Citation NR: 9631522 Decision Date: 11/06/96 Archive Date: 11/14/96 DOCKET NO. 95-19 881 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to a separate 100 percent rating for squamous cell carcinoma of the larynx in addition to the 100 percent rating for laryngectomy. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Heather J. Harter, Associate Counsel INTRODUCTION The veteran had active duty from July 1952 to February 1956 and from May 1966 to January 1970. The pertinent procedural history of the instant claim is as follows: by rating decision of November 1994, service connection for squamous cell carcinoma of the larynx with a total laryngectomy as a result of exposure to Agent Orange was granted. A 100 percent disability rating was assigned. Service connection was granted separately for residuals of the right radial neck dissection which accompanied the tracheotomy and a 30 percent disability was assigned to the residuals. Special monthly compensation for aphonia was denied. A full and complete statement of the case setting forth the laws and regulations and containing an explanation of the RO’s decision was issued to the veteran and his representative in May 1995. By rating decision of June 1995, the RO granted special monthly compensation (SMC) for complete organic aphonia with the constant inability to communicate by speech. Although the veteran and his representative received copies of the rating decision, the veteran’s representative, at the local level and again at the national level, apparently failed to note the grant of SMC, as both have subsequently submitted argument in favor of such a grant. The issue remaining is entitlement to a separate 100 percent rating for squamous cell carcinoma of the larynx in addition to a 100 percent disability rating assigned for laryngectomy. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his cancer of the larynx was rated 100 percent prior to the laryngectomy and that, therefore, a separate 100 percent evaluation is warranted for the laryngectomy. His representative asserts that a separate 100 percent rating for aphonia is also warranted. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran’s claim for entitlement to separate ratings for carcinoma of the larynx and for laryngectomy. FINDINGS OF FACT 1. All evidence needed an equitable disposition of the appeal has been obtained. 2. The veteran’s service-connected carcinoma of the larynx was treated by the surgical procedure of a total laryngectomy; residuals include complete aphonia. 3. The residuals of a total laryngectomy encompass all impairment associated with carcinoma of the larynx, including aphonia. CONCLUSION OF LAW A separate 100 percent rating for squamous cell carcinoma of the larynx in addition to the 100 percent rating assigned for laryngectomy is not warranted. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.14, 4.97, Codes 6518, 6519, 6819 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION In September 1986, the veteran underwent a total laryngectomy, right radical neck dissection, and tracheostomy to remove a squamous cell carcinoma of the larynx. The carcinoma was deemed to have been caused by exposure to Agent Orange during service. Service connection for squamous cell carcinoma of the larynx with a total laryngectomy was granted and a 100 percent disability rating was assigned. Service connection was granted separately for residuals of the right radial neck dissection which accompanied the tracheotomy and a 30 percent disability was assigned to the residuals. The veteran now contends that separate 100 percent evaluations are warranted for cancer of the larynx and for the laryngectomy. Even though one injury may potentially be evaluated utilizing several different provisions of the rating schedule, governing regulation provides that the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. The Court of Veterans Appeals has echoed this principle as follows: “Implicit within [the language of 38 U.S.C.A. § 1155] is the concept that the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment of his earning capacity.” Brady v. Brown, 4 Vet.App. 203, 206 (1993). In assigning the proper rating, then, the VA must seek to accurately reflect the actual level of impairment arising from a disability. "The critical element [in determining whether appellant's disabilities may be rated separately] is [whether any] of the symptomatology for any one of these . . . conditions is duplicative of or overlapping with the symptomatology of the other . . . conditions." Esteban v. Brown, 6 Vet.App. 259, 262 (1994). The veteran’s cancerous growths were removed by the 1986 surgery, which consisted of a total laryngectomy, right radical neck dissection, and tracheostomy. Post-surgical pathology reports confirmed that 71 nodes tested were negative for any signs of the tumor. The postoperative condition is rated 100 percent, as laryngectomy. It is noteworthy that the surgery included a right radical neck resection. The RO has recognized this as separate and distinct impairment and assigned a separate 30 percent rating for such impairment. Applying the dictates of Esteban, ibid., the Board finds that all concomitant pathology (other than the neck resection) following the laryngectomy is encompassed in the rating for laryngectomy. This includes any residuals of the carcinoma and aphonia. (Here it is noteworthy that SMC has been granted for aphonia.) The post-operative residuals affect the very same body parts and functions as the cancer had affected. If the veteran had not had surgery, he would be rated for the symptomatology resulting from cancer under the provisions of 38 C.F.R. § 4.97, Code 6819. Since he had surgery, the associated impairment is now rated under the provisions of 38 C.F.R. § 4.97, Code 6518. As the veteran’s representative notes, his disability could also be evaluated under the schedular criteria regarding aphonia, or the inability to communicate by speech utilizing the criteria set forth in 38 C.F.R. § 4.97, Code 6519. Because of the nature of his particular disability, the veteran would be entitled to a 100 percent disability rating under any of the above- cited disability codes. However, the function affected is one and the same--the veteran has lost his voice. As outlined above, rating a claimant more than once for the same disability is prohibited. 38 C.F.R. § 4.14. It is pertinent to note that the regulations governing the rating of disabilities of the respiratory system have been updated since the veteran’s appeal was filed. The new provisions took effect October 7, 1996. A review of the new regulations reveals that they do not afford the veteran the prospect of greater benefits as there is no real alteration in the provisions regarding the veteran’s particular disability picture. The new criteria are generally more specific than the old provisions and clarify that rating cancer, laryngectomy, and aphonia separately would constitute prohibited pyramiding. see 61 Fed. Reg. 46728 (1996) (to be codified at 38 C.F.R. § 4.97). ORDER A separate 100 percent rating for squamous cell carcinoma of the larynx in addition to a 100 percent disability rating for laryngectomy is denied. GEORGE R. SENYK Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1995), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -