Citation Nr: 1637473	
Decision Date: 09/23/16    Archive Date: 09/30/16

DOCKET NO.  16-05 662	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to a compensable disability rating for skin cancer.

2.  Entitlement to an initial disability rating in excess of 30 percent for residual scars, status post malignant melanoma.


REPRESENTATION

Veteran represented by:	Georgia Department of Veterans Services


WITNESSES AT HEARING ON APPEAL

The Veteran and his daughter


ATTORNEY FOR THE BOARD

S. Delhauer, Associate Counsel
INTRODUCTION

The Veteran served on active duty from April 1941 to June 1960.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

In July 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge.  A copy of the transcript is associated with the evidentiary record.

Since the issuance of the February 2016 supplemental statement of the case, the Veteran has submitted additional evidence, along with waivers of consideration of this evidence by the Agency of Original Jurisdiction (AOJ).  

During the July 2016 hearing before the Board, the Veteran and his daughter indicated that the Veteran has experienced infections following biopsies, as well as anxiety, related to his service-connected skin cancer.  The Veteran did not clearly indicate that he wished to pursue any claims of entitlement to service connection for such disabilities.  Therefore, the Board will not refer any claims to the AOJ at this time, but notes the Veteran is free to file such claims at a future date if he desires.

The issue of entitlement to an increased disability rating for residual scars, status post malignant melanoma is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


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FINDING OF FACT

Throughout the appeal period, treatment of the Veteran's skin cancer has been confined to the skin, and the skin cancer has not resulted in impairment of function of a body system.


CONCLUSION OF LAW

The criteria for a compensable disability rating for the Veteran's service-connected skin cancer are not met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.118, Diagnostic Codes 7818, 7833 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.

VA's duty to notify was satisfied by the June 2015 VA Form 21-526EZ, Fully Developed Claim.  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim.  Service treatment records, lay statements, VA treatment records, as well as identified private treatment records have been associated with the evidentiary record.  In October 2015, the Social Security Administration indicated that no medical records are available for the Veteran.

The Veteran was afforded a VA skin examination in August 2015.  The VA examination report is thorough, and discusses the clinical findings and the Veteran's reported history and symptoms as necessary to rate the disability under the applicable rating criteria.  The Veteran has submitted a Skin Diseases Disability Benefits Questionnaire (DBQ) completed in August 2016 by his private dermatologist, Dr. D.F.M., and as noted above, has also submitted a waiver of consideration of this evidence by the AOJ.  This examination report is also thorough, and discusses the clinical findings and the Veteran's reported history and symptoms as necessary to rate the skin cancer under the applicable rating criteria.  Based on the examinations and the absence of evidence of worsening symptomatology since the most recent examination, the Board concludes the August 2015 and August 2016 examination reports in this case are adequate upon which to base a decision.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

As the Veteran has not identified any additional evidence pertinent to the claim, and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim of entitlement to an increased disability rating for skin cancer is required to comply with the duty to assist.

Legal Criteria

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  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 their residual conditions in civil occupations.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  

VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions.  Schafrath v. Derwinski, 1 Vet. App. 589 (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. 

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

Diagnostic Code 7833 provides that malignant melanoma is to be rated as disfigurement of the head, face, or neck; scars; or impairment of function under the appropriate body system.  If skin malignancy required therapy that is comparable to that used for systemic malignancies, i.e., systemic chemotherapy, X-ray therapy more extensive than to the skin, or surgery more extensive than wide local excision, a 100 percent evaluation will be assigned from the date of onset of the treatment and will continue with a mandatory VA examination six months following the completion of such antineoplastic treatment.  Any change in evaluation based upon that or subsequent examination will be subject to the provisions of 38 C.F.R. § 3.105 (e).  If there has been no local recurrence or metastasis, evaluation will then be made on residuals.  If treatment is confined to the skin, the provisions for a 100 percent evaluation do not apply.  38 C.F.R. § 4.118 , Diagnostic Code 7833.

Diagnostic Code 7818 provides that malignant skin neoplasms other than malignant melanoma are to be rated as disfigurement of the head, face, or neck; scars; or impairment of function under the appropriate body system.  If skin malignancy required therapy that is comparable to that used for systemic malignancies, i.e., systemic chemotherapy, X-ray therapy more extensive than to the skin, or surgery more extensive than wide local excision, a 100 percent evaluation will be assigned from the date of onset of the treatment and will continue with a mandatory VA examination six months following the completion of such antineoplastic treatment.  Any change in evaluation based upon that or subsequent examination will be subject to the provisions of 38 C.F.R. § 3.105 (e).  If there has been no local recurrence or metastasis, evaluation will then be made on residuals.  If treatment is confined to the skin, the provisions for a 100 percent evaluation do not apply.  38 C.F.R. § 4.118 , Diagnostic Code 7818.

Analysis

The Veteran's service-connected skin cancer has been rated as noncompensable under Diagnostic Code 7818.  See August 2015 rating decision.  The medical evidence of record indicates the Veteran's service-connected skin cancer has been diagnosed as malignant basal cell carcinoma and squamous cell carcinoma, and malignant melanoma during the appeal period.  See August 2016 Skin Diseases DBQ; August 2015 VA examination.  The Veteran contends he is entitled to a compensable disability rating for his skin cancer because he continues to experience skin cancer lesions.  See, e.g., July 2016 videoconference hearing testimony; February 2016 substantive appeal. 

First, the Board finds the evidence of record does not indicate the Veteran's skin malignancies have required therapy comparable to that used for systemic malignancies, or surgery more extensive than wide local excision, at any point throughout the appeal period.  Upon VA examination in August 2015, the VA examiner reported the Veteran's melanoma has intermittent recurrences treated by excision, and the Veteran estimated having at least 40 excisions over the years for his skin cancer.  No other treatments for the skin cancer were reported.  Upon examination by Dr. D.F.M. in August 2016, the private dermatologist reported the Veteran has scarring from surgeries to remove the Veteran's skin cancers, but at that time the Veteran was not undergoing any treatment for his skin cancer as treatment had been completed, and was in a watchful waiting period.  See August 2016 Skin Diseases DBQ.  Treatment notes from the McIntosh Clinic indicate the Veteran has undergone excision and biopsies for various skin cancer lesions, as well as a cream applied to the skin, but do not indicate treatments other than those confined to the skin.  See, e.g., June 2016 McIntosh Clinic progress note (excision right cheek); June 2016 McIntosh Clinic progress note (excisions of skin cancer of the left temple, left posterior shoulder, right cheek); May 2015 McIntosh Clinic progress note (excision left forearm); February 2015 McIntosh Clinic progress note (excision nasal bridge); September 2014 McIntosh Clinic note (treatment with Imiquimod cream for 30 days for a new focus of basal cell carcinoma); September 2014 McIntosh Clinic progress note (excision right preauricular area); August 2014 McIntosh Clinic progress note (excision left frontal scalp); April 2014 McIntosh Clinic note (excision left forearm).  Finally, during the July 2016 hearing before the Board, the Veteran and his daughter confirmed the Veteran has not undergone any systemic treatments for his skin cancer, but that he has undergone multiple excisions of lesions.  Accordingly, as the Veteran's treatment for his service-connected malignant melanoma and other malignant skin neoplasms has been confined to the skin throughout the appeal period, the Board finds the provisions for a 100 percent evaluation under Diagnostic Codes 7833 and 7818 do not apply.

Because the provisions for a 100 percent disability rating under either Diagnostic Code 7833 or 7818 do not apply, the Veteran's service-connected skin cancer is to be rated as disfigurement of the head, face, or neck; scars; or impairment of function.  In the August 2015 rating decision, the RO granted entitlement to service connection for residual scars, status post malignant melanoma, with a separate 30 percent disability rating, effective June 15, 2015.  The Veteran has perfected a separate appeal regarding the initial disability rating assigned for the residual scars, and therefore any scars and/or disfigurement of the head, face, or neck due to the service-connected skin cancer will be addressed separately, in the remand section below.  

The Board finds the evidence of record does not indicate the Veteran experiences impairment of function of a body system due to his malignant melanoma or other malignant skin neoplasms.  First, in an October 2015 letter, Dr. B.J.K. noted the Veteran's superior preauricular area as well as the superior helical rim were reconstructed after a Mohs excision of a left preauricular skin cancer in January 2008.  Dr. B.J.K. indicated that as a result, the Veteran has a significant deformity of the left ear with absence of the anterior superior helical rim, but that he is able to wear his glasses.  During the July 2016 hearing before the Board, the Veteran and his daughter testified that the resulting deformity of the Veteran's left ear due to his skin cancer surgery has made it difficult for him to wear his hearing aid in his left ear.  See also August 2015 VA examination report.  However, VA treatment records indicate the Veteran is still able to utilize a hearing aid in his left ear to aid with the hearing impairment due to his service-connected bilateral hearing loss disability.  See, e.g., August 2016 audiology note (hearing aids cleaned and reprogramed using audiogram and patient preferences); April 2016 audiology note (Veteran came in to pick up his left hearing aid and the new ear molds); see also September 2016 rating decision (continuing a 30 percent disability rating for bilateral hearing loss disability).  Accordingly, the Board finds the evidence of record indicates the Veteran's service-connected skin cancer has resulted in a deformity of the Veteran's left ear, which affects his ability to wear his glasses and hearing aid, but that he is able to continue to use both devices, and that the evidence of record does not indicate the Veteran's service-connected skin cancer has resulted in impairment of the function of the Veteran's eyes and/or ears.  

Finally, the evidence of record does not indicate the Veteran's service-connected skin cancer has metastasized to any other part of the body.  See, e.g., August 2016 Skin Diseases DBQ (Veteran does not have any systemic manifestations); July 2016 videoconference hearing testimony.  The medical evidence of record also does not indicate that the Veteran's skin cancer has resulted in any residual conditions or complications.  See, e.g., August 2016 Skin Diseases DBQ; August 2015 VA examination.  Therefore, the Board finds that the provisions for a compensable disability rating for impairment of function of a body system do not apply at any time during the appeal period.  See 38 C.F.R. § 4.118, Diagnostic Codes 7818, 7833.

For these reasons, the Board finds that the evidence as a whole does not more nearly approximate the criteria for a compensable rating at any time during the appeal period.  Accordingly, the preponderance of the evidence is against assignment of a compensable rating for the Veteran's service-connected skin cancer.  As the greater weight of evidence is against the claim, there is no doubt on this matter that could be resolved in his favor.

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Extraschedular Considerations 

While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of Compensation for consideration of an extraschedular rating.  38 C.F.R. § 3.321(b)(1).  The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical.
 
The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate.  There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. 
 
If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required.  Thun v. Peake, 22 Vet. App. 111 (2008).

In this case, the record reflects that the manifestations of the Veteran's skin cancer addressed above are specifically contemplated by the schedular criteria.  For instance, the Veteran's skin cancer has affected only the skin, and is manifested by skin lesions which are treated with creams or biopsies and excisions.  The ratings assigned contemplate these impairments.  For these reasons, the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate.  Accordingly, the Board has concluded that referral of this case for extraschedular consideration is not in order.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).

Under Johnson v. McDonald, 762 F.3d 1362 (2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced.  Notably, the Veteran is also service connected for residual scars, status post malignant melanoma; bilateral hearing loss disability; tinnitus; postoperative left varicocele; and postoperative removal sublingual of the mouth.  Neither the Veteran nor his representative has indicated any specific service-connected disabilities which are not captured by the schedular evaluations of the Veteran's individual service-connected conditions.

After applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), the Board finds there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition.  Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.

Total Disability Based Upon Individual Unemployability

Lastly, in the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held, in substance, that every claim for an increased evaluation includes a claim for a total disability rating based on individual unemployability (TDIU) where the veteran claims that his service-connected disabilities prevent him from working.  

In September 2015, the Veteran submitted a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, but indicated he is unable to work due to his service-connected hearing loss only.  The medical evidence of record does not indicate the Veteran's service-connected skin cancer has affected his ability to work.  See, e.g., August 2016 Skin Diseases DBQ; August 2015 VA examination.  Further, the Veteran has not put forth statements indicating that he believes his service-connected skin cancer renders him unemployable.  Accordingly, as the Veteran has not raised the issue of TDIU as a result of his skin cancer, and the objective evidence does not suggest that he cannot work due to this disability, the Board concludes that the issue of TDIU has not been raised by either the Veteran or the record.

ORDER

Entitlement to a compensable disability rating for skin cancer is denied.


REMAND

As noted above, in the August 2015 rating decision, the RO granted entitlement to service connection for residual scars, status post malignant melanoma, with a separate 30 percent disability rating.  The Veteran has disagreed with the initial disability rating.  See, e.g., July 2016 videoconference hearing testimony; September 2015 notice of disagreement.

During the July 2016 hearing before the Board, the Veteran and his daughter testified regarding the Veteran's excisions of skin cancer lesions following his August 2015 VA examination.  The private treatment records submitted by the Veteran indicate the Veteran underwent excisions of skin cancer lesions in June 2016, however the treatment records only indicate the locations and sizes of the incisions for the excisions at the times they were performed.  The August 2016 Scars and Disfigurement DBQ completed by Dr. D.F.M. lists the type of cancerous lesions, the sites of the excisions, and the dates the excisions were performed.  However, neither the private treatment records nor the August 2016 DBQ provide adequate descriptions of the Veteran's resulting scars in order to properly rate the scars under the Rating Schedule.  For instance, the evidence of record does not indicate whether the resulting scars from the June 2016 excisions are linear or non-linear, the measurements of the scars, whether the scars are superficial or deep, or whether there is abnormal pigmentation or texture of the head, face, or neck.  See, e.g., August 2016 DBQ; see also 38 C.F.R. § 4.118, Diagnostic Codes 7800 to 7805.

Further, in the September 2015 notice of disagreement, the Veteran indicated that all of his scars are painful.  However, both the August 2015 VA examination report and the August 2016 DBQ state that none of the Veteran's scars are painful, and do not address the Veteran's report of pain.  
Accordingly, because the medical evidence of record does not discuss the clinical findings and the Veteran's reported history and symptoms as necessary to rate the residual scars and/or disfigurement under the applicable rating criteria, the Board finds the August 2016 DBQ and the private treatment records are inadequate upon which to base a decision.  On remand, the Veteran should be afforded a new VA examination regarding the residual scars and disfigurement from his skin cancer excisions.

Further, on remand, the AOJ should obtain all updated VA treatment records, and undertake appropriate efforts to obtain any updated private treatment records.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. The AOJ should undertake appropriate development to obtain any updated treatment records pertinent to the Veteran's claim, to include from Dr. D.F.M. and/or the McIntosh Clinic.  When contacting the Veteran to obtain any necessary release, the AOJ should provide the full name of this provider as identified in the August 2016 DBQs to aid him in identifying these records.

The Veteran's assistance should be requested as needed.  All obtained records should be associated with the evidentiary record.

The AOJ must perform all necessary follow-up indicated.  If the records are not available, or a negative response is received, the AOJ should make a formal finding of unavailability, advise the Veteran and his representative of the status of his records, and give the Veteran the opportunity to obtain the records on his own.

2. The AOJ should obtain any outstanding VA treatment records, to include all records from the Gainesville VAMC from August 2016 to the present.  All obtained records should be associated with the evidentiary record.

3. After the above development has been completed, and after any records obtained have been associated with the evidentiary record, arrange for the Veteran to undergo a VA examination to determine the severity of his service-connected residual scars, status post malignant melanoma.  

The Veteran has expressed his desire to have any VA examination scheduled as close to his home as possible, as travelling is difficult for him.  To the extent possible, please work with the Veteran to schedule an examination at a VA facility near his home.

The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner.  The examination report must include a notation that this record review took place.  

The examiner should fully document in detail all signs and symptoms necessary for rating the Veteran's service-connected residual scars and/or disfigurement from his skin cancer, to include but not limited to, the size, shape, and location of his scars.

The examiner should specifically address the Veteran's reports that all of his scars are painful.  See September 2015 notice of disagreement.

The complete rationale for all opinions should be set forth.  The examiner is advised that the Veteran is competent to report his symptoms and history.  Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion.  If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection.

4. After the above development has been completed, readjudicate the claim.  If the benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case, and return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matter 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 2014).



______________________________________________
S. HENEKS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs