Citation Nr: 22017913
Decision Date: 03/27/22	Archive Date: 03/27/22

DOCKET NO. 14-28 939
DATE: March 27, 2022

ORDER

Entitlement to a separate compensable rating for airway restriction due to residuals of larynx cancer is denied.

FINDING OF FACT

The persuasive weight of the evidence is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis or manifestations of upper airway obstruction due to residuals of larynx cancer.

CONCLUSION OF LAW

The criteria for entitlement to service connection fora separate rating for upper airway obstruction have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310. 

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from August 1966 to August 1969 and from November 1969 to June 1978.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) in Huntington, West Virginia.

In September of 2017, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record.

Addressing the most relevant procedural history, in June of 2020, the Board denied, in relevant part, entitlement to a separate compensable rating for airway restriction due to residuals of larynx cancer. The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court). In response to a June 2021 Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the Veteran's claim to the Board, which in turn remanded the case for further development in November of 2021, to specifically include affording the Veteran the opportunity to provide information necessary to obtain the results of a pulmonary function test from a private provider. The case has now been returned to the Board for further appellate review.

Entitlement to a separate compensable rating for airway restriction due to residuals of larynx cancer is denied.

As previously noted by the Board in its prior denial, the Board previously raised consideration of whether a separate compensable rating for airway restriction due to residuals of larynx cancer is warranted in broadly construing the Veteran's increased rating claim for his service-connected residuals of larynx cancer with swallowing difficulty, hoarseness and dry mouth. See e.g. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009); see also December 2019 Board Remand. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of section 1110 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992). After a thorough review of the evidence of record in this case, the Board has concluded that there is no evidence that the Veteran has an airway restriction disability and therefore, he cannot be granted service connection for this condition. 

Turning to the evidence of record, there appear to be no clinical findings supportive of this specific condition. A Compensation and Pension examination and opinion were respectively conducted and obtained in February 2020 in order to comply with the Board's most recent remand. After an in-person examination and review of the Veteran's claims file, the examiner uncovered diagnoses of coronary artery disease with coronary artery bypass graft, emphysema and chronic obstructive pulmonary disease (COPD), but also noted that recent pulmonary function test results showed a normal flow volume loop, indicating an absence of any upper airway obstruction. Therefore, "there is currently no objective evidence of upper airway obstruction from either the effects of radiation therapy for his laryngeal cancer or from vocal cord damage during his coronary artery bypass graft". The VA examiner concluded that it is less likely than not (less than 50 percent probability) that any impairment of respiratory function was incurred in or caused by the claimed in-service injury, event, or illness and/or due to residuals of laryngeal cancer. The examiner offered clear conclusions with reliance on the supporting data. See Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008); Stefl v. Nicholson, 21 Vet.App.120, 124 (2007). 

The Board also takes note of the VA esophageal conditions examination that the Veteran underwent in September of 2021. The examiner stated that the Veteran is diagnosed with residuals of larynx cancer, difficulty swallowing, hoarseness, and dry mouth, which the Board notes he is separately compensated for. While the examiner indicated that the Veteran's condition had worsened since its onset, it was not indicated that any impairment of respiratory function was incurred in or caused by the claimed in-service injury, event, or illness and/or due to residuals of laryngeal cancer.

In addition, the Board observes that an advisory opinion regarding extraschedular consideration was obtained from the Executive Director of Compensation Service in November of 2021. That 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 or choking. The Executive Director stated that no unusual or exceptional disability pattern had 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 was denied.

Addressing the contentions raised in the JMPR, it is noted that this claim was remanded in November of 2021 to afford the Veteran the opportunity to provide information necessary to obtain the results of an earlier pulmonary function test from a private provider. Letters dated November 9, 2021 and December 10, 2021 requested a completed VA Form 21-4142 and VA Form 21-4142a for private providers in regard to the Veteran's pulmonary function testing and any other treatment records that had not previously submitted in support of his claim. 

There is no evidence that notice of the request for information was not received by the Veteran. None of the correspondence sent to the Veteran in close proximity before or after that correspondence has been returned as undeliverable, indicating that the current address of record is correct. See Ashley v. Derwinski, 2 Vet.App. 62 (1992); Mindenhall v. Brown, 7 Vet.App. 271 (1994) (regarding the applicability of the presumption of regularity to RO actions). The Veteran has not provided good cause for why he failed to respond to this inquiry. 38 C.F.R. § 3.655 (a). VA's duty to assist is not always a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran must cooperate in VA's efforts to obtain evidence needed to adjudicate his claims, including promptly communicating with VA regarding information needed to substantiate his assertions regarding his alleged separate compensable rating for airway restriction due to residuals of larynx cancer. As such, the Board finds that a remand for another opportunity to submit a completed VA Form 21-4142 is not warranted in this case and the Board has decided the appeal based on the current evidence of record. 38 C.F.R. §§ 3.160 (b), (f), 3.655 (b).

In that regard, the Board also notes that additional VA treatment records have been associated with the record since its prior denial; however, these records also do not offer any evidence of an airway restriction disability. Overall, the evidence does not show any objective findings that would warrant entitlement to a separate compensable rating for airway restriction due to residuals of larynx cancer as any pulmonary restrictions of record have been attributed to other unrelated diagnosed conditions that also appear unrelated to service.

The Board notes that it previously advised the Veteran in that regard that "the VA examiner uncovered diagnoses of other respiratory conditions such as emphysema and COPD. Should the Veteran wish to pursue separate claims for benefits in regard to those conditions, he is advised to do so." See June 2020 Board Decision. While it does not appear that the Veteran has pursued those separate claims, the Board notes that the Veteran is now in receipt of an 80 percent rating for the Veteran's larynx cancer residuals condition (the maximum under the schedular rating criteria) as well as a TDIU based on this condition. See March 2022 Board Decision. The combination of these favorable findings should fully compensate the Veteran for the whole of his disability picture related to this condition. 

Lastly, the Board observes that the Veteran requested, through his representative, "that this claim be remanded for a new medical examination by a board-qualified Ear, Nose and Throat physician/surgeon, or other specialist in diseases of the throat and larynx." The Veteran's representative concurrently challenged the qualifications of the examiners who conducted the various examinations he has been afforded during the claims period. To do so, the representative requests a list of each examiner's resume, curriculum vitae, list of publications, list of specialties, etc. so that he may challenge their competency. Notably, the Veteran's representative has not made any specific allegation regarding a potential deficiency in this regard other than stating that "review of the online resumes and professional profiles of these providers reveals no special training, education or experience that would qualify them to make assessments on the complex and long-standing larynx stenosis disability that this veteran has".

The Board notes that, in the absence of a specific allegation outlining why a specific examiner is not competent to conduct a medical examination or provide a medical opinion, VA examiners are presumed to be competent. Parks v. Shinseki, 786 F.3d 581, 585 (Fed. Cir. 2013); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011); Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). This presumption of competence is still in effect and the United States Supreme Court has declined to review it. See Mathis v. Shulkin, 2017 U.S. Lexis 4058 (June 26, 2017) (denying writ of certiorari to review the presumption of competence of VA examiners).

The Veteran's representative has not alleged a colorable potential deficiency with regard to the qualifications of the VA examiners. Therefore, the Board may rest on the presumption that the examiners were competent. Further, there is a wide array of expertise that the Board may accept in finding an examiner, or other person providing evidence, competent. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (physician's assistant was competent to perform examination); Goss v. Brown, 9 Vet. App. 109 (1996) (recognizing that nurses' statements regarding nexus were sufficient to make a claim well grounded); Williams v. Brown, 4 Vet. App. 270, 273 (1993) (finding opinions of a VA registered nurse therapist competent medical testimony and requiring the Board to provide reasons or bases for finding those opinions unpersuasive). Therefore, the requested information would not be helpful to the outcome of this claim. See 38 C.F.R. § 3.159 (d).

In addition, even considering that his residuals of larynx cancer disability has apparently worsened, the record does not support that he has a separate upper airway restriction disability attributable to this condition. Moreover, given that ongoing treatment records are dated throughout the period until late 2021, the Board finds that the record as it stands is adequate upon which to rate the Veteran's claim, and remand for a new examination is not warranted. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (even the passage of time alone, without an allegation of worsening, does not warrant a new examination).

The Board notes that the Veteran is competent to testify about his symptoms. However, the Board emphasizes that the objective evidence of record is not supportive of this claimed condition whatsoever during the period on appeal, a fact that, notably, was not found to be erroneous by the Court or the parties. It is reiterated that the sole reason for the JMPR that necessitated this additional decision was for the Veteran to have the opportunity to provide information necessary to obtain the results of an earlier pulmonary function test from a private provider. To date, he has not submitted any records nor authorized VA to obtain them. The Board finds that VA has satisfied its duty to assist in this case, as the Veteran has repeatedly been notified of the information needed by VA to obtain any outstanding records that could have contained information in support of this claim. See Wamhoff v. Brown, 8 Vet. App. 517 (1996). To date, the Veteran has inexplicably failed to provide such information; if an appellant desires help, he cannot passively wait for it in circumstances where he may or should have evidence that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193.

The threshold requirement for service connection is competent medical evidence of the existence of the claimed disability at some point during or in proximity to a veteran's appeal. See Degmetich, 104 F.3d 1328, 1332. In the absence of proof of a current disability, there can be no valid claim. Brammer, 3 Vet.App. at 225. Without evidence of a current disability of this condition, the Board need not address the other elements of service connection. In regard to the upper airway restriction issue, the persuasive weight of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. §5107 (b); Gilbert v. Derwinski, 1 Vet.App. at 55 (1990).

 

 

MICHAEL MARTIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Smith, 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.