Citation Nr: 1311644 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 07-30 782 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an initial disability rating higher than 0 percent for a right cheek scar residual to excision of a basal cell carcinoma. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and D. K. ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from March 1964 to August 1968. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2006 rating decision by the Denver, Colorado Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO granted service connection for a right cheek scar residual to excision of a basal cell carcinoma. The RO assigned a disability rating of 0 percent for that scar. In August 2009 the Veteran had a Travel Board hearing at the RO before the undersigned Veterans Law Judge. In February 2010, November 2011, and October 2012 the Board remanded the case to the RO via the VA Appeals Management Center (AMC) for the development of additional evidence. The Board is satisfied that there has been substantial compliance with the remand directives. The Board will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has reviewed both the Veteran's physical claims file and the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. FINDING OF FACT From September 19, 2005, a right cheek scar residual to excision of a basal cell carcinoma was approximately nine millimeters long and four millimeters wide, hyperpigmented, deep, flat, smooth, and stable, with normal skin texture, and without pain, tenderness, restriction of motion, elevation, depression, skin breakdown, ulceration, induration, inflexibility, loss of underlying tissue, or other characteristics of disfigurement. CONCLUSION OF LAW From September 19, 2005, the right cheek scar residual to excision of a basal cell carcinoma did not meet the criteria for a disability rating higher than 0 percent. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.118, Diagnostic Code 7800 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The RO provided the Veteran with VCAA notice in letters issued in October 2005, March 2006, June 2008, November 2011, and January 2012. Those letters addressed the information and evidence necessary to substantiate claims for service connection, and informed the Veteran how VA assigns disability ratings and effective dates. The letters also addressed who was to provide the evidence. The claims file contains the Veteran's service medical records, post-service medical records, reports of VA medical examinations, and a transcript of the August 2009 Travel Board hearing. The Veteran has had a VA medical examination that was adequate for evaluating his right cheek scar. Following the most recent, October 2012 Board remand, the AMC or RO obtained new photographs of the Veteran's right cheek scar. The Board is satisfied that there has been substantial compliance with the remand directives, and that additional remand is not needed. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument and reporting for VA examinations. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration of the claim on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Rating for Right Cheek Scar In October 2005 the Veteran filed a claim for service connection for skin cancer. In the September 2006 rating decision the RO granted service connection for scars residual to the excision of skin cancers at several sites, including a basal cell carcinoma on the right cheek. The Veteran appealed the initial 0 percent disability rating that the RO assigned for that scar. VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10 (2012). If two ratings are potentially applicable, 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. The Court has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, 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, 126 (1999). The Veteran appealed the initial disability rating that the RO assigned. The Board will consider the evidence for the entire period since September 19, 2005, the effective date of the grant of service connection, and will consider whether staged ratings are warranted. The rating schedule provides for evaluating scars or other 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 With one characteristic of disfigurement ............ 10 percent Note (1): The 8 characteristics of disfigurement, for purposes of evaluation under § 4.118, are: Scar 5 or more inches (13 or more cm.) in length. Scar at least one-quarter inch (0.6 cm.) wide at widest part. Surface contour of scar elevated or depressed on palpation. Scar adherent to underlying tissue. Skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.). Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.). Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.). Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Note (2): Rate tissue loss of the auricle under DC 6207 (loss of auricle) and anatomical loss of the eye under DC 6061 (anatomical loss of both eyes) or DC 6063 (anatomical loss of one eye), as appropriate. Note (3): Take into consideration unretouched color photographs when evaluating under these criteria. 38 C.F.R. § 4.118, Diagnostic Code 7800. Scars that are unstable or painful are evaluated under 38 C.F.R. § 4.118, Diagnostic Code 7804, which provides for ratings of 30 percent if the number of scars that are unstable or painful are five or more, 20 percent if three or four, and 10 percent if one or two. During service the Veteran had a lesion excised from his right cheek in July 1968. Biopsy revealed that the lesion was a basal cell carcinoma and that the margins were involved with tumor. In August 1968, he underwent a second surgery to excise additional area to include the remainder of the tumor. Records of recent VA treatment of the Veteran reflect that he has been seen for numerous skin growths and lesions, some of which have been excised. In 2002 biopsy showed a lesion on the Veteran's left cheek, near his ear, to be squamous cell carcinoma. A VA clinician excised that lesion in September 2002. Biopsy of a lesion on the Veteran's right cheek was performed in November 2003. A lesion was excised from his left eyelid in November 2005. In March 2006 a clinician used liquid nitrogen to remove a lesion from the Veteran's right cheek. A VA dermatology examination in April 2006 addressed the left cheek and left eyelid areas, but not the right cheek. In VA treatment in February 2007 there was a skin lesion on the Veteran's right cheek and one on his left cheek. A clinician applied liquid nitrogen to the lesions. In August 2007 the Veteran reported marked reddening of his nose and cheek with sun exposure despite wearing sunscreen daily. A treating dermatologist noted marked erythema of the Veteran's cheeks and nose. Three lesions on the Veteran's face were treated with liquid nitrogen. In November 2007 a dermatologist found that the Veteran had sun damage and rosacea. The dermatologist prescribed a topical antibiotic medication for the rosacea. In VA dermatology treatment in December 2008, the Veteran reported using topical medication for actinic keratoses on his face and forearms. The dermatologist noted that scars over the cheek were well healed. In July 2009, the Veteran reported pain and frequent bleeding of lesions on the face, but not on the right cheek. In the August 2009 Travel Board hearing, the Veteran indicated that his scars, including the one on his right cheek, itched a lot every once in a while. He reported that the scars hurt, and that he used topical medication to treat the pain. Mr. D. K. testified that he had observed that the Veteran used a lot of lotion and ointment on his face, especially on his cheeks. In VA treatment in September 2009, the Veteran underwent Mohs procedures on a squamous cell carcinoma on his right scalp, a basal cell carcinoma on his left cheek, and a basal cell carcinoma on his left temple. In September 2009, a clinician performed a shave biopsy of a lesion on the Veteran's right cheek. Squamous cell carcinoma was found. In November 2009 a Mohs surgery was performed to excise that lesion. On follow-up in December 2009 a clinician observed well healed scars at previous surgery sites. On VA examination in June 2010, the examiner noted that the right cheek tumor excised in service and the right cheek tumor excised in November 2009 were in different areas of the cheek. The examiner indicated, and the Veteran concurred, that the scar from the 1968 excision was located one inch lateral to the corner of the Veteran's mouth. The Veteran reported that the scar from the tumor excised in 1968 was asymptomatic and was not tender or painful. He stated that the scar is disfiguring because it is on his face. The examiner observed that the right cheek scar from the 1968 excision was slightly comma shaped. It was four millimeters wide at its widest and nine millimeters long. It was flat. The total area of the scar was 16.28 square millimeters. The scar was not painful or tender. The scar was deep and hyperpigmented. The skin texture was normal. The scar was stable and smooth, without elevation, depression, skin breakdown, ulceration, or underlying tissue loss. The scar had no adherence to underlying tissue and it did not restrict motion of the face or jaw. The skin was not indurated or inflexible in an area exceeding six square inches. Pursuant to the Board's 2012 remand, new photographs of the Veteran's face were added to the claims file. Photographs that show the area to the right of the Veteran's mouth are consistent with the description the examiner provided in the June 2010 examination. The scar on the Veteran's right cheek from the 1968 tumor excision does not have any of the eight characteristics of disfigurement. It is less than 5 inches or 13 centimeters in length and less than one quarter inch or 0.6 centimeters in width. It is not elevated or depressed on palpation. It is not adherent to underlying tissue. While the skin is hyperpigmented, the hyperpigmented area does not exceed six square inches or 39 square centimeters. The skin texture is normal. There is no underlying soft tissue missing. The skin is not indurated and inflexible. As the scar does not have any of the characteristics of disfigurement and does not have visible or palpable tissue loss, the scar does not meet the criteria for a 10 percent or other compensable rating under Diagnostic Code 7800. The Board acknowledges the Veteran's opinion that the scar is disfiguring because it is on his face. The rating schedule, however, assigns ratings for disfigurement based on the listed characteristics of disfigurement, none of which are present in the case of this scar. The Board therefore denies the appeal for a compensable rating under Diagnostic Code 7800. In the 2009 Travel Board hearing, the Veteran reported that his scars were painful. In the 2010 VA examination the examiner asked him specifically about the right cheek scar from the 1968 excision. The Veteran stated that that scar was not painful or tender. Therefore there is not a basis for evaluating the scar under Diagnostic Code 7804. When there is an exceptional disability picture, such that the rating schedule criteria do not reasonably describe a claimant's disability level and symptomatology, an RO may refer a case to the VA Under Secretary for Benefits or to the Director of the VA Compensation and Pension Service for consideration of an extraschedular rating. See 38 C.F.R. § 3.321(b)(1) (2012); see also Thun v. Peake, 22 Vet. App. 111, 115 (2008). Extraschedular ratings are limited to cases in which it is impractical to apply the regular standards of the rating schedule because there is an exceptional or unusual disability picture, with such related factors as frequent hospitalizations or marked interference with employment. 38 C.F.R. § 3.321(b)(1). The Veteran's service-connected right cheek scar has not required frequent hospitalizations, and it has not markedly interfered with his capacity for employment. The regular rating criteria address the effect of the scar that the Veteran reports, disfigurement. Those criteria provide for higher ratings for greater disfigurement than is present in this case. The regular rating criteria are sufficient to the circumstances of this case, and it is not necessary to refer the rating of the service-connected right cheek tumor excision scar for consideration of an extraschedular rating. The Board has considered whether the record raises the issue of unemployability, such that unemployability must be considered. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has not indicated, and the record does not contain any indication that the service-connected right cheek scar contributes to impairing the Veteran's capacity to hold employment. Thus in this case the record does not raise the issue of unemployability. ORDER From September 19, 2005, entitlement to a disability rating higher than 0 percent for a right cheek scar residual to excision of a basal cell carcinoma is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs