Citation Nr: 1114131 Decision Date: 04/11/11 Archive Date: 04/21/11 DOCKET NO. 09-34 273 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a disability rating in excess of 30 percent for service-connected status-post right ear basal cell carcinoma, left ear squamous cell carcinoma, and hyperkeratotic skin lesions of the face and arms. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD M. Purdum, Associate Counsel INTRODUCTION The Veteran has verified active service dated from April 1945 to November 1945, November 1950 to August 1951, August 1959 to December 1962, and June 1966 to June 1979, with additional periods of unverified active and reserve service. This matter comes before the Board of Veterans' Appeals (Board) from an October 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim of entitlement to an initial increased disability rating. In February 2011, the Veteran and his spouse testified via videoconference before the undersigned Veterans Law Judge, seated at the Board's Central Office in Washington, D.C. A transcript of the hearing has been associated with the claims file. At the time of the Veteran's Board hearing, he submitted additional evidence, with a waiver of RO consideration of such evidence. The Board notes here that the Veteran's claims file, consisting of four volumes, includes evidence of a long and distinguished military career. He is the recipient of the Combat Action Ribbon and the Combat Operations Insignia. He served during World War II, the Korean Conflict, and the Vietnam War. The Board's inability to list above any period of service not evidenced in the claims file by a service separation form, a DD-214, or other official document, is not meant to discredit any period of the Veteran's service. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. During the appellate period, the Veteran's status-post right ear basal cell carcinoma, left ear squamous cell carcinoma, and hyperkeratotic skin lesions of the face were manifested by visible tissue loss and gross distortion or asymmetry of two features or paired set of features. 2. During the appellate period, the Veteran's hyperkeratotic skin lesions of the right upper extremity were manifested by scars that were superficial, did not cause limitation of motion, and did not exceed an area of 144 square inches or greater. 3. During the appellate period, the Veteran's hyperkeratotic skin lesions of the left upper extremity were manifested by scars that were superficial, did not cause limitation of motion, and did not exceed an area of 144 square inches or greater. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 50 percent, but not higher, for status-post right ear basal cell carcinoma, left ear squamous cell carcinoma, and hyperkeratotic skin lesions of the face have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.14, 4.27 (2010), 4.87, 4.118, Diagnostic Codes (DCs) 6207, 7800, 7818 (2008). 2. The criteria for a separate noncompensable disability rating for hyperkeratotic skin lesions of the right upper extremity have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.25, 4.31 (2010), 4.118, DCs 7802, 7818 (2008). 3. The criteria for a separate noncompensable disability rating for hyperkeratotic skin lesions of the left upper extremity have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.25, 4.31 (2010), 4.118, DCs 7802, 7818 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326 (2010). In correspondence dated in August 2008, the RO provided notice to the Veteran under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Specifically, the RO notified the Veteran of information and evidence necessary to substantiate the present claim, to include descriptions of the information and evidence that VA would seek to provide, and that which the Veteran was expected to provide. According to prior case law, adequate notice for an increased compensation claim also required, at a minimum, that VA notify a claimant that to substantiate his claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the claimed condition, to include the effect that worsening has on his employability and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Also, if the Diagnostic Code under which the claimant was rated contained certain criteria such as a specific measurement or test result necessary to achieve a higher rating, VA was required to provide at least general notice of that requirement to the claimant. The claimant was also to be notified of the process by which a disability rating is determined. Vazquez, supra. However, the U.S. Court of Appeals for the Federal Circuit recently vacated and remanded the Vazquez decision by the Court of Appeals for Veterans Claims. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Specifically, the Federal Circuit held that only "generic notice" in response to the particular type of claim is required under 38 U.S.C.A. § 5103(a), rather than "veteran-specific" notice. Id. With respect to a claim for an increased rating, such notice does not need to inform the claimant of the need to submit evidence concerning the effect of a service-connected disability on his or her "daily life" because only the average loss of earning capacity, and not impact on daily life, is subject to compensation under 38 U.S.C. § 1155. Accordingly, the Federal Circuit vacated the earlier decision insofar as it requires VA to notify a veteran of alternative diagnostic codes or potential "daily life" evidence. Id. In all, the Board finds that adequate notice was provided in relation to this Veteran's claim. Specifically, the August 2008 notification letter described the process by which disability ratings are assigned, and informed the Veteran of: (1) the criteria under which the disabilities on appeal are rated; (2) the need to submit evidence demonstrating the impact his disability has on his employment (and daily life); and (3) examples of the types of medical and lay evidence that are relevant to his claim for an increased rating. Accordingly, the Board finds that VA has satisfied its duty to notify in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1), as well as Vazquez-Flores v. Shinseki and related decisions. VA has also done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). All identified and available post-service treatment records have been associated with the claims file. The Veteran has been medically evaluated on three occasions in conjunction with his claim during the appellate period, and the resulting medical opinions are considered adequate for rating purposes as they are based on consideration of the Veteran's prior medical history and describe the relevant disability in sufficient detail to enable the Board to reach a fully informed decision. See Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The duty to assist has been fulfilled. Increased Disability Rating Ratings for service-connected disabilities are determined by comparing a veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2010). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a noncompensable evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2010). The Veteran's service-connected skin disorder was originally rated as 10 percent disabling under DCs 7818-7800, effective April 13, 1998. By a May 2000 rating decision, the initial disability rating assigned to the Veteran's skin disorder was increased to 30 percent. The Board notes here that the Veteran's representative, at the time of the February 2011 Board hearing, requested that it be made a matter of record that the Veteran seeks clarification as to the reason his head, face, and neck, have been evaluated together with his arms. Subsequent to review of the relevant diagnostic criteria, the Board finds that indeed it is appropriate that the Veteran's service-connected hyperkeratotic skin lesions of the right and left upper extremities be evaluated separately from his head, face, and neck. 38 C.F.R. §§ 4.25, 4.118, DCs 7800, 7802 (2008). DC 7818 provides that skin cancer, other than malignant melanoma, be rated based on disfigurement of the head, face, or neck, as scars, or on impairment of function. DC 7800 contemplates scars affecting the head, face, or neck. 38 C.F.R. § 4.118, DCs 7800, 7818 (2008). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). 38 C.F.R. § 4.27 (2010). During the pendency of this appeal for an increased rating, the criteria for evaluation of scars were amended as of October 23, 2008. However, the revisions are applicable to applications for benefits received by VA on or after October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008). Here, VA received the Veteran's claim in May 2008, and he has not requested that his disability be rated under the new criteria. Therefore, only the pre-October 2008 version of the schedular criteria is applicable in this case. Under DC 7818, a Note provides that if a skin malignancy requires 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 treatment and will continue with a mandatory VA examination six months following the completion of such antineoplastic treatment, and any change in evaluation based upon that or any subsequent examination will be subject to the provisions of § 3.105(e) of this chapter. 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, DC 7818. Under DC 7800, for scars that are located on the head, face, or neck, under the revised criteria, a 10 percent evaluation is warranted with one characteristic of disfigurement; a 30 percent rating is assigned when there is visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, or; with two or three characteristics of disfigurement; a 50 percent rating is assigned for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; with four or five characteristics of disfigurement; and, a maximum 80 percent rating is provided when there is visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features, or; with six or more characteristics of disfigurement. 38 C.F.R. § 4.118, DC 7800. Under Note (1), the 8 characteristics of disfigurement for purposes of evaluation under 38 C.F.R. § 4.118, are: a scar 5 or more inches (13 or more cm.) in length; a scar at least 1/4 inch (0.6 cm.) wide at widest part; surface contour of scar elevated or depressed on palpation; a scar adherent to underlying tissue; skin hypo-or hyper-pigmented in an area exceeding 6 square inches (39-sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 square inches (39-sq. cm.); underlying soft tissue missing in an area exceeding 6 square inches (39-sq. cm.); and skin indurated and inflexible in an area exceeding 6 square inches (39-sq. cm.). Id. Under Note (2), tissue loss of the auricle is to be rated under DC 6207, contemplating loss of auricle, and under Note (3), the adjudicator is to take into consideration un-retouched color photographs when evaluating under these criteria. Id. DC 6207, contemplating loss of auricle, provides that deformity of one auricle, with loss of one-third or more of the substance of the auricle, is rated 10 percent disabling. Complete loss of one auricle is rated 30 percent disabling, and complete loss of both auricles is rated 50 percent disabling. 38 C.F.R. § 4.87, DC 6207 (2008). DC 7802, contemplating scars, other than head, face, and neck, that are superficial and do not cause limitation of motion, represents the relevant diagnostic criteria. A maximum 10 percent disability rating is warranted for such scars that encompass an area or areas of 144-sq. inches (929-sq. cm.) or greater. There is no zero percent disability rating under DC 7802. 38 C.F.R. § 4.118, DC 7802 (2008). Under Note (1), scars 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 § 4.25. Under Note (2), a superficial scar is one not associated with underlying sift tissue damage. Id. In considering the applicability of other diagnostic codes, the Board finds that DC 7801, contemplating scars, other than head, face, and neck, that are deep or that cause limited motion; DC 7803, contemplating scars, superficial, unstable; DC 7804, contemplating scars, superficial, painful on examination; or DC 7805, contemplating scars, other, rated as limitation of motion; are not applicable in this instance, as the evidence of record, as will be discussed below, does not demonstrate such. 38 C.F.R. § 4.118, DC 7801, 7803, 7804, 7805 (2008). The Board now turns to the medical and lay evidence of record. VA treatment records dated in May 2008 indicate that the Veteran presented with a right pinna with a wedge missing from the posterior superior helix, and a left pinna missing a lobule. The Veteran underwent VA examination in July 2008. At that time he reported that he had been seen by his dermatologist to remove keratotic lesions with liquid nitrogen. The examiner noted that the Veteran's right ear had been previously removed at the helix, and that his left ear had been mostly removed due to his skin cancer. In July 2008, the examiner noted that the Veteran presented with good skin color and normal turgor for his age. He presented with scattered hyperkeratotic lesions on the face, backs of his hands, and forearms, with many residuals scars. The Veteran presented with a scar on his left neck measuring 7 cm. X 2 cm., and a scar running parallel and anterior to the left neck, measuring 4.5 cm. X 2 cm, with some disfigurement. The examiner reported that the Veteran's neck scars were flat, nontender, and hypopigmented, with free movement and smooth texture, and without induration and inflexibility. No scars were observable at the crown of the Veteran's head. The examiner reported that the Veteran's multiple burn scars from liquid nitrogen and keratotic lesions encompass 5% of his head and neck, and 1% of his total body surface. The examiner reported that the Veteran has disfigurement of the ears. The Veteran underwent additional VA examination in June 2009. At that time, he reported that he uses prescription cream on his rash twice daily as needed. He complained of multiple hyperkeratotic-type lesions on the back of both hands, both forearms, neck, back, face, ears, and scalp. The Veteran presented with somewhat rubious skin color of the face, nose, ears, and neck, with tanning of the forearms and backs of both hands. The examiner noted multiple areas of hyperkeratotic lesions on the backs of both the Veteran's hands, forearms, neck, and back of neck into the shoulders, as well as the anterior, lateral, and posterior neck, face, ears, and scalp. The examiner estimated that the exposed body surface areas affected was 20% and the total body surface area affected was 4%. The examiner noted a 3 cm. scar at the Veteran's left pinna, and noted that most of the pinna had been removed. The Veteran's private physician, Dr. P., submitted a statement, in November 2009, on the Veteran's behalf. Dr. P. reported that during his 25 years as a practicing physician, the Veteran demonstrated some of the most severe actinically damaged skin that he had seen. The Veteran underwent a third VA examination in May 2010. At that time, he reported that the lesions on his face were treated with liquid nitrogen on six or seven occasions since the time of his last VA examination. He complained of burning pain in his ears, sometimes relieved by over-the-counter medication. The Veteran reported that he had a lesion medially near the middle canthus on the medial side of the nose and eye corner, and that such lesion was removed near the left eye in December 2009. The Veteran reported that he used prescription cream on his nose and another cream on his forearms and other areas of the face. He reported that he experiences itching, irritation, and burning pain on his face, head, and ear. In May 2010, the Veteran presented with hyperkeratotic lesions on both forearms, in the anterior and posterior aspect, and also over the face and near the maxomandibular area on both sides of the face. The Veteran presented with slightly erythematous macular type of hyperkeratotic lesions, and the examiner noted lesions over the forehead and scalp. No active lesions were noted, including lesions spreading into the eye. In May 2010, the Veteran had a scar from removal of a lesion at the left eye, medially, at the bridge of the nose, and the middle side of the nose, measuring 2 cm. X .1 cm. At the maxillary area of the right face, there was a scar measuring 2 cm. X .2 cm., and below it, another scar measuring 5 cm. X .2 cm. On the left side of the neck, the Veteran had a scar measuring 5 cm. X 0 cm., and on the back of the right side of the neck, he had a scar measuring 3 cm. X .1 cm. On both forearms, anterior and posterior, he had 3 or 4 small scars, measuring 2 cm. X 1 cm., and some measuring 1 cm. X .5 cm. The examiner noted that part of the canal of the Veteran's right pinna was removed, with a residual scar measuring 4 cm. X 3 cm., and the external portion of the Veteran's left ear was removed, with a residual scar measuring 1.5 cm. X 1 cm. X .2 cm. The examiner noted that the scars found were superficial, without pain on examination. The examiner reported that there was no skin breakdown, underlying soft tissue damage, induration, functional limitation, or disfigurement. The examiner reported that 20% of the exposed areas of body surface are affected and 5% of the total body surface is affected. Dr. P. submitted another letter on the Veteran's behalf in February 2011. He reported that the Veteran had been under his care for many years and that he had numerous skin cancers, including a severe cancer of the right ear. At the time of the Veteran's February 2011 Board hearing, he reported that he experienced active cancer of the right ear, with bleeding and granular-type drainage. He reported that his active cancer would require treatment in the near future. The Veteran reported that he had lost portions of his nose and ears due to his skin cancer treatment. He reported that his arms "break out" and that his face, neck, head, and arms are treated with liquid nitrogen. The Board notes here that during the appellate period, the Veteran has supplemented the record with documents and testimony before the Board and a Decision Review Officer (DRO) regarding the circumstances of his service, specifically, his exposure to herbicides, and the dates of his multiple periods of service. As service connection is already in effect for the Veteran's skin disorder, further inquiry as to the circumstances of the Veteran's service, including exposure to herbicides and dates of service, is not required. The Veteran has also offered evidence and testimony as to the treatment of his skin disorder dated outside of the appellate period. However, the only relevant inquiry in the present appeal is the condition of the Veteran's skin disorder during the appellate period. As the Veteran filed his claim of entitlement to an increased disability rating in May 2008, the only relevant medical evidence is evidence dated from May 2007 to the present. 38 C.F.R. § 3.157 (2010). The Board now turns to a discussion of the appropriate disability ratings. As discussed above, the Veteran is currently in receipt of a 30 percent disability rating for his service-connected skin disorder. In order to achieve a higher evaluation the evidence of record must demonstrate visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; with four or five characteristics of disfigurement, as is required for a 50 percent disability rating; or gross distortion or asymmetry of three or more features or paired sets of features, or; with six or more characteristics of disfigurement, as is required for a maximum 80 percent disability rating. 38 C.F.R. § 4.118, DC 7800. Based on a review of the evidence of record, the Board finds that the Veteran's service-connected skin disorder is productive of visible or palpable tissue loss and gross distortion or asymmetry of two features or paired sets of features. Specifically, the Board finds that the photos submitted in October 2008 clearly demonstrate visible tissue loss and asymmetry of the Veteran's nose and ears. While the VA examiners described only the tissue loss related to the Veteran's ears, it is clear to the Board that he demonstrates visible tissue loss related to his nose, and such loss results in asymmetry of the nose. As the Board has found that the Veteran's visible tissue loss and asymmetry of the nose and ears warrants a 50 percent disability rating under DC 7800, further inquiry as to the regulatory characteristics of disfigurement is not required for this particular analysis. As such, the Board finds that the Veteran is entitled to a 50 percent disability rating for his service-connected status-post right ear basal cell carcinoma, left ear squamous cell carcinoma, and hyperkeratotic skin lesions of the face. 38 C.F.R. § 4.118, DC 7800. The Veteran is not entitled, however, to a disability rating in excess of 50 percent. As discussed above, an 80 percent evaluation is the maximum rating contemplated by DC 7800, and requires gross distortion or asymmetry of three or more features or paired sets of features, or; with six or more characteristics of disfigurement. While the Veteran presented on VA examinations with scars about his neck, face, and head, none, beyond that of his nose and ears, appear in photos or have been described by VA examiners as having tissue loss or grossly distorted or asymmetrical. Thus, the Veteran's skin disorder is not manifested by three or more features or paired sets of features with such characteristics. Further, there is no evidence that his skin disorder is manifested by six or more characteristics of disfigurement. Only four scars have been described as being more than .6 cm. in width. While the Veteran has demonstrated hypopigmented skin, such does not encompass the required area. There is no evidence that the Veteran's skin disorder is manifested by scars 5 or more inches (13 or more cm.) in length; surface contour of scar elevated or depressed on palpation; a scar adherent to underlying tissue; or skin hypo-or hyper-pigmented, skin texture abnormal (irregular, atrophic, shiny, scaly, etc.), underlying soft tissue missing, or skin indurated and inflexible in an area exceeding 6 square inches (39-sq. cm.). As such, the Board finds that the Veteran is not entitled to an 80 percent disability rating contemplated by the relevant criteria. 38 C.F.R. § 4.118, DC 7800. The Board notes that the Veteran's representative, in February 2011, asserted that the Veteran was entitled to a 100 percent disability rating on the basis that he had active cancer of the right ear. As discussed above, DC 7818 provides a total evaluation, assigned in six month increments and monitored by VA examination, when there is evidence of required therapy comparable to that used for systemic malignancies, i.e., systemic chemotherapy, x-ray therapy more extensive to the skin, or surgery more extensive than local wide excision. The criteria specifically provide that if the treatment is confined to the skin, a total evaluation is not warranted. In this case, there is no evidence that the Veteran's skin cancer has required treatment not confined to the skin during the appellate period. At the time of the Veteran's February 2011 Board hearing, he reported that he was scheduled to seek treatment from a specialist in the near future. While the Board is sympathetic that the Veteran has had a recurrence of active skin cancer in his right ear, there is no evidence of treatment that serves as a basis for a 100 percent disability rating during the appellate period. On this issue, the Veteran is reminded that once any qualifying treatment has begun, he may file a claim for an increased rating. Also, the Board notes that, as discussed above, DC 7800 requires consideration of loss of auricle under DC 6207. In this case, the Veteran has presented on VA examination with loss of at least some portion of both auricles. The Veteran's auricles have been described by different examiners in different ways. While it is not entirely clear to the Board the precise measurement of each remaining auricle, it is clear that the left ear is "mostly gone" and the right ear is missing a "wedge". There is no evidence of complete loss of one auricle or complete loss of both auricles. Giving all reasonable doubt to the Veteran as to this issue, the Board finds that he is entitled to two separate 10 percent disability ratings for loss of auricle, in the form of deformity with the loss of one-third or more, for the left and right ears. 38 C.F.R. § 4.87, DC 6207. However, as discussed above, the Board has determined that the Veteran is entitled to an increased disability rating, 50 percent, under DC 7800 for his head, face, and neck. The basis, in part, for the Board's finding was that the Veteran demonstrated visible tissue loss and asymmetry of a paired set of features, his ears. Thus, to assign the Veteran an increased disability rating under DC 7800 on the basis of the deformity of his ears, and two separate compensable disability ratings for his left and right ears under DC 6207 also on the basis of the deformity of his ears, would amount to pyramiding. As discussed above, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. Thus, the Board finds that the greater benefit, the increased disability rating of 50 percent under DC 7800, is appropriate in the present appeal and avoids the issue of pyramiding. As discussed above, the Board finds that the Veteran is entitled to separate evaluations for his right and left upper extremities, as such are contemplated by different diagnostic criteria than his head, face, and neck. 38 C.F.R. § 4.25. The scars on the Veteran's right and left upper extremities have been described by VA examiners as superficial. While the Veteran's scars of the right and left upper extremities are superficial, there is no evidence that they cause limitation of motion or encompass an area or areas of 144-sq inches (929-sq. cm.) or greater, as is required for the maximum 10 percent disability rating under DC 7802. The Board also notes that there is no evidence that such are deep, unstable, or painful on examination. The Veteran, during the appellate period, has complained of pain as to his head, neck, and face. While he reported during his February 2011 Board hearing that being treated with liquid nitrogen was painful, he did not complain of pain as to his right and left upper extremities on any VA examination. DC 7802 does not provide for a zero percent evaluation and as the requirements for a compensable disability rating are not met, a noncompensable evaluation is appropriate. 38 C.F.R. § 4.31. Thus, while the Veteran is entitled to separate disability ratings for his hyperkeratotic skin lesions of the right upper extremity and left upper extremity, such ratings are noncompensable based upon the evidence during the appellate period under the relevant criteria, DC 7802. 38 C.F.R. § 4.118, DC 7802. In sum, the Board has considered whether a higher rating might be warranted for any period of time during the pendency of this appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Indeed, the weight of the evidence demonstrates that the Veteran's service-connected status-post right ear basal cell carcinoma, left ear squamous cell carcinoma, and hyperkeratotic skin lesions of the face, warrants a 50 percent disability rating, and no more. Further, the weight of the evidence demonstrates that the Veteran's service-connected hyperkeratotic skin lesions of the right upper extremity and left upper extremity, warrant separate noncompensable disability ratings. In reaching the above decision, the potential application of various provisions of Title 38 of the Code of Federal Regulations have been considered, whether or not they were raised by the appellant, as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991), including the provisions regarding extraschedular ratings. The Veteran has not exhibited symptoms of his service-connected skin disorder during the appellate period of a type and degree not contemplated by the rating criteria. The Board finds that the evidence of record does not present "an exceptional or unusual disability picture so as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1); see also Thun v. Peake, 22 Vet. App. 111, 115-16 (2008) (referral for extraschedular rating warranted only where level of disability is not contemplated by rating schedule and disability picture exhibits other related factors showing unusual or exceptional disability picture). (CONTINUED ON THE NEXT PAGE) Lastly, the Board observes that, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. However, in the present appeal, the Veteran has been in receipt of a TDIU since April 13, 1998 and further inquiry as to entitlement to the same is not required. ORDER A disability rating of 50 percent for service-connected status-post right ear basal cell carcinoma, left ear squamous cell carcinoma, and hyperkeratotic skin lesions of the face, is granted. A separate noncompensable disability rating for hyperkeratotic skin lesions of the right upper extremity is granted. A separate noncompensable disability rating for hyperkeratotic skin lesions of the left upper extremity is granted. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs