Citation Nr: 1325382 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 03-04 878 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an initial disability rating in excess of 30 percent for basal cell carcinoma, including status-post excision scar residuals of basal cell carcinoma (hereinafter "basal cell carcinoma"). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. By that rating action, the RO, in pertinent part, awarded service connection for status-post excision of basal cell carcinoma; an initial noncompensable disability rating was assigned, effective May 28, 1998. The Veteran appealed the RO's original assignment of the noncompensable disability rating following the award of service connection for basal cell carcinoma. As such, the severity of the disability at issue is to be considered during the entire period from the initial assignment of a disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). By January 2003 and May 2011 rating decisions, the RO awarded 10 and 30 percent initial disability ratings for the service-connected basal cell carcinoma, respectively, effective May 28, 1998. As the Veteran is presumed to be seeking the maximum benefit allowed by law and regulation, and he actually maintains that a rating in excess of 30 percent is warranted, his claim remains in controversy as less than the maximum benefit available has been awarded. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran testified at a Central Office Board hearing in May 2004. A transcript of the hearing has been associated with his claims files. In September 2008, the Board informed the Veteran that the Veterans Law Judge who conducted the May 2004 hearing was no longer employed by the Board. The Veteran was offered an opportunity for another hearing, which he declined in November 2008. In December 2004, the Board remanded the Veteran's appeal for further development and adjudication. After the matter was returned to the Board, the Board denied the Veteran's claim in a January 2006 decision. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In May 2008, the Court issued a Memorandum Decision that vacated the January 2006 Board decision and remanded the claim to the Board for action consistent with its decision. When this case was most recently before the Board in May 2013, it was remanded for additional evidentiary development; it has since been returned to the Board for further appellate action. The Board notes that effective October 23, 2008, VA amended the Schedule for Rating Disabilities by revising that portion of the Schedule that addresses the Skin, so that it more clearly reflects VA's policies concerning the evaluation of scars. 67 Fed. Reg. 54708, 54712 (Sept. 23, 2008). Specifically, these amendments concern 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805. However, this amendment shall apply to all applications for benefits received by VA on or after October 23, 2008. As the Veteran filed his claim for benefits in May 1998, the amendments are not applicable to his appeal. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board remanded the Veteran's claim in May 2013 in order for the Veteran to be afforded a VA examination to determine the severity of his basal cell carcinoma). Pursuant to the Board's remand instructions, in conjunction with the examination, unretouched color photographs of the Veteran's condition were to be obtained, to the extent the basal cell carcinoma affected his head, face and neck, and associated with the claims file. The Veteran was provided a VA examination for his basal cell carcinoma in July 2013. The VA examiner noted that the Veteran had scars or disfigurement of the head, face, or neck. He also indicated that color photographs were provided. However, it is unclear as to whether photographs were provided by the Veteran, or whether updated photographs were taken by the VA examiner. In any event, a review of the claims folder, to include the Veteran's Virtual VA claims folder, demonstrates that no photographs were obtained pertaining to the Veteran's head, face, or neck in conjunction with the VA examination as instructed in the Board's May 2013 remand. As such, the Board finds that another remand is required for compliance with its May 2013 remand instructions. See Stegall v. West, 11 Vet. App. 268, 270 (1998) (holding that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand). Accordingly, the case is REMANDED for the following action: 1. Obtain unretouched color photographs of the Veteran's basal cell carcinoma condition in conjunction with the July 2013 VA examination, to the extent it affects his head, face and neck, and associate these photographs with the claims file. 2. Thereafter, the issue on appeal should be readjudicated. If the maximum benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate process. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).