Citation Nr: 0811735 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 00-22 876 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial compensable evaluation for postoperative residuals of basal cell carcinoma of the right side of the nose. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD A. A. Booher, Counsel INTRODUCTION The veteran had active service from August 1966 to August 1969, and from March 1971 to November 1977. He was born in 1946. This matter came before the Board of Veterans' Appeals (Board) from a January 2000 rating determination by the above Department of Veterans Affairs (VA) Regional Office (RO). During the pending appeal, in a rating decision in December 2002, the RO granted entitlement to service connection for postoperative residuals of basal cell carcinoma of the left cheek and assigned an evaluation of 0 percent (noncompensable) effective from June 21, 1999. Accordingly, that issue is no longer on appeal. The veteran also has service connection for bilateral defective hearing, for which a noncompensable rating is also assigned. In a decision in April 2005, the Board remanded the issue on the front cover of this decision. The Board also denied entitlement to an evaluation in excess of 10 percent for scar, residuals of shell fragment wound of the left frontal region, with craniectomy and plate insertion. However, the Board assigned a separate 50 percent rating for loss of skull, both inner and outer tables, as a residual of shell fragment wound of the left frontal region with craniectomy and plate insertion; and a separate 10 percent rating for dementia due to brain trauma as a residual of shell fragment wound of the left frontal region with craniectomy and plate insertion. The appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action is required. REMAND As of August 30, 2002, pertinent criteria changed for the herein concerned disability when, as is the usual case, in general, benign neoplasms are rated as scars. In this case, however, given the evidence with regard to cancer involving the cheek, etc., and other subsequent clinical findings of record, it is unclear whether the nose area is now most appropriately considered as a benign neoplasm. If not, entirely other criteria may be applicable, none of which has been addressed to date. Moreover, in cases such as this when the appeal is from the initial grant of service connection, the Board will consider entitlement to staged ratings to compensate for periods since the filing of the claim when the disability may have been more severe than at other times during the course of the claim and appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). At the time of the 2005 Board remand, it was noted that the veteran had been ill for some time and had been unable to appear for a 2002 special examination to assess the residuals of his basal cell carcinoma on the right side of his nose. He had been confined to a nursing home. Nonetheless, he indicated that he felt his condition had worsened with regard to that disability since he was last examined. Pursuant to the Board's 2005 remand, the veteran was scheduled for a VA examination, for which he again failed to report. However, the other clinical evidence of record would tend to reflect that he remained in a nursing home facility, was not ambulatory, and otherwise may have had justification for not appearing for such an examination. For instance, he also had other significant medical problems which may have precluded such an examination, and because of his other medical problems, the veteran now speaks through his computer. The clinical record reflects that he was collaterally seen for a limited skin "observation" in July 2005, the only pertinent notation of which was the absence of current skin cancer involving his face or nose. The February 2008 written presentation by his representative suggests that the examination notification letter was sent to an inaccurate address, and thus the veteran was never formally notified of the scheduled examination. The representative more specifically and quite forcefully argues that he has been prejudiced by the lack of a current examination. The representative has cited the provisions of Stegall v. West, 11 Vet. App. 268 (1998). In that regard, Stegall states that the Board is obligated by law to ensure that the RO complies with its directives. "[A] remand by . . . the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders." In other words, where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. The representative asks that the case be again remanded for another VA examination to be scheduled. Thus, the Board finds itself in a bit of a dilemma in this case. Give his general health and incapacitations, the Board is loath to unnecessarily put the veteran through another examination. However, the evidence does indeed remain less than either current or complete for an equitable assessment; the veteran appears to want and is in fact entitled to a new examination if possible; and his representative is quite firm in that regard. Finally, the requirements of the prior Board remand indeed remained unfulfilled, an error perhaps compounded by the lack of adequate notice, thus raising the elements of Stegall, supra. In addition, during the pendency of this appeal, the Court issued a decision with provided additional notice requirements for increased-compensation claims. Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). Specifically, notice must (1) inform the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) provide at least general notice of the criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result); (3) advise the claimant that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life; and (4) provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation - e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Id. 43-44. The Board is confident the RO will ensure that all required VCAA notice has been provided to the veteran in this case. Accordingly, and although the Board sincerely regrets the additional delay, it is necessary to ensure that the veteran is afforded due process, and the case is REMANDED for the following action: 1. The appellant 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). 2. Assure compliance with the provisions of the precedential decision of the Court in Vazquez, discussed above. 3. If feasible, the veteran should be given a comprehensive dermatological examination to determine the nature and extent of residuals of his basal cell carcinoma on the right side of his nose. The claims file should be made available to the examiner, and all findings should be fully recorded. Photos and other accurate measurements of the extent of involvement should be taken, if possible. If the area is no longer best described as a benign neoplasm, this should also be discussed. And if an examination cannot be undertaken, the details thereof should be placed in the file. 4. The case should then be reviewed, and if the decision remains unsatisfactory, a comprehensive SSOC should be issued and the veteran and his representative provided a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review. The veteran need do nothing further until so notified. 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. 2007). ________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a final decision of the Board of Veterans' Appeals is appealable to the U.S. Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a final decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).