Citation Nr: 18132273
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 15-29 086
DATE:	September 6, 2018
ORDER
Entitlement to an increased rating greater than 50 percent for squamous cell carcinoma of the supraglottic larynx is denied.
Entitlement to TDIU prior to September 26, 2016, and from November 1, 2017 to December 19, 2017 is granted.
Entitlement to TDIU from September 26, 2016 to October 31, 2017, and as of December 20, 2017 is dismissed as moot.
FINDINGS OF FACT
1. The Veteran’s squamous cell carcinoma of the supraglottic larynx is manifested by swallowing difficulty and speech impairment.  It is not manifested by constant inability to speak above a whisper or communicate by speech, or forced expiratory volume in one second (FEV-1) less than 55 percent predicted.
2. Prior to September 26, 2016, and from November 1, 2017 to December 19, 2017, the Veteran was unable to obtain or retain substantially gainful employment due to his service-connected disabilities.  
3. From September 26, 2016 to October 31, 2017, and as of December 20, 2017, the Veteran has a schedular 100 percent rating and SMC under the provisions of 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i).  Hence, entitlement to TDIU during those periods is moot.
CONCLUSIONS OF LAW
1. The criteria for an increased rating greater than 50 percent for squamous cell carcinoma of the supraglottic larynx have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.27, 4.97, Diagnostic Code 6599-6521 (2017).
2. Prior to September 26, 2016, and from November 1, 2017 to December 19, 2017, the criteria for entitlement to TDIU are met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2017).
3. From September 26, 2016 to October 31, 2017, and as of December 20, 2017, entitlement to TDIU is moot.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from January 1971 to February 1991.
Increased Rating
Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. § 4.1.
Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
Where there is a question as to which of two evaluations shall be applied, 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.
Importantly, the evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14.  However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability.  Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102.
VA received the Veteran’s claim in January 2014.  See January 2014 VA Form 21-8940.  The Veteran had squamous cell carcinoma of the supraglottic larynx surgery, radiation therapy, and antineoplastic chemotherapy in 2008.  See August 2014 VA examination report.  He claims that because of this surgery, he still suffers from speech, swallowing, and muscular symptoms.  Id.  
A. Speech and Swallowing Symptoms
The Veteran is currently rated under Diagnostic Code 6599-6521.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned.  38 C.F.R. § 4.27. 
Diagnostic Code 6521 awards a 50 percent disability rating for injuries to the pharynx.  38 C.F.R. § 4.97.  Specifically, this Diagnostic Code is appropriate when the Veteran suffers from stricture or obstruction of pharynx or nasopharynx, or; absence of soft palate secondary to trauma, chemical burn, or granulomatous disease, or; paralysis of soft palate with swallowing difficulty (nasal regurgitation) and speech impairment.
Here, the Veteran has a lisp which the VA clinician acknowledged upon examination.  See August 2014 VA examination report.  Further, the Veteran reported difficulties swallowing and using his tongue.  Upon oral cavity inspection, the Veteran had curling of the tongue at rest and low range of motion.   Specifically, while the Veteran could lift his tongue upwards, downwards, and to the right, he had decreased range of motion to the left.  Id.  Nevertheless, the Veteran could still communicate and speak above a whisper.  As a result, a 50 percent disability rating under Diagnostic Code 6521 appropriately addresses his speech and swallowing symptoms post larynx surgery.
A change in Diagnostic Code to address these symptoms is not appropriate.  Diagnostic Codes 6515 through 6520 involve diseases of the larynx.  As the Veteran did not have a total laryngectomy or tuberculosis, ratings under Diagnostic Codes 6515 and 6518 are not warranted.  Further, the maximum rating under Diagnostic Code 6516, which involves chronic laryngitis, is 30 percent.  Hence, changing the Diagnostic Code to 6516 is not beneficial to the Veteran.
Diagnostic Code 6520 involves stenosis of the larynx, to include residuals of laryngeal trauma.  Forced expiratory volume in one second (FEV-1) less than 40 percent of predicted value, with Flow-Volume Loop compatible with upper airway obstruction, or; permanent tracheostomy would yield a 100 percent rating.  FEV-1 of 40 to 55-percent predicted warrants a 60 percent rating.  VA could also evaluate residuals of larynx trauma as aphonia, or Diagnostic Code 6519.  38 C.F.R. § 4.97, Diagnostic Code 6520, Note.
Diagnostic Code 6519 involves complete organic aphonia.  A constant inability to communicate by speech warrants a 100 percent rating, while constant inability to communicate above a whisper warrants a 60 percent rating.  
Here, the Veteran can communicate above a whisper.  See August 2014 VA examination report.  Further, his FEV-1 predicted pre-bronchodilator is 69 percent and 65 percent post-bronchodilator.  See March 2018 VA examination report.  As a result, a change to either Diagnostic Codes 6519 or 6520 is not warranted or beneficial to the Veteran.  
B.  Muscular Symptoms
Because of having surgery for squamous cell carcinoma of the supraglottic larynx, the Veteran had anterior and side neck muscle involvement with neck stiffness and periodic cramping.  The muscles involved are of the front of the neck and affect the left side.  As to those muscles, the Veteran had loss of muscle substance, visual or measurable muscle atrophy, loss of power, and weakness.  See November 2013 VA examination report.  
Muscle injuries to the front of the neck are evaluated under Diagnostic Code 5322.  38 C.F.R. § 4.73, Diagnostic Code 5322.  Severe injuries to those muscles are rated at 30 percent disabling.  That is the maximum schedular rating available to Group XXII muscles, and the Veteran meets that criteria for his muscular symptoms throughout the appellate period.  The Veteran is already in possession of the maximum 30 percent rating under Diagnostic Code 5322 effective October 15, 2012.  Therefore, a higher schedular rating is not warranted.
C.  Extraschedular Consideration
The Board acknowledges that the Veteran’s representative has asserted that 38 C.F.R. § 3.321 applies in this case. 
At the outset, it is observed that 38 C.F.R. § 3.321(b)(1) has been amended, effective January 8, 2018, to clarify that an extraschedular analysis need only apply to a single disability, rather than upon consideration of multiple service-connected disabilities.  See 82 Fed. Reg. 57830 (December 8, 2017).  Therefore, the Board need only consider whether an extraschedular evaluation should be applied based only on the service-connected cancer of the supraglottic larynx. 
The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.   See Thun v. Peake, 22 Vet. App. 111, 115-19 (2008).  However, in this case, the Board finds that the diagnostic criteria of the rating schedule reasonably describe the Veteran’s disability level and symptomatology.  Diagnostic Codes 6521 and 5322 encompass all the Veteran’s reported and observed symptomatology attributed to his speech, swallowing, and muscular residuals.  
Hence, the Veteran’s disability picture is adequately contemplated by the rating schedule, and the assignments of the 50 percent and 30 percent ratings throughout the appeal period are therefore adequate in this case.  
TDIU
Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340.  Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. 
Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).  For the stated purpose 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, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident.  38 C.F.R. 4.16(a). 
“Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.”  Moore v. Derwinski, 1 Vet. App. 356, 358 (1991).  “Marginal employment shall not be considered substantially gainful employment.”  38 C.F.R. § 4.16(a) (2017).
In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.
1. Prior to September 26, 2016 and from November 1, 2017 to December 19, 2017
VA received the Veteran’s claim in January 2014.  See January 2014 VA Form 21- 8940.
The Veteran has alleged that he cannot work because of his service-connected disabilities.  The Veteran has not worked since March 2006 when he was a temporary staffer.  See January 2014 VA Form 21-8940.
The Veteran has met the threshold requirement for entitlement to TDIU on a schedular basis.  The Veteran’s carcinoma residuals combine to more than 40 percent, and he is rated at 90 percent disabling throughout the appellate period.  See 38 C.F.R. § 4.16(a).  Thus, the narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation because of his service-connected disabilities.
As a preliminary matter, the Veteran is service connected for the following disabilities: (1) squamous cell carcinoma of the supraglottic larynx rated at 50 percent disabling from September 1, 2010; (2) group XXII, muscles of the front of the neck, rated at 30 percent disabling from October 15, 2012; (3) PTSD rated at 50 percent from October 15, 2012, and 30 percent from April 1, 2017; (4) degenerative joint disease of the right knee rated at 10 percent from June 16, 1999, and 30 percent from November 1, 2017; (5) tinnitus, dermatitis of the face and scalp, and residual scars, each rated at 10 percent disabling; and (6) status post fracture, right index and middle fingers, bilateral hearing loss, and residual neck scars, each assigned non-compensable ratings.
The Board notes that the Veteran receives Social Security Administration (SSA) disability payments for various disabilities.  See May 2007 SSA Disability Determination and Transmittal.  Because of the Veteran’s right knee pain, he was found to have standing and walking limited to about four hours a day in an eight-hour workday.  See March 2007 physical residual functional capacity assessment.
In August 2014, a VA clinician determined that the Veteran can stand for about 20 minutes due to his service-connected knee condition.  He could walk for about 20 yards before he must sit down and rest.  The Veteran also has difficulty turning his head to the left, and getting up from a crouched position.  See August 2014 VA examination report.  As to sedentary employment, the Veteran can sit for about 45 minutes before he would have to get up and move around.  Further, the Veteran stated that “since the time of his diagnosis and treatment for cancer he has significantly less energy and could no longer work an eight to ten-hour day.”  Id.  Further, the Veteran must rest frequently throughout the day, exhibits poor concentration levels, and types slowly.
The Veteran’s daughter, a general manager and field training specialist, stated that the Veteran’s cancer and PTSD hinder his ability to obtain or retain substantially gainful employment.  Specifically, she stated that “as a general manager I would not in good conscience be able to hire him and and [sic] expect him to complete what needs to be done in daily tasks.”  See September 2015 J.C. statement.  
The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner.  See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013).  A medical examiner’s role is limited to describing the effects of disability upon the person’s ordinary activity.  See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013).  The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).
Here, the Veteran has been deemed unemployable by at least one medical professional.  Further, his musculoskeletal symptoms would make it difficult for him to walk or sit for prolonged periods.  His psychological symptoms contribute to concentration lapses and difficulty in establishing work relationships.  His speech and swallowing difficulties would make it difficult to complete tasks and communicate effectively.  As such, the Board finds the Veteran and his medical treatment providers credible as to his functional limitations attributable to his service-connected disabilities.
Therefore, the Board finds that the Veteran’s service-connected disabilities at least as likely as not prevent him from obtaining and maintaining gainful employment.  Accordingly, resolving all doubt in his favor, the criteria for TDIU have been met, and the claim is granted prior to September 26, 2016, and from November 1, 2017 to December 19, 2017.  See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990).
2. From September 26, 2016 to October 31, 2017, and as of December 20, 2017
The Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled.  Holland v. Brown, 6 Vet. App. 443, 446 (1994).  Thus, if VA has found a Veteran to be totally disabled because of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis.  See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period).
A grant of a 100 percent disability does not always render the issue of TDIU moot.  VA has a duty to maximize a claimant’s benefits includes consideration of whether his disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114.  See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008).  Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent.  See Bradley, 22 Vet. App. 280.
(Continued on the next page)
 
Here, for the periods from September 26, 2016 to October 31, 2017, and as of December 20, 2017, the Veteran is in receipt of a 100 percent rating and SMC under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i).  As a result, the issue of entitlement to TDIU for those periods is moot and must be dismissed.
 
DONNIE R. HACHEY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Salazar, Associate Counsel 

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