Citation Nr: 1318854 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 08-23 340 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE 1. Entitlement to a disability evaluation in excess of 30 percent for the Veteran's basal cell and squamous cell carcinoma scar residuals for the period prior to April 16, 2007. 2. Entitlement to a disability evaluation in excess of 50 percent for the Veteran's basal cell and squamous cell carcinoma scar residuals for the period on and after April 16, 2007. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran had active service from June 1954 to June 1974. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Nashville, Tennessee, Regional Office (RO) which increased the disability evaluation for the Veteran's basal cell carcinoma of the nose from 30 to 50 percent; effectuated the award as of April 16, 2007; and denied a temporary total evaluation for basal cell carcinoma of the nose under the provisions of 38 C.F.R. § 4.30 based upon convalescence following an April 16, 2007 surgical procedure. In June 2010, the Board remanded the Veteran's appeal to the RO for additional action. In April 2011, the Appeals Management Center (AMC) granted a temporary total evaluation for the Veteran's basal cell carcinoma of the nose under the provisions of 38 C.F.R. § 4.30 following an April 16, 2007 surgical procedure for the period from April 16, 2007 to May 31, 2007. In May 2011, the Veteran submitted a Motion to Advance on the Docket. In August 2011, the Board granted the Veteran's motion. In August 2011, the Board remanded the Veteran's appeal to the RO for additional action. In September 2012, the Board noted that the Veteran had been afforded an April 2012 dermatological evaluation which revealed two new malignant skin lesions. The Board recharacterized the Veteran's service-connected skin disability as basal cell and squamous cell carcinoma scar residuals and remanded the Veteran's appeal to the RO for additional action which included obtaining clinical documentation pertaining to the treatment of the additional skin cancers. In February 2013, the Veteran submitted clinical documentation reflecting additional facial malignancies. In March 2013, the Board remanded the Veteran's appeal to the RO for additional action which included obtaining clinical documentation pertaining to the treatment of the additional skin cancers. The Board has reviewed both the physical claims files and the "Virtual VA" file so as to insure a total review of the evidence. The issue of an evaluation in excess of 80 percent for the Veteran's basal cell and squamous cell carcinoma scar residuals on an extraschedular basis is REMANDED to the RO via the AMC, in Washington, DC. 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. Prior to April 16, 2007, the Veteran's basal cell and squamous cell carcinoma scar residuals were shown to be manifested by visible and palpable tissue loss and asymmetry of the nose, the forehead, the ears, and the cheeks; no systemic symptoms; and a loss of less than one third of the right auricle. 2. The Veteran's basal cell and squamous cell carcinoma scar residuals present such an exceptional or unusual disability picture as to render impractical the application of the schedular criteria. CONCLUSIONS OF LAW 1. The criteria for a schedular 80 percent evaluation for the Veteran's basal cell and squamous cell carcinoma scar residuals for the period prior to and after April 16, 2007 have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7818 (2008); 38 C.F.R. §§ 3.159, 3.326(a) (2012). 2. The requirements for referral to the Under Secretary for Benefits or the Director, Compensation and Pension Service for consideration of an extraschedular evaluation for the Veteran's basal cell and squamous cell carcinoma scar residuals have been met. 38 C.F.R. § 3.321(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on Department of Veterans Affairs (VA) to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has issued several VCAA notices to the Veteran including a July 2007 notice which informed him of the evidence generally needed to support a claim for an increased evaluation for his basal cell and squamous cell carcinoma scar residuals and the assignment of an effective date for such an award; what actions he needed to undertake; and how VA would assist him in developing his claim. The July 2007 VCAA notice was issued to the Veteran prior to the January 2008 rating decision from which the instant appeal arises. The Veteran's claim was readjudicated in the July 2008 statement of the case and the multiple supplemental statements of the case (SSOC) issued to the Veteran. Therefore, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the duty to assist in this case, VA has secured or attempted to secure all relevant documentation required by the VCAA. The Veteran was afforded multiple VA skin examinations. The examination reports are of record. The Board remanded the Veteran's appeal to the RO on multiple occasions so he could be afforded a VA examination for compensation purposes. To that end, when VA undertakes to obtain an examination, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination reports reflect that all relevant records were reviewed and the questions posed were answered. All identified and available relevant documentation has been secured and all relevant facts have been developed to the extent possible. There remains no issue as to the substantial completeness of the Veteran's claim. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2012). For these reasons, the Board finds that the VCAA duties to notify and to assist have been met. II. Historical Review The Veteran's service treatment records state that he was diagnosed with a basal cell carcinoma of the nose. In August 1974, VA established service connection for basal cell carcinoma of the nose; assigned a noncompensable evaluation for that disability; and effectuated the award as of July 1, 1974. The report of a July 2007 VA examination for compensation purposes conveys that the Veteran had "an extensive history of excision of basal cell carcinoma about the face beginning in November 1989 and then again August 2001 when he had multiple basal cells excised." The Veteran was diagnosed with "recurrent basal cell carcinomas about the face." In September 2004, the RO increased the evaluation for the Veteran's basal cell carcinoma of the nose from noncompensable to 30 percent and effectuated the award as of March 2, 2004. In January 2008, the RO increased the evaluation for the Veteran's basal cell carcinoma of the nose from 30 to 50 percent and effectuated the award as of April 16, 2007. In April 2011, the AMC granted a temporary total evaluation for the Veteran's basal cell carcinoma of the nose under the provisions of 38 C.F.R. § 4.30 following an April 16, 2007 surgical procedure for the period from April 16, 2007 to May 31, 2007. In September 2012, the Board recharacterized the Veteran's service-connected skin disability as basal cell and squamous cell carcinoma scar residuals. III. Increased Evaluation Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). During the pendency of this appeal, the provisions of 38 C.F.R. § 4.118 applicable to malignant skin neoplasms including basal cell carcinoma and squamous cell carcinoma and associated scarring were amended. The amended regulation was effectuated as of October 23, 2008 and is applicable to claims filed on or after the effective date or where such application is requested by a veteran. The Veteran's claim for an increased evaluation was received in June 2007. He has not requested that his claim be considered under the amended regulation. Therefore, the Board will consider the Veteran's claim under the prior version of 38 C.F.R. § 4.118. Prior to October 23, 2008 and presently, malignant skin neoplasms other than malignant melanoma are to be evaluated as disfigurement of the head, face, or neck under Diagnostic Code 7800; scars under Diagnostic Codes 7801, 7802, 7803, 7804, and/or 7805; or based upon impairment of function. 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 evaluation 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, Diagnostic Code 7818. Disfigurement of the head, the face, or the 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 warrants assignment of a 30 percent evaluation. A 50 percent evaluation is warranted when there was visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; with four or five characteristics of disfigurement. An 80 percent disability evaluation is warranted when there was visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features, or; with six or more characteristics of disfigurement. The 8 characteristics of disfigurement for purposes of valuation under 38 C.F.R. § 4.118 are: a scar 5 or more inches (13 or more centimeters) in length; a scar at least one-quarter inch (0.6 centimeters) wide at widest part; surface contour of a scar elevated or depressed on palpation; a scar which is adherent to underlying tissue; skin hypo-or hyper-pigmented in an area exceeding six square inches (39 square centimeters); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters); underlying soft tissue missing in an area exceeding six square inches (39 square centimeters); and skin indurated and inflexible in an area exceeding six square inches (39 square centimeters). Tissue loss of the auricle is to be evaluated under 38 C.F.R. § 4.87, Diagnostic Code 6207. Unretouched color photographs should be considered when evaluating under these criteria. 38 C.F.R. § 4.118 Diagnostic Code 7800 (2008). Scars on other than the head, face, or neck which are either deep or cause limited motion involving an area or areas exceeding six square inches (39 square centimeters) warrant assignment of a 10 percent evaluation. A 20 percent evaluation requires involvement of an area or areas exceeding 12 square inches (77 square centimeters). A 30 percent evaluation requires involvement of an area or areas exceeding 72 square inches (465 square centimeters). A 40 percent evaluation requires involvement of an area or areas exceeding 144 square inches (929 square centimeters). A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2008). Scars on other than the head, face, or neck which are superficial; do not cause limited motion; and involve area or areas of 144 square inches (929 square centimeters) or greater warrant assignment of a 10 percent evaluation. A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2008). An unstable superficial scar warrants assignment of a 10 percent evaluation. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7803 (2008). A painful and superficial warrants assignment of a 10 percent evaluation. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2008). Other scars are to be rated based on limitation of function of affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2008). Deformity of either auricle with loss of one-third or more of the substance warrants assignment of a 10 percent evaluation. 38 C.F.R. § 4.87, Diagnostic Code 6207 (2012). Evaluations shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that 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) (2012). An October 2006 VA surgical report states that the Veteran underwent excision of a left upper back basal cell carcinoma. VA clinical documentation dated in January 2007 notes the Veteran's history of "excision of basal cell carcinomas, multiple, beginning in 1989 to current 10/06." On examination, the Veteran exhibited a shallow ulcer of the right frontal scalp and right ear lobe extending slightly onto the neck. An impression of "ulcers of right frontal scalp and right ear, [ruleout] basal cell carcinomas" was advanced. A March 2007 VA treatment record states that the Veteran was diagnosed with a superficial squamous cell carcinoma of the right forehead. An assessment of recurrent squamous cell carcinoma was advanced. Clinical documentation from Vanderbilt University Medical Center dated in April 2007 conveys that the Veteran underwent excision of the squamous cell carcinoma and an associated reconstructive skin graft. In his June 2007 claim for an increased evaluation for his skin disability, the Veteran advanced that he had undergone surgical excisions of multiple malignancies. He submitted color photographs showing large skin excision of the scalp and the neck region. In a July 2007 written statement, the Veteran related that he had lost his right ear lobe due to excision of a skin cancer; the affected area did not heal and bled at night; and his right nasal cancer excision residuals affected his ability to breath through his nose. At an August 2007 VA skin examination for compensation purposes, the examiner noted that: "the patient has an extensive history of excision of basal cell carcinoma about the face beginning in 11/89 and then again 08/01 when he had multiple basal cells excised;" "in 10/01, he had an excision of basal cell of the right temporal and right frontal area;" "in 07/02, basal cell carcinoma excised, right forehead;" "in 05/03, 06/03, and 08/03, again excision of basal cell carcinomas about the face;" and "over the last 2 years he has had basal cell lesions removed from his right ear lobe, right forehead, and left temporal area." The Veteran complained of right nostril area skin cancer excision residuals which interfered with his breathing at night. On examination, the Veteran exhibited a left temporal scar measuring three centimeters by three centimeters, a right forehead scar measuring six centimeters by six centimeters, a bilateral nasal scar measuring two centimeters by three centimeters, and a right ear lobe scar measuring two centimeters by two centimeters. The scars were noted to be depressed, tender to palpation, and adherent to underlying tissue. The scars were found to result in disfigurement of the forehead, nose, cheeks, and ears and darkening of skin involving an area measuring five centimeters by four centimeters. VA clinical documentation dated in November 2007 reflects that the Veteran was seen for "further management of [basal cell carcinoma] right nose and "basosquamous inf to right earlobe." His history of "mult[iple] NMSC and no melanoma" was noted. Contemporaneous shave biopsies were reported to convey findings consistent with right neck basosquamous carcinoma and right nose basal cell carcinoma. Assessments of recurrent basosquamous carcinoma and recurrent right nasal ala basal cell carcinoma were advanced. VA clinical documentation dated in February 2008 conveys that the Veteran underwent surgical excision and repair of the skin cancers. In a March 2008 written statement, the Veteran advanced that his skin cancers had worsened. He stated that he underwent further surgery in February 2008 at the Vanderbilt University Medical Center; could no longer wear his glasses; and his right nostril was "partially blocked due to the buildup of scar tissue." At a June 2008 VA skin examination for compensation purposes, the examiner notes the Veteran's history of basal cell carcinoma and squamous cell carcinoma with "10 lesions excised on active duty - [approximately] 30 excised since, - [approximately] 100 treated with liquid [nitrogen] [and he] has had wide resections [right] scalp, [right] nose], [right] shoulder." On examination, the examiner observed that the Veteran "has innumerable lesions, diffuse and extensive, face, scalp, neck, arms, chest, and back - virtually impossible to individualize, as many are coalesced." No systemic symptoms were identified. The Veteran was diagnosed with "severe sun damage skin, multiple solar keratoses, basal cell carcinomas, face, scalp, chest, neck back, ears." VA clinical documentation dated in July 2008 states that the Veteran underwent surgical excision of basal cell carcinomas of the right and left forehead at the hair line. In his July 2008 Appeal to the Board (VA Form 9), the Veteran indicated that he had "over 30 surgical operations;" his glasses caused irritation on his nose; and he underwent a July 2008 surgical excision of the skin cancer. VA clinical documentation dated in December 2008 states that the Veteran was diagnosed with basal cell carcinomas of the mid-forehead, left nose, right posterior earlobe, and the right flank by shave biopsy. VA clinical documentation dated in April 2009 relates that he underwent surgical excision and repair of the identified basal cell carcinomas. VA clinical documentation dated in June 2010 conveys that the Veteran underwent a nasal skin graft and repair of a forehead Mohs defect. VA clinical documentation dated in October 2010 and November 2010 states that the Veteran underwent surgical excision and repair of an ulcerated left supraorbital eyebrow basal cell carcinoma. VA clinical documentation dated in December 2010 notes that the Veteran underwent surgical excision and repair of left zygomatic cheek and left superior glabella nodular basal cell carcinomas. At an October 2011 VA skin examination for compensation purposes, the Veteran exhibited "too numerous to count scars of the head and the face with asymmetry of the forehead, ears, and nose;" "numerous areas of pigment loss, thin coverage, rough surface due to numerous surgeries in the same areas, and pigmentation changes;" a painful and unstable scar on the bridge of his nose with frequent loss of the covering of skin which interfered with his ability to wear his glasses; gross distortion and asymmetry with palpable tissue loss of the Veteran's nose, forehead, and ears; and loss of less than one third of the right auricle. The Veteran was diagnosed with "multiple scars, residuals of basal cell and squamous cell carcinomas." A February 2012 treatment record from R. Unkefer, M.D., states that the Veteran was found to exhibit additional facial lesions. Assessments of "right jaw line [ruleout basal cell carcinoma]" and "right ear [ruleout squamous cell carcinoma]" were advanced. Contemporaneous pathology studies revealed findings consistent with right jaw line basal cell carcinoma and right ear squamous cell carcinoma. The Board has reviewed the probative evidence of record including the Veteran's written statements on appeal. Prior to and after April 16, 2007, the Veteran's basal cell and squamous cell carcinoma scar residuals have been found to be manifested by "innumerable lesions, diffuse and extensive" involving the face, scalp, neck, arms, chest, and back with disfigurement of the forehead, nose, cheeks, and ears; no systemic symptoms; and a loss of less than one-third of the substance of the right auricle. Further, the Veteran has incurred an ever growing number of basal cell carcinomas and squamous cell carcinomas necessitating further excision and resulting in disfigurement. He has not been shown to manifest either symptoms involving more than the skin or loss of more than one-third of the substance of the right auricle. Such findings warrant assignment of an 80 percent evaluation under the provisions of 38 C.F.R. § 4.118, Diagnostic Code 7800 (2008) for all relevant periods. Hart v. Mansfield, 21 Vet. App. 505 (2007). This represents the maximum evaluation under Diagnostic Code 7800. The Court has directed that when entitlement to a total rating for compensation purposes based on individual unemployability (TDIU) is raised during the adjudicatory process of evaluating the underlying disability, it is part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). In considering application of Rice to the instant appeal, the Board observes that the Veteran has not advanced that his basal cell and squamous cell carcinoma scar residuals render him unemployable. Further, upon effectuation of the 80 percent evaluation awarded above, the Veteran will be in receipt of a combined 100 percent schedular evaluation for his service-connected disabilities and thus not eligible for an award of a TDIU under 38 C.F.R. § 4.16 (2012). IV. Extraschedular Consideration The Veteran's service-connected basal cell and squamous cell carcinoma scar residuals have been shown to necessitate an almost constant cycle of surgical excisions; associated extensive repairs; and significant impairment of daily activities such as wearing his glasses. The Court has clarified that there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular evaluation. Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular evaluation. Thun v. Peake, 22 Vet App. 111 (2008). The Board finds that the unusual or exceptional disability picture associated with the Veteran's "innumerable" basal cell and squamous cell carcinoma scar residuals renders the schedular criteria under 38 C.F.R. § 4.118, Diagnostic Code 7800 inadequate in the instant appeal. The Veteran's clinical records and written statements on appeal reflect significant ongoing surgical treatment including extensive excisions, biopsies and repairs and associated recovery. Accordingly, the Board concludes that the Veteran's basal cell and squamous cell carcinoma scar residuals present an exceptional disability picture which warrants referral to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. ORDER A schedular 80 percent evaluation for the Veteran's basal cell and squamous cell carcinoma scar residuals for the period prior to and after April 16, 2007 is granted subject to the criteria applicable to the payment of monetary benefits. Referral to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration of an evaluation in excess of 80 percent for the Veteran's basal cell and squamous cell carcinoma is warranted. REMAND The Board has concluded that referral to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration of assignment of extra-schedular evaluations under the provisions of 38 C.F.R. § 3.321(b)(1) (2012) is appropriate. Appropriate action should be undertaken to make the referral. Accordingly, the case is REMANDED for the following action: 1. Refer the Veteran's claim of entitlement to an evaluation in excess of 80 percent for his basal cell and squamous cell carcinoma scar residuals to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration of assignment of an extra-schedular evaluation under 38 C.F.R. § 3.321(b)(1) (2012). 2. Then readjudicate the Veteran's claim. If the benefits sought on appeal remain denied, the Veteran and his accredited representative should be provided a SSOC. An appropriate period of time should be allowed for response before the case is returned to the Board. 3. Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested. The Veteran has the right to submit additional evidence and argument on the matters 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 (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). ______________________________________________ J. T. HUTCHESON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs