Citation Nr: 1325507 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 09-44 016 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES 1. Entitlement to an initial compensable evaluation for scar residuals of skin cancer of areas other than the head, face, and neck, previously characterized as service-connected scars of the left shoulder and mid back, and linear scars head to toe. 2. Entitlement to an initial evaluation in excess of 10 percent prior to December 19, 2011, and in excess of 30 percent thereafter, for residuals of skin cancer of the head, face, and neck. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from August 1941 to March 1949. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) located in Philadelphia, Pennsylvania. Jurisdiction was subsequently transferred to the RO in Wilmington, Delaware. The September 2007 rating decision granted service connection for various scars as a residual of the Veteran's skin cancer and assigned noncompensable evaluations. The Veteran appealed the initial noncompensable ratings assigned and this appeal ensued. In November 2011, the Board remanded the matters for additional development. During the processing of the remand, an increased 10 percent evaluation for scars of the head, face and neck was granted effective October 5, 2008. A higher, 30 percent evaluation was assigned effective December 19, 2011. As these awards did not represent a full grant of the benefit sought, the issue remained on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The Board again considered the appeals in a January 2013 decision. At that time, the Board recharacterized the issues to group the claimed scar residuals differently, to better reflect the evidence of record and the applicable regulations. Scars of the left shoulder and mid back, and linear scars of right upper and left lower extremities, were determined to constitute a single disability for evaluation purposes. Other scars of the head, face, and neck, continued to be considered a separate disability entity, consistent with the Rating Schedule. 38 C.F.R. § 4.118. In a January 2013 decision, the Board then granted a rating of at least 10 percent for scars of the head, face, and neck for the period prior to October 5, 2008, and remanded for consideration of yet higher evaluations over the entirety of the appeals period to the RO, via the Appeals Management Center (AMC), in Washington, DC. Also remanded was consideration of the current evaluation for the scars of other than the head, face, and neck. These issues are the only matters currently on appeal. Entitlement to a 10 percent rating for multiple noncompensable service-connected disabilities under 38 C.F.R. § 3.324 was denied by the Board in January 2013. In the January 2013 decision, the Board granted entitlement to an initial evaluation of at least 10 percent for residual scars of the head face and neck prior to October 5, 2008. The Board expressly found that no decision was made or implied regarding entitlement to an evaluation in excess of 10 percent for that disability prior to December 19, 2011, or in excess of 30 percent since December 19, 2011. The Board declined to make such findings because there were outstanding VA treatment records covering the entire appellate period which were potentially relevant to the open evaluation questions. On remand, the AMC implemented the Board's grant of an increased 10 percent rating prior to October 5, 2008, and associated the absent records with the Veteran's electronic claims file, maintained as part of the Virtual VA system. The AMC then issued a supplemental statement of the case (SSOC). Unfortunately, the AMC misidentified the issues on appeal, addressing only the ratings prior to October 2008 and after December 2011. The Veteran's representative then used the issues identified by the AMC to submit argument to the Board. It is clear that the error by the AMC deprived the Veteran of a clear understanding of the issues remaining on appeal, and hence the opportunity to submit relevant evidence and argument and participate fully in the adjudication. Due process therefore required that the claims be remanded for such opportunity. See, e.g., Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). To avoid any further confusion, the issues were recharacterized as above to reflect the periods and evaluations on appeal. In a May 2013 remand, the Board determined that additional development was necessary to ensure due process. The Veteran requested a Board hearing before a Veterans Law Judge in November 2009, to be held via videoconference from the RO. A hearing was scheduled, but the Veteran failed to report for the hearing. Although he indicated in January 2012 correspondence that he may have had good cause for such, based on nonreceipt of the notice, he at other times stated he was aware of the hearing, but was unable to travel to the RO for such. In January 2012, the Veteran asked the Board to hurry with his claim due to his age; he did not request rescheduling. His hearing request, based on the failure to appear without a clear showing of good cause or any request to reschedule, and in combination with his statement regarding his inability to travel, is considered withdrawn. 38 C.F.R. § 20.704. Finally, it is noted that a TDIU is a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2012) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this case the Veteran has never asserted, or even suggested that his skin cancer residuals affected his employment before his retirement or that he is currently unable to obtain or maintain employment due to his service-connected disabilities. Inasmuch as there is no evidence of unemployability, TDIU is not raised by the record. 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. Since the effective date of service connection, the Veteran's scars and other residuals of skin cancer of the head, face, and neck (including the ear), have been manifested by visible or palpable tissue loss and asymmetry of up to two sets of features with 4 characteristics of disfigurement. 2. Neither asymmetry of three features or paired sets of features, nor six or more characteristics of disfigurement have been shown. 3. In addition to scars of the head, face, and neck, the Veteran's residuals of in-service radiation exposure have included ongoing removal of skin cancers and numerous dark colored pre-cancerous actinic keratoses on the face, head, neck, left ear, both upper extremities and back all of which have necessitated biopsies, surgical removal and/or removal by liquid nitrogen, more nearly approximating an overall disability picture of intermittent systemic therapy required for a total duration of less than six weeks during any one-year period. 4. The scars of the back or upper extremities are not shown to be deep, unstable, painful or cause limitation of function, and the total area of these scars does not meet or excess an area of 144 square inches. CONCLUSIONS OF LAW 1. The criteria for the assignment of a 50 percent rating, and no higher, for the service-connected residuals of skin cancer residuals of the head, face, and neck have been met since the effective date of service connection. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321 , 4.1, 4.2, 4.7 (2012); 38 C.F.R. § 4.118 , Diagnostic Code 7800, 7818 (2008 &2012). 2. The criteria for the assignment of a separate 10 percent disability rating based on ongoing treatment for skin cancer has been more nearly approximated. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321 , 4.1, 4.2, 4.7, 4.20 (2012); 38 C.F.R. § 4.118 , Diagnostic Code 7806, 7818 (2008 & 2012). 3. The criteria for the assignment of a compensable rating for the service-connected scars as a residual of skin cancer of the back and upper extremities have not been met at any time during the period covered by this claim. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.20 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7801-7805 (2008 & 2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012) and 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 evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1) , proper notice 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. VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the underlying claim of service connection for residuals of skin cancer was initially adjudicated in 1999, before VA's current law and regulations governing VA's duty to notify and assist the Veteran became effective. Thus it would have been impossible to provide the Veteran with an adequate pre-rating letter regarding the underlying service connection issue. The RO denied the claim and the Veteran appealed to the Board. In an October 2001 decision, the Board denied the claim. In December 2003 Order, the Court vacated the Board's October 2001 decision and remanded the matter for further development. The Board remanded the claim in June 2004. Subsequent to this remand, the RO issued a duty-to-assist letter to the Veteran in June 2004. Because the Board's October 2001 decision was vacated, and the underlying issue of service connection for residuals of skin cancer was pending at the RO for adjudication in the first instance, the June 2004 letter to the Veteran is adequate pre-adjudicatory notice of the underlying service connection claim. The letter provided notice of the information and evidence needed to substantiate a claim for service connection for residuals of skin cancer. This notification would also apply to the "downstream" issue of entitlement to a higher initial rating. The United States Court of Appeals for Veterans Claims (Court) has held that once service connection is granted, the claim is substantiated. In such instances, additional notice regarding VA's duty to notify and assist the Veteran is not required and any defect in the notice is not deemed prejudicial to the Veteran. Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007); Dingess, 19 Vet. App. at 491. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. Moreover, after service connection was granted, the RO sent additional notice letters to the Veteran, including a March 2011 letter and a May 2013 letter. These notices specifically addressed the assignment of disability ratings and effective dates for all grants of service connection. In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims. His service treatment records, claims submissions, and identified VA treatment records have been obtained and associated with the record. VA dermatology examinations were afforded to the Veteran in April 2007, April 2011, December 2011, February 2013, and June 2013 and VA has not received any additional evidence since that time which indicates that the Veteran's condition has changed such as to warrant the scheduling of a new VA examination to reassess the symptoms and severity of the skin cancer residuals. Hence, these examinations along with the other evidence of record, provide a fully adequate basis for determining the extent of the Veteran's disability in light of the applicable diagnostic criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Finally, the RO complied with the directives in the May 2013 remand by correcting the issue(s) on appeal, affording the Veteran another adequate VA examination, and addressing additional evidence in a June 2013 Supplemental Statement of the Case (SSOC). The May 2013 examination was adequate because it was based on a review of the entire record, a physical examination of the Veteran, the Veteran's credible reported history, and sound medical principles. As the agency of original jurisdiction (AOJ) complied with the May 2013 remand orders, no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Significantly, the Veteran has consistently maintained that he should be compensated for additional skin cancer residuals/residuals of radiation exposure in addition to the compensation for his residual scarring. The Veteran's assertions are fully addressed in this decision. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. II. Disability ratings - Residuals of Skin Cancer Due to Radiation Exposure The issue(s) before the Board are (1) entitlement to an initial compensable disability rating for scar residuals of skin cancer of the areas other than the head, face, and neck, previously characterized as scars of the left shoulder and mid back, and linear scars head to toe; and, (2) entitlement to an initial disability rating in excess of 10 percent prior to December 19, 2011 and in excess of 30 percent thereafter, for residuals of skin cancer of the head, face, and neck. In his claim for higher ratings, the Veteran maintains that, in addition to residual scarring, he should also be compensated for other residuals of radiation exposure/skin cancer, including the ongoing skin cancer and removal of these cells, as well as the pre-cancerous cell removals which have been, and continue to be, numerous in number. In several statements the Veteran has indicated that his friends used to tease him about his appearance and told him he had Aides. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155 ; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate when the factual findings show distinct time periods during which the service-connected disability exhibits symptoms that would warrant the assignment of different disability ratings for each distinct period. Additionally, in all increased rating cases, it is appropriate to consider whether separate ratings should be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 . Associated with the claims file are VA treatment records through December 2012. These include multiple descriptions of the lesions, scars, and other characteristics of the skin of the head, face and neck of the Veteran. They refer to scaly coverings, papules, dark spots, waxy brown papules and plaques, and possible tenderness of individual lesions. Several sets of photographs are consistent with these findings and provide objective finding of disfigurement of the head, face, neck (including the ear). The records also show that the Veteran's pre-cancer keratosis and skin cancer are recurring and require excisions from time to time. At last report, the Veteran has had over 250 pre-cancerous cells removed from the head, face, neck, arms and back. The Rating Schedule provides that such findings warrant assignment of a separate compensable evaluation to compensate the Veteran for disability other than scars. The pertinent criteria for evaluating skin disabilities is found in 38 C.F.R. § 4.118 of the Rating Schedule. During the pendency of the claim, the rating criteria for evaluating skin disabilities, specifically scars, were amended effective October 23, 2008. This amendment only applies to all applications for benefits received by VA on or after October 23, 2008, unless the appellant specifically requests consideration under the new criteria. 73 Fed. Reg. 54,708 (Sept. 23, 2008) (revising 38 C.F.R. § 4.118, Diagnostic Codes 7800-05). As the Veteran filed his claim for benefits long before the October 2008 amendments, the amendments would not ordinarily be applicable to the instant appeal because there is no evidence that he has specifically requested review under the new regulations. Nevertheless, in this case the RO has already considered both the old and revised criteria (see, e.g., October 2009 SSOC) and as such, the Board will likewise do so to avoid any potential prejudicial error. The Veteran is entitled to the most favorable of the versions of a regulation that was revised during his appeal, but rating criteria cannot be applied prior to their effective date. Kuzma v. Principi, 341 F.3d 1327 (2003). Therefore, the prior version of the applicable diagnostic codes at 38 C.F.R. § 4.118 will be applied to the period on or after the effective date of the new regulation, and the amended version will be applied as of its effective date, to determine which is more advantageous to the Veteran. Under Diagnostic Code 7818, malignant skin neoplasms (other than malignant melanoma) are rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or rated on impairment of function. A Note to Code 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, 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 7800 for the evaluation of disfigurement of the head, face or neck provides that a 10 percent disability rating is assigned when there is one characteristic of disfigurement. A 30 percent disability rating is warranted when there is 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. A 50 percent rating for disfigurement of the head, face, or neck under Diagnostic Code 7800 requires 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. An 80 percent rating for disfigurement of the head, face, or neck under Diagnostic Code 7800 (the highest assignable rating under this code) requires 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. The eight characteristics of disfigurement, as listed in Note 1 of Diagnostic Code 7800, are the following: (1) scar five or more inches (13 or more cm.) in length; (2) scar at least one-quarter inch (0.6 cm.) wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq cm.); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq cm.); (7) underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and (8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Changes under the revised criteria, effective from October 23, 2008, include changes to Diagnostic Code 7800. The revised Diagnostic Code 7800 is the same with regard to the characteristics of disfigurement and the criteria for the assignment of the particular rating under that code, but it specifically included burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. The addition of Note (4) provides that disabling effects other than disfigurement that are associated with individual scar(s) of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, should be separately evaluated under the appropriate diagnostic code(s) and apply 38 C.F.R. § 4.25 to combine the evaluation(s) with the evaluation assigned under this diagnostic code. The addition of Note (5) provides that the characteristic(s) of disfigurement may be caused by one scar or by multiple scars; the characteristic(s) required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation. 38 C.F.R. § 4.118, Diagnostic Code 7800 (2012). Under Diagnostic Code 7801, for scars, other than head, face, or neck, that are deep or that cause limited motion, a 10 percent rating is assigned for such scars that cover an area or areas exceeding 6 square inches (39 sq. cm.), a 20 percent rating is assigned for such scars that cover an area or areas exceeding 12 square inches (77 square centimeters), a 30 percent rating is assigned for such scars that cover an area or areas exceeding 72 square inches (465 square centimeters), and a 40 percent rating is assigned for such scars that cover an area or areas exceeding 144 square inches (929 square centimeters). Note (1): Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, were to be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (2): A deep scar is one associated with underlying soft tissue damage. The October 2008 revisions to Diagnostic Code 7801 clarifies that these scars other than the head, face or neck should include burn scars and/or scars due to other causes that are deep and nonlinear. Also, the revisions replace the word "exceeding" with "at least." In essence, the revised criteria under Diagnostic Code 7801 scars other than the head face or neck that are deep and nonlinear are assigned a 10 percent rating for an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.), a 20 percent rating for an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.), and a 30 percent rating for an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.). Under the pre October 2008 version of Diagnostic Code 7802, scars, other than head, face, or neck, that were superficial or that did not cause limited motion with an area or areas of 144 square inches (929 square centimeters) or greater are assigned a 10 percent rating. The 2008 revisions to Diagnostic Code 7802 included adding burn scars, and eliminating "or that did not cause limited motion" and replacing that phrase with "and nonlinear." For both Diagnostic Codes 7801 and 7802, in addition to the above changes, the old Note (1) was replaced with Note (2) as follows: 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 § 4.25. Qualifying scars are scars that are nonlinear, deep, and are not located on the head, face, or neck. Finally, under the amended versions of Diagnostic Codes 7801 and 7802, the old Note (2) became Note (1): A deep scar is one associated with underlying soft tissue damage. Under the pre-October 2008 regulations, Diagnostic Code 7803, superficial, unstable scars are assigned a 10 percent rating. Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2): A superficial scar is one not associated with underlying soft tissue damage. The revised, October 2008 criteria eliminated Diagnostic Code 7803. Under the pre-2008 Diagnostic Code 7804, superficial scars that were painful on examination are assigned a 10 percent rating. Under the revised version of Diagnostic Code 7804, scar(s) that are unstable or painful are assigned a 10 percent rating for one or two scars that are unstable or painful, a 20 percent rating for three or four scars that are unstable or painful, and a 30 percent rating for five or more scars that are unstable or painful. Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2): 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): Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. Under the pre-October 2008 Diagnostic Code 7805, other scars are rated based upon limitation of function of the affected part. Under the revised, October 2008 version of Diagnostic Code 7805, for other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804, any disabling effects not considered in a rating provided under Diagnostic Codes 7800-7804 are to be evaluated under an appropriate diagnostic code. Under both the pre-and post-October 2008 criteria, Diagnostic Code 7806, dermatitis or eczema that affects at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of the exposed areas, or that requires intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than 6 weeks during the past 12-month period is assigned a 10 percent rating. Dermatitis or eczema that affects 20 to 40 percent of the entire body or 20 to 40 percent of the exposed areas, or that requires systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of 6 weeks or more, but not constantly, during the past 12-month period, is assigned a 30 percent rating. Dermatitis or eczema that affects more than 40 percent of the entire body or more than 40 percent of the exposed areas, or that requires constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period is assigned a 60 percent rating. Or, rated as disfigurement of the head, face or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. A review of the claims file reveals biopsy reports from December 1985, February 1987 and September 1992 showing basal cell carcinoma left shoulder, adenoid squamous cell carcinoma of the back, and squamous cell carcinoma of the left ear, respectively. In letters dated in June 1993 and March 1995, Dr. Schmelzer indicated that the Veteran had been under his Dermatologic care since September 1980. Dr. Schmelzer reported that he treated the Veteran for multiple skin cancers during this period, and removed multiple pre-cancerous (Actinic Keratoses) lesions over the years. VA outpatient treatment records dating back to the effective date of service connection in 2003 show ongoing treatment for removal of skin cancer cells and pre-cancerous cells. In November 2003, for example, a dermatology outpatient note indicates that the Veteran had keratoic dark brown papules on his scalp, back, chest; and, keratotic pink papules on the arms, bilateral ears, and temple. On an outpatient record from June 2004, a physical examination of the Veteran's face revealed red plaque and pearly edge on the nose, and multiple small cutaneous horns on the cheeks. In November 2004, the nose was clear but there were numerous waxy tan and brown papules on the face, neck, upper chest and back, with scaly pink macules on the temple and forehead cutaneous horn measuring 1 cm x 7 cm on the left lateral neck 4.5 cm from the angle of the mandible, with irritated waxy pupule of the left vertex. In May 2005, the Veteran was seen with a skin lesion of the left neck that was biopsied. Actinic keratosis with moderate-severe acute and chronic inflammation and reactive changes were noted. The Veteran complained of rough spots on his head. Physical examination revealed keratotic papules of the scalp, cheek, and neck, with brown waxy plaques scalp and trunk. In November 2005, the Veteran presented with many waxy brown papules and plaques on his truck, face, and neck. There were also a few cherry red papules on the trunk; light brown macules on the scalp, arms and hands; and, a few scaly papules on the dorsal hands and face. Physical examination in May 2006 revealed similar findings. The Veteran's skin has been examined at five VA Compensation & Pension examinations since the effective date of service connection. The examinations were held in April 2007, April 2011, December 2011, February 2013, and June 2013. In April 2007, the examiner observed scars of the left upper extremity, left post auricular area and posterior mid back. All scars were hypopigmented and all scars were 3/4 inches wide. No other characteristics of disfigurement were noted with respect to these scars. However, the examiner indicated that there had been an increase in the Veteran's skin cancers, and also noted that the Veteran also had actinic keratitis, cherry angiomas, and solar lentigos. A VA treatment record from February 2010 shows that squamous cell carcinoma of the left neck was removed. At the April 2011 VA examination, the examiner noted multiple scattered small erythematous scaling papules, lesions over the left shoulder, mid back and left post auricular area. In addition, the examiner reported actinic keratitis lesions over the forehead and the temples, over the dorsal forearms and over the external ears. The skin lesions were raised and non-tender, measuring up to 2.0 inches x 1.0 inches. The examiner opined that 2 percent of exposed skin was involved and 4 percent of the total body skin was involved. The diagnosis was skin cancer, left shoulder, mid back and left post auricular area. In April 2011, the Veteran submitted photographs of his back, neck and face. These photographs clearly demonstrate several pigmented and raised asymmetric areas covering the right side of the neck, the back, the right ear and the temples. A December 2011 VA examination report indicates that since the initial 3 cancers from 1985 through 1992, the Veteran has had the following additional cancers removed from the VAMC at Wilmington: 1. September 1994: right arm, basal cell, excited in October 1994. 2. March 1995: left posterior shoulder basal cell 3. May 2000: right ear squamous cell 4. June 2009: left neck squamous cell 5. November 2009: left neck squamous cell 6. November 2009: left inner tragus basal cell The examiner also specifically indicated that aside from the above documented skin cancers, the Veteran has had numerous actinic keratoses which have been treated with shave removals and cryosurgery. The report indicates that the Veteran's most recent biopsy was in December 2011. Physical examination revealed hypopigmented scars at the mid back, left post auricular skin, left pre-tragal skin, and multiple hypopigmented macules to the scalp, face, shoulders, arms, and neck at sites of previous actinic keratoses. Other scars of the right arm, left posterior shoulder and right posterior auricle were all at least 3/4 inches wide. The right posterior auricle scar was spread pink. Two separate left neck scars were both depigmented and slightly elevated. Scaly papules on the vertex of the scalp. There was also a right posterior neck scar with healing pink macule at the site of a previously biopsied lesion from December 2011. The left malar check had a hyperkeratotic papule with hemorrhagic crust. In sum, the examiner found that 8 of the scars were due to treatment of multiple skin cancers. One scar was discolored due to cryotherapy of actinic keratosis. The Veteran had active actinic keratoses with future cryotherapy planned. One of the sites was status post biopsy, and early basal cell cancer was noted on the left cheek. There was no functional impact of the scars themselves, except for a left tragus scar which he says makes an "odd, gritty noise" upon movement. Additional photographs received in January 2012 continue to objectively demonstrate the extent of the Veteran's recurring lesions, the discoloration of his skin on the face, shoulders, neck and head. The photographs of the Veteran's face and neck show numerous papules, ranging in color from light pink to dark brown. The Veteran's left cheek shows a larger area of discoloration and indentation, resulting in a definite asymmetry of the cheeks. The same is shown with the ears. The left ear is uneven, bumpy compared to the right, and the two are symmetric. In an October 2012 statement, the Veteran reported that his last surgery for removal of lesions was in June 2012 and involved the area of the left shoulder, neck and face, around the corner of the left eye. The Veteran also indicated that he has had over 250 keratosis removed by liquid nitrogen (cryotherapy). A February 2013 VA examination indicated that the percentage of the whole body lesions was 4 percent, and the percentage of the exposed body lesions was 2 percent. The examiner noted a review of the December 2011 photographs and the December 2012 examination report, and indicated that using the "Lund and Browder Chart, the front and the entire head and neck is rated as 9 percent. The scattered lesions over the scalp, face and neck represent 2 percent involvement; the scattered lesions over the left shoulder and mid back represent 2 percent. Additional photographs obtained in June 2013 showed magnified views of the left ear, neck, face, and forehead. The photographs are consistent with those previously taken. VA examination in June 2013 indicates that the none of the Veteran's scars of the trunk and extremities are painful. None of these scars of unstable or deep, and, when considered together, the superficial and any non-linear scars do not cover an area of 144 square inches. With regard to the scars of the head, face, and neck, the examiner indicated that they were all hypopigmented. According to the examiner, the total area of hypopigmentation of the face was 4.16 cm In summary, the evidence of record in this case, dating back to 2003 shows that the Veteran has had 4 characteristics of disfigurement at most times during the period covered by this claim. The VA examinations of record indicate that the Veteran's residuals of radiation exposure include skin cancers and numerous actinic keratoses that have produced hypopigmentation of the skin. Although the examiner in June 2013 indicated that the Veteran's hypopigmented scars of the head face and neck only covered an area of 4.16 cm, it is clear from the photographs that when the other discolored markings on the face are included in that measurement, the hypo and/or hyperpigmentation of the head, face and neck covers an area of at least 6 square inches. This is one characteristic of disfigurement. The examination reports indicate that the Veteran has scars that are at least 3/4 inches wide at the widest part. This is a second characteristic of disfigurement. The photographs reveal that the Veteran has papules, the contour of which are elevated. This is another characteristic of disfigurement. Finally, the outpatient records and photographs also show that the Veteran has abnormal skin texture from scaly patches on his head, which is the fourth characteristic of disfigurement. All four of these characteristics of disfigurement have been shown on various parts of the head, face, and neck; and this is also shown in the photographs, and have been described by examiners throughout the appeal period. Note 5 under the revised criteria of Diagnostic Code 7800 clarifies that the characteristics of disfigurement can come from different scars in the same area. Thus, it follows that the Veteran has four characteristics of disfigurement. Significantly, Note 5 is construed as a clarification to the old criteria, and not a revision of the old criteria. Thus, application of this standard is warranted throughout the appeal period. In addition to the four characteristics of disfigurement, the Veteran's cheeks and ears are asymmetric as a result of removal of cancer on the left cheek and left ear. See January 2012 photographs. Furthermore, the record shows that the above characteristics of disfigurement have likely been consistent throughout the appeal period because as one cancer or pre-cancerous cell is removed, another cancer cell or pre-cancerous cell grows on another area of the head, face and neck. The Veteran has reported that he has had over 250 actinic keratoses removed, and there is no reason to doubt the Veteran's credibility in this regard. His statements have been consistent with what is shown in the photographs and outpatient treatment reports and VA examinations. Resolving any doubt in the Veteran's favor, there have been four characteristics of disfigurement on the head, face, and neck for the entire appeal period; thus, the criteria for the assignment of a 50 percent rating under either the old, or October 2008 revised criteria have been met pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7800. This part of the rating criteria and the characteristics of disfigurement are the same before and after the October 2008 revision, and therefore a rating under the revised criteria remains the same. A rating in excess of 50 percent is not for assignment because at no time during the appeal period have more than 4 characteristics been demonstrated at any given time, and there is asymmetry of no more than 2 features or sets of paired features. None of the scars or other residuals of the head, face, and neck have been noted to be 5 or more inches in length or adherent to the underlying tissue. The underlying soft tissue is not missing in an area exceeding 6 square inches, and the skin is not indurated or inflexible in an area exceeding 6 square inches. Furthermore, asymmetry of three or more features or paired sets of features has never been demonstrated. As such, a compensable rating is not assignable under Diagnostic Codes 7800. With regard to the scars other than the head, face, and neck, the criteria for a compensable rating is not met. At no time during the period covered by this claim, have any of the scars been painful, deep, unstable; and none of these scars cause limited motion. Similarly, none of the scars other than the head, face, or neck are otherwise disabling. Thus, based on the pre-October 2008 criteria, and the revised criteria a compensable rating is not warranted under Diagnostic Codes 7801-7805. The above 50 percent rating for the head, face, and neck, this rating reflects the overall disability picture with regard to disfigurement; however, the Veteran's ongoing therapy to remove the continued cancer cells and pre-cancerous cells is not taken into covered under Diagnostic Code 7800. Yet, the record shows that the Veteran has had over 250 keratoses removed, and at least 7 malignant cancers removed over the course of the appeal, and there is no indication that it will cease in the future. The process of removal has either been excision or through cryotherapy. Because this type of therapy and/or treatment has been shown at various times throughout the appeal period, it is considered chronic, and be separately rated. In other words, the actual skin cancers and removal is a separate condition than the residual scarring therefrom. Because there is no diagnostic code that specifically rates this type of disability on an ongoing basis, and because the ongoing nature of the disability causes additional functional impairment, the disability can be rated under a closely related disease. See 38 C.F.R. § 4.20. The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Here, the effects of the Veteran's ongoing cryotherapy and excisions and of the head, face, and neck are similar to the effects described in the criteria for dermatitis or eczema under 38 C.F.R. § 4.118, Diagnostic Code 7806. That criteria specifically rates based on the size of the affected areas, or, it is based on the amount of systemic therapy that is required in a 12-month period. According to the criteria, a 10 percent rating is assigned under Diagnostic Code 7806 where the affected area is at least 5 percent, but less than 20 percent of the entire body, or at least 5 percent, but less than 20 percent of exposed areas; or. If intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration for less than six weeks during any one year period. In this case, the record reflects that the Veteran requires intermittent systemic therapy, in the form of cryotherapy and/or excision removal; however, it does not show that this is required for more than 6 weeks in any given year. In other words, the record does not show that the Veteran undergoes cryotherapy and/or excision for removal of skin cancer and/or pre-cancerous cells more than 6 weeks out of a year. Thus, a separate 10 percent rating, but no higher, is warranted by analogy to dermatitis or eczema on the basis of treatment, which, again, is not provided for under Diagnostic Code 7800. A higher rating under this code is not for application because the evidence does not reflect that 20 percent or more of the Veteran's body or exposed area is affected by the treatment, and treatment for removal is not shown for at least 6 weeks in any 12-month period. There is no other diagnostic code pertaining to the skin that is more closely analogous. As such, a separate 10 percent, but no higher, for systemic therapy in the form of cryotherapy and/or excision is warranted, pursuant to Diagnostic Code 7806. The Board has also considered whether the record raises the matter of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). 38 C.F.R. § 3.321(b)(1) applies when the rating schedule is inadequate to compensate for the average impairment of earning capacity for a particular disability. 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. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Here, the rating criteria, including the analogous rating under Diagnostic Code 7806 reasonably describe the Veteran's disability level and symptomatology. Specifically, the Veteran's symptoms are disfigurement of the head, face, and neck, and ongoing systemic therapy for recurring skin cancers and pre-cancerous lesions. These are specifically contemplated by the schedule. Thus, the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. ORDER An initial 50 percent disability rating, but no higher, is warranted for the entire period covered by this claim for service-connected scars and other skin cancer residuals of the head, face, and neck, subject to the laws and regulations governing the payment of monetary benefits. A compensable rating for residuals of skin cancer other than the head, face, and neck is denied. A separate 10 percent rating is granted for the systemic cryotherapy and excision treatment of skin cancer, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs