Citation Nr: 0923341	
Decision Date: 06/19/09    Archive Date: 06/23/09

DOCKET NO.  05-25 545	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
 in Newark, New Jersey


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent 
for residuals of skin cancer and sun exposure, to include 
actinic keratosis.  

2.  Entitlement to a rating in excess of 30 percent for 
residuals of skin cancer and sun exposure, to include actinic 
keratosis.  


ATTORNEY FOR THE BOARD

Katie Molter, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from April 1965 to October 
1968.  

This matter has come before the Board of Veterans' Appeals 
(Board) on appeal from a January 2004 rating decision in 
which the RO granted service connection and assigned a 10 
percent initial rating, effective September 17, 2002.  The 
Veteran has perfected an appeal with respect to the initial 
disability rating assigned.  

Because the Veteran has disagreed with the initial rating 
assigned following the grant of service connection, the Board 
has characterized the issue in light of the distinction noted 
in Fenderson v. West, 12 Vet. App. 119, 126 (1999) 
(distinguishing initial rating claims from claims for 
increased ratings for already service-connected disability).  

On June 8, 2009, the Board received a request from the 
Veteran for a Travel Board hearing.  For this reason, the 
issue of entitlement to a rating in excess of 30 percent for 
residuals of skin cancer and sun exposure, to include actinic 
keratosis, is addressed in the REMAND portion of the decision 
below and is REMANDED to the RO via the Appeals Management 
Center (AMC), in Washington, DC.


FINDING OF FACT

Since award of service connection, the residuals of the 
Veteran's skin cancer and sun exposure, to include actinic 
keratosis, are manifested by two characteristics of 
disfigurement -one skin cancer scar that exceeds one-quarter 
inch at the widest part and actinic keratosis that has been 
manifested by numerous lesions on the face, arm, chest, and 
back.  Some of the lesions are scaly and hyper-pigmented.  
The percentage of the entire body affected by skin changes 
reflective of sun exposure was fifteen percent of the body 
surface area, the majority of which are on the Veteran's 
face, arm, and hands.  However, the Veteran's scars are not 
deep, do not cause a limited range of motion, are not 
unstable, do not affect underlying tissue, are not painful or 
inflamed, and are not adherent or uneven.  




CONCLUSION OF LAW

Resolving all doubt in the Veteran's favor, the criteria for 
an initial rating of 30 percent for residuals of skin cancer 
and sun exposure, to include actinic keratosis, have been 
met, effective from September 17, 2003.  38 U.S.C.A. §§ 1155, 
5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. 
§§ 3.159, 4.1-4.7, 4.118, Diagnostic Codes 7800-7805, 7818 
(2008).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. 
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 
(West 2002 & Supp. 2008)) includes enhanced duties to notify 
and assist claimants for VA benefits.  VA regulations 
implementing the VCAA have been codified, as amended at 38 
C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2008).

Notice requirements under VCAA essentially require VA to 
notify a claimant of any evidence that is necessary to 
substantiate the claim(s), as well as the evidence that VA 
will attempt to obtain and which evidence he or she is 
responsible for providing.  See, e.g., Quartuccio v. 
Principi, 16 Vet. App. 183 (2002) (addressing the duties 
imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)).  
As delineated in Pelegrini v. Principi, 18 Vet. App. 112 
(2004), after a substantially complete application for 
benefits is received, proper VCAA notice must inform the 
claimant of any information and evidence not of record (1) 
that is necessary to substantiate the claim(s); (2) that VA 
will seek to provide; (3) that the claimant is expected to 
provide; and (4) must ask the claimant to provide any 
evidence in her or his possession that pertains to the 
claim(s), in accordance with 38 C.F.R. § 3.159(b)(1).

The Board notes that, effective on May 30, 2008, 38 C.F.R. § 
3.159 was revised, in part.  See 73 Fed. Reg. 23,353-23,356 
(Apr. 30, 2008).  Notably, the final rule removed the third 
sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA 
will request that a claimant provide any pertinent evidence 
in his or her possession.

VA's notice requirements apply to all five elements of a 
service-connection claim: veteran status, existence of a 
disability, a connection between the veteran's service and 
the disability, degree of disability, and effective date of 
the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 
473 (2006).  In rating cases, a claimant must be provided 
with information pertaining to assignment of disability 
ratings (to include the rating criteria for all higher 
ratings for a disability), as well as information regarding 
the effective date that may be assigned.  Id.

The VCAA-compliance notice must be provided to a claimant 
before the initial unfavorable decision on a claim for VA 
benefits by the agency of original jurisdiction (in this case 
the RO).  Id.; Pelegrini v. Principi, 18 Vet. App. at 112. 
See also Disabled American Veterans v. Secretary of Veterans 
Affairs, 327 F. 3d 1339 (Fed. Cir. 2003).  However, the VCAA 
notice requirements may, nonetheless, be satisfied if any 
errors in the timing or content of such notice are not 
prejudicial to the claimant.  Id.

The RO's February 2003 pre-rating notice letter described the 
evidence necessary to substantiate a claim for service 
connection, and met all of the requirements noted above; 
including informing the Veteran that it was ultimately his 
responsibility to see to it that any records pertinent to his 
claim are received by VA.  

This notification would also apply to the "downstream" issue 
of entitlement to a higher initial rating.  The Unites States 
Court of Appeals for Veterans Claims (Court) has held that 
once service connection is granted the claim is 
substantiated, additional VCAA notice is not required; and 
any defect in the notice is not prejudicial.  Dunlap v. 
Nicholson, 21 Vet. App. 112, 119 (2007); Dingess, 19 Vet. 
App. at 491.  The Board notes that a November 2007 letter 
included notice as to how disability ratings and effective 
dates are assigned, and the type of evidence that impacts 
these types of determinations, consistent with 
Dingess/Hartman.  Thus, because the February 2003 notice that 
was provided before service connection was granted was 
legally sufficient, VA's duty to notify in this case has been 
satisfied.

The record also reflects that VA has made reasonable efforts 
to obtain or to assist in obtaining all relevant records 
pertinent to the matters decided herein on appeal. Pertinent 
medical evidence associated with the claims file consists of 
private treatment records and reports of VA examinations 
conducted in December 2003, July 2004, and March 2009.  Also 
of record and considered in connection with the appeal are 
various written statements provided by the Veteran.  

In summary, the duties imposed by the VCAA have been 
considered and satisfied. There is no additional notice that 
should be provided, nor is there any indication that there is 
additional existing evidence to obtain or development 
required to create any additional evidence to be considered 
in connection with the claim decided herein.

II. Pertinent Laws and Regulations

Disability ratings are assigned in accordance with VA's 
Schedule for Rating Disabilities and are intended to 
represent the average impairment of earning capacity 
resulting from disability.  See 38 U.S.C.A. § 1155; 38 C.F.R. 
§§ 3.321(a), 4.1.  Separate diagnostic codes identify the 
various disabilities.  See 38 C.F.R. Part 4 (2008).  Specific 
diagnostic codes will be discussed where appropriate below.

When a question arises as to which of two ratings shall be 
applied under a particular diagnostic code, the higher 
evaluation will be assigned if the disability picture more 
nearly approximates the criteria for the higher rating; 
otherwise, the lower rating will be assigned.  See 38 C.F.R. 
§ 4.7.

The Veteran's entire history is to be considered when making 
disability evaluations. See generally 38 C.F.R. § 4.1 (2008); 
Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where 
entitlement to compensation already has been established and 
an increase in the disability rating is at issue, it is the 
present level of disability that is of primary concern.  See 
Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, in 
Fenderson, the Court noted an important distinction between 
an appeal involving a Veteran's disagreement with the initial 
rating assigned at the time a disability is service 
connected.  Where the question for consideration is the 
propriety of the initial rating assigned, evaluation of the 
medical evidence since the effective date of the grant of 
service connection to consider the appropriateness of 
"staged rating" (i.e., assignment of different ratings for 
distinct periods of time, based on the facts found) is 
required.  See Fenderson, 12 Vet. App. at 126; see also Hart 
v. Mansfield, 21 Vet. App. 505 (2007).  

The Veteran's service-connected skin disability has been 
rated 10 percent disabling under both Diagnostic Codes 7800 
and 7818.  The current version of Diagnostic Code (DC) 7800, 
effective August 30, 2002, provides ratings for disfigurement 
of the head, face, or neck.  Note (1) to DC 7800 provides 
that the 8 characteristics of disfigurement, for purposes of 
rating under 38 C.F.R.  § 4.118, are: (1) a scar that is 5 or 
more inches (13 or more cm.) in length (2) a scar that is at 
least one-quarter inch (0.6 cm.) wide at the widest part (3) 
surface contour of a scar that is elevated or depressed on 
palpation (4) a scar that is adherent to underlying tissue 
(5) skin that is hypo-or hyper-pigmented in an area exceeding 
six square inches (39 sq. cm.) (6) skin texture that is 
abnormal (irregular, atrophic, shiny, scaly, etc.) in an area 
exceeding six square inches (39 sq. cm.) (7) underlying soft 
tissue that is missing in an area exceeding six square inches 
(39 sq. cm.), or (8) skin that is indurated and inflexible in 
an area exceeding six square inches (39 sq. cm.).

DC 7800 provides that a skin disorder with one characteristic 
of disfigurement of the head, face, or neck is rated 10 
percent disabling.  A skin disorder of the head, face, or 
neck with visible or palpable tissue loss and either gross 
distortion or asymmetry of one feature or paired set of 
features (nose, chin, forehead, eyes (including eyelids), 
ears (auricles), cheeks, lips), or; with two or three 
characteristics of disfigurement, is rated 30 percent 
disabling.  A skin disorder of the head, face, or neck with 
visible or palpable tissue loss and either gross distortion 
or asymmetry of two features or paired sets of features 
(nose, chin, forehead, eyes (including eyelids), ears 
(auricles), cheeks, lips), or; with four or five 
characteristics of disfigurement, is rated 50 percent 
disabling.  A skin disorder of the head, face, or neck with 
visible or palpable tissue loss and either gross distortion 
or asymmetry of three or more features or paired sets of 
features (nose, chin, forehead, eyes (including eyelids), 
ears (auricles), cheeks, lips), or; with six or more 
characteristics of disfigurement, is rated a maximum 80 
percent disabling. 

Note (2) to DC 7800 provides that tissue loss of the auricle 
is to be rated under DC 6207 (loss of auricle), and 
anatomical loss of the eye under DC 6061 (anatomical loss of 
both eyes) or DC 6063 (anatomical loss of one eye), as 
appropriate.  Note (3) provides that unretouched color 
photographs are to be taken into consideration when rating 
under these criteria.  38 C.F.R. § 4.118, Diagnostic Code 
7800.  

DC 7801 provides that scars, other than the head face, or 
neck, that are deep or that cause limited motion in an area 
or areas exceeding 6 square inches (39 sq. cm.) warrant a 10 
percent disability rating.  A 20 percent rating is warranted 
for area or areas exceeding 12 square inches (77 sq. cm.).  A 
30 percent rating is warranted for area or areas exceeding 72 
square inches (465 sq. cm.).  A 40 percent rating is 
warranted for area or areas exceeding 144 square inches (929 
sq. cm.).   38 C.F.R. § 4.118, Diagnostic Code 7801.  Scars 
that are in widely separated areas, as on two or more 
extremities or on anterior and posterior surfaces of 
extremities or trunk, will be separately rated and combined 
in accordance with 38 C.F.R. § 4.25.  A deep scar is one 
associated with underlying soft tissue damage.  38 C.F.R. § 
4.118, Diagnostic Code 7801, Note (1).

Under DC 7802, a maximum10 percent rating is warranted for 
scars located anywhere but on the head, face, or neck that 
are superficial and do not cause limitation of motion and 
that affect an area or areas of 144 square inches (929 sq. 
cm.) or greater.  38 C.F.R. § 4.118, Diagnostic Code 7802.  

DC 7803 provides a maximum 10 percent rating for superficial 
unstable scars. Note (1) to DC 7803 provides that an unstable 
scar is one where, for any reason, there is frequent loss of 
covering of skin over the scar.  Note (2) provides that a 
superficial scar is one not associated with underlying soft 
tissue damage.  38 C.F.R. § 4.118, Diagnostic Code 7803.  

DC 7804 allows for a maximum rating of 10 percent for a 
superficial scar that is painful upon examination.  Note (1) 
to DC 7804 provides that a superficial scar is one not 
associated with underlying soft tissue damage.  Note (2) to 
DC 7804 provides that a 10 percent evaluation will be 
assigned for a scar on the tip of a finger or toe even 
without amputation of the part would not warrant a 
compensable evaluation.  38 C.F.R. § 4.118, Diagnostic Code 
7804.  The Board notes that the rating criteria for skin 
disorders (scars) were revised once during the pendency of 
this appeal, effective October 23, 2008.  The revised DC 7804 
provides for higher compensable ratings for multiple unstable 
or painful scars.  Under DC 7804, 1 or 2 scars that are 
unstable or painful warrant a 10 percent rating; 3 or 4 scars 
that are unstable or painful warrant a 20 percent rating; and 
5 or more scars that are unstable or painful warrant a 
maximum 30 percent rating.  Other scars (including linear 
scars) and other effects of scars evaluated under DC's 7800, 
7801, 7802, and 7804 are rated under DC 7805, under which any 
disabling effect(s) not considered in a rating provided under 
DC 7800- 7804 are evaluated under an appropriate diagnostic 
code.  38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 
(effective October 23, 2008).  However, the Board notes that 
the October 2008 revisions are specifically not applicable to 
pending claims, like the one here, unless the claimant 
indicates that he wants the revisions to be applicable to his 
claim.  The Veteran has not indicated as much.  See 73 Fed. 
Reg. 54,708 (Sept. 23, 2008).

DC 7805 provides that other scars are rated on limitation of 
function of the affected part.  38 C.F.R. § 4.118, Diagnostic 
Code 7805.  

DC 7818 malignant skin neoplasms (other than malignant 
melanoma) is to be rated under DC's 7801-7805, unless the 
skin malignancy requires systemic chemotherapy or other more 
extensive treatment.  38 C.F.R. § 4.118, Diagnostic Code 
7818.  

III.  Background

The claims file contains private medical records dated from 
1999 to 2008.  These records primarily consist of pathology 
reports and progress notes that reveal that the Veteran has 
had numerous lesions and excisions.  However, these records 
only minimally discuss residuals of skin cancer and sun 
exposure.  An August 2, 2002 progress note showed that the 
Veteran had stitches removed and there was no sign of 
infection and the Veteran was healing well.  An August 12, 
2002 progress note showed that the Veteran had stitches 
removed and there was no redness, discharge, or tenderness.  
A June 13, 2003 progress not showed that the Veteran had 
sutures removed on the right arm, the doctor noted a well-
healed surgical scar.  

Several of the private treatment records discuss the 
Veteran's actinic keratosis.  A June 28, 2002 progress note 
revealed that the Veteran complained of a lesion on the left 
temple.  The doctor noted a 4-mm scaly papule on the left ear 
and a 2-mm papule on the nose.  An April 2003 progress note 
showed the Veteran was seen for a follow-up related to his 
actinic keratosis.  The doctor noted a 6-mm red scaly papule 
on the right upper chest and a 4-mm area of erythema on the 
right lateral cheek.  A June 3, 2003 progress note showed 
that the Veteran had a 7-mm pink papule on the right dorsal 
forearm that started out as a brown spot/mole lesion that was 
flat then got raised.  A June 13, 2003 progress note showed 
that the Veteran had two rough, scaly patches on his right 
temple.  A June 25, 2004 progress note showed that the 
Veteran complained of scaling on the backs of his hands.  
Upon examination, the doctor found multiple scaly papules on 
his forehead and the back of his hands.  The Veteran was 
diagnosed with actinic keratosis on the face and back of his 
hands.  

A December 2003 VA examination report shows that the Veteran 
had five skin cancers and pre-cancers (actinic keratosis), 
mostly on the face, which were treated with liquid nitrogen 
and shave excisions.  Upon physical examination, the Veteran 
was found to have light skin, multiple red patches, and old 
scars, some that had scarring or disfigurement.  The Veteran 
was diagnosed with basal cell carcinomas and squamous cell 
carcinomas.   

At a July 2004 VA examination, the Veteran complained of four 
lesions.  On the left side of the nose, he had a pimple-like 
lesion which was not causing pain or itching.  On the right 
temple area, he had a skin lesion which was not itching.  In 
the mid-chest and sternal area, he had a 4-mm area lesion.  
Behind the left ear lobe, he had a 3-mm papule with 
blackhead.  The Veteran denied history of any systematic 
symptoms of fever, weight loss, or any use of any medications 
or topical creams for the above skin lesions.  

Upon physical examination, there was a 3-mm erythematous 
papule on the left side of the nose which was nontender on 
palpation.  In the right temple area, he had a 7-mm x 5-mm 
area light brown papular lesion with 0.5-mm elevation from 
the surface of the skin which was seborrheic keratosis, a 
benign skin condition.  On the sternal mid-chest, he had a 4-
mm area of dry, scaly, pearly red papule, the nature of which 
needed to be evaluated by a biopsy to determine the nature of 
the skin lesion which could be either possibly actinic 
keratosis or basal cell carcinoma.  Behind the left ear, in 
the postauricular area, he had a 3-mm papule with blackhead 
which was nontender on palpation, no scaliness, no bleeding; 
no signs of infection or inflammation were present.  

The examiner noted the following impressions: (1) on the left 
side of the nose is a small papule, the nature of which is 
unknown, it is probably either an acne lesion or it could be 
a precancerous lesion; (2) on the right temple skin there is 
a lesion that is seborrheic keratosis which is a benign 
condition, which is not precancerous; (3) the anterior mid-
chest there is a skin lesion that is either the beginning of 
an actinic keratosis or basal cell carcinoma, it needs biopsy 
evaluation to determine the nature of the lesion; (4) on the 
left postauricular area, there is a 3-mm size papule, which 
is in dermatological terms described as a giant dilated 
comedo, which is not inflamed or infected or having any 
discharge; (5) all the above lesions of the skin are less 
than one percent of the body surface not causing any 
deformity, disability, asymmetry of the area involved and 
does not need photographic evaluation.  

Upon physical examination at a VA examination in March 2009, 
the Veteran's face had: diffuse erythema, telangiectasias, 
solar elastosis (sparing the hair-covered scalp), with 
scattered keratotic papules, approximately 3-8 mm in 
diameter.  On the right side of the face, there were 3 
erythematous, circular lesions, each measuring about 1 cm in 
diameter; 2 were nonpalpable, and 1 was barely palpable.  The 
Veteran's chest had teleangiectasias and poikiloderma, only 
in the "V-area."  His back, in the upper aspect, had 
telangiectasias and poikiloderma with scattered 2 to 4-mm 
keratotic papules (stucco keratoses vs. actinic keratoses) as 
well as scattered ~ 1-cm seborrheic keratoses; left shoulder: 
1.5 x 0.8-cm erythematous, slightly scaly plaque.  The 
Veteran's hands, from mid-bicep region distally, poikiloderma 
and scattered 2 to 4-mm keratotic papules.  His hands, dorsal 
aspect, had poikiloderma and scattered 2 to 3-mm keratotic 
papules.  

No cystic nodules or exudation were observed.  The examiner 
identified the following scars (all due to prior skin 
biopsies and excisions): (1) left pectoral: a linear scar 
measuring ~ 3 cm in length, 2 mm in width; (2) left shoulder: 
a linear scar measuring ~ 8 cm in length, 2 mm in width; (3) 
left extensor forearm: a linear scar measuring ~ 3 cm in 
length, 2 mm in width; (4) left superior ear (inner aspect of 
the pinna): a scar measuring 2 cm in diameter.  All of the 
above scars were superficial, nontender, and not painful, 
without any skin breakdown, keloid formation, or 
inflammation.  There was no limitation of motion or function 
of the underlying structures.  The scars were not disfiguring 
and there was no facial asymmetry.  

The examiner opined that, regarding the affected areas of the 
head, face, and neck, there were no visible or palpable 
tissue loss, no gross distortion or asymmetry of the 
features, including the nose, chin, forehead, eyes, ears, 
cheeks, and lips.  The ear scar was neither depressed nor 
elevated on palpation, had normal skin texture, was slightly 
hypo-pigmented, and was neither inflexible nor indurated, 
without loss of underlying soft tissue, facial asymmetry or 
gross distortion.  

The percentage of the entire body affected by squamous cell 
carcinomas, basal cell carcinomas, and actinic keratoses was 
less than one percent.  The percentage of exposed areas 
affected by squamous cell carcinomas, basal cell carcinomas, 
and actinic keratoses was less than one percent of the body 
surface area.  

Skin with changes reflective of sun exposure (i.e., 
telangiectasias and poikiloderma) were noted in the face, 
"V-area" of the chest, the upper back, the arms from mid-
bicep region distally, and the dorsal hands.  The percentage 
of exposed surfaces affected by skin changes reflective of 
sun exposure was five percent of the body surface area.  The 
percentage of covered surfaces affected by skin change 
reflective of sun exposure was ten percent of the body 
surface area.  Thus, the percentage of the entire body 
affected by skin changes reflective of sun exposure was 
fifteen percent of the body surface area.  

The examiner made the following diagnoses: (1) basal cell 
carcinoma and squamous cell carcinoma in above described 
areas of head, chest and back, related to sun exposure; (2) 
actinic keratosis -this is a an indolent potential precursor 
to squamous cell carcinoma, as per literature review, the 
risk of malignant transformation of the average actinic 
keratosis into a squamous cell carcinoma in a year is 0.0075 
percent; over a ten year period a person with an average of 
eight actinic keratoses has a six to ten percent chance of 
developing a squamous cell carcinoma; (3) telangiectasias and 
poikiloderma are signs of skin inflammation from sunexposure, 
this is not in itself, skin cancer; and (4) the scars, as 
described, are residuals of the dermatologist's surgical 
removal over a number of years.  

Finally, the examiner offered the following opinion: the 
Veteran's residuals of skin cancer and sun exposure 
(including actinic keratoses) have no impact on his ability 
to work and is not causing disfigurement or disability.  

IV.  Analysis

Considering the pertinent evidence, in light of the above-
noted criteria, the Board finds that an initial rating of 30 
percent for the Veteran's residuals of skin cancer and sun 
exposure, to include actinic keratosis is warranted.  

The March 2009 VA examination revealed four scars that were 
all due to prior skin biopsies and excisions.  Specifically, 
the examiner identified the following scars: (1) left 
pectoral: a linear scar measuring ~ 3 cm in length, 2 mm in 
width; (2) left shoulder: a linear scar measuring ~ 8 cm in 
length, 2 mm in width; (3) left extensor forearm: a linear 
scar measuring ~ 3 cm in length, 2mm in width; (4) left 
superior ear (inner aspect of the pinna): a scar measuring 2 
cm in diameter.  All of the above scars were superficial, 
nontender, and not painful, without any skin breakdown, 
keloid formation, or inflammation.  There was no limitation 
of motion or function of the underlying structures.  The 
scars were not disfiguring and there was no facial asymmetry.  

DC 7800 provides that a skin disorder with one characteristic 
of disfigurement of the head, face, or neck is rated 10 
percent disabling.  With respect to the Veteran's scars, the 
Board finds that the Veteran has one characteristic of 
disfigurement under DC 7800.  The Veteran's left superior ear 
has a scar that measured 2 cm in diameter.  Under DC 7800, a 
scar at least one-quarter inch (0.6 cm) wide at the widest 
part qualifies as a characteristic for rating purposes.  
However, none of the other scars are 5 or more inches (13 or 
more cm.) in length, at least one-quarter inch (0.6 cm.) wide 
at the widest part, have surface contour of scar that is 
elevated or depressed on palpation, are adherent to 
underlying tissue, have skin that is hypo-or hyper-pigmented 
in an area exceeding six square inches (39 sq. cm.), have 
skin texture that is abnormal (irregular, atrophic, shiny, 
scaly, etc.) in an area exceeding six square inches (39 sq. 
cm.), have underlying soft tissue that is missing in an area 
exceeding six square inches (39 sq. cm.), or have skin that 
is indurated and inflexible in an area exceeding six square 
inches (39 sq. cm.).  For this reason, the Board finds that 
with respect to the Veteran's scars under DC 7800, his skin 
disability warrants a 10 percent rating and no more.  

The Board has also considered rating the Veteran's scars 
under DC's 7801, 7802, 7803, and 7804; however, the evidence 
of record does not show that the Veteran meets criteria that 
would warrant a separate rating under other relevant 
diagnostic codes for rating skin (scar) conditions.  See 38 
C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, and 7804.  
The scars are not deep nor cause limited motion due to the 
scars alone; nor cover an area of 144 square inches or more; 
nor are unstable or painful on examination.  Id.  All 
indications are that the associated scars are well-healed, 
nontender, and asymptomatic.  Therefore, a separate rating 
for the associated scars is not warranted.

With respect to the Veteran's actinic keratosis, his 
disability has been characterized by scattered keratotic 
papules, approximately 3-8 mm in diameter on the face.  On 
the right side of the face, there were 3 erythematous, 
circular lesions, each measuring about 1 cm in diameter; 2 
were nonpalpable, and 1 was barely palpable.  In the right 
temple area, he had a 7-mm x 5-mm area light brown papular 
lesion with 0.5-mm elevation from the surface of the skin and 
two rough scaly patches.  A 4-mm area of erythema on the 
right lateral cheek, and a 2-mm papule on the nose.  Behind 
the left ear, a 4-mm scaly papule on the left ear and in the 
postauricular area, he had a 3-mm papule with blackhead.  The 
Veteran had scaling on the back of his hands and from mid-
bicep region distally, poikiloderma and scattered 2 to 4 -mm 
keratotic papules.  His hands, dorsal aspect, had 
poikiloderma and scattered 2 to 3-mm keratotic papules.  He 
had a 7-mm pink papule on the right dorsal forearm that 
started out as a brown spot/mole lesion that was flat then 
got raised, a 6-mm red scaly papule on the right upper chest 
and on his back, in the upper aspect, had telangiectasias and 
poikiloderma with scattered 2 to 4-mm keratotic papules 
(stucco keratoses vs. actinic keratoses) as well as scattered 
~ 1-cm seborrheic keratoses; on his left shoulder, a 1.5 x 
0.8-cm erythematous, slightly scaly plaque.  On the sternal 
mid-chest, he had a 4-mm area of dry, scaly, pearly red 
papule.   

Under DC 7800 the Veteran does not have a single qualifying 
characteristic of disfigurement.  This is because none of his 
individual skin abnormalities showed skin that was hypo-or 
hyper-pigmented in an area exceeding six square inches (39 
sq. cm.), skin texture that was abnormal (irregular, 
atrophic, shiny, scaly, etc.) in an area exceeding six square 
inches (39 sq. cm.), underlying soft tissue that was missing 
in an area exceeding six square inches (39 sq. cm.), or skin 
that was indurated and inflexible in an area exceeding six 
square inches (39 sq. cm.).  While the Veteran's actinic 
keratosis has involved areas of the skin that were scaly and 
hyper-pigmented, the individual area of the abnormality was 
smaller than that required under DC 7800.  

However, when looking at the Veteran's actinic keratosis as a 
whole, the Board finds that this condition qualifies as a 
characteristic of disfigurement due to the many lesions, 
scaly, and hyper-pigmented areas on the Veteran's body.  The 
percentage of the entire body affected by skin changes 
reflective of sun exposure was fifteen percent of the body 
surface area.  The majority of these skin changes are on the 
Veteran's face, arm, and hands.  Given, the volume of the 
skin abnormalities from actinic keratosis, combined with the 
characteristic of disfigurement from the left ear scar, 
discussed above, the Board finds that the Veteran's skin 
disability more closely approximates the criteria for a 30 
percent rating.

In this instance, the Board finds that based on the totality 
of the evidence and after resolving any reasonable doubt in 
favor of the Veteran, the Veteran's disability approximates 
the criteria for a 30 percent disability evaluation since 
September 17, 2002, the date of the grant of service 
connection.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 
Fenderson, 12 Vet. App. at 126.


ORDER

An initial rating of 30 percent for residuals of skin cancer 
and sun exposure, to include actinic keratosis, is granted, 
effective September 17, 2002, subject to the provisions 
governing the award of monetary benefits.


REMAND

On June 8, 2009, the Board received a request from the 
Veteran for a Travel Board hearing.  Pursuant to 38 C.F.R. § 
20.700 (2008), a hearing on appeal will be granted to an 
appellant who requests a hearing and is willing to appear in 
person.  See also 38 U.S.C.A. § 7107 (West 2002) (pertaining 
specifically to hearings before the Board).  Since the RO 
schedules Travel Board hearings between the RO and the Board, 
a remand of these matters to the RO is warranted.  Therefore, 
given the Veteran's request for a hearing and the fact the 
favorable decision above does not represent the maximum 
benefit under the law, the issue of entitlement to a rating 
in excess of 30 percent for residuals of skin cancer and sun 
exposure, to include actinic keratosis, is remanded to the RO 
so that a Travel Board hearing can be scheduled.  

Accordingly, the case is REMANDED for the following action:

Schedule the Veteran for a Travel Board 
hearing before a Veterans Law Judge at 
the earliest available opportunity.  The 
RO should notify the Veteran of the date 
and time of the hearing, in accordance 
with 38 C.F.R. § 20.704(b).  After the 
hearing, the claims file should be 
returned to the Board in accordance with 
current appellate procedures.

The Veteran has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner.  
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).




______________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs