Citation Nr: 1301654	
Decision Date: 01/15/13    Archive Date: 01/23/13

DOCKET NO.  09-42 425	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to an initial rating higher than 10 percent of basal and squamous cell skin cancer residuals involving the body.  

2.  Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disability.  


REPRESENTATION

Veteran represented by:  Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

The Veteran and his son



ATTORNEY FOR THE BOARD

Debbie A. Breitbeil, Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from January 1955 to September 1958.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for basal and squamous cell skin cancer residuals involving the body and assigned a noncompensable rating for the disability effective in August 2008.  In a September 2009 rating decision, the RO granted a 10 percent rating for the basal and squamous cell skin cancer residuals involving the body, effective in August 2008.  A Board hearing was conducted in September 2011.  In May 2012, the Board remanded the case to the RO.  There has been substantial compliance with the remand directives.  The Veteran subsequently submitted additional private medical records accompanied by a waiver of initial RO consideration of the evidence.  38 C.F.R. § 20.1304.  

In statements received in December 2012, the Veteran appears to be advancing claims based on bilateral hearing loss and a right carotid artery disability.  These matters are referred to the RO for its appropriate action.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issue of entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center in Washington, DC.


FINDINGS OF FACT

1.  For the period before May 31, 2012, the Veteran's basal and squamous cell skin cancer residuals involving the body are shown to be manifested by numerous superficial, stable, and non-painful scars covering a total area less than 929 square cm. and affecting less than 20 percent of the Veteran's total skin area and less than 20 percent of exposed skin area; the residual scars did not cause limited motion or function, and there was no treatment with a systemic therapy such as a corticosteroid or an immunosuppressive drug. 

2.  For the period beginning May 31, 2012, the Veteran's basal and squamous cell skin cancer residuals involving the are shown to be manifested by numerous superficial, stable, and non-painful scars covering a total area less than 929 square cm. but affecting 20 percent of the Veteran's total skin area and 35 percent of exposed skin area; the residual scars did not cause limited motion or function, and there was no treatment with a systemic therapy such as a corticosteroid or an immunosuppressive drug. 


CONCLUSIONS OF LAW

1.  The criteria for an initial rating higher than 10 percent prior to May 31, 2012, for basal and squamous cell skin cancer residuals involving the body, have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.20, 4.118, Diagnostic Codes 7800-7806 (in effect prior to and as of October 23, 2008). 

2.  The criteria for an initial rating of 30 percent, and no higher, beginning May 31, 2012, for basal and squamous cell skin cancer residuals involving the body, have been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.20, 4.118, Diagnostic Codes 7800-7806 (in effect prior to and as of October 23, 2008).  



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

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

Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following:  (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. 

Also, the VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are:  (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.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to the effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated).

The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

The RO provided the Veteran pre- and post-adjudicatory VCAA notice by letters, dated in September 2008 and February 2009.  The notice included the type of evidence needed to substantiate the claim for a higher rating, namely, evidence to show that the disability was worse and the effect the disability had on employment.  The Veteran was also notified that VA would obtain service records, VA records, and records of other Federal agencies and that he could submit private medical records or authorize VA to obtain private medical records on his behalf.  The notice also included the provisions for the effective date of a claim and for the degree of disability assignable. 

As for content and timing of the VCAA notice, both documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (preadjudication VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim); and of Vazquez-Flores v. Peake, 580 F.3d 1270 (Fed. Cir. 2009) (evidence demonstrating a worsening or increase in severity of a disability and the effect that worsening has on employment). 

Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim.  The RO has afforded the Veteran the opportunity to testify at a hearing before the undersigned Veterans Law Judge in May 2012.  The RO has obtained treatment records from private medical providers identified by the Veteran, such as JFK Hospital and Dr. D. Viggiano.  The Veteran himself has also submitted numerous private records from various sources.  He has not identified any additionally available evidence, such as VA outpatient treatment, for the RO to obtain on his behalf in consideration of his appeal. 

Further, VA has conducted necessary medical inquiry in an effort to substantiate the claim for a higher rating.  38 U.S.C.A. § 5103A(d).  The Veteran was afforded VA examinations in September 2008 and May 2012 to ascertain the nature and severity of the claims.  The Board finds that the VA examinations are adequate to decide the claim because the reports are based on medical history and physical examination, which describe the disability in sufficient factual detail, which can be applied to the legal criteria for the rating.  See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (an examination is adequate when it is based on consideration of the prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). 

As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. 

II.  General Principles for Evaluating Disabilities

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.   

Furthermore, the Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 

III.  Pertinent Rating Criteria

The pertinent criteria for evaluating skin disabilities is found in 38 C.F.R. § 4.118 of the Rating Schedule.  During the pendency of the claim, the rating criteria for evaluating skin disabilities, specifically scars, were amended effective October 23, 2008.  This amendment applies to all applications for benefits received by VA on or after October 23, 2008.  73 Fed. Reg. 54,708 (Sept. 23, 2008) (revising 38 C.F.R. § 4.118, Diagnostic Codes 7800-05).  

As the Veteran filed his claim for benefits in August 2008, the amendments would not ordinarily be applicable to the instant appeal unless he has requested review under the revised scar criteria.  Nevertheless, in this case the RO has already considered both the old and revised criteria and the Board will likewise do so.  The Veteran is entitled to the most favorable of the versions of a regulation that was revised during his appeal, but rating criteria cannot be applied prior to their effective date.  Kuzma v. Principi, 341 F.3d 1327 (2003).  Therefore, the prior version of the applicable diagnostic codes at 38 C.F.R. § 4.118 will be applied to the period on or after the effective date of the new regulation, and the amended version will be applied as of its effective date, to determine which is more advantageous to the Veteran.  

Criteria Effective before October 23, 2008

Under Diagnostic Code 7818, malignant skin neoplasms (other than malignant melanoma) are rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or rated on impairment of function.  A Note to Code 7818 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 rating 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 rating based upon that or any subsequent examination will be subject to the provisions of 38 C.F.R. § 3.105(e).  If there has been no local recurrence or metastasis, rating will then be made on residuals.  If treatment is confined to the skin, the provisions for a 100-percent rating do not apply.  38 C.F.R. § 4.118.  

Under Diagnostic Code 7801, for scars, other than head, face, or neck, that are deep or that cause limited motion, a 10 percent rating is assigned for such scars that cover an area or areas exceeding 6 square inches (39 sq. cm.), a 20 percent rating is assigned for such scars that cover an area or areas exceeding 12 square inches (77 square centimeters), a 30 percent rating is assigned for such scars that cover an area or areas exceeding 72 square inches (465 square centimeters), and a 40 percent rating is assigned for such scars that cover an area or areas exceeding 144 square inches (929 square centimeters).  Note (1):  Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, were be separately rated and combined in accordance with 38 C.F.R. § 4.25.  Note (2):  A deep scar is one associated with underlying soft tissue damage.  

Under Diagnostic Code 7802, scars, other than head, face, or neck, that were superficial or that did not cause limited motion with an area or areas of 144 square inches (929 square centimeters) or greater are assigned a 10 percent rating. 

Under Diagnostic Code 7803, superficial, unstable scars are assigned a 10 percent rating.  Note (1):  An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Note (2):  A superficial scar is one not associated with underlying soft tissue damage. 

Under Diagnostic Code 7804, superficial scars that were painful on examination are assigned a 10 percent rating.  

Under Diagnostic Code 7805, other scars are rated based upon limitation of function of the affected part. 

Under Diagnostic Code 7806, dermatitis or eczema is rated under the criteria under Diagnostic Code 7806, or alternatively it may be rated either as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability.  Under Code 7806, dermatitis or eczema that affects at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of the exposed areas, or that requires intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than 6 weeks during the past 12-month period is assigned a 10 percent rating.  Dermatitis or eczema that affects 20 to 40 percent of the entire body or 20 to 40 percent of the exposed areas, or that requires systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of 6 weeks or more, but not constantly, during the past 12-month period, is assigned a 30 percent rating.  Dermatitis or eczema that affects more than 40 percent of the entire body or more than 40 percent of the exposed areas, or that requires constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period is assigned a 60 percent rating. 

Criteria Effective From October 23, 2008

The provisions of Diagnostic Code 7818, for malignant skin neoplasms (other than malignant melanoma), are essentially the same as the provisions in effect before October 23, 2008.  

Under Diagnostic Code 7801, burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear are assigned a 10 percent rating for an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.), a 20 percent rating for an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.), and a 30 percent rating for an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.).  Note (1):  A deep scar is one associated with underlying soft tissue damage.  Note (2):  If multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk.  The midaxillary line on each side separates the anterior and posterior portions of the trunk.  Combine the separate evaluations under § 4.25.  Qualifying scars are scars that are nonlinear, deep, and are not located on the head, face, or neck. 

Under Diagnostic Code 7802, burn scars or scars due to other causes, not of the head, face, or neck, that are superficial and nonlinear are assigned a 10 percent rating for an area or areas of 144 square inches (929 sq. cm.) or greater.  Note (1):  A superficial scar is one not associated with underlying soft tissue damage.  Note (2):  If multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk.  The midaxillary line on each side separates the anterior and posterior portions of the trunk.  Combine the separate evaluations under § 4.25.  Qualifying scars are scars that are nonlinear, superficial, and are not located on the head, face, or neck. 

Under Diagnostic Code 7804, scar(s) that are unstable or painful are assigned a 10 percent rating for one or two scars that are unstable or painful, a 20 percent rating for three or four scars that are unstable or painful, and a 30 percent rating for five or more scars that are unstable or painful.  Note (1):  An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Note (2):  If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars.  Note (3):  Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable.  

Under Diagnostic Code 7805, for other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804, any disabling effects not considered in a rating provided under Diagnostic Codes 7800-7804 are to be evaluated under an appropriate diagnostic code.

Under Diagnostic Code 7806, dermatitis or eczema is assigned a 10 percent rating when 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 are required for a total duration of less than six weeks during the past 12-month period.  Dermatitis or eczema is assigned a 30 percent rating when 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected; or 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.  Otherwise, dermatitis or eczema is evaluated as disfigurement of the head, face, or neck (Code 7800) or scars (Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. 

IV.  Facts and Analysis

At issue in this decision are the skin cancer residuals involving the body, which are manifested by numerous scars, mostly small in size, due to biopsies and lesions.  The Veteran is separately evaluated for basal and squamous cell skin cancer residuals involving the face and head, which is currently 80 percent disabling under scar evaluation criteria.  The issue of the head and face skin cancer residuals has previously been addressed in a May 2012 Board decision and is not for appellate consideration.  

The Veteran's service-connected basal and squamous cell skin cancer residuals involving the body have been evaluated as 10 percent disabling, by analogy, ever since service connection was established effective in August 2008, under 38 C.F.R. § 4.118, Diagnostic Codes 7805-7818.  See 38 C.F.R. § 4.27 (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; see also 38 C.F.R. § 4.20 (where the particular disability for which the veteran has been service connected is not listed, it may be rated by analogy to a closely related disease in which not only the functions affected, but also the anatomical location and symptomatology are closely analogous).  

In this case, the relevant evidence consists of two VA examination reports, private medical records, and statements and testimony of the Veteran.  Color photographs of the scarring are also associated with the file.  In statements and testimony, the Veteran asserted that he was covered with skin cancer on his chest, arms, neck, shoulder, and back (in addition to skin cancer found in various areas on his head), which were all disfiguring.  He testified that lesions appeared with increasing frequency over the years, with four to eight lesions in the course of a year, and that scarring from the lesions became more disfiguring as the years have passed.  At his hearing, he described the scarring on his arms, shoulders, chest region, and down his back.  

At the time of a September 2008 VA examination, the examiner described scars on the right anterior chest, left anterior chest, right posterior chest, right arm, both forearms, and left hand.  None of the scars exceeded 2 cm. in width and 2 cm. in length, except for a left forearm scar on the palmar aspect that was 4 cm. in length.  There was no tenderness on palpation or adherence to underlying tissue.  There was no limitation of motion or loss of function caused by the scars.  There was no underlying soft tissue damage, skin ulceration or breakdown, or underlying tissue loss.  The percentage of the exposed parts of the whole body affected by the scars (which included scars of the nose and ear) was 18 percent, and the percentage of the unexposed parts of the whole body affected by the scars (which included scars of the nose and ear) was 10 percent.  Reportedly, the residual scars were itchy and some felt irritated.  The Veteran did not treat the skin with either a corticosteroid or an immunosuppressive drug.   

At the time of a May 31, 2012 VA examination, the examiner indicated that the Veteran was treated with topical medications (i.e., liquid nitrogen for actinic keratosis) but no systemic corticosteroids or immunosuppressive medications.  The examiner described scars on the trunk and extremities, and indicated that none of them were painful or unstable.  The right and left upper extremities as well as the posterior and anterior trunk were affected, and while scars on the extremities and trunk were both linear and nonlinear, none of them were deep.  In summary, the approximate combined total area of superficial non-linear scars for each affected anatomical region was 0.9 cm.² for the right upper extremity, 6.7 cm.² for the left upper extremity, 2 cm.² for the anterior trunk, and 2 cm.² for the posterior trunk.  The approximate total body area affected by the scars was 20 percent and the approximate total exposed body area affected by the scars was 35 percent.  Photographs were taken.  The examiner noticed skin discoloration of the lower arms but concluded that it was not a complication of his skin cancer because discoloration appeared on other area where there was no surgical scar and he had a low platelet count, anemia, and aging skin.  

The private treatment records, to include statements from physicians, in the file show that the Veteran underwent skin biopsies that showed squamous and basal cell carcinoma, and that the Veteran's disability picture had become worse over time.  Multiple areas of scarring and discoloration were noted over the arms, particularly the forearms.  Carcinoma was identified in many areas, to include the right mid-upper back, right trapezius inferior, left and right mid-forearms, right lower back, right mid-thigh, right dorsal hand, right superior deltoid, left mid-lateral back, and left and right lateral shoulders.   Precise measurements of the scars of the body that resulted from the biopsies and excisions, and the percentage of the body affected by the scarring, are provided in the VA examinations described above.  

After applying the law to the facts of the case, the Board finds that an initial rating higher than 10 percent is not warranted before May 31, 2012 but that an initial rating of 30 percent is warranted beginning on that date.  The Veteran is most appropriately evaluated under Diagnostic Code 7818, for malignant skin neoplasms, which are rated under the criteria for scars (Codes 7801-7805), because the disability at issue does not involve the head, face, or neck and the medical evidence does not show that the skin cancer residual scars impair function.  It is further noted that Diagnostic Code 7805 allows for disabling effects not contemplated in Codes 7801-7804 to be rated under an appropriate diagnostic code.  Therefore, the application of Diagnostic Code 7806 is also appropriate, particularly as it contemplates the percentage of body area affected, which is a significant factor in this case.  

Prior to May 31, 2012, there is no evidence to show that any of the residual scars were deep, caused limited motion, were unstable, were painful, or covered a total area of 929 square cm.  Therefore, and given that some rating criteria permit only a maximum 10 percent rating, a higher rating is not in order under either the Diagnostic Codes 7801-7805 of the old criteria or the Diagnostic Codes 7801, 7802, and 7804 of the revised criteria.  Moreover, the Veteran's disability does not satisfy the criteria under the old and revised criteria of Diagnostic Code 7806 because the evidence does not show that 20 to 40 percent of the entire body or 20 to 40 percent of the exposed areas are affected by the scars, or that he required systemic therapy such as corticosteroids or other immunosuppressive drugs.  The VA examiner in September 2008 indicated that treatments such as corticosteroids and immunosuppressive drugs were not used, and that the percentages of the total and exposed body affected by the scars did not approximate those percentages required for a 30 percent rating.  In short, the evidence does not show that the Veteran meets the criteria for the next higher rating under either the old or revised criteria.  

Beginning on May 31, 2012, however, there is objective evidence to show that the Veteran's skin cancer residual scars had worsened with regard to the proliferation in scars and coverage over the body.  On the VA examination conducted on May 31, 2012, there is still no evidence that any of the residual scars were deep, caused limited motion, were unstable, were painful, or covered a total area of 929 square cm.  Nevertheless, as indicated by the private treatment records that reveal the Veteran underwent additional biopsies and excisions of squamous and basal cell carcinoma over the body, particularly the upper extremities and torso, as each year passed, the total and exposed body affected by the scars increased.  The VA examiner's finding as to the percentages of the total and exposed body affected (i.e., 20 percent and 35 percent respectively) clearly meet the criteria for a 30 percent rating, and no higher, under either the old or new criteria of Diagnostic Code 7806.  In short, the evidence demonstrates that the Veteran's scars have multiplied and extended further over the Veteran's body, and that such spread signifies a worsening that has been quantified on the VA examination in May 2012 and not before that time.  Therefore, a 30 percent rating and no higher is appropriate under the pertinent criteria.  

The Board acknowledges that the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses.  Layno v. Brown, 6 Vet. App. 465, 470 (1994).  He is not, however, competent to identify a specific level of disability of the disorder according to the appropriate diagnostic codes.  Such competent evidence concerning the nature and extent of the Veteran's basal and squamous cell skin cancer residuals involving the body has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations.  The medical findings (as provided in the examination reports and the clinical records) address the criteria under which the disability is evaluated.  As such, the Board finds these records to be more probative than any subjective complaints of the Veteran with regard to the extent of increased skin symptomatology.  The evidence does not show that the Veteran meets the criteria for the next higher rating under pertinent regulations prior to May 31, 2012, but that effective on that date the evidence shows that his skin disability meets the higher rating of 30 percent.  

As noted, the Board has given consideration to the propriety of "staged ratings" for the disability over the period considered in this appeal.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  In that regard, the Board concludes that the evidence shows that the Veteran's basal and squamous cell skin cancer residuals involving the body do not meet the criteria for an initial rating higher than 10 percent prior to May 31, 2012.  Thus, the preponderance of the evidence is against the claim for this period, and the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b).  However, for the period beginning May 31, 2012, the Board also concludes that the Veteran's basal and squamous cell skin cancer residuals involving the body meet the criteria for an initial 30 percent rating, and no higher, and to such an extent his claim is granted.  

Extraschedular Consideration

Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for such a rating. 

The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate.  This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria.  

If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and referral for an extraschedular rating is not required.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

In this case, comparing the Veteran's disability level and the symptomatology of his basal and squamous cell skin cancer residuals involving the body to the Rating Schedule, the degree of disability manifested by the complaints of scarring is wholly encompassed by the Rating Schedule, which provide for higher ratings for more severe symptoms.  For example, the nature (e.g., superficial versus deep, linear versus nonlinear, and painful versus nonpainful, stable versus unstable) and extent (e.g., percentage of the body and exposed areas affected) of the scar residuals are all incorporated in the schedular criteria for evaluating skin disabilities.  In other words, the Veteran does not experience any symptomatology not already encompassed in the Rating Schedule. 

The Board also notes that the record does not show that the Veteran's service-connected basal and squamous cell skin cancer residuals involving the body have required hospitalization or that they have markedly interfered with employment.  Indeed, the Veteran is not currently employed as he has been retired for more than 10 years.  The VA examiner in May 2012 indicated that the Veteran's skin disability did not impact his ability to work.  

Therefore, the Board finds that the assigned schedular rating is adequate and no referral for an extraschedular rating is required under 38 C.F.R. § 3.321(b)(1). 


ORDER

An initial rating higher than 10 percent prior to May 31, 2012, for basal and squamous cell skin cancer residuals involving the body, is not warranted.  To this extent, the appeal is denied. .  

A rating of 30 percent beginning May 31, 2012, for basal and squamous cell skin cancer residuals involving the body, is warranted.  The appeal is granted to this extent, subject to laws and regulations governing payment of VA monetary benefits.  


REMAND

Even prior to the Board's partially favorable decision in the claim for a higher rating for basal and squamous cell skin cancer residuals involving the body, the combined disability rating for the Veteran's service-connected disabilities was 90 percent.  

In July 2010, the Veteran filed a claim for a total disability rating for compensation based on individual unemployability, based in part on skin cancer scarring.  The RO in August 2010 sent him a VCAA letter regarding his claim, and in response the Veteran in September 2010 submitted VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, as well as information identifying his medical providers and medical treatment.  Although the RO in an October 2010 letter informed the Veteran that it was working on his claim, there is no documentation to show that the claim has been adjudicated or that the Veteran has withdrawn his claim from consideration.  

The Board is remanding this claim rather than referring it back to the RO for its development for the reason that the Board finds that it has jurisdiction of that issue.  The request for a total disability rating for compensation based on individual unemployability is not deemed a separate claim for benefits, as it involves the Veteran's application to obtain an appropriate rating for his skin cancer residuals.  See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for a total disability rating for compensation based on individual unemployability, either stated or implied by a fair reading of the claim or of the evidence of record, is not a separate claim for benefits, but part of the claim for increase). 

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011).  Expedited handling is requested.)

1.  Undertake any further action deemed appropriate, to include scheduling the Veteran for a medical examination, for the purpose of developing the claim for a total disability rating for compensation based on individual unemployability. 

2.  After the development has been completed, adjudicate the claim for a total disability rating for compensation based on individual unemployability.  If the benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. 

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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. 2011).



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ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs