Citation Nr: 1749120	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  12-33 017	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE


Entitlement to a compensable disability rating for service-connected residuals of laryngeal cancer. 


REPRESENTATION

Appellant represented by:	Francis P. Kehoe, Attorney at law


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

S.M. Kreitlow


INTRODUCTION

The Veteran had honorable active military service from November 1967 to June 1969.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, NY.  In May 2013, the Veteran testified at a Travel Board hearing held before the undersigned Veterans Law Judge.  The transcript of that hearing is associated with the Veteran's claims file.  

In February 2014, the Board remanded the Veteran's claim for additional development.  The Board finds that substantial compliance with the prior remand has been accomplished.  Substantial compliance with a remand order, not strict compliance, is required.  See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1999).  Therefore, the Board may proceed forward with adjudicating the Veteran's claim without prejudice to him.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 


FINDING OF FACT

The Veteran does not currently have residuals of his service-connected laryngeal cancer.


CONCLUSION OF LAW

The criteria for a compensable disability rating for service-connected residuals of laryngeal cancer are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A and 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59 and 4.97, Diagnostic Codes 6515-6520 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran seeks a compensable disability rating for his service-connected residuals of laryngeal cancer.  He contends that he has hoarseness, difficulties swallowing, dry mouth, and pain in his throat as a result of his laryngeal cancer and radiation treatment he received therefore in 1999.  The Board acknowledges that service connection for the Veteran's laryngeal cancer was established effective in November 2004 as associated with exposure to herbicide agents during his service and the residuals of his laryngeal cancer of been evaluated as noncompensable since service connection was established.  

Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder.  38 U.S.C.A. § 1155.  Separate diagnostic codes identify the various disabilities.  Id.  Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder.  38 C.F.R. §§ 4.1 and 4.2.  

It is also necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor, 38 C.F.R. § 4.3.  If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation 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.  

38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits.  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent.  See Davidson, 581 F.3d at 1313; Kahana v. Shinseki, 24 Vet. App. 428 (2011).

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).

Disabilities of the larynx are evaluated under Diagnostic Codes 6515 through 6520.   Initially the Board finds that, based upon the Veteran's contentions and a review of the evidence, certain of these diagnostic codes are not applicable to the present case.  Diagnostic Code 6515 is not applicable in the present case because it evaluates tuberculous laryngitis, which is not what the present disability is.  Diagnostic Code 6518 also is not applicable because the Veteran did not have a laryngectomy as a result of the laryngeal cancer (he still has his larynx).  Furthermore, the evaluation under Diagnostic Code 6519 for aphonia is not warranted because the Veteran does not claim that he is constantly unable to speak above a whisper, but rather he contends he only loses his voice when he speaks for long periods of time.  Diagnostic Code 6519 directs the rater to evaluate incomplete (in other words, non-constant) aphonia as chronic laryngitis under Diagnostic Code 6516.  Finally, evaluation under Diagnostic Code 6520 is not warranted because neither the Veteran contends, nor does the evidence show, that he has stenosis of the larynx.  38 C.F.R. § 4.97.

Thus, only Diagnostic Code 6516 is found to be applicable to the Veteran's case (the Board notes there is no Diagnostic Code 6517), which evaluates chronic laryngitis.  Chronic laryngitis warrants a 10 percent disability rating when it is productive of hoarseness with inflammation of the vocal cords or mucous membrane; and warrants a maximum 30 percent disability rating when it is productive of hoarseness with thickening or nodules of the vocal cords, polyps, submucous infiltration or pre-malignant changes on biopsy.  Id.  

The Veteran has undergone three VA examinations related to his claim in September 2009, March 2010 and November 2014  The Board acknowledges that two of those examinations were completed prior to the Board hearing in May 2013 and, at that hearing, the Veteran's representative took exception to at least the March 2010 examination stating that the examiner failed to review the Veteran's residuals as directed.  In the February 2014 remand, the Board acknowledged this lack in the March 2010 VA examination and, therefore, requested a new examination be conducted specifically considering the Veteran's claimed residuals.  It is noted that the September 2009 VA examination, although recording the Veteran's complaints of residuals, also does not discuss whether the Veteran in fact has residuals of his laryngeal cancer.

That examination requested by the Board was conducted in November 2014.  A review of that examination report shows the VA examiner interviewed and examined the Veteran, in addition to conducting a complete review of the Veteran's medical records (including both those in the Veteran's claims file and in his VA medical record), before rendering an opinion that the current objective medical evidence does not establish that the Veteran has residuals of his laryngeal cancer.  The examiner provided a detailed review of the evidence relied upon in her report, as well as an explanation of her reliance on that evidence. 

Specifically, as requested by the Board in its February 2014 remand, the examiner addressed the April 2013 treatment note that was submitted at the Board hearing that purportedly showed findings that as "a residual of radiation treatment for laryngeal cancer, the Veteran has permanent dryness, throat pain, weak voice and hoarseness."  The VA examiner opined that the April 2013 provider notated these complaints as part of the Veteran's history and complaints as the note shows that the provider neither examined the Veteran for "permanent dryness, throat pain, weak voice and hoarseness" nor did he provide an assessment of such.  In addition, the VA examiner commented on a May 2014 ENT examination by a different ENT provider whose findings were silent for hoarseness of voice, throat pain and permanent dryness.  She also commented on Primary Care treatment notes from February and June 2014 in which the Veteran's VA primary care physician noted that the Veteran's oropharynx was without erythema or exudate.  Finally, the VA examiner stated that this day's examination of the Veteran supported that he was able to speak for 35 minutes using normal voice tone without change in tone, loudness and quality of voice during the entire time.  The examiner also noted that the Veteran produced a voluminous laugh (occurring spontaneously during the conversation).  The examiner found that the Veteran did not have a hoarse voice, and his mouth and throat were normal on examination.  She stated that she rechecked his mouth at the end of the examination and it was moist with spit bubbles under his tongue, which finding supports that the Veteran has adequate saliva.  The examiner reported that the Veteran did not need to use any fluids or lozenges to keep his mouth moist during the examination.  As for the Veteran's complaints of throat pain, the examiner stated that this is a subjective complaint, but there are no throat lesions noted on examination or in the Veteran's medical record to support such a complaint.  

The Board finds the VA examiner's medical opinion to be highly probative as to the question as to what, if any, residuals the Veteran has resulting from his laryngeal cancer and the radiation treatment he received therefor.  The VA examiner's medical opinion is clearly based upon a thorough interview with the Veteran and review of the medical evidence.  Thus, it is afforded a high probative value.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion.); see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion").

In contrast, the only evidence submitted by the Veteran in support of his contentions is his own lay statements relating his current symptoms as residuals of his service-connected laryngeal cancer.  When considering lay evidence concerning service connection, the Board must determine, on a case-to-case basis, whether the particular disability is the type of disability for which lay evidence is competent; and if it is, the Board must weigh that evidence against the other evidence of record in making its determinations regarding the existence of service connection.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).  The Board finds, however, that the symptoms the Veteran sets forth in this case could have multiple possible causes and thus, the etiology of those symptoms falls outside the realm of common knowledge of a lay person.  Jandreau, 429 F.3d at 1372.  Consequently, the Veteran's statements relating his symptoms to his service-connected laryngeal cancer lack probative value.

The Board further finds that the VA examiner's findings are supported by the VA treatment records.  These VA treatment records do not present complaints or findings relating to the Veteran's laryngeal cancer or residuals thereto that significantly expand upon, revise, or contradict the findings of the February 2014 VA examiner.  Except for this April 2013 ENT note, there are very few complaints of residuals related to his laryngeal cancer seen within these medical records.   The Board acknowledges that there are several ENT notes that show laryngoscopy was conducted showing the Veteran has edema over the arytenoids and post cricoid areas of the larynx that were noted to be consistent with "reflux and possible post radiation changes."  However, the Board finds that the February 2014 VA examiner clearly reviewed these records and, nevertheless, opined that the Veteran did not have current disabling residuals of his laryngeal cancer.  

Even if the Board were to find that the Veteran's hoarseness is a residual of his laryngeal cancer, the Board cannot find that a compensable disability rating is warranted under Diagnostic Code 6516 because the evidence fails to demonstrate that inflammation of the vocal cords or mucous membrane has been present at any time during the appeal period.  Although the treatment records shows there is edema of the aretynoids and cricoid area, the vocal cords are noted to be mobile or normal.   

Therefore, after considering all the evidence of record, the Board finds that the preponderance of the evidence is against finding that a compensable disability rating is warranted for the Veteran's residuals of laryngeal cancer.  The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits.  The Veteran's claim is, therefore, denied to that extent only.  Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Entitlement to a compensable disability rating for service-connected residuals of laryngeal cancer is denied. 




____________________________________________
M.C. GRAHAM
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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