Citation Nr: 18160517
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 09-07 664
DATE:	December 26, 2018
REMANDED
1. Entitlement to an initial rating higher than 10 percent for residuals of surgery for a throat condition is remanded.
2. Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis, prior to July 27, 2006, is remanded.
3. Entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s), from July 19, 2013, is remanded.
REASONS FOR REMAND
The Veteran served on active duty from June 1985 to June 1989. 
This appeal to the Board of Veterans’ Appeals (Board) arose from a February 2007 rating decision issued by the Department of Veterans Affairs (VA).  See March 2007 Notice of Disagreement (NOD); December 2008 Statement of the Case (SOC); February 2009 Substantive Appeal (VA Form 9). 
The Veteran testified before the undersigned Veterans Law Judge in an October 2012 hearing.  A transcript of the hearing is associated with the claims file.
In February 2013, the Board remanded for additional development, including on an inferred TDIU claim raised by the evidence.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).
In the October 2014 rating decision, the Regional Office (RO), in pertinent part, granted TDIU, effective October 24, 2012, to July 11, 2014.  Upon review of that rating decision, the effective date was apparently assigned based on the date the Veteran met the schedular requirement for an award of TDIU pursuant to 38 C.F.R. § 4.16 (a), and the termination date was assigned based on the date the combined evaluation for all of her service-connected disabilities became 100 percent.
In the March 2016 Board decision, the Veteran was granted entitlement to an initial rating of 10 percent for residuals of surgery for a throat disability.  The issue of entitlement to TDIU prior to October 24, 2012, and from July 11, 2014, was remanded as inextricably intertwined with another appealed disability requiring additional development.  The Veteran appealed the initial rating for residuals of surgery for a throat disability to the Court of Appeals for Veterans Claims (CAVC).
In October 2016, the parties agreed to a Joint Motion for Partial Remand (JMPR) and remanded the portion of the March 2016 Board decision that denied entitlement to an initial rating in excess of 10 percent for residuals of surgery for a throat condition for further discussion on whether an extraschedular rating is warranted.  CAVC granted the JMPR in an October 2016 Order.
In an August 2017, the Board remanded the issue of entitlement to an initial rating higher than 10 percent for residuals of surgery for a throat condition to obtain medical guidance in determining whether an extraschedular rating is warranted.  The issue of entitlement to TDIU prior to October 24, 2012, was remanded as inextricably intertwined with the disabilities pending appeal.  In addition, the Board inferred a SMC claim as part of the Veteran’s increased rating claim.  See Akles v. Derwinski, 1 Vet. App. 118 (1991).
In an August 2017 rating decision, an earlier effective date of July 27, 2007 for TDIU was granted and the combined 100 percent rating became effective July 19, 2013.
In February 2018, the Board remanded the issue of entitlement to an initial rating higher than 10 percent for residuals of surgery for a throat condition because there was not substantial compliance with the August 2017 Board remand.  Specifically, the Board found that the September 2017 VA examiner did not identify the classic signs and symptoms of laryngitis and inflammation or state whether the symptoms of a sore, painful, and irritated throat, difficulty swallowing, coughing, fullness in the throat, and/or burning sensations of the throat, demonstrate manifestations that are characteristic of hoarseness with inflammation of the vocal cords or mucous membranes.  The Board remanded for an addendum opinion from a VA examiner to answer those questions.
The RO obtained an addendum opinion from a VA examiner in October 2018.  In the October 2018 Supplemental Statement of the Case (SSOC), the RO denied the Veteran’s entitlement to an initial rating higher than 10 percent for her residuals of surgery for a throat condition; entitlement to TDIU on an extraschedular basis prior to July 27, 2006; and entitlement to SMC pursuant to 38 U.S.C. § 1114(s), from July 19, 2013.
The Board notes that the Veteran has pending appeals for claims related to a skin condition, a residual scar (claimed as a chin condition), specially adapted housing, a muscle injury, and scars secondary to a skin condition and posttraumatic stress disorder (PTSD) that are pending SOCs and are, thus, not part of this Board decision.  See May 2017 NOD; February 2018 NOD
1. Issue of entitlement to an initial rating higher than 10 percent for residuals of surgery for a throat condition.
While the Board sincerely regrets another remand of this matter, there has not been substantial compliance with the Board’s previous February 2018 remand directive regarding the issue entitlement to an initial rating higher than 10 percent for residuals of surgery for a throat condition.  Another remand is required.  Stegall v. West, 11 Vet. App. 268, 271 (1998).
The February 2018 Board remand directed that an addendum opinion by a VA examiner be obtained to (1) identify the classic signs and symptoms of laryngitis and inflammation, and (2) state whether the symptoms of a sore, painful, and irritated throat, difficulty swallowing, coughing, fullness in the throat, and/or burning sensations of the throat, demonstrate manifestations that are characteristic of hoarseness with inflammation of the vocal cords or mucous membranes.  See February 2018 Board decision.  The RO obtained an October 2018 addendum opinion that identified the signs and symptoms of laryngitis to include dysphonia, with or without throat discomfort.  October 2018 VA examination.  The VA examiner also opined that laryngeal inflammation manifests as increased erythema or edema of the larynx, or possibly more permanent vocal cord changes to the mucosal or underlying vocal structures.  Id.  However, the VA examiner did not address whether the symptoms of a sore, painful, and irritated throat, difficulty swallowing, coughing, fullness in the throat, and/or burning sensation of the throat demonstrate manifestations that are characteristic of hoarseness with inflammation of the vocal cords or mucous membranes.  Instead, the VA examiner found there was no evidence of chronic laryngitis and that those symptoms are attributable to the residuals of the Veteran’s surgery for a throat condition.  See id.
The VA examiner only addressed one of the two questioned posed in the February 2018 Board remand.  The Board, therefore, finds that there has not been substantial compliance with its February 2018 remand directives and that further development is necessary.
2. Issues of entitlement to TDIU on an extraschedular basis, prior to July 27, 2006, and to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s), from July 19, 2013.
Finally, because a decision on the remanded issue of entitlement to an initial rating higher than 10 percent for residuals of surgery for a throat condition could significantly impact a decision on the issue entitlement to TDIU on an extraschedular basis, prior to July 27, 2006, and to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s), from July 19, 2013, the issues are inextricably intertwined.  Therefore, a remand on these issues are required as well.
The matters are REMANDED for the following action:
1. If possible, obtain an addendum opinion from the same VA examiner who provided the October 2018 addendum opinion.  If not possible, obtain an opinion from an appropriate medical professional to determine the nature and severity of the Veteran’s residuals of surgery for a throat condition.  If the examiner determines that it is necessary, schedule the Veteran for a VA examination to evaluate the Veteran’s residuals of surgery for a throat condition.  The examiner should respond to the following:
(a) Can the symptoms of a sore, painful, and irritated throat, difficulty swallowing, coughing, fullness in the throat, and/or burning sensation of the throat be considered characteristic of chronic laryngitis that manifests as hoarseness with inflammation of cords or mucous membranes?
The Board recognizes that the evidence does not show the Veteran has or has had chronic laryngitis, or that the symptoms of a sore, painful, and irritated throat, difficulty swallowing, coughing, fullness in the throat, and/or burning sensation of the throat are due to chronic laryngitis in this case.  When an unlisted condition such as the Veteran’s residuals of surgery from a throat condition is encountered for VA disability rating purposes, the unlisted condition is rated under a closely related, analogous, disease or injury based functions affected, anatomical location, and symptomatology per 38 C.F.R. § 4.20.  Here, the Veteran’s residual of surgery for a throat condition is analogously rated as chronic laryngitis.  The Board is requesting clarification on if chronic laryngitis that manifests as hoarseness with inflammation of cords or mucous membranes would encompass the symptoms of a sore, painful, and irritated throat, difficulty swallowing, coughing, fullness in the throat, and/or burning sensation of the throat.  In other words, do these symptoms reasonably describe chronic laryngitis that manifests as hoarseness with inflammation of the cords or mucous membranes.
(b) If any, please identify the symptom(s) that would not reasonably describe chronic laryngitis with hoarseness and inflammation of the cords or mucous membranes.
A detailed explanation (rationale) is requested for each opinion, including citing to supporting clinical data (and/or medical literature), as appropriate.

					(Continued on next page)

2. After the above development has been completed, arrange for any further development indicated by the results of the development requested above if deemed necessary by the AOJ (e.g., referring the Veteran’s service-connected residuals of surgery for a throat condition and TDIU prior to July 27, 2006, to VA’s Director of Compensation Service for extraschedular consideration).

 
DEBORAH W. SINGLETON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Lin, Associate Counsel

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency