BVA9506396 DOCKET NO. 93-26 455 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an increased (compensable) rating for residuals of a tonsillectomy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD K. Ehrman, Associate Counsel INTRODUCTION The veteran honorably served on active duty from February 1951 to February 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1993 rating decision of the Muskogee, Oklahoma, Regional Office (RO), of the Department of Veterans Affairs (VA). In July 1994, the Board remanded the appeal for additional development of the record. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he suffers from recurrent sore throats, hoarseness, dryness and sinus drainage as a residual result of a 1953 tonsillectomy during service. He also contends that the operation in service caused scarring in his throat. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), 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 a preponderance of the evidence is against the claim for increase. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran has a history of tonsillectomy in service, but is not shown to have pathological changes, catarrhal inflammation or hoarseness related thereto. CONCLUSION OF LAW The criteria for an increased (compensable) evaluation for residuals of a tonsillectomy have not been met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.102, 3.321, and Part 4, 4.7, 4.20, 4.97, Diagnostic Code 6516 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Historical. Since February 1953, the veteran has been service connected for the residuals of a tonsillectomy performed while in service. This disability was been evaluated as noncompensably disabling since that time. VA treatment records, dated from September 1992 to October 1994, show continued occasional treatment for complaints of cold and cough symptoms, namely, a sore and dry throat, allergic sneezing, a runny nose, watery eyes, nasal congestion, and sinus drainage. A September 1992 treatment record notes a "long history" of allergies, sneezing, chronic sore throats, and complaints of dry throat, with phlegm production. The examiner, who indicated that he had seen the veteran frequently since 1985, noted a history of a lump in the veteran's throat for many years. An examination showed that his larynx and esophageal opening were within normal limits, and the assessment was acute allergic symptoms. In January 1993, the veteran was treated for a bad cold, among other nonrelated disorders. At that time, he was noted as having no allergies, and inflamed polyps, first observed in 1988, were noted as benign. In February 1993, the veteran was seen for complaints of a dry throat, a bad taste in his mouth and bad breath. Some oropharyngeal drainage was noted, and the veteran was given a dental cleaning with an instruction on proper oral hygiene. He was next seen in May 1993 with a history of a sore throat and dry cough. At that time, the pharynx was negative, with no palpable nodes. He was seen again in December 1993 for a sore throat, and in May 1994 for sinus drainage, with white sputum, which had been intermittent over the past six months. The veteran was afforded a VA mouth and throat examination in August 1993, at which time the veteran complained of halitosis, a bad taste in his mouth, bronchitis, sneezing, and "some headaches." The veteran indicated that he had allergies, but received desensitization shots for eight years. Upon physical examination, the veteran was noted to have poor dental hygiene with inflamed gingiva. Most of his teeth were present. The examination of his oropharynx revealed that his tonsils were surgically absent, and both fossae were clean with no scarring. The examiner noted the nasopharynx to be clean, and the hypopharynx, puriform fossae, and larynx were normal. The nasal examination showed allergic, pale hypertrophied turbinates, with no polyps and no purulence. The veteran's ears had intact mobile drums. The diagnoses were post-operative tonsillectomy in 1953 with normal anatomy, allergic rhinitis and poor dental hygiene with gingivitis. Additional VA treatment records dated in September and October 1994 show continued treatment for complaints of allergic sneezing, runny nose, watery eyes, a sore throat and a productive cough. In October 1994, the examiner's diagnosis was that of upper respiratory infection, questionable persistent influenza, probably viral. II. Evaluation of Residuals of Tonsillectomy. The Board has found that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991); that is, he has presented a claim that is plausible. Murphy v. Derwinski, 1 Vet. App. 78 (1990). Disability evaluations for VA rating purposes, are based upon the average impairment of earning capacity as contemplated by the relevant diagnostic code provisions contained in the VA's Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (1994). The criteria for ascertaining the degree of impairment resulting from residuals of a tonsillectomy are delineated in Diagnostic Code 6516, by analogy to chronic laryngitis. Under this code, a 10 percent evaluation may be assigned when a moderate impairment is shown with a showing of catarrhal inflammation of cords or mucous membrane, and moderate hoarseness. If severe disability is shown, with marked pathological changes, such as inflammation of cords or mucous membrane, thickening or nodules of cords, or submucous infiltration, and marked hoarseness, a 30 percent evaluation is assigned under Diagnostic Code 6516. The Board finds that the criteria for an increased (compensable) evaluation for residuals of a tonsillectomy are not met. While VA treatment records show continued treatment for essentially cold, cough, influenza, and allergy symptoms, these records do not relate any of these current symptoms to his service-connected tonsillectomy residuals. Furthermore, the August 1994 VA nose and throat examination report specifically notes no current residual disability resulting from his service-connected tonsillectomy. Accordingly, moderate impairment is not shown as contemplated by a 10 percent evaluation under Diagnostic Code 6516 and, since neither inflammation of the cords or mucous membrane nor moderate hoarseness is currently shown, the criteria for a 10 percent evaluation under Diagnostic Code 6516 are not met. While the veteran contends that his 1953 tonsillectomy resulted in throat scarring, no such finding or any related defect was noted upon VA examination in August 1994. With consideration of the veteran's contentions, as well as the objective clinical evidence of record, the Board finds that an increased rating is not assignable. The Board, in reaching this determination, has considered the veteran's November 1993 sworn testimony obtained before a traveling member of the Board at the RO. At that time, the veteran indicated that he experiences hoarseness, a dry throat and a cough on a daily basis, and he uses cough medicine and other medications for some relief or management of these symptoms. The veteran also stated that no physician has related this current symptomatology to his service-connected disability. The veteran's unsupported lay assertions are neither probative nor competent evidence in this regard. The United States Court of Veterans Appeals (the Court) has found that, where the determinative issue involves a question of medical diagnoses or causation, only individuals possessing specialized knowledge are competent to render such an opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Accordingly, the preponderance of the evidence of record is against the claim for an increased (compensable) rating for service-connected tonsillectomy. ORDER The claim for an increased (compensable) evaluation for residuals of a tonsillectomy is denied. STEPHEN L. WILKINS Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (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), 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 (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.