Citation Nr: 0007005 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 98-14 879 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent from October 1, 1998 for squamous cell carcinoma of the laryngeal surface of the epiglottis. 2. Entitlement to an initial evaluation in excess of 10 percent for laryngitis as secondary to treatment for squamous cell carcinoma of the laryngeal surface of the epiglottis. 3. Entitlement to an initial evaluation in excess of 20 percent for T3 compression fracture with x-ray evidence of compression deformity. REPRESENTATION Veteran represented by: State of Colorado, Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Maureen A. Young, Associate Counsel INTRODUCTION The veteran had active military service from March 1970 to March 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1998 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Denver, Colorado. In a June 1997 rating decision the RO granted service connection for squamous cell carcinoma of the laryngeal surface of the epiglottis on the basis of herbicide exposure and assigned a total evaluation (100 percent) from November 1996. In the same rating decision, the RO notified the veteran of a prospective reduction of the benefit from 100 percent to 0 percent from August 1, 1997. 38 C.F.R. § 4.97 provides that a total evaluation be assigned with no prospective reduction, but that an examination be held approximately six months from the end of treatment, and reduction would not be promulgated until after the examination report was reviewed and due process procedures applied. The notification of a prospective reduction in the June 1997 rating decision was in clear contradiction to the intent of the regulation as a review examination had not been conducted prior to notifying the veteran of the prospective reduction. The April 1998 rating decision erroneously continued the non- compensable evaluation. In a December 1998 decision of the hearing officer, the error was corrected to October 1998 to reflect the continuation of the 100 percent evaluation until after the date of review of the examination, which occurred July 1997. The review examination was considered in the April 1998 rating decision. Under due process procedures the veteran had 60 days to respond. The April 1998 rating decision became final in July 1998. Under 38 C.F.R. § 3.105(e), the final rating decision must prospectively make the reduction two calendar months after notification. In the December 1998 hearing officer's decision, it was determined that October 1998 was the effective date of reduction. In April 1998 the RO affirmed the noncompensable evaluation for squamous cell carcinoma of the laryngeal surface of the epiglottis; granted service connection for laryngitis as secondary to treatment for squamous cell carcinoma of the laryngeal surface of the epiglottis with assignment of a 10 percent evaluation effective January 10, 1997; and granted service connection for a compression fracture at T3, with x- ray evidence of compression deformity with assignment of a 20 percent evaluation effective November 25, 1996. FINDINGS OF FACT 1. Residuals of squamous cell carcinoma of the laryngeal surface of the epiglottis are productive of no more than moderate disability and permit the veteran to swallow more than liquids. 2. The veteran's chronic laryngitis is productive of hoarseness without inflammation of the vocal cords or mucous membranes. 3. Medical evidence demonstrates that the veteran's T3 compression fracture with x-ray evidence of compression deformity is manifested by mild to moderate disability, with demonstrable deformity of the vertebral body without objective evidence of severe limitation of motion or severe intervertebral disc syndrome. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent from October 1, 1998 for residuals of squamous cell carcinoma of the laryngeal surface of the epiglottis are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.114, Diagnostic Code 7203 (1999). 2. The schedular criteria for an initial evaluation in excess of 10 percent for laryngitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.97, Diagnostic Code 6516 (1999). 3. The criteria for a rating in excess of 20 percent for T3 compression fracture with x-ray evidence of compression deformity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes, 5285, 5291(1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background Squamous Cell Carcinoma of the Epiglottis and Laryngitis Service records show that the veteran served as a helicopter repairman in Vietnam from December 1970 to November 1971. Post-service records show that he was diagnosed with squamous cell carcinoma of the epiglottis in November 1996. He was treated with radiation therapy. Service connection for squamous cell carcinoma of the laryngeal surface of the epiglottis was granted in a June 1997 rating decision on the basis of the presumption that the veteran was exposed to herbicides while in Vietnam. The condition was initially evaluated as 100 percent disabling from November 1996. Pursuant to pertinent regulations, the RO noted, that the 100 percent evaluation was assigned during active malignancy. Six months following completion of treatment, residual disability is determined by findings from a VA examination conducted at that time. It was further noted that the condition was evaluated as 0 percent disabling from August 1, 1997, because, a non- compensable evaluation is assigned in the absence of recent malignancy or significantly disabling residuals. In January 1997 reports from radiation oncology follow-up visits showed that the veteran seemed to tolerate therapy well. He had no undue sequelae. Erythema was clearing up. He had the expected mucositis and hoarseness. There continued to be an ill-defined area of firmness bilaterally in the anterior jugular chain. In February 1997 the veteran complained of food tasting terrible. His voice was normal most of the time but towards the end of the day or if he was exposed to dust he noticed hoarseness towards the end of the day. It was noted that he was having no significant pain. The veteran's pharynx looked normal upon examination using a fiberoptic scope. The mucous membranes were back to essentially normal color. There was minimal edema and his cords moved well. The laryngeal surface of the epiglottis was about a one-centimeter area of pale to white mucosa at the site of the previous ulcer. On VA examination in February 1997 there was atrophy of the papillae of the tongue and the tongue was coated with a brown discharge. The veteran had a permanent metallic taste and anything sweet was sickening to him. He stated that he enjoys salty foods and eats fried chicken and mashed potatoes with the most appetite. He reported that anything spicy or hot causes burning. He could distinguish salt, sour and sweet. It was noted that he drinks water almost all of his waking hours because of dry mouth and lack of saliva. The physician noted that the veteran's voice was husky and fades with exposure to cold air and prolonged talking. The diagnosis was post radiation changes of squamous cell carcinoma of the epiglottis with right arytenoepiglottic fold involvement, loss of taste and salivary function. In March 1997 minimal edema was noted on the area of the tumor on the right side of the laryngeal surface of the glottis which was covered with somewhat pale but definitely intact epithelium with no mass effect. In an April 1997 report, it was noted that the veteran's voice was good. His skin looked good. There was no adenopathy or tenderness on manipulation of the larynx. Intraoral mucosa looked good. Fiberoptic examination revealed some atrophy at the right side of the laryngeal surface of the epiglottis going onto the aryepiglottic fold. There was no mucosal disruption or any mass and the cords moved well. He did have a fair amount of light mucus in the nasopharynx along the posterior pharyngeal wall. Radiation oncology follow-up visit reports from April 1997 to June 1997 showed no evidence of tumor activity. VA compensation examination of July 1997 revealed that the veteran lost 30 pounds after radiation therapy. He regained at least five. He reported that his throat becomes painful and very dry. Examination of the veteran's nose, sinuses, mouth and throat showed tenderness on the submandibular areas bilaterally on palpation. No palpable glands were noted. His nose, sinuses, mouth and throat looked clear. No recurrence of the cancer was shown. The diagnosis was laryngeal carcinoma status post radiation therapy. Residuals of hoarseness, sore throat with right arytenoepiglottic fold and epiglottis involvement by record and history. In a July 1997 letter the veteran's physician stated that he has significant intolerance to exposure to various fumes including those associated with his job as a welder. He further stated that it would be to the veteran's advantage to avoid exposure to such fumes as well as to combustion products from tobacco. A path report accompanied the physician's letter. It indicated that the veteran had no eating limitations. In an October 1998 letter the veteran's private physician noted that there has been no recurrence of the squamous cell carcinoma of the epiglottis. He further noted that the veteran suffers some dryness of mouth from his treatment, which makes it somewhat difficult for him to swallow. He noted that he had advised the veteran to avoid harmful fumes from welding and to quit smoking. In an October 1998 statement the veteran noted that the radiation therapy caused permanent damage to his normal saliva glands. He stated that he suffers constantly with dry mouth. He also stated that his sleep is seriously impaired due to no saliva. He further stated that eating is very difficult. At his personal hearing in October 1998, the veteran testified that he has difficulty swallowing and he awakes every morning with built up mucous that causes him to vomit and gag. He further testified that he has a laryngoscopic examination every six weeks and periodic biopsies to make sure there are no recurrences of his condition. Hearing Transcript (Tr.) pp. 5, 8, 10. He stated that such procedures cause voice loss and throat irritation. Tr. pp. 5-6. He also stated that cold, wind, dust exposure and exposure to fumes in his welding business causes extreme tissue dryness in the mouth and throat. The veteran stated that he has drunk as much as 30 jugs of water and 15 glasses of milk in a day. He further stated that he cannot tolerate drinking anything from a can because of the metallic taste. He testified that he went from 178 pounds to about 135 pounds and now weighs about 160 pounds. Tr., pp. 6, 8. He stated that he felt he was in weaker condition and could not do as much physical activity as he used to do. Tr., pp. 6-7. He testified that his family-run business had suffered to the point where they have had to make drastic cuts due to financial burdens. Tr., p. 3. T3 Compression Fracture Service medical records show that the veteran was in a motor cycle accident in July 1971. In December 1972 he was seen at the orthopedic clinic with complaints of constant pain at the T3 level. It noted that there were no radicular problems. The diagnosis was compression fracture of the T3, stable and symptomatic. Clinical record of February 1973 showed the veteran was still symptomatic with pain in upper dorsal spine. Compression fracture of the T3 was indicated on the separation examination. On VA examination in July 1997 the thoracic spine appeared to be in the midline. Range of motion of the lumbosacral spine was 85 degrees forward bending with no pain, lateral bending was 25 degrees left and 40 degrees right with no associated pain. There was no tenderness or spasms noted. Straight leg raising was negative while sitting and supine bilaterally. Both ankle jerks and knee jerks were equal 1+. Sensation was intact. X-ray revealed normal alignment of the thoracic spine. There was a mild compression deformity of T3. Mild degenerative disk changes were identified at T8-9, T9-10 and T10-11. There was marked thickening of the left paratracheal stripe from the thoracic inlet to the aortic knob. The diagnosis was Thoracic 3 compression fracture with limited motion of the lumbosacral spine with marked widening of the left paratracheal stripe on x-ray. Criteria Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (1999). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See 38 C.F.R. § 4.2 (1999); Francisco v. Brown, 7 Vet. App. 55 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran's claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. §4.2 (1999). Under Diagnostic Code 7203, moderate disability warrants a 30 percent evaluation; severe disability, permitting liquids only warrants a 50 percent evaluation; and when the disability permits passage of liquids only, with marked impairment of general health, an 80 percent evaluation is warranted. 38 C.F.R. Part 4.114 (1999). 38 C.F.R. § 4.97, Diagnostic Code 6516, refers to chronic laryngitis. A 10 percent disability rating is assigned for hoarseness with inflammation of cords or mucous membranes, and a 30 percent rating is assigned for hoarseness with thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy. Id. 38 C.F.R. 4.71a, Diagnostic Code 5285 residuals of a fracture vertebra with cord involvement, bedridden, or requiring long leg braces is evaluated at 100 percent. Special monthly compensation is considered; with lesser involvements rate for limited motion, nerve paralysis. Without cord involvement; abnormal mobility requiring neck brace (jury mast).evaluate at 60 percent In other cases rate in accordance with definite limited motion or muscle spasm, adding 10 percent for demonstrable deformity of vertebral body. Id. Diagnostic Code 5286 provides the rating criteria for evaluation of complete bony fixation of the spine. A 100 percent evaluation may be assigned for complete bony fixation (ankylosis) of the spine at an unfavorable angle with marked deformity and involvement of major joints (Marie-Strumpell type) or without other joint involvement (Bechterew type). 38 C.F.R. § 4.71a; Diagnostic Code 5286 (1999). Slight limitation of motion of the thoracic spine warrants a non-compensable rating. Moderate or severe limitation of motion of the thoracic spine warrants a 10 percent rating. 38 C.F.R. 4.71a, Diagnostic Code 5291 (1999). Diagnostic Code 5292 provides for the evaluation of limitation of motion of the lumbar spine. When the limitation of motion is severe, a rating of 40 percent is warranted. A rating of 40 percent is the maximum rating provided under this Code. Diagnostic Code 5293 provides for the evaluation of intervertebral disc syndrome. A 60 percent rating requires pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk or other neurological findings appropriate to the site of the diseased disc with little intermittent relief. 38 C.F.R. 4.71a, Diagnostic Code 5293 (1999). 60 percent is the highest possible evaluation under Diagnostic Code 5293. Diagnostic Code 5295 provides criteria for rating lumbosacral strain. A 40 percent evaluation requires severe lumbosacral strain manifested by listing of the whole spine to the opposite side, a positive Goldthwait's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of the joint space. A 40 percent evaluation is also warranted if only some of those manifestations are present if there is also abnormal mobility on forced motion. 38 C.F.R. 4.71a, Diagnostic Code 5295. It is noted that 40 percent is the maximum rating provided under this Code. In cases of evaluation of orthopedic injuries there must be adequate consideration of functional impairment including impairment from painful motion, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.10, 4.40, 4.45, and 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). In cases of functional impairment, evaluations are to be based upon lack of usefulness, and medical examiners must furnish, in addition to etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, a full description of the effects of the disability upon the person's ordinary activity. 38 C.F.R. § 4.10 (1999). Diagnostic Code 5003 (Arthritis, degenerative) provides for rating based on the limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. Part 4, § 4.71a, Diagnostic Code 5003. In the absence of limitation of motion, rating can be based on x-ray evidence indicating the presence of degenerative arthritis. Id. A maximum 20 percent evaluation is warranted where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Id. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology, and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 (1999). As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight- bearing are related considerations. 38 C.F.R. § 4.45 (1999). With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (1999). The United States Court of Appeals for Veteran Claims (Court) has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45 and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996) and DeLuca, supra at 206. VA General Counsel opinion held that Diagnostic Code 5293, intervertebral disc syndrome, involves loss of range of motion and that consideration of 38 C.F.R. §§ 4.40 and 4.45 are applicable. VAOPGCPREC 37-97. The Court has held that a lay person can provide evidence of visible symptoms. See Dean v. Brown, 8 Vet. App. 449, 455 (1995); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). However, regulations require that a finding of dysfunction due to pain be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40; see also Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). 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 (1999). 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. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20 (1999). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14 (1999). The Court has held that an appellant may not be compensated twice for the same symptomatology as "such a result would overcompensate the appellant for the actual impairment of her earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, she should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph, an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1999). Every element in any way affecting the probative value to be assigned to the evidence must be thoroughly and conscientiously studied in the light of the established policies of VA to the end that decisions will be equitable and just. 38 C.F.R. § 4.6 (1999). Examination reports must be interpreted in light of the whole-recorded history of the disabling condition. Various reports should be reconciled into a consistent picture so that the current rating may accurately reflect the elements of disability present. Each disability must be considered from the point of view of the veteran working or seeking work. If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail the report must be returned as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt doctrine in resolving each such issue shall be given to the veteran. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Analysis The Board notes that the veteran's claims for increased evaluations for residuals of squamous cell carcinoma of the laryngeal surface of the epiglottis, laryngitis as secondary to treatment for squamous cell carcinoma of the laryngeal surface of the epiglottis and T3 compression fracture with x- ray evidence of compression deformity are "well-grounded" within the meaning of 38 U.S.C.A. § 5107; that is, plausible claims have been presented. Murphy, supra. In general, an allegation of increased disability is sufficient to establish a well-grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The veteran's assertions concerning the severity of his disabilities (that are within the competence of a lay person to report) are sufficient to conclude that his claims for an increased evaluation for those disabilities are well grounded. King v. Brown, 5 Vet. App. 19 (1993). Where the veteran has presented a well-grounded claim, VA has a duty to assist the veteran in the development of facts pertinent to his claims. Godwin v. Derwinski, 1 Vet. App. 419 (1991). The Board is satisfied that all relevant facts have been properly developed. White v. Derwinski, 1 Vet. App. 519 (1991). Therefore, no further assistance to the veteran is required to comply with the duty to assist him, as mandated by 38 U.S.C.A. § 5107(a) (West 1991). Squamous Cell Carcinoma of the Epiglottis As a preliminary matter the Board notes that the RO assigned a temporary evaluation of 100 percent for squamous cell carcinoma of the laryngeal surface of the epiglottis under 38 C.F.R. § 4.97, Diagnostic Code 6819. Under Diagnostic Code 6819 malignant neoplasms of any specified part of the respiratory system, exclusive of skin growths, is evaluated at 100 percent. It is noted, however, that a rating of 100 percent shall continue beyond the cessation of any surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e). If there has been no local recurrence or metastasis, rate on residuals. Private medical records from April 1997 to June 1997 showed no evidence of active neoplasm. There was no recurrence of the cancer shown on VA examination in July 1997. Since the medical evidence showed no recurrence it was determined that the 100 percent evaluation would be discontinued as of October 1998. In the April 1998 rating decision the RO affirmed the noncompensable evaluation for squamous cell carcinoma of the laryngeal surface of the epiglottis. The threshold question here is, based upon the evidence of record, whether the veteran is entitled to an evaluation in excess of 30 percent, from October 1998, for residuals of squamous cell carcinoma of the laryngeal surface of the epiglottis. The Board notes that residuals of the veteran's squamous cell carcinoma of the laryngeal surface of the epiglottis are evaluated analogously under Diagnostic Code 7203. See 38 C.F.R. § 4.20. The veteran has been provided the essential rating criteria. While the provisions of Diagnostic Code 7203 pertain to evaluation of the degree of disability produced by stricture of the esophagus, evaluation depends on whether the passage of food or liquids only is permitted and the impact of such on the veteran's health. There is objective and subjective medical evidence in the record that indicates that the veteran has difficulty swallowing. Thus, the functional limitations produced by the veteran's service-connected disability are analogous to that produced by stricture of the esophagus. See Pernorio v. Derwinski, 2 Vet. App. 6.25 (1992); see also 38 C.F.R. §§ 4.20, 4.21 (1999). Therefore, the Board will evaluate the service-connected residuals of squamous cell carcinoma of the laryngeal surface of the epiglottis under the provisions of 38 C.F.R. 4.114, Diagnostic Code 7203 (1999). Furthermore, the Board finds that there is no other diagnostic code, which could potentially provide a basis for the assignment of more than the 30 percent evaluation, which is currently assigned. After reviewing the various medical records and the veteran's statements and testimony, the Board does not doubt that he continues to suffer considerable impairment of health due to postoperative squamous cell carcinoma of the laryngeal surface of the epiglottis. However, the preponderance of the evidence does not show that the criteria for a rating in excess of 30 percent have been met under the diagnostic criteria outlined above. While the most recent opinion from the veteran's physician in October 1998 indicates that the veteran still suffers some dryness of mouth from his treatment which makes it somewhat difficult for him to swallow there is no evidence of a severe esophageal stricture, permitting liquids only. Although the veteran had experienced material weight loss, there is no evidence that his diet is limited to liquids only, or any other indicia of an increase in disability which is required for an evaluation in excess of 30 percent under Diagnostic Code 7203. Given the veteran's medical history, the Board recognizes that the severity of his squamous cell carcinoma of the laryngeal surface of the epiglottis residuals may increase in the future. However, the preponderance of the evidence is against a finding that a rating in excess of the current 30 percent is warranted at this time. Laryngitis The Board notes that the veteran's laryngitis condition is currently rated as 10 percent disabling. The next higher evaluation of 30 percent is not warranted under Diagnostic Code 6516 unless the medical evidence shows there is hoarseness with thickening or nodules of cords, polyps, submucous infiltration or pre-malignant changes on biopsy. A review of the most recent medical evidence regarding the veteran's voice condition includes the July 1997 VA examination. During this examination, the veteran complained of hoarseness of his voice and some soreness of his throat. He was diagnosed with residuals of hoarseness and sore throat with right arytenoepiglottic fold and epiglottis involvement. Radiation oncology follow-up examination reports of April and June 1997 showed that his cords moved well. As previously discussed, the Board finds that the veteran's current disability rating of 10 percent for chronic laryngitis under Diagnostic Code 6516 is appropriate. The evidence shows that, he has hoarseness and soreness of his throat. There is no medical evidence to warrant a higher evaluation of 30 percent. The medical evidence does not show hoarseness with thickening or nodules of cords, polyps, submucous infiltration, or pre- malignant changes on biopsy associated with the veteran's laryngitis. The Board also considered an increased evaluation under other possibly applicable diagnostic codes, but finds no other relevant codes under the Schedule. Diagnostic Codes 6515, 6518, 6519, and 6520 do not apply as the record does not show evidence of tuberculous laryngitis, total laryngectomy, complete organic aphonia, or stenosis of the larynx, respectively. The Board finds that Diagnostic Code 6516 is the only appropriate code section under the Schedule for evaluating the veteran's laryngitis disability. T3 Compression Fracture The medical evidence in this case does not support an evaluation in excess of 20 percent for T3 compression fracture with x-ray evidence of compression deformity. The veteran's T3 compression fracture disability is currently evaluation as 20 percent disabling under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5285. Under Diagnostic Code 5285, where there is no cord involvement and there is no abnormal mobility requiring a neck brace, the disability is rated in accordance with definite limited motion or muscle spasm, adding 10 percent for demonstrable deformity of vertebral body. The facts in this case necessitate that the veteran's disability be rated in accordance with limited motion. The most recent VA examination report in July 1997 provided a diagnosis of limited motion of the lumbosacral spine. Limitation of motion of the dorsal spine is evaluation under Diagnostic Code 5291. Under Diagnostic Code 5291 moderate and severe limitation of motion of the thoracic spine is evaluated as 10 percent disabling. The evidence shows that the veteran does not have more than severe limitation of motion of the thoracic spine. Upon examination there was no pain on forward or lateral bending. Nor was there any tenderness or spasms noted. Thus, no more than 10 percent can be assigned pursuant to Diagnostic Code 5291, therefore, a 10 percent evaluation is assigned for the veteran's T3 compression fracture. A review of the evidence indicates that the veteran's service-connected back disability does not contemplate residuals of fracture of the vertebra with or without cord involvement to warrant a 100 percent or 60 percent evaluation under Diagnostic Code 5285. Moreover, there is no evidence of ratable muscle spasm as described in Diagnostic Code 5285. As noted above, the VA examination of July 1997 indicated no muscle spasms were present. However, the evidence indicates that the veteran has evidence of compression deformity. This constitutes demonstrable deformity, in which case, he would be entitled to have 10 percent added to his rating. As such, 10 percent is added to his rating. 38 C.F.R. 4.71a, Diagnostic Code 5285. 10 percent is the maximum evaluation allowed for demonstrable deformity of vertebral body. Accordingly, the Board finds that the evidentiary record supports a grant of entitlement to an initial rating of 20 percent for T3 compression fracture with x-ray evidence of compression deformity. The only other schedular mechanism for increasing the veteran's evaluation for T3 compression fracture with x-ray evidence of compression deformity would be the provisions of 38 C.F.R. §§ 4.40 and 4.45. See DeLuca, supra (indicates that pain may be the basis for an increased schedular rating for an orthopedic disability, regardless of whether or not planar limitation of motion Diagnostic Code criteria are met). Here, the evidence does not show that an evaluation of higher than 20 percent is warranted under §§ 4.40, 4.45 and DeLuca. Pain is to be compensated to the degree that clinical findings indicate that the pain is disabling. 38 C.F.R. §4.40 (disability may be due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant). In this case, there is no evidence of atrophy, muscle spasm, weakness, or the like of the thoracic spine muscles to support an evaluation higher than 20 percent due to associated pain. Moreover, the July 1997 VA examination reported there was neither pain on movement nor any tenderness. As such, the provisions of 38 C.F.R. §§ 4.40 and 4.45 as per DeLuca are not applicable in this instance. Moreover, the Board notes that the veteran's claims file does not contain a diagnosis of ankylosis of the spine. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992). As the veteran's spine is not ankylosed, application of 38 C.F.R. §4.71a, Diagnostic Code 5286 (1999) is not warranted. The Board also considered an increased evaluation under Diagnostic Codes 5293 and 5295 but finds that these codes are not applicable to this case in that the evidence does not show intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy or other neurological finds as required under 5293. Further, the evidence does not show severe lumbosacral strain as required under 5295. Although mild degenerative disk changes were shown on x-ray, an evaluation under Diagnostic Code 5003 is not applicable here since the veteran's T3 compression fracture is rated under limitation of motion under Diagnostic Code 5291. Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion unless the limitation of motion of the specific joint or joints involved is non-compensable under the appropriate code. See 38 C.F.R. § 5003 (1999). The Board has also considered whether the veteran might be entitled to a separate evaluation for his service connected disability of the spine. Controlling laws and regulations provide that, when the record reflects that the veteran has multiple problems, it is possible for a veteran to have "separate and distinct manifestations" from the same injury, permitting different disability ratings. The critical element is that none of the symptomatology for any of the conditions is duplicative or overlapping with the symptomatology of the other conditions. Esteban v. Brown, 6 Vet. App. 259 (1994). In this case, the veteran's disabilities consisting of residuals of a T3 compression fracture and degenerative disk changes of T8-9, T9-10 and T10-11 have resulted in overlapping symptomatology, and accordingly, the conditions have been evaluated together as part and parcel of each other's symptoms. Inasmuch as the manifestations of these conditions are not separate and distinct from one another, separate disability evaluations are not warranted for those conditions. In light of the above, a disability rating in excess of 20 percent for the service-connected T3 compression fracture with x-ray evidence of compression deformity is not warranted. The Board finds that the benefit of the doubt doctrine is not for application, as there is not a relative equipoise of evidence for and against a disability rating greater than 20 percent. In reaching this decision the Board has considered all potentially applicable provisions (as shown above) of 38 C.F.R. Parts 3 and 4 (1999), whether or not they were raised by the veteran or his representative, as required by Schafrath, supra.. In this case, the Board finds no other provision upon which to assign a higher disability evaluation. As the Board noted earlier, the veteran's case involves an appeal as to the initial ratings assigned for laryngitis and back disabilities on the occasion of the grant of service connection by the RO in April 1998, rather than an increased rating claim where entitlement to compensation had previously been established. Fenderson, supra at 126. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. In the case at hand, the Board notes that staged ratings are not applicable. Extraschedular Consideration With respect to these claims, the Board observes that in light of Floyd v. Brown, 9 Vet. App. 88 (1996), the Board does not have jurisdiction to assign an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. The Board, however, is still obligated to seek all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the law or regulations. In Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court clarified that it did not read the regulation as precluding the Board from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1), or from reaching such conclusion on its own. In the veteran's case at hand, an extraschedular evaluation was considered by the RO and the veteran was provided with the provisions of 38 C.F.R. § 3.321(b)(1); however, the RO did not grant the veteran an increased evaluation on this basis. In the unusual case where the schedular evaluations are found to be inadequate, an extraschedular evaluation may be assigned commensurate with impairment in the average earning capacity due exclusively to the service-connected disability or disabilities. 38 C.F.R. § 3.321(b)(1). As to the disability presented in these claims, the Board cannot conclude that the disability picture is so unusual or exceptional, with such related factors as frequent hospitalization or marked interference with employment, as to prevent the use of the regular rating criteria. The regular schedular standards as applied to the veteran's case adequately compensate him for the demonstrated level of impairment produced by his disabilities. No evidentiary basis has been presented upon which to predicate referral of the veteran's case to the Under Secretary for Benefits or the Director of the VA Compensation and Pension Service for consideration of extraschedular evaluation. ORDER Entitlement to an evaluation in excess of 30 percent from October 1, 1998 for squamous cell carcinoma of the laryngeal surface of the epiglottis is denied Entitlement to an initial evaluation in excess of 10 percent for laryngitis as secondary to treatment for squamous cell carcinoma of the laryngeal surface of the epiglottis is denied. Entitlement to an initial evaluation in excess of 20 percent for T3 compression fracture with x-ray evidence of compression deformity is denied. RONALD R. BOSCH Member, Board of Veterans' Appeals