Citation Nr: 1312836 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 07-02 813 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to an initial disability rating greater than 30 percent for multiple excision and cryotherapy scars, residuals of basal cell carcinoma of the head and arms. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran had active military service from May 1956 to May 1960. This matter comes to the Board of Veterans' Appeals (Board) on appeal from June 2005 and February 2006 rating decisions issued by the Regional Office (RO) of the Department of Veterans Affairs (VA), in Huntington, West Virginia. In June 2009, the Veteran testified during a hearing before the undersigned Acting Veterans Law Judge at the RO; a transcript of that hearing is of record. In September 2009 and September 2012, the Board remanded this matter for additional development. The matter has been returned to the Board for additional appellate consideration. The Veteran's Virtual VA records were also reviewed and considered in preparing this decision. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Throughout the appeal, the Veteran's multiple excision and cryotherapy scars, residuals of basal cell carcinoma of the head and arms, has involved more than 40 percent of the exposed areas affected. 2. Throughout the appeal, the Veteran's multiple excision and cryotherapy scars, residuals of basal cell carcinoma of the head and arms, has not been manifested by palpable tissue loss and either gross distortion or asymmetry of facial features or paired sets of features, or six or more characteristics of disfigurement, and has not required therapy comparable to that used for systemic malignancies. CONCLUSION OF LAW The criteria for an initial disability rating of 60 percent, but no higher, for the multiple excision and cryotherapy scars, residuals of basal cell carcinoma of the head and arms, has been satisfied. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Codes (DCs) 7819-7800, 7806 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. VA's Duties to Notify and Assist Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and, (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the Agency of Original Jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO sent the Veteran an initial duty-to-assist letter in December 2001. This letter addressed the Veteran's underlying claim of service connection for skin cancer due to radiation exposure. The increased rating claim flows downstream from a June 2005 rating decision, which initially established service connection for multiple excision and cryotherapy scars, residuals of basal cell carcinoma of the head and arms. The United States Court of Appeals for Veterans Claims (Court) held, in Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006), that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Thus, because the notice provided before service connection was granted was legally sufficient, VA's duty to notify in this case is satisfied. See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. His STRs and post-service VA and private treatment records have been obtained. The claims file does not present evidence that the Veteran is currently receiving disability benefits from the Social Security Administration (SSA) for the disability currently on appeal. Therefore, the Board does not need to make an attempt to obtain these records. He has been afforded VA examinations, and the reports of those evaluations contain all findings needed to properly evaluate his disability. 38 C.F.R. § 4.2 (2012). The Board does not have notice of any additional relevant evidence that is available but has not been obtained. Furthermore, the Veteran was afforded a Board hearing in June 2009. A Board member has two duties at a hearing: (1) a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim, and (2) a duty to suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See 38 C.F.R. § 3.103(c)(2) (2012); Procopio v. Shinseki, No. 11-1253, 2012 WL 4882287 at 3 (Vet. App. Oct. 16, 2012) (citing Bryant v. Shinseki, 23 Vet. App. 488, 492, 496 (2010)). Here, during the Board hearing, the AVLJ specifically noted the issue as "entitlement to an initial disability rating greater than 30 percent for multiple excision and cryotherapy scars head and arms, residuals of basal cell carcinoma." See Board hearing transcript, page 2. The Veteran was assisted at the hearing by an accredited representative from The American Legion. See Board hearing transcript, page 1. The AVLJ noted the element of the claim that was the focus on this appeal (i.e., the current severity of the multiple excision and cryotherapy scars, residuals of basal cell carcinoma of the head and arms). See Board hearing transcript, page 9. The representative and the AVLJ also sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. See Board hearing transcript, pages 8-10. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with the hearing requirements, nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the element necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the element necessary to substantiate his claim for benefits. As such, the Board finds that the AVLJ complied with the aforementioned hearing duties, and that any error in notice provided during the Veteran's hearing constitutes harmless error. The Board is also satisfied as to substantial compliance with its September 2009 and September 2012 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). The September 2009 remand included scheduling the Veteran for another VA dermatological examination, which he had in November 2009. The remand also included obtaining unretouched color photographs of the Veteran's scars, which were submitted by the Veteran in January 2010. The September 2012 remand including sending the Veteran a VCAA notice letter, which included notice in accordance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This notice letter was sent to the Veteran in September 2012. The September 2012 remand also directed the AMC to obtain the Veteran's recent VA and private treatment records, to include the Veteran's treatment records from the Dermatology Center in Beaver, West Virginia. These records were obtained and associated with the Veteran's Virtual VA and/or paper claims file. The September 2009 and September 2012 remands also directed the AMC to readjudicate the Veteran's claim, which was accomplished in the January 2012 and February 2013 Supplemental Statements of the Case (SSOCs). For these reasons, the Board finds that there has been substantial compliance with its remand directives. Id. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Increased Rating Claim The Veteran's service personnel records show that he participated in Operation Hardtack I in 1958 and was exposed to radiation as a result of this. The Veteran began seeking medical treatment for basal cell carcinomas in early 2001. He was afforded a VA examination in June 2005 and the examiner opined that the Veteran's basal cell carcinomas were the result of the Veteran's radiation exposure in service. The Veteran seeks an initial disability rating greater than 30 percent for his service-connected multiple excision and cryotherapy scars, residuals of basal cell carcinoma of the head and arms. Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity in civil occupations. Separate DCs identify the various disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. Where a Veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ." Fenderson, 12 Vet. App. at 126. If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. The Veteran is in receipt of a 30 percent disability rating under 38 C.F.R. § 4.118, DCs 7819-7800 for his multiple excision and cryotherapy scars, residuals of basal cell carcinoma of the head and arms. During the pendency of the Veteran's appeal, VA promulgated new regulations for the evaluation of the skin in 2002, 2008, and 2012. Within the June 2005 rating decision, the Veteran was afforded notice of the pertinent old and revised criteria, effective 2002, and his appeal was considered under the same. Within the January 2010 rating decision, the Veteran was afforded notice of the pertinent revised criteria, effective 2008, and his appeal was considered under these criteria. Therefore, the Board may also consider these amendments without first determining whether doing so will be prejudicial to the Veteran. Bernard v. Brown, 4 Vet. App. 384, 392-394 (1993). Regarding the 2012 regulatory changes, the Board notes that the Veteran was not advised of these changes. However, as the 2012 regulatory changes involve only a correction to the applicability date in the regulation, and do not involve any substantive changes, the Board finds that the Veteran is not prejudiced by the lack of notice of this change. Bernard, 4 Vet. App. at 392-394. The Board will now address each regulation change separately. Service connection has been established for the Veteran's multiple excision and cryotherapy scars, residuals of basal cell carcinoma of the head and arms since August 16, 2001. From August 16, 2001, until August 30, 2002, the following regulations were in effect for skin disabilities. 29 Fed. Reg. 6,718 (May 22, 1964), as amended at 34 Fed. Reg. 5,063 (March 11, 1969); 40 Fed. Reg. 42,540 (September 15, 1975); 43 Fed. Reg. 45,282 (October 2, 1978) (codified at 38 C.F.R. § 4.118). Under the old criteria, DC 7819 addressed benign new growths of the skin. DC 7819 stated to rate these benign new growths of the skin as scars, disfigurement, etc., or, unless otherwise provided, rate codes 7807 through 7819 as for eczema, dependent upon location, extent, and repugnant or otherwise disabling character of manifestations. A Note to the DC provided that the most repugnant conditions could be submitted for VA Central Office rating with several unretouched photographs. Total disability ratings could also be assigned without reference to VA Central Office in the most severe cases of pemphigus and dermatitis exfoliative with constitutional symptoms. 38 C.F.R. § 4.118. DC 7806 addressed eczema. A 30 percent rating was assigned for eczema with exudation or constant itching, extensive lesions, or marked disfigurement. A 50 percent rating was assigned for eczema with ulceration or extensive exfoliation or crusting, and systematic or nervous manifestations, or exceptionally repugnant. A 50 percent rating was the highest schedular disability rating available under this code. 38 C.F.R. § 4.118. Under the old criteria, DC 7800 addressed disfiguring scars of the head, face, or neck. A 30 percent rating was warranted for severe disfiguring scars of the head, face, or neck, especially if they produced a marked and unsightly deformity of eyelids, lips, or auticles. A 50 percent rating was warranted for complete or exceptionally repugnant deformity of one side of the face, or marked or repugment bilateral disfigurement. A 50 percent rating was the highest schedular disability rating available under this code. A Note to DC 7800 provided that when, in addition to tissue loss and cicatrixation, there was marked discoloration, color contrast, or the like, the 50 percent rating under DC 7800 could be increased to 60 percent, the 30 percent to 50 percent, and the 10 percent to 30 percent. The most repugnant and disfiguring conditions, including scars and diseases of the skin, could be submitted for VA Central Office rating, with several unretouched photographs. 38 C.F.R. § 4.118. VA revised the criteria for rating skin disabilities, effective on August 30, 2002. 67 Fed. Reg. 49,590 (July 31, 2002) (codified at 38 C.F.R. § 4.118). Under the August 2002 pertinent skin disability criteria, DC 7819 provided that benign skin neoplasms were to be rated as disfigurement of the head, face, or neck (DC 7800), scars (DCs 7801, 7802, 7803, 7804, or 7805), or rated on impairment of function. DC 7818 provided that malignant skin neoplasms (other than malignant melanoma) were to be rated as disfigurement of the head, face, or neck (DC 7800), scars (DCs 7801, 7802, 7803, 7804, or 7805), or rated on impairment of function. 38 C.F.R. § 4.118. A Note to DC 7818 provided that, if a skin malignancy required therapy that was 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 would be assigned from the date of onset of treatment, and would 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 would be subject to the provisions of 38 C.F.R. § 3.105(e). If there had been no local recurrence or metastasis, then the rating would then be made on the residuals. If the treatment was confined to the skin, then the provisions for a 100-percent rating did not apply. 38 C.F.R. § 4.118. Under the 2002 criteria, DC 7800 provided ratings for disfigurement of the head, face, or neck. Note (1) to DC 7800 provided that the 8 characteristics of disfigurement, for purposes of rating under 38 C.F.R. § 4.118, were: A scar 5 or more inches (13 or more centimeters (cm.)) in length. A scar at least one-quarter inch (0.6 cm.) wide at the 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 square (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.). DC 7800 provided that a skin disorder of the head, face, or neck 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, was rated 30 percent disabling. A skin disorder of the head, face, or neck 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, was rated 50 percent disabling. An 80 percent rating was provided for scars causing palpable tissue loss and either gross distortion or asymmetry of facial features or paired sets of features or six or more characteristics of disfigurement. Note (2) to DC 7800 provided that tissue loss of the auricle was to be rated 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) provided that unretouched color photographs were to be taken into consideration when rating under these criteria. 38 C.F.R. § 4.118. Under DC 7801, scars, other than those on the head, face, or neck, that were deep or that caused limited motion warranted a 30 percent rating if the area or areas exceeded 72 sq. inches (464 sq. cm.). A 40 percent rating was warranted for scars, other than those on the head, face, or neck, that were deep or that caused limited motion, if the area or areas exceeded 144 sq. inches (929 sq. cm.). A 40 percent rating was the highest schedular disability rating available under this code. Note (1) of DC 7801 stated that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, would be separately rated and combined in accordance with 38 C.F.R. § 4.25 (2012). Note (2) associated with this DC specified that a deep scar was one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801. Under DC 7802, scars, other than those on the head, face, or neck, that were superficial and that did not cause limited motion warranted a 10 percent rating if the area or areas exceed 144 square inches (929 sq. cm.). A 10 percent rating was the maximum schedular rating available under DC 7802. 38 C.F.R. § 4.118. DC 7803 provided a 10 percent rating for a superficial unstable scar. A 10 percent rating was the maximum schedular rating available under DC 7803. 38 C.F.R. § 4.118. DC 7804 provided for a single maximum 10 percent disability rating where a superficial scar was painful on examination. A Note associated with this DC specified that superficial scars were those not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Under DC 7805, the rater was instructed to rate the scar based on the limitation of function of the affected part. 38 C.F.R. § 4.118. The Board notes that the RO has also considered the Veteran's claim under the 2002 version of DC 7806, as shown in the February 2006 rating decision. Accordingly, the Board will also consider the Veteran's claim under this code. Under the 2002 version of DC 7806, dermatitis or eczema that involved 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period, was rated 30 percent disabling. Dermatitis or eczema that involved more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period, was rated 60 percent disabling. A 60 percent rating was the maximum schedular rating available under this Code. 38 C.F.R. § 4.118. On September 23, 2008, VA published a final rule amending its Schedule for Rating Disabilities by revising the portion of the Schedule that addresses the skin, so it more clearly reflected VA's policies concerning the evaluation of scars. 73 Fed. Reg. 54,708. It is further observed that these regulatory changes only apply to applications received by VA on or after October 23, 2008, or if the Veteran requests review under the clarified criteria. See 73 Fed. Reg. 54708 (Sept. 23, 2008). At his Board hearing, the Veteran's representative requested review under these regulations; therefore, the Board will also analyze the Veteran's claim under these regulations. See 73 Fed. Reg. 54,708 (Sept. 23, 2008), codified at 38 C.F.R. § 4.118, DC 7800. Under the 2008 regulations, DC 7818 provides that malignant skin neoplasms (other than malignant melanoma) are rated as disfigurement of the head, face, or neck (DC 7800), scars (DCs 7801, 7802, 7803, 7804, or 7805), or rated on impairment of function. A Note to DC 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, the rating will then be made on the residuals. If the treatment is confined to the skin, then the provisions for a 100-percent rating do not apply. 38 C.F.R. § 4.118. DC 7819 provides that benign skin neoplasms are rated as disfigurement of the head, face, or neck (DC 7800), scars (DCs 7801, 7802, 7803, 7804, or 7805), or rated on impairment of function. 38 C.F.R. § 4.118. DC 7800 provides ratings for disfigurement of the head, face, or neck. Note (1) to DC 7800 provides that the 8 characteristics of disfigurement, for purposes of rating under 38 C.F.R. § 4.118, are: Scar is 5 or more inches (13 or more centimeters (cm.)) in length. Scar is at least one-quarter inch (0.6 cm.) wide at the widest part. Surface contour of scar is elevated or depressed on palpation. Scar is adherent to underlying tissue. Skin is hypo-or hyper-pigmented in an area exceeding six square inches (39 square (sq.) cm.). Skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.). Underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.). Skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.). DC 7800 provides that a skin disorder of the head, face, or neck 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, is rated 30 percent disabling. A skin disorder of the head, face, or neck 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, is rated 50 percent disabling. An 80 percent rating is provided for scars causing palpable tissue loss and either gross distortion or asymmetry of facial features or paired sets of features or six or more characteristics of disfigurement. Note (2) to DC 7800 provides that tissue loss of the auricle is to be rated under Diagnostic Code 6207 (loss of auricle), and anatomical loss of the eye under Diagnostic Code 6061 (anatomical loss of both eyes) or DC 6063 (anatomical loss of one eye), as appropriate. Note (3) provides that unretouched color photographs are to be taken into consideration when rating under these criteria. 38 C.F.R. § 4.118. DC 7801 provides ratings for scars, other than the head, face, or neck, that are deep or that cause limited motion. Scars, other than the head, face, or neck, that are deep or that cause limited motion, and result in an area or areas exceeding 72 square inches (465 sq. cm.), are rated 30 percent disabling. Scars, other than the head, face, or neck, that are deep or that cause limited motion, and result in an area or areas exceeding 144 square inches (929 sq.cm.), are rated 40 percent disabling. A 40 percent rating is the highest schedular disability rating available under this code. Note (1) to DC 7801 provides that a deep scar is one associated with underlying soft tissue damage. Note (2) provides that 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 38 C.F.R. § 4.25. Qualifying scars are scars that are nonlinear, deep, and are not located on the head, face, or neck. 38 C.F.R. § 4.118. DC 7802 provides ratings for scars, other than the head, face, or neck, that are superficial or that do not cause limited motion. Superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. A 10 percent rating is the maximum schedular rating available under this code. 38 C.F.R. § 4.118. DC 7804 provides ratings for superficial unstable scars. DC 7804 provides that five or more scars that are unstable or painful are 30 percent disabling. Note (1) to DC 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that 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) provides that scars evaluated under diagnostic codes 7800, 7891, 7802, or 7805 may also receive an evaluation under this DC, when applicable. 38 C.F.R. § 4.118. DC 7805 provides that any other scars (including linear scars) and other disabling effects of scars should be evaluated even if not considered in a rating provided under DCs 7800-04 under an appropriate DC. 38 C.F.R. § 4.118. DC 7806 provides that dermatitis or eczema that involves 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period, is rated 30 percent disabling. Dermatitis or eczema that involves more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period, is rated 60 percent disabling. A 60 percent rating is the maximum schedular rating available under this Code. 38 C.F.R. § 4.118. In the 2008 regulations, VA incorrectly stated the applicability date in the preamble and in the first sentence of the introductory paragraph of 38 C.F.R. § 4.118. Thus, in 2012, VA issued regulations to fix the applicability date. Specifically, the Applicability Date section was revised to read as follows: This amendment shall apply to all applications for benefits received by VA on or after October 23, 2008. The old criteria will apply to applications received by VA before that date. However, a veteran whose scars were rated by VA under a prior version of diagnostic codes 7800, 7801, 7802, 7803, 7804, or 7805 of 38 C.F.R. § 4.118, as in effect prior to the effective date of this rule, may request review under these clarified criteria, irrespective of whether his or her disability has worsened since the last review. The effective date of any award, or any increase in disability compensation, based on this amendment will not be earlier than the effective date of this rule, but will otherwise be assigned under the current regulations regarding effective dates, 38 C.F.R. § 3.400, etc. The introductory language to 38 C.F.R. § 4.118 was revised to read as follows: A Veteran whose scars were rated by VA under a prior version of diagnostic codes 7800, 7801, 7802, 7803, 7804, or 7805, as in effect before October 23, 2008, may request review under diagnostic codes 7800, 7801, 7802, 7804, and 7805, irrespective of whether his or her disability has worsened since the last review. VA will review that veteran's disability rating to determine whether the veteran may be entitled to a higher disability rating under diagnostic codes 7800, 7801, 7802, 7804, and 7805. A request for review pursuant to this rulemaking will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008. The Board will now apply these regulations to the facts of the case. Since service connection was granted in August 2001, the Veteran was afforded a VA skin examination in June 2005. At the examination, the Veteran denied any pain or itching of the scars. Following a physical examination of the Veteran, the VA examiner found that the Veteran had several scars on his head, face, forehead, hands, and forearms that were hyperpigmented and hypopigmented from previous cryotherapy and excisions. The measurements of the Veteran's scars revealed: a 1 cm. long by 0.5 cm. wide scar on the right forehead that was hypopigmented; an oval 3 millimeter (mm.) scar in the right preauricular area; a 1 cm. by 2 mm. scar on the back of the right ear that was hypopigmented; a 0.5 cm. circular scar on the left preauricular area that was hypopigmented; a 3 mm. circular scar on the left preauricular area that was hypopigmented; a 1 mm. by 1 cm. scar on bridge of the nose that was hypopigmented; a 0.5 cm. circular scar on the occipital region that was hypopigmented; a 1.2 cm. by 3 mm. scar in the occipital region that was hypopigmented and mildly depressed; and, a 0.5 cm. linear scar with three cross scars consistent with suture incisions running 1 cm. crossways, with widest areas being 2 mm., and that was hypopigmented. The examiner determined that the Veteran did not have any ulcerations, skin breakdowns, edema, adherence to underlying tissue, or keloid formation. The examiner found that the scars were affecting approximately 4.5 percent of his face and head area, and 3 percent of his bilateral arms. The Veteran was afforded a VA scars examination in January 2006 by the same VA examiner. Following a physical examination of the Veteran and a review of his claims file, the VA examiner found that the scars were hypopigmented and scaly, consistent with cryotherapy. The scars did not have any adherence to the underlying tissues, edema, keloid formation, shininess, skin breakdown, underlying tissue loss, elevation, depression, or ulcerations. The scars had lighter than normal skin discoloration. The measurements of the Veteran's scars revealed: (1) 1 cm. x 1 cm. scar on the right forehead; (2) 1 cm. x 0.5 cm. scar on the forehead; (3) 0.3 cm. x 0.3 cm. scar on the right pre-auricular area; (4) 1 cm. x 0.2 cm. scar on the right post-auricular area; (5) 0.5 cm. x 0.5 cm. scar on the left pre-auricular area; (6) 0.3 cm. x 0.3 cm. scar on the left pre-auricular area; (7) 1 cm. x 0.2 cm. scar on the bridge of the nose; (8) 0.5 cm. x 0.5 cm. scar on the right frontoparietal scalp; (9) 1.2 cm. x 0.3 cm. scar on the right frontoparietal scalp; and, (10) 1 cm. x 0.5 cm. scar on the occipital scalp. The examiner found that the scars were affecting approximately 45 percent of the Veteran's face and head area, and 30 percent of his bilateral arms. The examiner determined that the scars did not result in any limitation of motion or loss of function. In a separate January 2006 VA skin examination by the same examiner, the examiner again confirmed that the scars were affecting approximately 45 percent of the Veteran's face and head area, and 30 percent of his bilateral arms. The examiner also determined that the percent of exposed areas affected was greater than 40 percent. In February 2006, the June 2005/January 2006 VA examiner provided a VA addendum medical opinion, in which he noted the differences in the overall percentages. The examiner clarified that the June 2005 percentages were mistyped, and the January 2006 percentages were correct. The Veteran was afforded another VA skin examination in November 2009. The Veteran reported occasional itching of his scars. Following a physical examination of the Veteran and a review of his claims file, the VA examiner determined that the Veteran had six scars on the top of his head. The measurements of these scars revealed: a 1.75 cm. x 1 cm. scar; 1.5 cm. x 1 cm. scar; 1 cm. x 1 cm. scar; 0.5 cm. x 0.5 cm. scar; 0.5 cm. x 0.25 cm. scar; and, 1.5 cm. x 0.25 cm. scar. All of the scars were not adherent to the underlying tissue, but were hypopigmented, atrophic, and shiny. The Veteran also had two tiny scars on the front of his left ear, measuring 0.5 cm. x 0.5 cm. and 0.25 cm. x 0.25 cm. Both of these scars were hyperpigmented. The Veteran also had two scars on his left check, measuring 0.5 cm. x 0.5 cm. and 1 cm. x 1 cm. Both of these scars were not hypopigmented or hyperpigmented, and did not have any elevation or depression on palpation. The Veteran also had a scar in front of his right auricle, which measured 1.5 cm. x 1 cm. The scar was hyperpigmented, but was not elevated or depressed. The texture of the scar was irregular atrophic, but it was not shiny. The Veteran did not have any underlying soft tissue loss or damage from face scars. The examiner found that there was no gross distortion, disfigurement, or asymmetry of the Veteran's face due to the above mentioned scars. Regarding the Veteran's forearms, the November 2009 VA examiner found that the Veteran had a visible scar on his left forearm, which measured 1.25 cm. x 1 cm. The Veteran had a scar on his right forearm, which measured 1 cm. x 1 cm. The Veteran also had multiple tiny skin lesions on both of his forearms, which the examiner found were difficult to measure. The examiner found that these forearm scars were not adherent to the underlying soft tissue, and there was no skin breakdown. There was also no limitation of motion or limitation of function caused by the forearm scars. There was no inflammation, edema, or keloid formation in these scars. The November 2009 examiner did not address the percentages of exposed areas of the body. Color unretouched photographs of the Veteran's scars were submitted in January 2010 and have been associated with his claims file. The VA and private treatment records contained in the claims file do not provide evidence contrary to that obtained at the VA examinations. Based on the aforementioned evidence, the Board finds that the Veteran's multiple excision and cryotherapy scars, residuals of basal cell carcinoma of the head and arms, warrants a disability rating of 60 percent throughout the entire appeal period. 38 C.F.R. § 4.118, DCs 7819-7800. Here, the Board finds that DC 7806 is the most appropriate DC for rating the Veteran's multiple excision and cryotherapy scars, residuals of basal cell carcinoma of the head and arms. Specifically, under the 2002 and 2008 versions of DC 7806, the Veteran's multiple excision and cryotherapy scars, residuals of basal cell carcinoma of the head and arms, has involved more than 40 percent of the exposed areas affected. The January 2006 VA examiner, following a physical examination of the Veteran, found that the Veteran's scars were affecting approximately 45 percent of his face and head area, and 30 percent of his bilateral arms. The examiner also determined that the percent of exposed areas affected was greater than 40 percent. In February 2006, the VA examiner noted the differences in the overall percentages between the VA examinations, but clarified that the January 2006 percentages were correct. Thus, the Veteran's multiple excision and cryotherapy scars, residuals of basal cell carcinoma of the head and arms, has involved more than 40 percent of the exposed areas affected, and an initial disability rating of 60 percent is warranted. 38 C.F.R. § 4.118, DC 7806. However, the preponderance of the evidence is against the assignment of a rating in excess of 60 percent for the service-connected multiple excision and cryotherapy scars, residuals of basal cell carcinoma of the head and arms, at any time during the appeal period. In considering all of the regulatory changes, only DCs 7800 and 7818, under the 2002 and 2008 versions, would provide a basis for an evaluation in excess of 60 percent. 38 C.F.R. § 4.118. However, under DC 7800, an 80 percent rating is not warranted, as the evidence of record does not establish that the Veteran's scars cause palpable tissue loss and either gross distortion or asymmetry of facial features or paired sets of features or six or more characteristics of disfigurement. There is no evidence of record of asymmetry or distortion, nor is there any evidence of any of the characteristics of disfigurement or tissue loss. Thus, a higher rating is not warranted under this code. 38 C.F.R. § 4.118. A higher disability rating is also not warranted under DC 7818 of the 2002 and 2008 versions, as the evidence of record does not establish that the Veteran's multiple excision and cryotherapy scars, residuals of basal cell carcinoma of the head and arms, has required 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. Instead, the Veteran's treatment has been confined to the skin, to include excisions and cryotherapy. Thus, the provisions for a 100-percent rating under DC 7818 of the 2002 and 2008 versions do not apply. 38 C.F.R. § 4.118. The Board has also reviewed the color unretouched photographs of the Veteran's scars, but finds that these photographs do not provide any evidence contrary to that described at the VA examinations and in the treatment records. Thus, the photographs do not warrant a higher disability rating. 38 C.F.R. § 4.118. The Board notes that the Veteran's symptoms do not appear to have changed significantly during this initial rating period so as to warrant a staged rating. Fenderson, 12 Vet. App. at 126. Additionally, in adjudicating a claim, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences. For example, he is competent to report and observe the scars on his body and his pain, and he is credible in this regard. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran's competent and credible belief that his disability is worse than the assigned rating, however, is outweighed by the competent and credible medical examinations that evaluated the true extent of impairment based on objective data coupled with the lay complaints. The VA examiners have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the physical examination findings. Also, as stated above, the rating criteria are specific in indicating that some of the criteria must be objectively demonstrated. In sum, the preponderance of the evidence establishes that a disability rating of 60 percent is warranted for the multiple excision and cryotherapy scars, residuals of basal cell carcinoma of the head and arms, throughout the entire appeal period. However, the preponderance of the evidence is against the assignment of a rating in excess of 60 percent for the service-connected multiple excision and cryotherapy scars, residuals of basal cell carcinoma of the head and arms, at any time during the appeal period. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). III. Extraschedular Consideration The above determination is based on application of provisions of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2012). However, the regulations also provide for exceptional cases involving compensation. Pursuant to § 3.321(b)(1), the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the claimant's disability level and symptomatology, then a Veteran's disability picture is contemplated by the rating schedule. The assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). Here, because the schedular rating of 60 percent for the Veteran's multiple excision and cryotherapy scars, residuals of basal cell carcinoma of the head and arms, fully addresses his symptoms, referral to the Under Secretary for Benefits or the Director of Compensation and Pension Service for consideration of an extraschedular evaluation is not warranted. The evidence of record does not establish, and the Veteran does not contend, that his multiple excision and cryotherapy scars, residuals of basal cell carcinoma of the head and arms, prevents him from being employed or that his multiple excision and cryotherapy scars, residuals of basal cell carcinoma of the head and arms, has required frequent hospitalizations. At his recent VA examination in January 2009, the Veteran reported that he was currently retired because of an unrelated left foot injury. All of his treatment for his service-connected disability has been on an outpatient basis. Thus, there is no evidence that the Veteran's service-connected disability causes impairment that is not contemplated by the schedular rating criteria or that renders impractical the application of the regular schedular standards. See Thun, 22 Vet. App. at 111. Accordingly, referral of this case for consideration of an extraschedular rating is not warranted. Id.; see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996). IV. TDIU Consideration Finally, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a total disability rating based in individual unemployability due to service-connected disabilities (TDIU). TDIU is considered part and parcel of an increased rating claim when the issue of unemployability is raised by the record. In this case, the issue of unemployability is not raised by the record. At his recent VA examination in January 2009, the Veteran reported that he was currently retired because of an unrelated left foot injury. There is no allegation in the record that his service-connected multiple excision and cryotherapy scars, residuals of basal cell carcinoma of the head and arms has resulted in unemployment. Therefore, consideration of a TDIU is not warranted. ORDER An initial disability rating of 60 percent for multiple excision and cryotherapy scars, residuals of basal cell carcinoma of the head and arms, is granted, subject to the statutory and regulatory provisions governing the payment of monetary benefits. ____________________________________________ APRIL MADDOX Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs