Citation Nr: 1133697	
Decision Date: 09/12/11    Archive Date: 09/22/11

DOCKET NO.  08-00 358A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to a rating higher than 60 percent for squamous cell carcinoma of the hands, arms, and trunk, with residual lesions and scarring.

2.  Entitlement to a rating higher than 50 percent for squamous cell carcinoma of the head, face, and neck, with residual lesions and scarring.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

R. Erdheim, Associate Counsel



INTRODUCTION

The Veteran served on active duty from October 1963 to October 1967 and from December 1972 to January 1993.

This appeal to the Board of Veterans' Appeals (Board/BVA) from a March 2007 decision of a Department of Veterans Affairs (VA) Regional Office (RO) that increased the rating for the squamous cell carcinoma of the Veteran's head, face, and neck from 30 to 50 percent, retroactively effective from November 2, 2006, but denied an increased rating for squamous cell carcinoma of his hands, arms, and trunk.  In another decision since issued, however, in July 2007, the RO also increased the rating for the squamous cell carcinoma of his hands, arms, and trunk from 30 to 60 percent, also retroactively effective from November 2, 2006.  He wants even higher ratings.  See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating it is presumed the Veteran is seeking the highest possible rating unless he expressly indicates otherwise).


FINDINGS OF FACT

1.  Throughout the pendency of this appeal, the squamous cell carcinoma of the Veteran's hands, arms, and trunk, with residual lesions and scars, has covered more than 40 percent of his entire body or more than 40 percent of exposed area.  The residual lesions and scars are not unstable or painful on examination and do not limit function of the affected parts.

2.  Throughout the pendency of this appeal, the squamous cell carcinoma of the Veteran's head, face, and neck, with residual lesions and scars, has included scars that are greater than 13 centimeters in length and .6 centimeters in width, and has included scars that are depressed on palpation, adherent to underlying tissue due to tissue damage, hypopigmented, and have abnormal and irregular skin texture.  The residual lesions and scars are not unstable or painful on examination and do not limit function of the affected parts.



CONCLUSIONS OF LAW

1.  The criteria are not met for a rating higher than 60 percent for the squamous cell carcinoma of the Veteran's hands, arms, and trunk.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7805, 7806, 7818 (2008 & 2010).

2.  The criteria are met, however, for a higher 80 percent rating, though no greater rating, for the squamous cell carcinoma of his head, face, and neck.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 4.118, Diagnostic Code 7800 (2008).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court/CAVC) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim:  1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.

Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO - as the agency of original jurisdiction (AOJ).  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States Supreme Court made clear that a reviewing court, in considering the rule of prejudicial error, is precluded from applying a mandatory presumption of prejudice rather than assessing whether, based on the facts of each case, the error was outcome determinative.  In Sanders, the Supreme Court rejected the lower Federal Circuit's framework (see Sanders v. Nicholson, 487 F. 3d 881, 889 (Fed. Cir. 2007)) that all VA notice errors are presumptively prejudicial, in part, because it was "complex, rigid, and mandatory."  Id., at 1704.  The Supreme Court rejected the Federal Circuit's analysis because it imposed an unreasonable evidentiary burden on VA to rebut the presumption and because it required VA to demonstrate why the error was harmless, rather than requiring the appellant - as the pleading party, to show the error was harmful.  Id., at 1705-06.  The Supreme Court stated that it had "warned against courts' determining whether an error is harmless through the use of mandatory presumptions and rigid rules rather than case-specific application of judgment, based upon examination of the record."  Id., at 1704-05.  Thus, it is clear from the Supreme Court's analysis that, while the Veterans Court could conclude generally that a specific type of error is more likely to prejudice an appellant, the error must nonetheless be examined in the context of the facts of the particular case.  Id.


The Veterans Court initially held in Vazquez-Flores v. Peake, 22 Vet. App. 37, 48 (2008), that prejudicial deficiencies in the timing or content of a VCAA notice can be cured by showing the essential fairness of the adjudication will not be affected because:  (1) the defect was cured by actual knowledge on the part of the claimant ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law.  Sanders, 487 F. 3d at 889.  Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non-prejudicial."  Vazquez-Flores, 22 Vet. App. at 46.  See also Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding the Board had erred by relying on various post-decisional documents for concluding adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Veterans Court nonetheless determined the evidence established the Veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore found the error harmless).

The Veterans Court further held in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), that for an increased-compensation claim, 38 U.S.C. § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability, and the effect that such worsening or increase has on the claimant's employment and daily life.  

On appeal, however, in Vazquez-Flores v. Shinseki, 2009 WL 2835434 (Fed.Cir.), the Federal Circuit vacated and remanded important aspects of the Veterans Court's holding in Vazquez-Flores, as well as a related case, Schultz v. Peake, No. 03-1235, 2008 WL 2129773, at 5 (Vet. App. Mar. 7, 2008).  Significantly, the Federal Circuit concluded that "the notice described in 38 U.S.C. § 5103(a) need not be Veteran specific."  Similarly, "while a Veteran's 'daily life' evidence might in some cases lead to evidence of impairment in earning capacity, the statutory scheme does not require such evidence for proper claim adjudication."  Thus, the Federal Circuit held, "insofar as the notice described by the Veterans Court in Vazquez-Flores requires the VA to notify a Veteran of alternative diagnostic codes or potential "daily life" evidence, we vacate the judgments."  Vazquez, 2009 WL 2835434, at 10.

It since has been held that after a notice error, such as failing to inform the appellant to submit evidence demonstrating the effect that a worsening of the disability has on employment is found in an increased-rating claim, the appellant's burden to demonstrate prejudice at the Court (CAVC) level does not shift to VA unless notice is not provided at all.  See Vazquez-Flores v. Shinseki, No. 05-0355, 2010 WL 4146124 (Vet. App. Oct. 22, 2010).

In this particular case at hand, the Board finds that VA has satisfied its duty to notify under the VCAA.  A November 2006 letter, sent prior to the initial unfavorable RO decision in March 2007, and a more recent April 2010 letter, advised the Veteran of the evidence and information necessary to substantiate his increased-rating claims as well as of his and VA's respective responsibilities in obtaining this supporting evidence and information.  The letters also informed him of the evidence and information necessary to establish an effective date in accordance with Dingess/Hartman, supra.

Relevant to the duty to assist, VA treatment records and private treatment records have been obtained and considered.  The Veteran has not identified any additional, outstanding, records necessary to decide his pending appeal.  Additionally, he was provided VA compensation examinations in December 2006 and April 2010 to assess and then reassess the severity of his disabilities at issue.  The reports these examinations and the other evidence in the file address the relevant rating criteria, such that the Board is able to determine whether higher ratings are warranted.  So reexamination is not needed.  38 C.F.R. §§ 3.327(a), 4.2.  Cf. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (indicating, albeit in the context of a claim for service connection rather than for an increased rating, that the requirement of a "contemporaneous" examination does not require a new examination based upon the mere passage of time).  This is especially true since the Veteran has not alleged, let alone shown, the examinations are deficient in any way.  Where an appellant does not challenge a VA medical examiner's competence or qualifications, VA need not affirmatively establish the examiner's competency.  See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009).  Indeed, the Board may assume the competency of any VA medical examiner, including nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  See Cox v. Nicholson, 20 Vet. App. 563 (2007).

Thus, the Board finds that VA has satisfied its duty to assist.  In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided).

II.  Analysis

Ratings for service-connected disabilities are determined by comparing the 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 (2010).  All reasonable doubt is resolved in the Veteran's favor.  38 C.F.R. § 4.3.

In assessing the severity of a disability, where the evidence contains factual findings demonstrating distinct time periods in which the disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of a "staged" rating would be necessary to compensate the Veteran for this variance.  The relevant temporal focus for adjudicating the level of disability of an increased-rating claim is from one year before the claim for a higher rating was filed until VA makes a final decision on the claim.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  See also 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).

The Veteran contends that the squamous cell carcinoma of his head and body has caused him to undergo numerous surgeries, with never ending resurfacing of the cancer for further excision.  He also points out the surgeries are expensive and says the time it takes to travel to and from the procedures, and to recover from them, has been unduly time consuming.  He further contends that his skin lesions and scars have disfigured his face and body to an extent that he cannot leave his home without feeling uncomfortable.  He therefore is requesting additional compensation for these disabilities.

The regulations pertaining to rating skin disabilities under Diagnostic Codes 7800, 7801, 7802, 7803, 7804, and 7805 were revised effective October 23, 2008, so during the pendency of this appeal.  However, these revisions are applicable only prospectively to claims received on or after that date.  Because the Veteran's claims instead were received prior to that date, and he has not requested consideration under these new regulations, they do not apply in this appeal.  73 Fed. Reg. 54708 (Sept. 23. 2008).

The squamous cell carcinoma affecting the Veteran's head, face, and neck has been rated as 50-percent disabling under Diagnostic Code 7800, which pertains to disfigurement of the head, face, and neck.  The squamous cell carcinoma of his arms, body, and trunk has been rated under Diagnostic Codes 7818-7806.  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).  Diagnostic Code 7818 pertains to malignant skin neoplasms.  Diagnostic Code 7806 pertains to dermatitis or eczema.  38 C.F.R. § 4.118, Diagnostic Codes 7800, 7806, 7818 (2008 & 2010).  While the Veteran's skin condition is not that of dermatitis or eczema, the RO rated it under that code because it appeared to be the most analogous code to his symptom manifestation, see 38 C.F.R. § 4.20, and the Board agrees with that assessment.  See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic code should be upheld if supported by explanation and evidence).  See, too, Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992) (any change in diagnostic code must be specifically explained).  Namely, he has numerous small lesions and scars covering his hands, arms, and trunk, and those areas have been described as dry and itchy.  Further, rather than having isolated areas of scars and lesions, they appear to generally cover the affected areas in a scattered fashion, much like dermatitis or eczema.  See the color, unretouched, photographs provided during his most recent April 2010 VA compensation examination.  Significantly, DC 7806 provides for a higher rating than the other rating codes pertinent to scarring and malignant neoplasms.

Turning to the relevant skin criteria, Diagnostic Code 7800 provides that a 10 percent rating is warranted where there is one of the eight characteristics of disfigurement, which is defined as:  a scar five or more inches in length, a scar at least one-quarter inch wide at the widest part, the surface contour of the scar is elevated or depressed on palpation, the scar is adherent to underlying tissue, the skin is hypo or hyper pigmented in an area exceeding six square inches, the skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches, there is underlying soft tissue missing in an area exceeding six square inches; and the skin is indurated and inflexible in an area exceeding six square inches.  A 30 percent rating is warranted 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.  A 50 percent rating is warranted 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.  An 80 percent rating is warranted 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.  38 C.F.R. § 4.118, Diagnostic Code 7800 (2008).

Diagnostic Code 7801 provides for a 10 percent rating for scars, other than the on the head, face, or neck, that are deep or cause limited motion, and exceed 6 square inches; a 20 percent rating if exceeding 12 square inches; a 30 percent rating if exceeding 72 square inches, and a 40 percent rating if exceeding 144 square inches.  38 C.F.R. § 4.118, Diagnostic Code 7801 (2008).

Diagnostic Code 7802 provides for a maximum 10 percent rating for a scar, other than the head, face, or neck, which is superficial and does not cause limitation of motion, and exceeds 144 square inches.  38 C.F.R. § 4.118, Diagnostic Code 7802 (2008).

Diagnostic Code 7803 provides for a maximum 10 percent rating when there are superficial, unstable scars.  An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  38 C.F.R. § 4.118, Diagnostic Code 7803 (2008).

Diagnostic Code 7804 provides for a 10 percent rating for superficial scars that are painful on examination.  38 C.F.R. § 4.118, Diagnostic Code 7804 (2008).

Diagnostic Code 7805 provides for scars, other, to be rated on the limitation of function of the affected part.  38 C.F.R. § 4.118, Diagnostic Code 7804 (2008).

Diagnostic Code 7806, which pertains to dermatitis or eczema, provides for a 10 percent rating where at least 5 percent, but less than 20 percent of the entire body or at least 5 percent, but less than 20 percent of exposed areas are affected or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past 12-month period.  A 30 percent rating is warranted where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; where systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period.  A 60 percent rating is warranted where more than 40 percent of the entire body or more than 40 percent of the exposed areas are affected; or where there is constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period.  38 C.F.R. § 4.118, DC 7806 (2010). 

Finally, Diagnostic Code 7818 directs that malignant skin neoplasms, other than malignant melanoma, should be rated based upon disfigurement of the head, face, or neck, scars, or impairment of function.  38 C.F.R. § 4.118, DC 7818 (2010). 

The records dated during the pendency of this appeal reflect that in December 2006 the Veteran underwent Mohs same-day surgery to remove squamous cell carcinoma and basal cell carcinoma from his right lower post auricular region and right mid-dorsal radial forearm.

During his contemporaneous December 2006 VA compensation examination, the Veteran reported having multiple lesions on his chest, upper back, both forearms, hands, and lower legs.  He had had approximately 60 surgeries for his skin cancer over the years.  At one point, due to multiple excisions of skin cancer at the upper lip, he had had the skin on his inner upper lip pulled forward to create a new lip.  He then currently had a new lesion at that area.  Over the previous year, he had had approximately 30 surgeries for skin cancer of his hands, arms, and trunk, and of his head, neck, and face.  Due to the surgeries, he experienced fatigue and decreased stamina.  Twenty times in the previous year, he had taken a course of pain killers in the form of about 20 pills per surgery.  He had had many lesions burned off, however, that procedure was not as successful.  He went to the dermatologist every two weeks.  He had had about 15 days of incapacitation in the previous year due to the multiple surgeries.  Then presently, there were 5 active lesions on his scalp, 8 active lesions on his right forearm, 8 lesions on his left arm, 3 lesions on his back, and 4 lesions on each leg.  There were 11 active lesions on his left hand and 8 visible lesions on his right hand.  On his face, there were multiple lesions on his left ear and pinna, there were 5 lesions on the posterior portion of his neck, 12 lesions along his left hairline, 10 lesions along his right hairline, and many more that could not be counted because his skin was bumpy and uneven.  The lesions varied in size from 2 to 3 millimeters to .25 centimeters.  The lesion on his lip was 1 by .2 centimeters.  

With regard to the scars on his face and neck, there was a 1.5 by 2 centimeter scar at the top of his scalp, with a few other lesions that measured 1 by 2 centimeters.  At the left posterior ear, there was a 2 by 2 centimeter hyperpigmented scar that was raised from the surrounding skin, but not painful to palpation.  There were multiple scars at the left pinna that measured 2 by 3 millimeters each.  On the left neck, there were about 5 scars posteriorly, about .5 to 1.5 centimeters each.  The left lower lip had an inner lesion that was 1 by .25 centimeters, and was raised up by .5 centimeters from the surrounding skin.  On the nose, there was a 1 by 1 centimeter scar that was depressed from the surrounding skin.  On the mid-distal nose, there was a lesion that measured .5 by .5 centimeters.  That scar was depressed below the surrounding skin by .25 centimeters.  There were 5 small scars at the middle of the nose, each 2 to 3 millimeters wide.  On the left and right cheeks at the hairline, there were multiple 2 by 3 millimeter whitish scars.  On the left forearm, there were multiple areas of lighter skin, too numerous to count.  

With regard to the scars on the body, both forearms had numerous scars, as least 6 large ones that measured from .5 by 1 centimeter and smaller ones that measured in the millimeters. The back had at least 13 scars, the largest being 20 millimeters, the smallest being .5 millimeters and circular.  On the right hand, there were multiple scars that were too many to count, from 2 to 3 millimeters.  

The examiner concluded that approximately 50 percent of the Veteran's exposed body area had lesions or scars due to the skin cancer, 50 percent of the hands were affected, and 70 percent of the face and neck were affected by scars and lesions.  The total body area affected by scars and lesions was 11 percent.  With regard to his employment, the Veteran had retired a few years previously due to other illnesses, including heart disease.  He felt that he looked grotesque with his current amount of lesions and scars and felt that if he worked, people would be distracted by his appearance such that he would be ineffective in his chosen field as a salesperson.  He limited his activities to only seeing family because of his feeling that his physical image was quite disfigured.  He had fatigue and decreased stamina related in part to his heart condition and in part to the ongoing treatment for his skin cancer.  The diagnosis was squamous cell carcinoma, head, face, trunk, hands, and arms.

The Veteran has provided numerous color photographs of his skin condition following surgery, including of the stitches and open wounds that followed each surgery, as well as billing statements to show the multiple surgeries that he has undergone during the period under appeal.  For instance, in April 2007, he had three skin biopsies; in June 2007, he had six repairs/biopsies completed; in July 2007, he had four surgeries/repairs/biopsies completed; and in August 2007, he underwent four skin cancer surgeries and had two biopsies completed.  

Also in August 2007, the Veteran's private treating physician submitted a statement indicating that, of the many patients in his practice, the Veteran had one of the more extensive cases of skin cancer.  Most of his exposed skin surface was covered with skin cancers, many of which were greater than 2 centimeters in size.  His tumors were aggressive and often required multiples stages of Mohs surgery.  This commenting physician felt the Veteran's case was extraordinary.  The damage to his skin was beyond that of sun damage.  

In December 2007, the Veteran submitted a statement that he had recently had 14 stitches removed from his right wrist and two surgeries to the center of his back.  He had also had a recent biopsy taken from his right ear.  His next scheduled skin surgery was in January 2008.  

Private treatment records reflect that, in 2007 and 2008, the Veteran had numerous excisions and biopsies for his squamous cell carcinoma of the face and body.  For example, in November 2007 he had skin cancer excised from his left forearm and right wrist, and then later that month had skin cancer excised from his right temple and left hand.  In December 2007, he had skin cancer excised from his right distal and lateral forearm and then, later that month, had lesions excised from his right upper back.  In January 2008, he had lesions removed from his right posterior neck on two occasions and, later that month, had lesions removed from his left check and right posterior back.  These records reflect ongoing and continuous removal of squamous basil cell carcinoma, throughout 2008, 2009, and 2010, with weekly and monthly visits to his treating dermatologist.  

During his April 2010 VA compensation examination, the Veteran reported having itchy and dry skin, generally.  He had constant cryotherapy and excisions of the skin lesions.  On his back , there were about 25 scars, 20 of which measured 1.5 by 1 centimeter wide, and the others measured 3.5 by 2 centimeters wide, 2.5 by 1 centimeter wide, 3.5 by 1 centimeter wide, 2.5 by 2 centimeters wide, and 3 by .5 centimeters wide.  On his neck, there were about 15 hypopigmented and red macules/patches, each about 3 by 2 centimeters, scattered around the neck.  There were also scars measuring from 5 by .5 centimeters wide, 2.5 by .2 centimeters wide, and 1 by .2 centimeters wide.  On his head, there were approximately 20 hypopigmented and red macules/patches of varying diameter, about 2 by 2 centimeters wide.  There was also a 22 by 1 centimeter wide scar on the ear, a 12 by 1.5 centimeter wide scar on the left ear, a 3 by .4 centimeter wide scar at the scalp, and a 3 by .2 centimeter wide scar on the nose.  On the upper extremities, there were approximately 40 hypopigmented scars with red macules/patches of varying diameter, each 1 by 1 centimeter wide and scattered.  There was also a number of other scars, measuring 4 by .5 centimeters, 3.5 by .2 centimeters, 1 by 1.1 centimeters, 2.5 by .1 centimeters, 3.5 by .2 centimeters, and 2 by .3 centimeters.  The scars, unless otherwise stated, were non-linear and irregular in shape.  The irregular scars were less than 6 square inches in size.  There was no pain when palpating the scars.  The scars were not unstable.  There was no limitation of motion due to the scars.  There was no adherence to underlying tissue and no keloid formation.  There was underlying soft tissue damage status post the excisions.  The tissues loss was not obviously palpable or visible except for the area of the left pre/postauricular surgeries.  That underlying tissue loss measured at least 6 square inches, but less than 12 square inches.  There was depression of scars, but no elevation of scars.  The texture of the scattered scars was normal.  The scars were generally reddish and had hypopigmentation.  The hypopigmented scars measured less than 6 square inches in size.  There was disfigurement of the head and neck in that there was a mild asymmetry of the face, but there was no gross or repugnant disfigurement.  The examiner determined that the amount of exposed body area was 40 percent.  The total body area affected by the skin cancer was greater than 20 percent, but less than 40 percent.  There was no functional impairment due to the skin condition.  With regard to his occupational abilities, the Veteran reported that he avoided going out in public due to his physical appearance.  The examiner determined there was no evidence of gross distortion or asymmetry, however, and included color unretouched photographs of the areas affected by the skin cancer in the report of his evaluation.

As for the squamous cell carcinoma involving the Veteran's head, face, and neck, the Board finds that a higher 80 percent rating is warranted under DC 7800.  When resolving all reasonable doubt in his favor, he has exhibited at least six characteristics of disfigurement of the face, including the presence of a scar of 5 or more inches, found on his ear, numerous facial scars that are wider than .6 centimeters, depression of the contour of multiple facial scars, and scars that are adherent to the underlying tissue in that there has been evidence of tissue damage.  Further, there is evidence of hypopigmentation of the skin and irregular skin texture.  While the VA examiners did not state whether the hypopigmentation and irregular skin texture covered an area that was 6 square inches in length, such appears to be so because it was consistently shown that these scars were scattered all over the head, face, and neck and therefore could not be measured in a quantifiable term.  Thus, the Board interprets the VA examination results to mean that the irregular and hypopigmented scars covered most of the head, face, and neck, which would naturally include at least six square inches of the head, face, and neck.  Accordingly, a higher 80 percent rating is warranted throughout the pendency of this appeal, as these characteristics of disfigurement were consistently shown during both VA examinations.

However, the Board finds that a rating higher than 80 percent is not warranted, nor is a separate rating.  For one, DC 8700 and DC 8706, the most pertinent codes to the Veteran's skin condition, do not provide for higher ratings.  There additionally is no indication his scars, while superficial, are unstable or painful on examination.  Thus, DCs 7803 and 7804 are inapplicable.  Further, the VA examination reports specifically found no limitation of function of the affected part, and thus, DC 7805 also is inapplicable.  Moreover, as the remainder of the skin rating criteria pertains to areas other than the head, face, or neck, there are no further codes upon which to grant a higher rating or separate rating.  

With regard to the squamous cell carcinoma of the Veteran's hands, arms, and trunk, the Board finds that a rating higher than 60 percent is not warranted.  DC 7801 and DC 7802, the skin criteria applicable to areas other than the head, face, or neck, do not provide for ratings higher than 60 percent.  Further, DC 7806, under which this disability is currently rated, also does not provide for a rating higher than 60 percent.  There additionally is no evidence his scars, while superficial, are unstable or painful on examination.  Thus, DCs 7803 and 7804 are inapplicable.  Further, the VA examination reports specifically indicate there was no limitation of function of the affected parts, and thus, DC 7805 also is inapplicable.  And as the remainder of the applicable skin rating criteria pertains to the head, face, or neck, there are no further codes upon which to grant a higher rating or separate rating.  

III.  Other considerations

The Board additionally has contemplated whether this case should be referred for extra-schedular consideration.  An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable.  38 C.F.R. § 3.321(b)(1).

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied.  Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry.  First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  In this regard, the Court indicated there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.

Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization."  Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating.  Id.

The Board has compared the level of severity and symptomatology of the Veteran's service-connected squamous cell carcinoma of the head, face, and neck, and of the hands, arms, and trunk, with the established criteria found in the rating schedule.  The Board finds that the extent and severity of his disabilities are fully addressed by the criteria under which these disabilities are rated.  There are no additional symptoms or associated residuals that are not addressed by the rating schedule.  Therefore, the Board finds that the rating criteria reasonably describes his disability level and symptomatology for his service-connected disabilities.  As such, the Board finds that the rating schedule is adequate to evaluate his disability picture.  Moreover, to the extent his disabilities may interfere with his employability, such interference is addressed by the schedular rating criteria.  See 38 U.S.C.A. § 1155; According to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  See, too, Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (reiterating that the disability rating, itself, is recognition that industrial capabilities are impaired - especially when, as here, the Veteran has what are generally regarded as ratings in the higher range of the rating spectrum).  Additionally, there are no attendant thereto related factors such as marked interference with employment, meaning above and beyond that contemplated by his schedular ratings, or frequent periods of hospitalization.  While there is no denying he has had to undergo numerous surgeries for treatment of his skin cancer, most of the procedures, if not all of them, have been on an outpatient basis, not as an inpatient, certainly not frequent inpatient.  Moreover, although his private physician stated that he believed the Veteran's disability picture was exceptional in nature, this is not tantamount to concluding that extra-schedular consideration is warranted because the medical evidence in the file, including from this same private physician, does not show the Veteran's squamous cell carcinoma is of such severity that the available schedular evaluations are inadequate.  Specifically, the rating criteria provides for additional ratings for his disabilities, but no such symptomatology has been shown to be present.  Also, while the Veteran has described his disabilities as resulting in gross disfiguration of his body such that he cannot comfortably leave his home, and this is understandable given the inherent subjectivity of this belief, the VA examiners did not characterize or describe his disabilities as quite this severe, including in terms of affecting his appearance and image.  In particular, the April 2010 VA examiner determined there was no evidence of gross distortion or asymmetry and included color, unretouched, photographs of the areas affected by the skin cancer in the report of his evaluation to give a firsthand indication of the areas affected and the extent of the cancerous lesions, etc.  Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted.  Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996).

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court also held that a claim for a total disability rating based on individual unemployability (TDIU) is part and parcel of an increased-rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.  The Rice Court further held that, when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the derivative TDIU claim will be considered as part and parcel of the claim for benefits for the underlying disability.

See also Roberson v. Principi, 251 F.3d 1378, 1384 (2001) (wherein the U.S. Court of Appeals for the Federal Circuit held that once a claimant:  (1)submits evidence of a medical disability, (2) makes a claim for the highest possible rating, and (3) submits evidence of unemployability, an informal TDIU claim is raised under 38 C.F.R. § 3.155(a)).

Here, though, the Veteran already has a TDIU and has been in receipt of this additional benefit since before the appeal period.  Therefore, it is unnecessary to discuss this issue any further.

Finally, the Board has considered whether to "stage" the Veteran's ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  However, for the reasons and bases already discussed, the weight of the competent and credible evidence indicates the squamous cell carcinoma involving his head, face, and neck has warranted the higher 80 percent rating, though no greater rating, since the filing of this claim.  So the effective date of this higher rating will be the same effective date, November 2, 2006, as his prior 50 percent rating for this disability, and this higher 80 percent rating will continue until the present.  See Harper v. Brown, 10 Vet. App. 125, 126 (1997) (discussing the three possible effective dates that may be assigned depending on the facts of the case:  (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)).  The squamous cell carcinoma involving his hands, arms, and trunk, on the other hand, has not warranted a rating higher than of 60 percent at any time since the filing of this claim on November 2, 2006, so this other rating will remain in effect.



ORDER

The claim for a rating higher than 60 percent for the squamous cell carcinoma of the hands, arms, and trunk, is denied.

However, a higher 80 percent rating is granted for the squamous cell carcinoma of the head, face, and neck, subject to the statutory and regulatory provisions governing the payment of VA compensation.



____________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs