Citation Nr: 0011159 Decision Date: 04/27/00 Archive Date: 05/04/00 DOCKET NO. 98-20 968 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an increased rating for a skin disorder consisting of actinic keratoses and skin cancer. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Associate Counsel INTRODUCTION The veteran had active service from January 1941 to January 1946. The appeal arises from the July 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, denying an increased rating for actinic keratosis and skin cancer, rated 30 percent disabling. In the course of appeal the veteran testified before the undersigned Board member at the RO in November 1999. At the November 1999 hearing, the veteran raised the issues of entitlement to service connection for lung cancer, status post left lower lobectomy, secondary to skin cancer, and entitlement to service connection for left knee disability and back disability secondary to status post excision of a melanoma of the right leg. The veteran was previously denied service connection for lung cancer secondary to skin cancer by RO rating decisions in February 1995 and April 1996; the veteran did not appeal those decisions. Accordingly, as this issue is not in appellate status, a request to reopen a claim of entitlement to service connection for lung cancer secondary to skin cancer is referred to the RO for appropriate action. The RO has yet to adjudicate the veteran's claims of entitlement to service connection for a left knee disability and a back disability secondary to status post excision of a melanoma of the right leg. Those issues is also referred to the RO for appropriate action. Also at that hearing, the veteran reported ambulatory effects of excision of a melanoma from the right knee, including pain and locking in the joint. A claim of entitlement to service connection for a right knee joint disorder secondary to excision of a melanoma of the right knee is also referred to the RO for appropriate action. FINDING OF FACT The veteran's actinic keratoses and skin cancer have resulted in periodic ulceration or crusting, and in periodic systemic manifestations; the skin disorder does not produce nervous manifestations and is not exceptionally repugnant. CONCLUSION OF LAW The schedular requirements for a rating of 50 percent for actinic keratoses and skin cancer have been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.7, 4.119, Diagnostic Codes 7806, 7818, 7819 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran has a medical history of multiple actinic keratoses and skin cancers which have been medically associated by VA physicians with his pale complexion and his prolonged exposure to intense sunlight in service in the South Pacific during World War II. At a February 1996 VA examination of the veteran's skin, the veteran reported a history of multiple treatments by his private dermatologist for skin cancer and cancer-related lesions, with the veteran continuing to develop new lesions. The examiner found multiple rough, scaly papules located particularly on the upper torso, upper extremities, and dorsal hands. There were also a small papule of the left upper chest and a large, approximately six-centimeter-by-two- centimeter scaly plaque on the left upper back. There was mottled pigmentation on the upper torso and upper extremities. The examiner diagnosed severe actinic solar damage; history of past multiple skin cancers; multiple actinic keratoses currently present; rule-out basal cell skin cancer, left upper chest; and rule-out basal cell carcinoma, left upper back. In an October 1996 letter, L. Davanzo, M.D., a private physician, informed, in pertinent part, that the veteran had several recurrences of skin cancer, reportedly diagnosed as basal cell carcinoma. The physician noted the veteran's report of a skin cancer approximately 10 years prior which had spread deep into the skin. The physician also suggested an association between a lung cancer, for which the veteran had undergone a left lower lobectomy, and the veteran's skin cancer. The claims folder contains VA outpatient treatment records from recent years, including records of excision of suspicious lesions. April 1997 VA records of biopsies of skin lesions of the chin and right knee included diagnoses of basal cell carcinoma and malignant melanoma, respectively. At a June 1998 VA examination of the veteran's skin, the examiner noted the veteran's history as related to actinic keratoses, skin cancer, and sun exposure in service, with multiple excisions of skin cancers over recent years. The examiner noted that the veteran had undergone excision of a 0.72-centimeter-deep melanoma from the right lower leg in May 1997, and prior thereto, in January 1997, treatment for eleven skin carcinomas, two actinic keratoses, and one malignant melanoma. The examiner noted multiple scars present, including, in pertinent part, some non-disfiguring scars about the face, right ear, and neck; and multiple larger and smaller scars about the chest, shoulders, back, forearms, and dorsum of the hands. These scars were all noted to be not tender, not painful, and not disfiguring. The examiner diagnosed multiple scars secondary to multiple actinic keratoses, carcinomas, and one malignant melanoma on sun-exposed areas. In a November 1998 letter, a treating VA physician informed that she has been treating the veteran approximately every six to eight weeks for his skin condition. She reported that the veteran has extensive actinic damage and has had many skin cancers. She reported that since she began working at Lyons VAMC two years ago, the veteran had approximately twelve skin cancers proven by biopsy, including basal cell cancer, squamous cell cancer, and melanoma. She reported that she routinely treated thirty to fifty of the veteran's actinic keratoses at each medical visit, and often biopsied one or more suspicious lesions at each visit. She opined that if over recent years the veteran had not been followed closely and treated aggressively for his actinic keratoses, skin lesions, and skin cancers, he would now exhibit "ulceration, exfoliation, or crusting." In a VA Form 9 received in December 1998, the veteran stated that his skin lesions were extremely painful if exposed to water or even a breeze when he is not wearing a shirt. In November 1999 the veteran testified before the undersigned Board member at a hearing at the RO. He testified, in pertinent part, that his skin conditions resulted in crusting, scabbing, flaking, and itching in affected areas. He testified that the condition currently affected his arms, and previously affected his entire upper torso, including his chest and back. However, he testified that while he had a post-surgical carcinoma of the right knee, his skin condition on his legs did not affect him in any way. He testified that he had itching every day, both day and night, due to his skin condition, and that he used lotions every day as prescribed by his VA physician, which lotions helped to cool the itching. He testified that due to his skin condition he could not go swimming and he could only bathe in lukewarm or cool water. He added that this resulted in further itching. He testified that the skin condition was also embarrassing, explaining that he felt he could not take his shirt off due to all the disfiguring scars and marks on his body resulting from the skin condition and the multiple surgical treatments. He testified that he also had painful scars, primarily on his back. He testified that his skin condition was treated by his VA physician primarily by freezing about 50 lesions approximately every four to five weeks. He added that at the Lyons VA where he was being treated they did not frequently surgically excise the lesions, though lesions were excised when he had previously been treated privately. He added, in effect, that if left unchecked some of his actinic keratoses would turn into cancers of various sorts. Analysis Initially, the Board finds the appellant's claim well grounded pursuant to 38 U.S.C.A. § 5107 (West 1991) in that his claim is plausible. Murphy v. Derwinski, 1 Vet.App. 78 (1990). This finding is based on the appellant's evidentiary assertion that his service-connected disability has increased in severity. Proscelle v. Derwinski, 1 Vet.App. 629 (1992); King v. Brown, 5 Vet.App. 19 (1993). Once it has been determined that the claim is well grounded, the VA has a statutory duty to assist the appellant in the development of evidence pertinent to the claim. 38 U.S.C.A. § 5107(a). The veteran's representative has argued that a neuropsychiatric examination and unretouched color photographs of the veteran are required to appropriately rated the level of disability of the veteran's actinic keratoses and skin cancer. A neuropsychiatric examination is not required in this case to ascertain whether the veteran suffers from the anxiety or nervous manifestations as listed within 38 C.F.R. § 4.119, Diagnostic Code 7806, for consideration of assignment of a 50 percent rating for the veteran's actinic keratoses and skin cancer. Consideration of such anxiety or nervous manifestations is discussed below. The Board notes that unretouched photographs may be obtained in the Board's discretion, but are not required for a Board determination regarding conditions subject to visual observation. By contrast, the Board is required to review the medical record including medical descriptions of the disability. As the Board's determination of an appropriate rating for the veteran's actinic keratoses and skin cancer here turns on physicians' opinions as to the severity of the condition, and not on the Board's own guesses as to that medical question, unretouched color photographs would not enrich the Board's decision making in this case. (For the Board to rely on its own medical judgment would be error. See Colvin v. Derwinski, 1 Vet.App. 171 (1991).) The Board also notes that in December 1999 the veteran submitted additional medical records pertaining to his actinic keratoses and skin cancer, and waived RO consideration of the additional submitted evidence. The Board is satisfied that all available evidence necessary for an equitable disposition of the appeal has been obtained. Under applicable criteria, disability evaluations are determined by the application of a schedule of ratings based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Separate diagnostic codes identify the various disabilities. The VA has a duty to acknowledge and consider all regulations which are potentially applicable through 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). It is essential that each disability be viewed in relation to its history, and that medical examinations are accurately and fully described emphasizing limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1 (1999). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet.App. 55 (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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). The veteran's actinic keratoses and associated residuals of malignant skin lesions have been appropriately rated by analogy to eczema. With slight, if any, exfoliation, exudation, or itching, if on a nonexposed surface or small area, the condition is assigned a noncompensable rating. If manifested by exfoliation, exudation, or itching, if involving an exposed surface or extensive area, a 10 percent rating is assigned. If manifested by constant exudation or itching, extensive lesions, or marked disfigurement, a 30 percent rating is assigned. If manifested by ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or is exceptionally repugnant, a 50 percent rating is assigned. 38 C.F.R. § 4.119, Diagnostic Code 7806 (1999). The medical evidence and the veteran's own statements are to the effect that the veteran suffers from extensive lesions and constant itching due to his actinic keratoses and skin cancer. He has been treated both for the lesions and the itching. The veteran's treating VA physician, in her November 1998 letter in support of the veteran's claim, opined that the veteran would suffer from "ulceration, exfoliation, or crusting" if he did not receive the frequent VA treatment afforded him. The Board has noted that the medical evidence and the veteran's own statements reflect that the veteran does receive this frequent VA treatment which prevents the development of these more severe symptoms. Further, the veteran's treating physician, in her November 1998 letter, informed that the veteran underwent frequent treatment every six to eight weeks, consisting of treatment of thirty to fifty or more actinic keratoses with every visit, and usually biopsy or removal of one or more lesions suspicious for skin cancers with every visit. The Board finds that this treatment is frequent, unpleasant, and painful for the veteran. In summary, the service-connected skin disorder is not a total body condition and does not interfere with the functioning of internal organs. However, the extensiveness of the lesions, the frequency of their removal, the frequency of the need to biopsy, and the periodic biopsy findings are, in the Board's opinion, equivalent to ulceration and crusting. The nature and frequency of the malignancies, including in one instance a malignant melanoma, are equivalent to systemic manifestations. Accordingly, the Board finds that a 50 percent rating is warranted for the skin disorder. The Board finds that a higher rating, on an extraschedular basis, is not warranted for the skin disorder, because frequent hospital inpatient care is not involved and the disorder does not produce marked interference with employment. See 38 C.F.R. § 3.321(b) (1999). While the veteran testified at the November 1999 hearing that he had painful scars primarily on his back, the VA examiner in June 1998 specifically concluded that the veteran's scars were not tender or painful. As the veteran's scars due to his actinic keratoses and skin cancers were found to be not tender or painful and not disfiguring upon VA examination in June 1998, a disability rating on the basis of superficial tender or painful scars, or on the basis of disfiguring scars of the head, face, or neck, is not warranted. 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7804. ORDER Entitlement to an increased rating of 50 percent for actinic keratoses and skin cancer is granted, subject to the laws and regulations governing the payment of monetary awards. BRUCE E. HYMAN Member, Board of Veterans' Appeals