Citation Nr: 1135232 Decision Date: 09/20/11 Archive Date: 09/23/11 DOCKET NO. 03-04 878 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an initial disability rating in excess of 30 percent for basal cell carcinoma, including status post excision scar residuals of basal cell carcinoma (hereinafter "basal cell carcinoma"). REPRESENTATION Veteran (Appellant) represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Carole R. Kammel, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. By that rating action, the RO, in pertinent part, awarded service connection for status post excision of basal cell carcinoma; an initial noncompensable disability rating was assigned, effective May 28, 1998--the date VA received the Veteran's initial claim for compensation for this disability. The Veteran appealed the RO's original assignment of the noncompensable disability rating following the award of service connection for basal cell carcinoma. As such, the severity of the disability at issue is to be considered during the entire period from the initial assignment of a disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). The Board notes that by the May 2002 rating action, the RO also granted service connection for actinic keratosis; an initial 10 percent rating was assigned, effective May 28, 1998. The Veteran did not appeal the initial rating assigned for actinic keratosis and the May 2002 decision became final as to this issue. 38 C.F.R. § 20.302(a). By January 2003 and May 2011 rating decisions, the RO awarded 10 and 30 percent initial disability ratings to the service-connected basal cell carcinoma, respectively, effective May 28, 1998. As the Veteran is presumed to be seeking the maximum benefit allowed by law and regulation, and he actually maintains that a rating in excess of 30 percent is warranted, his claim remains in controversy as less than the maximum benefit available has been awarded. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran testified at the Board's offices in Washington, DC in May 2004. A transcript of the hearing has been associated with his claims files. In September 2008, the Board informed the Veteran that the Veterans Law Judge who conducted the May 2004 hearing was no longer employed by the Board. The Veteran was offered an opportunity for another hearing, which he declined. (See Veteran's response received by the RO in November 2008). In December 2004, the Board remanded the Veteran's appeal for further development and adjudication. After the matter was returned to the Board, the Board denied the Veteran's initial evaluation claim in a January 2006 decision. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In May 2008, the Court issued a Memorandum Decision that vacated the January 2006 Board decision and remanded the claim to the Board for action consistent with its decision. In March 2009 and March 2010, the Board remanded the matter on appeal to the RO. The case has returned to the Board for appellate consideration. The Board notes that effective October 23, 2008, VA amended the Schedule for Rating Disabilities by revising that portion of the Schedule that addresses the Skin, so that it more clearly reflects VA's policies concerning the evaluation of scars. 67 Fed. Reg. 54708, 54712 (Sept. 23, 2008). Specifically, these amendments concern 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805. However, this amendment shall apply to all applications for benefits received by VA on or after October 23, 2008. As the Veteran filed his claim for benefits in May 1998, the amendments are not applicable to his appeal. The appeal is REMANDED to the RO/Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND A review of the record finds that the development conducted following the March 2010 remand is insufficient to enable the Board to adjudicate the matter on appeal at this time. Thus, another remand is required. See Stegall v. West, 11 Vet. App. 271 (1998). In its March 2010 remand instructions, the Board unequivocally requested that "new color photographs of the involved areas must be included in the report." (See March 2010 Board remand, page (pg.) 6)). VA examined the Veteran to determine the nature and extent of his service-connected basal cell carcinoma in July and August 2010. Copies of these examination reports have been associated with the claims files. At both of the above-cited examinations, color photographs of the Veteran's involved areas were not performed as specifically instructed by the Board in March 2010. (See July and August 2010 VA examination reports). Thus, the above-cited VA examination reports did not comply with the Board's March 2010 remand instructions. The Board emphasizes that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In addition, the August 2010 VA examiner reported that there was functional impairment secondary to the scars. However, he did not provide the extent of limitation of function that was produced by each scar. This information is crucial to the Veteran's initial disability claim as each scar could received a higher rating under Diagnostic Code 7805, which provides that other scars are to be rated on limitation of function of affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2001)(2010). Thus, on remand, the examiner must provide the extent of limitation of function that is produced by each scar as it might entitle the Veteran to a higher initial disability rating. Finally, during the July 2010 VA examination, the Veteran indicated that he had continued to receive regular treatment for his skin at the dermatology clinic at the Jamaica Plain, VA Medical Center (VAMC) and at a private medical facility, Chelmsford Clinic. Treatment records from the above-cited VAMC have not been associated with the claims files. VA has a duty to obtain all relevant VA and Governmental records prior to adjudication of a claim. 38 U.S.C.A § 5103A(c)(3) (West 2002 & Supp. 2010); see Bell v. Derwinski, 2 Vet. App. 611 (1992) (observing that any VA treatment records that have been generated up to and including the date of the Board's decision, whether or not filed in the claims file, are in the constructive possession of the Board and must be considered); see also 38 C.F.R. § 3.159(c)(2) (2010). As these records might contain clinical evidence showing that the Veteran's basal cell carcinoma scars have increased in severity throughout the appeal period, they are pertinent to the claim and must be acquired on remand. Regarding the treatment records from the Chelmsford Clinic, the Board notes that records from this facility dated up to March 2010 are of record. As records from this private facility may contain probative information regarding the current severity of the Veteran's service-connected basal cell carcinoma efforts to retrieve them are also required. See 38 C.F.R. § 3159(c)(1)(2010). Accordingly, the case is REMANDED to the RO/AMC for the following action: 1. Obtain all treatment records pertaining to the Veteran's basal cell carcinoma from the Jamaica Plain VAMC. All records/responses received should be associated with the claims files. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 2. After securing a release form, the RO/AMC must contact Chelmsford Dermatology, 2 Village Square, Chelmsford, Massachusetts 01824 and request all treatment records of the Veteran, dating from March 2010 to the present. All records received must be included in the Veteran's claims files. If the search for such records has negative results, documentation to that effect should be included in the claims files. In requesting these records, the RO/AMC's efforts to obtain them must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by the Federal department or agency from whom they are sought. 38 U.S.C.A. § 5103A(b) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(c)(2) (2010). The Veteran should be provided with the necessary authorizations for the release of any treatment records not currently on file. The RO/AMC should then obtain these records and associate them with the claims files. 3. After all available records and/or responses from each contacted entity are associated with the claims files, arrange for the Veteran to undergo a VA dermatological examination by a dermatologist at a VA medical facility. The claims files are to be made available to the dermatologist for review in conjunction with the examination. As requested in the March 2010 Board remand, color photographs (unretouched) of the Veteran's affected areas MUST be taken at the examination and associated with the claims folders. Any other symptoms, particularly those that cause any limitation of motion or function should be described in detail. In formulating his or her response to this request, the dermatologist is directed to the August 2010 VA examiner's comment that there was functional impairment secondary to the Veteran's basal cell carcinoma scars. A complete rationale for all opinions expressed must be provided in a typewritten report. 4. Then, ensure that the examination report complies with this remand request. Thereafter, readjudicate the issue on appeal pursuant to the Board's March 2010 remand directives, specifically readjducation is to include consideration of the newly received color photographs of the Veteran's basal cell carcinoma scars in determining whether an extraschedular rating is warranted (or whether referral to the Director, Compensation and Pension, for extraschedular consideration is warranted). If the benefit sought is not granted, a supplemental statement of the case should be issued. The Veteran and his representative should be given opportunity to respond to the supplemental statement of the case. 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 Supp. 2010). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).