Citation Nr: 1301952 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 06-34 508 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for left lip scar, status post excision of basal cell carcinoma. 2. Entitlement to an evaluation in excess of 10 percent for scars of the mid back, right and left shoulder areas, and back of neck, status post excision of basal cell carcinoma. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to July 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Columbia, South Carolina, Department of Veterans Affairs (VA) Regional Office (RO). Historically, in a November 1997 rating decision, service connection was granted for residuals of excision, basal cell carcinoma on the left lip, left cheek, mid back, right and left shoulder areas, and back of neck; a noncompensable evaluation was assigned from August 1, 1996. In January 2006, the Veteran filed a claim for an increased evaluation. In the May 2006 rating decision, the RO (in pertinent part) assigned a separate 30 percent evaluation for left cheek scar, status post excision of basal cell carcinoma, effective January 24, 2006. That portion of the decision was not appealed. In a February 2007 rating decision, the RO assigned a separate 10 percent evaluation for left lip scar, status post excision of basal cell carcinoma, effective January 24, 2006. In a November 2007 rating decision, the RO assigned an increased 10 percent disability evaluation for scars of the mid back, right and left shoulder areas and back of neck, effective January 24, 2006. In October 2010, the Board remanded the issues on appeal to the RO for additional development to include obtaining any treatment records identified by the Veteran and providing the Veteran with a VA examination of the service-connected scars. The record indicates that the Appeals Management Center (AMC) complied with the Board's requests regarding the issue of entitlement to a higher rating for a left lip scar and the Veteran was afforded an adequate VA medical examination. As the AMC complied with the October 2010 Remand directives, the Board will proceed to render a decision on the claim for a higher rating for the left lip scar. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). The issues of entitlement to service connection for right cheek scar, left eyebrow scar, left ear canal scar, scar behind the left ear, chest scar, left foot, right hip, erectile dysfunction, hernia, and visual impairment of the right eye; and the issues of entitlement to increased ratings for hearing loss and tinnitus have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issue of entitlement to an evaluation in excess of 10 percent for scars of the mid back, right and left shoulder areas, and back of neck is addressed in the REMAND that follows the order section of this decision. FINDING OF FACT For the period of the appeal, the Veteran's service-connected left lip scar has been measured less than 13 centimeters in length and .6 centimeters in width and there is no objective evidence of visible or palpable tissue loss, gross distortion or asymmetry of one feature or paired set of features, two or three characteristics of disfigurement, or limitation of function of the part affected. CONCLUSION OF LAW For the period of the appeal, the criteria for a disability evaluation in excess of 10 percent for left lip scar, status post excision of basal cell carcinoma, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7800 (prior to October 23, 2008); 38 C.F.R. § 4.7 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice by correspondence dated in February 2006 and November 2010. Although the Veteran was not provided complete notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claim. See March 2012 Supplemental Statement of the Case. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). Regarding the duty to assist, the Veteran's service treatment records (STRs) are associated with his claims folders, and pertinent, available post-service treatment records have been secured. The Veteran has not identified any other pertinent evidence that remains outstanding. The Board is also unaware of any such evidence. Moreover, the Veteran has been afforded appropriate VA examinations. The most recent (2010) VA examination report (with addendum) was adequate as the examiner reviewed the relevant medical history and provided opinions with supporting rationale and citation to the evidence. Accordingly, the Board concludes that VA has complied with its duty to assist the Veteran. Accordingly, the Board will address the merits of the claim. Law and Regulations Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Court has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54 . The regulations pertaining to rating skin disabilities were revised, effective October 23, 2008. However, those revised provisions are applicable only to claims received on or after October 23, 2008. Because the current claim was received prior to that date (in 2006), those revisions do not apply in this case. 73 Fed. Reg. 54708 (Sept. 23. 2008). Diagnostic Code 7800 evaluates disfigurement of the head, face, or neck as follows: 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 (80 percent); 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 (50 percent); 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 (30 percent); and with one characteristic of disfigurement (10 percent). 38 C.F.R. § 4.118, Diagnostic Code 7800 (prior to October 23, 2008). The 8 characteristics of disfigurement, for the purposes of evaluation under § 4.118, are: (1) scar 5 or more inches (13 or more cm) in length; (2) scar at least one-quarter inch (.6 cm) wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) skin adherent to underlying tissue; (5) skin hypo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm); (6) skin texture abnormal (irregular, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm); (7) underlying soft tissue missing in an area exceeding six square inches (39 sq. cm); and (8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm). Id. at Note (1). Moreover, a 10 percent evaluation is authorized for superficial, unstable scars. 38 C.F.R. § 4.118, Diagnostic Code 7803 (prior to October 23, 2008). A note following this diagnostic code provides that an unstable scar is one where, for any reason, there is frequent loss of covering of the skin over the scar. In addition, a 10 percent evaluation is authorized for superficial scars that are painful on examination. 38 C.F.R. § 4.118, Diagnostic Code 7804 (prior to October 23, 2008). Notes following Diagnostic Codes 7803 and 7804 provide that a superficial scar is one not associated with underlying soft tissue damage. In addition, scars may be rated on the basis of limitation of function of the affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805 (prior to October 23, 2008). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14. Factual Background and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims folders, with an emphasis on the evidence relevant to this appeal. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Historically, a November 1997 rating decision awarded service connection for residuals of excision, basal cell carcinoma on the left lip, left cheek, mid back, right and left shoulder areas, and back of neck. A noncompensable evaluation was assigned from August 1, 1996. The Veteran submitted the instant claim for an increased rating in January 2006. A March 2006 VA examination report notes the Veteran's history of basal cell carcinoma excision. The Veteran denied any current symptoms. Upon physical examination, the Veteran had a scar on the left side of his lip that measured 0.1 centimeters by 3 centimeters, with a rise of 1 centimeter. The scar was not painful and there was no adherence to the underlying tissue. The texture of the skin was normal. The scar was stable with normal color. There was no elevation or depression of the scar. The examiner characterized the scar as superficial, with no inflammation, edema, keloid formation, asymmetry, gross distortion, induration, inflexibility, or associated limitation of motion. A February 2007 VA examination report notes that the Veteran's left lip scar measured 15 millimeters by 2 millimeters. The scar was slightly firm in texture and slightly depressed. It was nontender, nonadherent and not unstable. The examiner characterized the scar as superficial, with no inflammation, edema, or keloid formation. The color was normal. There was no gross distortion of the face. There was no induration, inflexibility, or associated limitation of motion or function. In a February 2007 rating decision, the RO assigned a separate 10 percent evaluation for left lip scar, status post excision of basal cell carcinoma, effective January 24, 2006. A November 2010 VA examination report notes that the Veteran's left lip scar measured 2 centimeters by .25 centimeters. It was hypo-pigmented at its most superior aspect and normally pigmented at its inferior aspect. The scar was nontender and nonadherent. It was smooth in texture with no instability or ulceration. It was neither elevated nor depressed with no underlying tissue loss. There was no inflammation, edema, or keloid formation. There was no induration, inflexibility, or associated limitation of motion or function. The Board finds that the Veteran is not entitled to a disability rating in excess of 10 percent for the left lip scar at any point during the appeal period. In this regard, the Board notes that there is no evidence that the Veteran has 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). There is objective medical evidence of one characteristic of disfigurement, not two or three, at any time during the appeal period. 38 C.F.R. § 4.118, Diagnostic Code 7800 (2008). Slight depression of the left lip scar was shown on VA examination in February 2007, but this characteristic was not detected upon VA examinations in March 2006 or November 2010 and was not shown by the evidence of record at any other time. Hypo-pigmentation on the superior aspect of the left lip scar was shown on VA examination in November 2010; this characteristic of disfigurement was not shown by the evidence of record at any other time or upon VA examinations in March 2006 or February 2007. For the period of the appeal, the Veteran's left lip scar has been measured less than 13 centimeters in length and .6 centimeters in width. The medical evidence shows that the scar has been nonadherent with no induration or inflexibility and has been nontender and superficial with no gross distortion. There is no evidence of hyperpigmentation, abnormal skin texture, or missing underlying soft tissue. Thus, the Board finds that a disability rating in excess of 10 percent for the left lip scar is not warranted at any point during the appeal period under Diagnostic Code 7800. The Board has considered whether there is any other schedular basis for allowing this claim, but has found none. A 10 percent rating is the highest possible rating under Diagnostic Code 7803 for a superficial and unstable scar. See 38 C.F.R. § 4.118, Diagnostic Code 7803 (2008). The Board notes that the scar is not shown to be painful or unstable. Even if pain were present, a scar that is painful on examination is only rated as 10 percent disabling under the schedular criteria. See 38 C.F.R. § 4.118, Diagnostic Code 7804 (2008). There is no evidence that the left lip scar affects the function of the part affected. The November 2010 VA examination report indicates that the Veteran had no complaints pertinent to the scars but was concerned about his appearance. The Veteran indicated that the scar did not cause painful or limited motion. Thus, a disability rating in excess of 10 percent for the left lip scar is not warranted at any point during the appeal period under Diagnostic Code 7805. Therefore, the Veteran's claim for entitlement to an increased schedular rating must be denied. The Board has considered staged ratings but concludes that they are not warranted. Since the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application. See Gilbert, supra. The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this case, the manifestations of the Veteran's service-connected left lip scar are contemplated by the schedular criteria. As discussed, the Veteran's symptoms and disfigurement due to the left lip scar are contemplated by the rating schedule, and the assigned schedular evaluation is adequate. The rating criteria reasonably describe his disability level and symptomatology, and provide for higher ratings for additional or more severe symptoms or more severe disfigurement than currently shown by the evidence. Hence, as the schedular rating reasonably describes the Veteran's disability picture, referral for extraschedular consideration is not warranted. ORDER Entitlement to rating in excess of 10 percent for left lip scar, status post excision of basal cell carcinoma, is denied for the entire appeal period. REMAND The Board is of the opinion that additional development is required before the Veteran's remaining claim is decided. The record shows that the Veteran most recently underwent a VA examination of his scars of the mid back, right and left shoulder areas, and back of neck in November 2010. Thereafter, he underwent basal cell carcinoma surgery, including of the posterior neck, in February 2011. VA's duty to assist the Veteran includes obtaining a thorough and contemporaneous examination where necessary to reach a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Reexamination will be requested whenever VA determines that there is a need to verify the current severity of a disability. 38 C.F.R. § 3.327(a). Generally, reexaminations are required if the evidence indicates that there has been a material change in a disability, or if the current rating may be incorrect. Id. In this case, the Veteran should be scheduled for a new VA compensation and pension examination. Prior to the examination, up-to-date treatment records should be obtained. Accordingly, the case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following action: 1. The RO or the AMC should contact the Veteran and obtain the names, addresses and approximate dates of treatment for all medical care providers, VA and non-VA, that treated the Veteran for his service-connected scars of the mid back, right and left shoulder areas, and back of neck since 2010. Of particular interest are any outstanding private surgical records for the period. After the Veteran has signed the appropriate releases, those records not already associated with the claims files should be obtained and associated with the claims files. All attempts to procure records should be documented in the files. If the RO or the AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the files. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. Thereafter, the RO or the AMC should arrange for the Veteran to undergo an examination to determine the current severity of the service-connected scars of the mid back, right shoulder, left shoulder, and back of the neck. The Veteran's VA claims files must be made available to the examiner for review in connection with the examination. The VA examiner should report the size (length and width) of each scar (on the mid back, left shoulder, right shoulder, and back of neck) and report whether each scar is deep (associated with underlying soft tissue), unstable (frequent loss of the covering of skin over the scar), painful on examination, and/or limits the function of the part affected. If a scar limits the function of the part affected, the examiner should report the degree of limitation of the part affected, including any limitation of motion of the affected joint(s). The examiner should provide all examination findings, along with the complete rationale for each opinion expressed and conclusion reached. 3. After the development requested above has been completed to the extent possible, the RO or the AMC should again review the record and re-adjudicate the increased rating claim remaining on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and given the requisite opportunity to respond thereto. Thereafter, the case should be returned to the Board for appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter that the Board has remanded. See 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 Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ C. L. KRASINSKI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs