Citation Nr: 1329665 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 05-32 203A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating higher than 30 percent for residuals of recurrent basal cell carcinoma (BCC). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Biswajit Chatterjee, Counsel INTRODUCTION The Veteran served on active duty from February 1965 to March 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). In May 2007, the Veteran testified at a Travel Board hearing before the undersigned. A transcript of this hearing is associated with the claims file. In August 2007, January 2010, and again in April 2012, the Board remanded this issue for evidentiary development. The case has now been returned to the Board. The issues of an increased rating beyond 30 percent for atopic dermatitis and service-connection for coronary artery disease (CAD) and posttraumatic stress disorder (PTSD) have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT All facial/head scars have been superficial, small (less than 39 sq. cm), not painful on examination, stable, not asymmetric, not disfiguring, not productive of visible tissue loss, and have not caused limitation of motion or other function. Multiple scars on his body are not unstable and/or painful; deep or limiting of motion, and at least 929 sq. cm.; or caused limited function or other disability. CONCLUSION OF LAW A rating higher than 30 percent for residuals of recurrent basal cell carcinoma is not warranted. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. § 4.1, 4.3, 4.7, 4.118, Diagnostic Codes (DCs) 7800-7805, 7818 (effective from August 30, 2002 to October 22, 2008, and from October 23, 2008). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In October 2004 and March 2010 letters, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for a higher rating, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. He was also advised him of how disability evaluations and effective dates are assigned, and the type of evidence that impacts those determinations in March 2006, August 2007, February 2010 and March 2010 letters. The claim was readjudicated in the June 2013 SSOC. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA and identified private treatment records, several VA examination reports, and testimony from his May 2007 Board hearing. Subsequent to the June 2013 SSOC, the Veteran submitted a duplicative report of the April 2012 VA scars examination, such that there is no need for the AOJ to readjudicate the claim. See 38 C.F.R. §§ 20.800, 20.1304(a) (2012). The Veteran was provided an opportunity to set forth his contentions on the claim during the May 2007 hearing before the undersigned. The United States Court of Appeals for Veterans Claims (Court) has held that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a Board hearing and that a VLJ has a duty to explain fully the issues and to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). Here, the undersigned explained the increased rating claim, focused on the elements necessary to substantiate the claim, and sought to identify any further development that was required to help substantiate the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the hearing. There is also substantial compliance with the Board's Remand directives. Due to inadequacies in the May 2010 and June 2011 VA examinations, the Board remanded this claim in April 2012 for a VA examination, with assessment of revised scar rating criteria and recent treatment records. A color headshot photo in June 2013 is associated with the claims file. Altogether, the Board observes that the VA examinations appear thorough and adequate, with consideration of the relevant criteria and claims file. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). All relevant VA treatment records from August 2011 to May 2013 are associated with Virtual VA. Ultimately, there was substantial compliance with prior remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). II. Analysis The Veteran contends that his service-connected basal cell carcinoma has resulted in disfigurement warranting at least a 50 percent rating. The Board considers the rating criteria for scars as revised effective August 31, 2002, and again, effective from October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008); 38 C.F.R. § 4.118 (2012). The claim was filed in August 2004. The 2008 revised criteria apply only to claims filed on or after October 23, 2008, unless the Veteran requests that the RO consider the revised criteria, which he did not. Nonetheless, the June 2013 SSOC seemingly applied the revised criteria and so, the Board considers the revised criteria to avoid prejudice to the Veteran. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). 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. 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. Initially, former and amended DC 7818 instructs that malignant skin neoplasms be rated as disfigurement of the head, face, or neck under DC 7800; as scars under DCs 7801- 7804; or for impairment of function under DC 7805. Although the RO assigned a rating under 38 C.F.R. § 4.118, DCs 7817- 7800, the Board will not consider former or amended DC 7806 (dermatitis or eczema) and DC 7817 (exfoliative dermatitis), because there is no indication of dermatitis or eczema affecting his residuals of BCC as well as to avoid illegal pyramiding under 38 C.F.R. § 4.14. The Veteran is separately service-connected for atopic dermatitis with a 30 percent rating assignment under DC 7817. The criteria of former and amended DC 7800 are essentially the same, but whereas former DC 7800 covered "disfigurement of the head, face or neck," the amended version of Diagnostic Code 7800 clarifies that the criteria cover "burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes" as well as "other disfigurement of the head, face, or neck." Both former and amended DC 7800 provides the next higher 50 percent rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks (lips), or; with four or five characteristics of disfigurement. Under note (1), the 8 characteristics of disfigurement are: a scar 5 or more inches (13 or more cm.) in length; a scar at least one- quarter inch (0.6 cm.) wide at widest part; surface contour of a scar elevated or depressed on palpation; a scar adherent to underlying tissue; skin hypo- or hyper- pigmented in an area exceeding six square inches (39-sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39-sq. cm.); underlying soft tissue missing in an area exceeding six square inches (39-sq. cm.); and skin indurated and inflexible in an area exceeding six square inches (39- sq. cm.). Note (3) requires unretouched color photographs be considered for the characteristics of disfigurement. Under former DC 7801, a higher 40 percent rating is warranted for scars, located other than on the head, face, or neck, that are deep or that cause limited motion, with a scar area(s) exceeding 144 square inches (929 sq. cm.). Note (2) of DC 7801 provides that a deep scar is one associated with underlying soft tissue damage. Amended DC 7801 covers burn scar(s) or scar(s) due to other causes, not of the head, face or neck, that area deep and nonlinear, and cover an area or areas of 144 square inches (929 sq. cm.) or greater, warrants a higher 40 percent rating. The former DCs 7802 and 7803 are inapplicable in this case, because they provided a maximum 10 percent rating. Similarly, amended DC 7802 is inapplicable because it, too, provides a maximum 10 percent rating. Also, there is no amended DC 7803. Former DC 7804 is inapplicable, because it provided a maximum 10 percent rating for a superficial, painful scar. Amended Diagnostic Code 7804, covering unstable or painful scar(s), provides that one or two scars that are unstable or painful warrant a 10 percent rating. Three or four scars that are unstable or painful warrant a 20 percent rating. Five or more scars that are unstable or painful warrant a 30 percent rating. Note 3 (not present in former DC 7804) provides that scars evaluated under diagnostic codes 7800, 7801, 7802 or 7805 may also receive an evaluation under this diagnostic code, when applicable. The Board emphasizes that Note 3 indicates that separate compensable ratings are available under amended DC 7804. Former DC 7805(scars, other) refers to rating on the limitation of function of the affected part. The amended Diagnostic Code 7805 evaluates any disabling effects of a scar, not considered under Diagnostic Codes 7800 through 7804, under an appropriate diagnostic code provision. As background, VA treatment records, dated in January and September 2005, noted 9 well-healed scars on the head, back and chest. Also, the May 2010 VA examiner found an asymptomatic left upper chest scar, of 0.25 x 3 inches. The Board emphasizes that the December 2007, June 2011, October 2011 and April 2012 VA examiners assessed nearly the same number, location, measurements and symptoms of the Veteran's several scars over several years, and these findings provide highly probative evidence against his claim. These examiners consistently found that he had two scars, but not disfigurement, of the head/face: (1) left temple preauricular, 3cm x 3.5cm; (2) right eyebrow, 3 cm linear. For scars of the body, the examiner found: (3) left lateral arm, 1cm x 3cm, linear scar; (4) anterior trunk, horizontally below the clavicle about the level of the first intercostals space, 0.5cm x 7.5cm; (5) posterior trunk, left posterior shoulder, 1cm x 5cm; (6) left posterior sup. shoulder, 1.5cm x 5cm; (7) left mid back flank, 5cm linear; (8) numerous hypochromic scars, slightly depressed scars on the back, of maximum 0.5cm width x. 0.5cm length. The June 2013 examiner found two scars, but specifically not disfigurement, of the face, head and neck: (1) in front of the left Tragus, going into the lower scalp, 3.0cm x 0.1cm; (2) lower part of the temporal area, 3.0cm x 0.1cm. The examiner also found multiple scars of the trunk and extremities: (3)&(4) right middle arm, and right shoulder, with a linear scar of 2.5cm length and a superficial non- linear scar of 1.0cm x 1.0cm; (5)&(6) left arm and upper arm, both linear scars, of 1.5cm length and 3.0cm length; (7)&(8) right lateral chest wall and left sub-clavicular area, both linear scars, of 3.5cm length and 12.0cm length; (9),(10),(11)&(12) upper back in the scapular area, contains four linear scars, of 5.0cm length, 6.0cm length, 9.0cm length and 6.0cm length; (13)&(14) upper back in the scapular area, contains two superficial non-linear scars, of 3.5cm x 2.0cm and 1.0cm x 1.0cm. Concerning all scars, the December 2007, June 2011, October 2011, April 2012 and June 2013 VA examiners found on physical examination that they were not painful; not unstable, with no frequent loss of covering of skin over the scar; none were painful and unstable; no scars due to burns. The examiners also found none of the above scars produced limitation of motion, or indication of limitation of any other function. Particularly for the scars of the head, face and neck, the April 2012 and June 2013 examiners found no elevation, depression, adherence to underlying tissue or missing underlying soft tissue, no abnormal pigmentation or texture, no gross distortion or asymmetry of facial features or visible or palpable tissue loss; and also found there were no other pertinent physical findings, complications, conditions, signs and/or symptoms associated with any scars. Overall, the VA examinations and pertinent VA treatment records fail to show any findings that would warrant even a compensable disability rating for any scars. The Veteran is not entitled to a higher rating under either former or amended DC 7800. These records do not confirm the Veteran's July 2013 statement that he has asymmetry, disfigurement, visible tissue loss and gross distortion of his nose, forehead and eyelid. The April 2012 and June 2013 examiners specifically found he has not had any disfigurement, visible tissue loss and gross distortion of the face, or asymmetry of one feature or paired set of features, and the Board's own review of his June 2013 color photo for VA examination does not show otherwise. There is also no evidence that the residual scarring from excision of lesions due to BCC causes any of the eight characteristics of disfigurement. Despite the Veteran's contentions to the contrary, his residual scarring from BCC has not been shown to result in any scar that is consistently measured to be 13 or more cm. in length or at least 0.6 cm. wide at the widest part. The surface contour of any scarring on the face, head and neck has not been shown to be elevated or depressed on palpation and the scarring has not been shown to be adherent to any underlying tissue. None of the scars were unstable. The remaining characteristics of disfigurement are not present as the area of skin affected by BCC does not exceed 39 sq. cm. DC 7801 does not provide a higher rating in this case, both in its former and revised forms. Former DC 7801 does not support his claim for a higher rating, because the scars were specifically found to not be deep (no underlying soft tissue damage) and not to have caused limited motion. There is also no indication that the Veteran's scars, located other than on the head, face, or neck, have a combined area remotely approaching, let alone exceeding, 144 square inches (929 sq. cm.). Moreover, the Board finds that amended DC 7801 is inapplicable, because again, there are no findings by examiners or treating physicians showing the Veteran has ever had "deep" scars as defined by Note 1 to DC 7801, because his scars do not underlying tissue damage. Also, there are no findings by any of the examiners of record that he has ever had any deep and nonlinear scars of any size, or approaching 929 sq. cm. Under amended DC 7804, he does not warrant a separate compensable rating. Examiners have consistently found that his scars are neither painful on examination nor are they unstable, specifically noting no frequent loss of covering of skin. Former DC 7805 (scars, other) is precluded here, because the scars were specifically found by examiners to not limit any motion or other function. Amended DC 7805 is also inapplicable. There is no contention or evidence indicating any disabling effects from any of his scars, such that DC 7805 is inapplicable. See, e.g., April 2012 and June 2013 VA examination reports. The Board has also considered his lay statements. He is competent, as a layman, to report on that as to which he has personal knowledge, such as having the presence of many scars that he believes are disfiguring, asymmetric and with loss of facial tissue, and he has deep and unstable scars on his body, etc. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). On the other hand, as a layman, without the appropriate medical training and expertise, he is not competent to provide a probative (persuasive) opinion on a medical matter, especially the severity of his disability in terms of the applicable rating criteria. Rather, this necessarily requires appropriate medical findings regarding the extent and nature of his scars, which requires both specialized medical knowledge of assessing scars and/or dermatology, which he has not asserted, and testing of scarring manifestations, including physical findings on location, size, depth, stability, skin texture, resulting limitation of motion and other function and assessment of disabling effects. The Board finds his lay statements are outweighed by the medical evidence of record. The Board has further considered whether the Veteran's disability represents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). See also Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence. The former and amended scar criteria already contemplate scars of the face and body that are disfiguring, asymmetric, have tissue loss, painful, deep, unstable, and large in size, as he contends. There is no inferred claim to a TDIU, because there is no contention or indication his scars render him unemployable. Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009). His disability picture is contemplated by the rating schedule, and the schedular evaluation is adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Referral for extra-schedular consideration is not warranted. There is no basis to "stage" his rating under Hart because his scars have never been more than 30 percent disabling at any time during the appeal period. The Board recognizes that the Veteran is due for a new surgery related to his BCC, to be scheduled soon, and encourages the Veteran to file a new increased rating claim for residuals of his BCC at that time, as there would be no prejudice to him in assignment of effective date since he has not yet established the date of entitlement to a higher rating. See Veteran's July 2013 statement. As the preponderance of the evidence is against the Veteran's claim for a rating higher than 30 percent for residuals of his BCC, the "benefit-of-the-doubt" rule is inapplicable, and the Board must deny the claim. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. ORDER A rating higher than 30 percent for residuals of recurrent BCC is denied. ____________________________________________ Laura H. Eskenazi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs