstrates a larynx disability manifested by moderate stricture of the esophagus. The Board notes that the Veteran has documented difficulties with swallowing, however, the record does not reflect that only liquids were permitted. Therefore, entitlement to a rating greater than 30 percent rating is denied prior to August 20, 2019. Beginning April 9, 2019 The Veteran was afforded a VA examination in April 2019. The Veteran reported persistent hoarseness and itching in his throat. It was noted that the Veteran had a biopsy of the larynx which revealed squamous cell carcinoma. Pulmonary function testing had not been performed to assess for upper airway obstruction due to laryngeal stenosis. The examiner stated that the Veteran required supervision with all eating and drinking due to increased choking risk. The examiner also stated that the Veteran had decreased ability to talk for more than a short period with hoarseness that affects volume and tone. Additionally, an April 2019 individual unemployability statement noted that the Veteran has frequent episodes of choking and difficulty swallowing that occur on a daily basis and often involve loss of consciousness. The examiner stated that although the Veteran did not experience the inability to push, pull, lift, or carry, the physical impairment that he experiences is prohibitive of normal eating and drinking activity that would occur during a normal workday and impair his ability to function productively in an occupational environment. In August 2019, the Veteran completed a modified barium swallow exam. The examination revealed that the Veteran aspirated with cough reflex when administered thin liquids. When given barium with pudding consistency, there was pharyngeal stasis and deep laryngeal penetration. With nectar consistency, there was deep laryngeal penetration and minimal aspiration. The physician concluded that the Veteran had abnormal swallowing and aspiration of thin liquids. FEV testing revealed 76 percent predicted and FVC of 54 percent. In an August 2019 consultation, the physician opined that the Veteran had dysphagia and dysphonia with possible ankylosed arytenoids versus recurrent nerve injury or paralysis of unknown duration. The physician recommended non-oral means such a feeding tube. In September 2021, the Veteran underwent a VA esophageal conditions examination. The examiner stated that the Veteran is diagnosed with residuals of larynx cancer, difficulty swallowing, hoarseness, and dry mouth. The examiner stated that the Veteran's condition has worsened since its onset and the Veteran's symptoms are severe and dysphagia with hoarseness/dysphonia and choking resulting in syncope. The examiner noted that the Veteran's esophageal condition manifests in symptoms productive of considerable impairment of health, symptoms combination productive of severe impairment of health, substernal pain, and vomiting 4 or more times per year for less than 1 day. The examiner also stated that the Veteran had aspiration of thin liquids. The examiner stated that the Veteran's esophageal condition impacts his ability to work as it results in residuals of laryngeal carcinoma consists of severe dysphagia with choking episodes that have resulted in syncopal episodes. The examiner noted that this has been dangerous particularly when doing activities requiring heavy lifting or operating heavy machinery. The examiner also stated that the Veteran is unable to walk more than 30 minutes, do any excessive bending, lifting or twisting, or any activities which will require prolonged talking. The Board notes that the Veteran has asserted that the relevant diagnostic codes do not reasonably contemplate the symptomatology and functional impairment of his larynx cancer residuals disability and that extraschedular consideration is warranted. The Board notes that 80 percent is the highest schedular rating under Diagnostic Code 7203. In November 2021, an advisory opinion regarding extraschedular consideration was obtained from the Executive Director of Compensation Service. The opinion stated that the Veteran's current VA treatment records show that the Veteran's weight is stable with nutrient supplements and the use of a feeding tube. The Veteran is able to eat soft foods and the Veteran's treatment records do not show complaints of aspiration of choking. The Executive Director stated that no unusual or exceptional disability pattern has been demonstrated that would render application of the regular rating criteria as impractical (specifically noting that an 80 percent rating under Diagnostic Code 7203 is assigned for a severe impairment of the esophagus with only liquids permitted). Therefore, the November 2021 advisory opinion found that entitlement to an extra-schedular rating is denied. Based on the permittance of only liquids, a 50 percent rating for the Veteran's residuals of larynx cancer was awarded in an October 2021 rating decision. However, the Board finds that the medical and lay evidence demonstrates a larynx cancer residuals disability manifested by marked impairment of general health with permitting passage of liquids only beginning April 9, 2019. Therefore, entitlement to an 80 percent rating for the Veteran's larynx cancer residuals condition is granted effective April 9, 2019. 2. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) due to service connected disabilities The Veteran seeks a TDIU. He contends that his service connected disabilities preclude him from securing or following a substantially gainful occupation. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3)disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran has the following disabilities that are service connected: coronary artery disease status post coronary artery bypass graft (rated 10 percent, from October 24, 2011, 100 percent from August 6, 2019, 10 percent from December 1, 2019, and 100 percent from January 21, 2020); residuals of larynx cancer (rated 30 percent from October 24, 2011, and 80 percent from April 9, 2019as granted above); tinnitus (rated as 10 percent, from October 24, 2011); bilateral hearing loss (rated as noncompensable, from October 24, 2011); and, scar, status post coronary artery disease status post coronary artery bypass graft (rated as noncompensable, from August 21, 2019). Based on the forgoing, the Veteran has one disability rated 60 percent or more beginning April 9, 2019. Accordingly, the Board may consider the claim for a TDIU on a schedular basis beginning April 9, 2019. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that a TDIU is warranted. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of his residuals of larynx cancer. Specifically, the record reflects that the Veteran must be supervised at all times when eating or drinking or emergency resuscitation may need to be performed. Additionally, the April 2019 examiner stated that the Veteran is prohibited from normal eating and drinking activity that would occur during a normal workday and his larynx condition impairs his ability to function productively in an occupational environment. Given the forgoing, the Veteran's service-connected disabilities preclude him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. Notably, the Veteran's larynx cancer residuals manifests in marked impairment of general health. Accordingly, a TDIU is warranted. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mountford, 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.