Citation Nr: 1328532 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 95-29 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial compensable evaluation for a skin condition, residuals of radiation, to include whether a separate compensable evaluation is assignable for skin cancer. 2. Entitlement to an initial evaluation in excess of 10 percent for gastroesophageal reflux disease. 3. Entitlement to service connection for a respiratory disorder, claimed as breathing problems, to include as secondary to exposure to ionizing radiation. ATTORNEY FOR THE BOARD David S. Ames INTRODUCTION The Veteran served on active duty from August 1948 to September 1952. This case originally came before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied, inter alia, service connection for breathing problems. Also on appeal are a June 2009 RO rating decision that granted service connection for a skin condition, residuals of radiation, and assigned a noncompensable rating effective from November 17, 1993, as well as a September 2010 RO rating decision that granted service connection for gastroesophageal reflux disease (GERD), and assigned a 10 percent rating effective from November 10, 1998. In September 2009, September 2011, and April 2012 the Board remanded the issue of service connection for a respiratory disorder to the RO for additional evidentiary development. The issue of entitlement to an initial compensable evaluation for a skin condition was also remanded by the Board in April 2012 for additional development. In April 2013 and May 2013, the Board received statements on overlapping issues from the American Legion and from a private attorney, both of whom claimed to represent the Veteran. However, only one service organization, attorney, or agent may represent the Veteran at any one time on the same appeal. 38 C.F.R. § 14.631(e)(1) (2012). As a result, in May 2013, the Board sent the Veteran a letter requesting that he clarify his representation. The letter stated that if the Board did not receive a response from the Veteran within 30 days, it would be assumed that he wished to represent himself and proceed with a review of the appeal. In this case, there is no evidence that the Veteran has ever responded to the May 2013 letter, let alone within 30 days. As such, the Board currently considers the Veteran to be unrepresented for the purposes of the claims on appeal. In this case, VA medical records have been added to the Veteran's electronic Virtual VA folder. Because the current appeal includes records that are located only in the Virtual VA system, any future consideration of this Veteran's case should take into consideration the existence of this electronic 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). The issues of entitlement to an initial evaluation in excess of 10 percent for GERD and entitlement to service connection for a respiratory disorder, claimed as breathing problems, to include as secondary to exposure to ionizing radiation, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The medical evidence of record shows that, throughout the entire period on appeal, the Veteran's service-connected skin conditions (the residuals of exposure to radiation, to include squamous cell carcinoma) have been manifested by scars, symptoms which affected less than five percent of the entire body and exposed areas, and have required topical therapy. CONCLUSION OF LAW The criteria for a compensable rating for a skin condition (the residuals of exposure to radiation, to include squamous cell carcinoma) have not been met. 38 U.S.C.A. § 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7819 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claim decided herein with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the Veteran, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter dated in June 2008, prior to the rating decision which granted service connection for a skin condition. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the adjudication in the supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board notes that the Veteran's respiratory disorder claim is being remanded below to make an attempt to obtain additional records. However, the records identified have been specifically reported to be related to the Veteran's respiratory disorder claim and there is no evidence of record that they contain any information relevant to his skin disorder claim. Specifically, the records in question would be related to a possible claim the Veteran filed for Black Lung compensation related to coal mining work. The Veteran has never claimed that he submitted any records related to his skin disorder in conjunction with these claims for Black Lung compensation, nor does the record otherwise indicate that any such information might be contained in any such records that still exist. In addition, in an October 1999 private medical report, the Veteran reported that he had filed his claims for Black Lung benefits in 1983 and 1995. Accordingly, even if relevant medical records were obtained from this source they would only provide evidence regarding the state of the Veteran's skin disorder up until 1995, at most. As the Veteran's skin disorder claim encompasses an effective date beginning November 17, 1993, records which end in 1995 would not be relevant to 18 of the 20 year period on appeal. In addition, the evidence of record already includes medical reports dated in the period from November 17, 1993, through the end of 1995, including specific dermatology reports. As such, the medical evidence of record already documents the state of the Veteran's skin disorder from November 17, 1993, through the end of 1995. Accordingly, none of the identified records discussed in the remand section below are relevant to the skin disorder claim being decided herein. The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the Veteran of any evidence that could not be obtained. The Veteran has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claim. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Veteran's skin condition claim was remanded by the Board in April 2012. That remand included four separate actions that were relevant to the Veteran's skin condition claim. Those were that attempts were to be made to obtain additional VA, private, and Social Security Administration (SSA) records, and the Veteran was to be provided with an additional VA medical examination. In accordance with the remand instructions, additional attempts were made to obtain VA and private medical records. After making an attempt to obtain SSA records, VA determined that the records were unavailable for review. The evidence shows that the Veteran was notified that the records could not be obtained in August 2012. Finally, the Veteran was provided with VA medical examinations in August 2012 which addressed the pertinent points required by the Board. Accordingly, the Board finds that there has been substantial compliance with the Board's April 2012 remand. D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999). 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, all of the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The Veteran's claims file is voluminous and a discussion of each piece of relevant evidence would be impractical. The analysis below focuses on the most salient and relevant evidence and on what the evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked any evidence that is not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board is aware that it cannot reject evidence favorable to the Veteran without discussing the evidence. Daves v. Nicholson, 21 Vet. App. 46 (2007). The Board will discuss favorable evidence individually when a discussion is required to properly weigh that evidence. However, to the extent that the multiple pieces of evidence address the same argument or advance the same evidentiary point, the Board will discuss that argument or the evidentiary point itself rather than the specific documents which advance them. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2012). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). The appeal of the Veteran's skin disorder claim is based on the assignment of an initial evaluation following an initial award of service connection for skin condition, residuals of radiation. As such, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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. Id. Service connection for skin condition, residuals of radiation was granted by a June 2009 rating decision and a 0 percent rating was assigned under 38 C.F.R. § 4.118, Diagnostic Code 7899-7819, effective November 17, 1993. In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. Unlisted disabilities requiring rating by analogy will be coded by the numbers of the most closely related body part and "99". 38 C.F.R. § 4.27 (2012). The hyphenated diagnostic code in this case indicates that an unlisted skin disorder, under Diagnostic Code 7899, was the service-connected disorder, and benign skin neoplasms, under Diagnostic Code 7819, was a residual condition. The Board notes that the Veteran's claim was remanded in April 2012, in part, to obtain an opinion as to whether the Veteran's skin cancer was also related to his presumed in-service exposure to radiation. The Veteran was subsequently provided with relevant VA examinations in August 2012. In an August 2012 VA skin disorders examination report, the examiner opined that the Veteran's skin cancer, diagnosed as squamous cell carcinoma, was at least as likely as not related to the Veteran's service. As such, except as discussed below, the Board shall consider all of the Veteran's skin symptoms when determining the proper rating to be assigned throughout the entire period on appeal, to include whether separate compensable ratings are warranted. A June 1992 VA medical report stated that, on observation, the Veteran had a raised lesion on his scalp which was consistent with skin cancer and/or actinic keratosis. In a February 1994 VA dermatology clinic report, the Veteran complained of having thick skin on his elbows, knees, and knuckles for many years, as well as scaling in his scalp and eyebrows. On physical examination, there was greasy, scaly, erythematous areas around the eyebrows, on both sides of the nose, on both sides of the chin, on both elbows, on both knees, and on the dorsal aspect of the second through fifth metacarpophalangeal joints, bilaterally. There was also thickening of the skin with slight scaling at the left elbow without nail changes. The impression stated that the Veteran's hands looked more like knuckle pads, and the examiner doubted the presence of psoriasis. The Veteran was prescribed a topical ointment. A March 1995 VA biopsy report stated that the Veteran had a pre-operative diagnosis of possible knuckle pads versus acanthosis nigricans versus questionable psoriasis. After examination of a specimen from the Veteran's right elbow, the diagnosis was possible acanthosis nigricans. An April 1998 VA outpatient medical report stated the Veteran used topical creams. The Veteran reported that he had been prescribed several creams for dermatology problems, but was presently out of medication and had experienced a recurrence of a rash on his arms and buttocks. On examination of the Veteran's skin, there were hyperpigmented and dried skin lesions on his buttocks, elbows, and the palms of his hands. He also had a "2 x 2" soft nontender, fatty mass on the left side of his abdomen as well. The relevant impression was history of dermatitis. The Veteran's medications were renewed. In a July 1998 VA outpatient medical report, the Veteran complained of a tender skin tag. On physical examination, there was a skin tag on the right axilla with surrounding erythema and an exudate. The Veteran also had a scaly palmer rash. The relevant assessments were infected skin tag and dermatosis. In a May 1999 hearing at the RO, the Veteran reported that his skin condition was treated with creams, lotions, and "acid stuff." He reported experiencing skin symptoms on his lower spine, elbows, and knees. In a June 1999 VA outpatient medical report, the Veteran reported experiencing a rash which resolved after he stopped taking medication for a respiratory disorder. In an October 1999 private medical report, the Veteran reported experiencing some excessive skin dryness. On physical examination, there was some dry skin on the Veteran's face, particularly around his mouth. A December 2001 VA optometry report gave an impression which included acne rosacea of each eye. A February 2003 private medical report stated that, on physical examination, the Veteran's skin and subcutaneous tissues were normal. A December 2003 VA medical report stated that the Veteran had xeroris of the hand and recurrent lesions on his body consistent with erythema multiforme. The examiner suspected a possible relationship to drugs, and noted that the condition had been present for approximately 10 to 12 years. The examiner suggested a biopsy to make a definitive diagnosis. In a December 2003 VA skin examination report, the Veteran complained of experiencing moderate pain due to skin spots, and reported that he had one skin spot on each arm, with an additional one possibly arising on the right knee. The Veteran reported that he had experienced skin problems since 1968, and had several skin lesions "burned off" from the top of his head and over his chest area. He also reported experiencing facial skin lesions with odor, which he treated with daily ointment. He reported that he had painful lesions on either side of his arms, each about the size of a penny. The Veteran reported that they became red spots and lasted about two to three weeks before disappearing and subsequently recurring. He reported that he treated them with cream. The Veteran also reported four incidents of shingles, including on his stomach, back, and head. He reported that the skin on his head burned. The examiner stated that the Veteran's skin conditions were intermittent and were treated with Epsom salt, ointment, and facial cream. The skin condition affected the Veteran's face and hand, with his face mostly getting redness. Less than 1 percent of the exposed areas were involved. There were also skin lesions on each side of the arms, involving less than 1 percent of the body. The Veteran did not have any scars, nor did he have any acne or other disfigurement. On physical examination of the Veteran's skin, there were two red spots, one on each side of the forearm. The skin in the nasolabial fold and over the eyebrows was scaly and erythematous and appeared inflamed and red. The Veteran's fingernails and toenails were normal, and no other skin on the Veteran's body was involved. The relevant diagnoses were seborrheic dermatitis of the face, xerosis of hands, and recurrent lesions on the body due to erythema multiforme. In a January 2004 VA medical report the Veteran reported having lesions on his arms one month before. The examiner stated that they were consistent with erythema multiforme. The lesions were now drying and there were no new lesions to biopsy. He was instructed to call if he had a new lesion to biopsy. A July 2004 private medical report stated that the Veteran had been seen for an erosive lesion of the penis had that had arisen over the previous three months. There was a hard white cornified area in the central portion of that lesion that was suspicious for malignancy. The Veteran underwent a circumcision. A July 2004 private surgical pathology report stated that biopsy of the lesion resulted in a final diagnosis of balanitis xerotica obliterans. A March 2007 private medical report stated that the Veteran had seborrheic dermatitis of the face for which he was prescribed Desonide cream. He also had multiple actinic keratoses and irritated seborrheic keratosis on his scalp and on the sides of his face, of which the examiner stated that about six lesions had been frozen. There were seborrheic keratosis on the Veteran's chest and back, but none needed to be removed. An April 2007 VA outpatient medical report stated that the Veteran had seborrheic dermatitis. A steroid cream was ordered for the Veteran. An October 2008 VA outpatient medical report stated that carcinoma of the scalp had been removed in May 2008, with several lesions removed that year and in the past. In an October 2008 VA skin diseases examination report, the Veteran reported that he had been seeing a local dermatologist once or twice a year, with lesions removed each time. He reported that he used Neosporin ointment daily. The examiner stated that the treatment was topical and was neither a corticosteroid or an immunosuppressive. On physical examination, the Veteran's skin conditions affected less than 5 percent of his exposed areas and less than 5 percent of his total body area. There were erythematous circular areas scattered over the forearms and legs which were non-tender and non-palpable. The Veteran also had macular lesions, with no evidence of acne/chloracne, and no disfigurement of the head, face, or neck. The diagnosis was actinic keratosis of the scale and face, treated; resolved. A May 2009 VA outpatient medical report stated that, on physical examination, there was an erythematous plaque on his left forehead that was tender. In a November 2010 private medical report, the Veteran complained of lesions on his scalp and forehead. On physical examination, there was a crusted papule on the Veteran's right lateral forehead which measured "0.8 x 0.8". There were also scaly nonindurated macules noted on the scalp, left arm, nose, and posterior scalp. He had dry scaly eruptions on the palms of his hands, bilaterally, as well as dry flaking noted in his bilateral eyebrows. The diagnoses were 12 actinic keratoses, which were treated with liquid nitrogen; dyshidrosis, which was treated with Topicort cream; and seborrheic dermatitis, which was treated with Desowen cream. A subsequent November 2010 biopsy of a lesion removed from the Veteran's forehead gave a diagnosis of seborrheic keratosis with inflammation and focal accompanying squamous cell carcinoma in situ. A September 2011 VA outpatient medical report stated that, on physical examination, the Veteran's skin was anicteric without rashes. An August 2012 VA skin diseases examination report gave diagnoses of squamous cell carcinoma and seborrheic keratosis. The Veteran reported that since the 1960s he had experienced brown spots on his back, arms, and legs that had been medically removed. He complained of continuing skin lesions with pain. The Veteran's skin conditions did not cause scarring or disfigurement of the head, face, or neck, nor did he have any systemic manifestation due to any skin disease. He had not been treated with oral or topical medications in the previous 12 months. The Veteran also had not had any treatments or procedures other than medication in the past 12 months. He had not experienced any debilitating or non-debilitating episodes of urticarial, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis in the previous 12 months. On physical examination, the Veteran did not have dermatitis, eczema, bullous disorder, psoriasis, infections of the skin, cutaneous manifestations of collagen-vascular disease, or papulosquamous disorder. The Veteran did have related neoplasms or metastases, but they were benign. He had not completed treatment for his benign neoplasms or metastases, and was not currently undergoing treatment for them. The Veteran did not have any residual conditions or complications due to the neoplasms and metastases, or treatment thereof, other than as already documented. His skin conditions did not impact his ability to work, and affected less than 5 percent of his exposed skin and less than 5 percent of his total body. An August 2012 VA scars and disfigurement examination report stated that the Veteran had scars on his trunk or extremities, as well as scars or disfigurement of the head, face, or neck. None of the scars on the Veteran's trunk or extremities were painful, unstable with frequent loss of covering of the skin, or due to burns. There were no scars on the Veteran's right arm, right leg, or left leg. On his left arm, there were three linear scars that were each 0.25 centimeters (cm.) in length. There were two linear scars on the Veteran's trunk, each measuring 0.25 cm. in length, one on the anterior and one on the posterior. None of the scars on the Veteran's head, face, or neck were painful, unstable with frequent loss of covering of the skin, or due to burns. There was one scar on the top of the Veteran's lip which measured 2 cm. by 1 cm., as well as one scar on his upper lip which measured 1 cm. by 0 cm. There was no elevation, depression, adherence to underlying tissue, or missing underlying tissue. There also was no abnormal pigmentation or texture of the head, face, or neck. None of the scars resulted in limitation of function, nor did they have any other pertinent physical findings, complications, conditions, signs, and/or symptoms. The Veteran's scars did not impact his ability to work. The Veteran's skin disorder is currently rated under Diagnostic Code 7819, which contemplates benign skin neoplasms. This code states that such conditions are to be rated as disfigurement of the head, face, or neck, under Diagnostic Code 7800; scars, under Diagnostic Codes 7801, 7802, 7803, 7804, or 7805; or impairment of function. 38 C.F.R. § 4.118, Diagnostic Code 7819 (2012). During the pendency of this appeal, the schedular rating criteria pertaining to the skin were amended, effective October 23, 2008. 38 C.F.R. § 4.118, Diagnostic Codes 7800- 7805 (2012); 67 Fed. Reg. 49590-49599 (July 31, 2002); VAOPGCPREC 3-00, 65 Fed. Reg. 33422 (2000); 38 U.S.C.A. § 5110(g) (West 2002 & Supp. 2012). However, those amendments only apply to applications received by VA on or after October 23, 2008, or where the Veteran expressly requests consideration under the new criteria, which he has not done here. Therefore, the Board has no authority to consider those revisions in deciding the Veteran's claim. VAOPGCPREC 3-00, 65 Fed. Reg. 33422 (2000); 38 U.S.C.A. § 5110(g) (West 2002 & Supp. 2012). The medical evidence of record shows that, throughout the entire period on appeal, the Veteran's service-connected skin conditions have been manifested by scars, symptoms which affected less than five percent of the entire body and exposed areas, and topical therapy. Diagnostic Code 7800 provides ratings for disfigurement of the head, face, or neck. Note (1) to Diagnostic Code 7800 provides that the 8 characteristics of disfigurement, for purposes of rating under 38 C.F.R. § 4.118, are: (1) scar is 5 or more inches (13 or more cm) in length; (2) scar is at least one-quarter inch (0.6 cm) wide at the widest part; (3) surface contour of scar is elevated or depressed on palpation; (4) scar is adherent to underlying tissue; (5) skin is hypo-or hyper-pigmented in an area exceeding six square inches (39 sq cm); (6) skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq cm); (7) underlying soft tissue is missing in an area exceeding six square inches (39 sq cm); and (8) skin is indurated and inflexible in an area exceeding six square inches (39 sq cm). 38 C.F.R. § 4.118, Diagnostic Code 7800 at Note (1) (2008). Diagnostic Code 7800 provides that a 10 percent rating is warranted for a skin disorder of the head, face, or neck with one characteristic of disfigurement. A 30 percent rating is warranted for 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. 38 C.F.R. § 4.118, Diagnostic Code 7800 (2008). For the purposes of Diagnostic Code 7800, the medical evidence of record shows that the Veteran does not meet the criteria for any characteristics of disfigurement at any point during the period on appeal. Specifically, the Veteran has never had a scar on his head, face, or neck that is 13 or more cm. in length, at least 0.6 cm. in width, elevated or depressed, or adherent to underlying tissue. In addition, while the Veteran has been variously reported to have experienced redness and abnormal skin texture on his head, face, or neck, the affected area has never been demonstrated to exceed 39 square cm. Therefore, a compensable rating is not warranted under Diagnostic Code 7800 at any point during the period on appeal. As for the remaining Diagnostic Codes pertaining to scars, the evidence of record shows that, on objective examination, the Veteran's scars did not cover an area of 144 square inches or greater, were not deep in an area exceeding 6 square inches, were not unstable, and were not painful on examination. 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, 7804 (2008). To the extent that the Veteran has reported that he has scars which are painful, the criteria for a 10 percent evaluation under Diagnostic Code 7804 are that the scar be painful on examination. Accordingly, the Veteran's statements alone are not sufficient to satisfy the criteria for a 10 percent evaluation under Diagnostic Code 7804. In addition, while the Veteran has been found to have various lesions and other skin abnormalities which were painful on examination, such lesions are not scars. The Board also finds that they are not analogous to scars, as none of the Veteran's individual lesions is permanent in nature, thus making the painful nature of the lesion not analogous to a painful scar. Accordingly, a compensable rating is not warranted under these diagnostic codes at any point during the period on appeal. Diagnostic Code 7805 states that scars of a miscellaneous nature should be rated on the limitation of function of the affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2008). However, the August 2012 VA medical examination reports stated that the scars did not cause any limitation of function and there is no other medical evidence of record that the scars cause limitation of function of any body part in any manner. Accordingly, since the medical evidence of record does not show that the Veteran experiences any limitation in function due to his service-connected skin condition, a compensable evaluation is not warranted under Diagnostic Code 7805. The Board has also considered rating the Veteran's skin condition under all other relevant diagnostic codes. However, the body area affected by the Veteran's skin conditions has been repeatedly measured and has been consistently found to be less than 5 percent of the entire body and less than 5 percent of exposed areas. The Board notes that specific measurements of the total affected areas were not made prior to December 2003. However, the affected areas described on examination from November 1993 to December 2003 are largely analogous to those described from December 2003 onwards. The total area affected by the Veteran's skin condition waxed and waned over time, but when measurements of the total area affected were finally taken, they were consistently noted to be less than 5 percent of the entire body or exposed areas. The preponderance of the evidence of record does not demonstrate that the Veteran's skin condition was significantly worse prior to December 2003 than it was at any point after December 2003. As such, even at the maximum point of expansion during the period prior to December 2003, the preponderance of the evidence of record demonstrates that the total area affected by the Veteran's skin conditions was most analogous to less than 5 percent of the entire body and exposed areas. The Board notes that the Veteran has received prescription medication for treatment of his various skin conditions throughout the entire period on appeal. While some of these medications have been corticosteroids, they have all been administered topically and as such do not qualify as systemic therapy for the purposes of the relevant diagnostic codes. Accordingly, a compensable rating is not warranted under the relevant diagnostic codes at any point during the period on appeal. See, e.g., 38 C.F.R. § 4.118, Diagnostic Code 7806 (2012). Furthermore, the evidence of record does not show that the Veteran has ever undergone any other therapy or treatment as is contemplated by compensable ratings under any other diagnostic code in 38 C.F.R. § 4.118. See, e.g., 38 C.F.R. § 4.118, Diagnostic Codes 7817, 7822 (2012). As discussed above, the Veteran has also been found to have skin cancer which is related to service and whose manifestations have been considered in conjunction with the Veteran's claim. However, there is no medical evidence that the Veteran's skin cancer 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. While the Veteran was noted to have neoplasms at the time of the August 2012 VA skin examination, the examiner specifically stated that the neoplasms were benign in nature, and that current treatment was watchful waiting. As such, a separate compensable rating is not warranted for the Veteran's skin cancer. 38 C.F.R. § 4.118, Diagnostic Code 7818 (2012). As a final matter, the Board notes that in July 2004 the Veteran underwent a circumcision due to a lesion on his penis. However, this lesion was diagnosed as balanitis xerotica obliterans. There is no evidence of record that this disorder is related to the Veteran's military service or to radiation exposure, nor has the Veteran ever claimed that it was. As such, any residuals from the Veteran's circumcision are not for consideration in conjunction with the claim on appeal. This claim has also been reviewed with consideration of whether staged ratings would be warranted. While there may have been occasional fluctuations of the Veteran's skin symptoms, the evidence shows no distinct periods of time during which his symptoms have varied to such an extent that a compensable rating would be warranted under any diagnostic code. 38 U.S.C.A. § 5110 (West 2002); Fenderson, 12 Vet. App. 119. Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Schedule is sufficient. 38 C.F.R. §§ 4.20, 4.27 (2011). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2011). 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. Thun v. Peake, 22 Vet. App. 111 (2008); Fisher v. Principi, 4 Vet. App. 57 (1993). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria under the Schedule reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Schedule, and the assigned schedular evaluation is adequate, and no referral is required. When service-connected disability affects employment in ways not contemplated by the rating schedule, § 3.321(b)(1) is applicable. VAOGCPREC 06-96 (1996), 61 Fed. Reg. 66749 (1996). The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render his disabilities rating for a skin condition inadequate. The Veteran's skin conditions were rated under all relevant diagnostic codes in 38 C.F.R. § 4.118, the criteria of which are found by the Board to specifically contemplate the Veteran's level of disability and symptomatology. The Veteran's skin conditions are manifested by scars, symptoms which affected less than five percent of the entire body and exposed areas, and require topical therapy. When comparing that disability picture with the symptoms contemplated by the Schedule, the Board finds that the Veteran's symptoms are adequately contemplated by the disability rating for his skin conditions. A rating in excess of the currently assigned rating is provided for certain manifestations of skin conditions, but the medical evidence does not show that those manifestations are present. The Board finds that the criteria for a noncompensable rating for the Veteran's skin conditions more than reasonably describe the Veteran's disability level and symptomatology and, therefore, the currently assigned schedular rating is adequate and no referral is required. VAOGCPREC 06-96 (1996), 61 Fed. Reg. 66749 (1996); 38 C.F.R. § 4.118. In reaching this decision, the Board finds that the preponderance of the evidence of record shows that the Veteran's skin conditions do not meet the criteria for a compensable rating at any point during the period on appeal. Therefore, the claim for an increased rating is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Massey v. Brown, 7 Vet. App. 204 (1994). ORDER An initial compensable evaluation for a skin condition, residuals of radiation, to include squamous cell carcinoma, is denied. REMAND With respect to the claim of entitlement to an initial evaluation in excess of 10 percent for GERD, VA is generally required to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A. This duty to assist includes the conduct of a thorough and comprehensive medical examination. Robinette v. Brown, 8 Vet. App. 69, 76 (1995). Where the available evidence is too old for an adequate evaluation of the Veteran's current condition, VA's duty to assist includes providing a new examination. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). In this case, the Veteran last underwent a comprehensive VA examination of his GERD symptoms in January 2010. The Veteran's April 2012 appeal to the Board stated that the Veteran experienced arm and shoulder pain, symptoms which were not found at the time of the January 2010 VA examination. As such, there is evidence of record that the Veteran currently experiences symptoms which were not present at the time of the last VA examination. The Board therefore concludes that an additional VA examination is needed to provide a current picture of the Veteran's service-connected GERD. 38 C.F.R. § 3.327 (2012). With respect to the claim of entitlement to service connection for a respiratory disorder, in April 2012 the Board remanded this claim, in part, so that an attempt could be made to obtain relevant records from the U.S. Department of Labor Office of Workers' Compensation Programs (Division of Coal Mine Workers' Compensation). In August 2012, the RO sent the Veteran a letter asking him to complete and return an Authorization and Consent to Release Information form so that VA could make an attempt to obtain these records. The Veteran did not respond to the letter or otherwise provide the requested authorization. The RO then made no further attempts to obtain any relevant records and denied the claim in a November 2012 supplemental statement of the case. The Board notes that authorization and consent from the Veteran is not necessarily required to obtain records in the custody of a Federal department or agency. 38 C.F.R. § 3.159(c)(2). The U.S. Department of Labor is a Federal department, and there is no evidence of record that it has rejected or otherwise refused any request from VA for copies of the records discussed in the April 2012 Board remand. Absent evidence that authorization and consent from the Veteran is required to obtain records in the custody of a Federal department or agency, the Board shall not presume such a requirement to exist. The Board also notes that its April 2012 action, stating that the RO should make an attempt to obtain the identified documents from the U.S. Department of Labor, omitted any requirement to first obtain the authorization and consent of the Veteran. RO compliance with a remand is not discretionary, and if the RO fails to comply with the terms of a remand, another remand for corrective action is required. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following actions: (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.) 1. The RO should take appropriate steps to contact the U.S. Department of Labor Office of Workers' Compensation Programs (Division of Coal Mine Workers' Compensation) and attempt to obtain any records pertinent to the Veteran's award or denial of Black Lung compensation benefits, including any decisions and/or determinations, and all supporting medical documentation utilized in rendering the decision. Such records must either be printed and associated with the Veteran's paper claims file, or uploaded into the Veteran's electronic file contained in the Virtual VA system. An attempt must be made to obtain these records regardless of whether the Veteran submits an Authorization and Consent to Release Information form. If such records cannot be released by the U.S. Department of Labor without an Authorization and Consent to Release Information form from the Veteran, such a requirement must be documented in the claims file. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Schedule the Veteran for a VA examination to assess the severity of his service-connected GERD. The examiner should review the Veteran's VA claims folder and indicate in the examination report that this was accomplished. Any appropriate evaluations, studies, and testing deemed necessary by the examiners should be conducted at those times, and included in the examination reports. The examiner should provide an opinion as to whether the Veteran's GERD has ever been manifested by dysphagia, pyrosis, regurgitation, substernal pain, arm pain, shoulder pain, vomiting, material weight loss, hematemesis, melena, or anemia. The examiner should also state whether the Veteran's GERD symptoms have ever resulted in considerable or severe impairment of health. A complete rationale for all opinions must be provided. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 3. The RO must then readjudicate the claims and, thereafter, if any claim on appeal remains denied, the Veteran must be provided a supplemental statement of the case. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ S. C. KREMBS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs