Citation Nr: 1336345 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 09-09 232 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for squamous cell carcinoma of the face, prior to May 23, 2012. 2. Entitlement to a rating in excess of 30 percent for squamous cell carcinoma of the face, from May 23, 2012. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to March 1971. In an August 2006 rating decision, the RO granted service connection and assigned an initial, 10 percent rating for squamous cell carcinoma of the face, effective March 5, 2001. In the August 2006 rating decision, the RO indicated that the Veteran would be scheduled for a VA examination in order to determine his disability level. The Veteran was afforded a VA examination in December 2006; however, the RO did not issue a new rating decision-which confirmed and continued the Veteran's 10 percent rating-until March 2008. In June 2008, the Veteran filed a notice of disagreement (NOD) with the assigned disability rating. A statement of the case (SOC) was issued in February 2009 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in March 2009. The Board notes that, while the Veteran previously was represented by a private attorney, in July 2008, the Veteran granted a power-of-attorney in favor of Veterans of Foreign Wars of the United States with regard to the claim on appeal. The Veteran's current representative has submitted written argument on his behalf. The Board has recognized the change in representation. In January 2011, the Board remanded the claim on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After completing the requested development, in an August 2012 rating decision, the RO/AMC granted the Veteran a higher rating of 30 percent for the squamous cell carcinoma of the face effective May 23, 2012., the RO/AMC continued to deny the claim of a entitlement to a higher initial rating in excess of 10 percent prior to May 23, 2012, (as reflected in an August 2012 supplemental SOC (SSOC)). Because this appeal emanated from the Veteran's disagreement with the initial rating assigned following the award of service connection, the Board characterized the claim in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). Moreover, although the RO has granted a higher, 30 percent rating during the pendency of the appeal of 30 percent and inasmuch as higher ratings for this disability are available, both before and after May 23, 2012, the Veteran is presumed to seek the maximum available benefit for a disability. Thus, the Board has characterized the appeal as now encompassing both matters set forth on the title page. See Fenderson, 12 Vet. App. at 126; AB v. Brown, 6 Vet. App. 35, 38 (1993). Also as regards characterization of the appeal, the Board notes that, in January 2011, the Board remanded the claim, in part, to address the Veteran's scars of the scalp, as noted in the November 2010 Informal Hearing Presentation. In the August 2012 supplemental SOC (SSOC), the AMC listed as a separate issue and denied, inter alia, service connection for basal cell carcinoma of the left parietal scalp and denied service connection. Although the AMC did not clearly explain why the matter of scalp scars was addressed in this manner, it was apparently to explain why the scalp scars were not included in the evaluation of the disability under consideration In any event, as neither the Veteran nor his representative has disagreed with or otherwise challenged the AMC's determinations on the matter of service connection for basal cell carcinoma, neither that disability, nor the residual scars of that disability, will be further addressed herein. Further, in the January 2011 remand, the rating decision on appeal was merely identified as the March 2008 rating decision. However, under the circumstances presented, and to give the Veteran every consideration in this appeal, as discussed in more detail, below, the Board will evaluate the disability from the March 5, 2001 effective date of the award of service connection. A review of the Virtual VA paperless, electronic claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim on appeal have been accomplished. 2. Prior to May 23, 2012, the Veteran's squamous cell carcinoma of the face was not manifested as a scar of the face that was severe, especially if producing a marked and unsightly deformity of eyelids, lips, or auricles; scars that are superficial, poorly nourished, with repeated ulceration; or by visible or palpable tissue loss, either gross distortion or asymmetry of one feature or paired set of features or two or more characteristics of disfigurement. 3. Since May 23, 2012, the Veteran's squamous cell carcinoma of the face has not manifested by complete or exceptionally repugnant deformity of one side of face or marked or repugnant bilateral disfigurement; or by visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features or with four or five characteristics of disfigurement. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for the squamous cell carcinoma of the face, for the period prior to May 23, 2012, have not been met. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3102, 3 .159, 4.1, 4.3, 4.7, 4.87a (2013); 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7803, 7804 (2001, 2008) 2. The criteria for rating in excess of 30 percent for the squamous cell carcinoma of the face, from May 23, 2012, have not been met. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107; 38 C.F.R. §§ 3102, 3 .159, 4.1. 4.3. 4.7, 4.87a (2013)38 C.F.R. § , 4.118, Diagnostic Codes 7800, 7803, 7804 (2001, 2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations 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) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant 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, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. After the award of service connection, and the Veteran's disagreement with the initial rating assigned, a September 2008 letter and the February 2009 SOC set forth the criteria for higher ratings for skin disabilities (the timing and form of which suffices, in part, for Dingess/Hartman). Subsequently, a January 2011 post-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for a higher rating, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The January 2011 letter, in addition to September 2008, February 2009, and August 2012 letters, also provided the Veteran with general information pertaining to the assignment of VA's disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of the January 2011 letter, and opportunity for the Veteran to respond, the August 2012 supplemental SOC (SSOC) reflect readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service, VA and private treatment records, and the reports of the May 2001, May 2006, December 2006, January 2011, and May 2012 VA examinations. Also of record and considered The Board finds that the VA examinations are adequate in order to evaluate the Veteran's service-connected squamous cell carcinoma of the face as they consisted of clinical interviews, review of the medical history, and comprehensive examinations that include findings that correlate to the relevant rating criteria. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As such, the examinations are adequate to adjudicate the Veteran's claim and no further examination is necessary. The Board remanded the claim on appeal in January 2011 in order for the Veteran to be afforded a new VA examination and to obtain outstanding pertinent treatment records. As noted above, the Veteran was afforded an adequate VA examination for rating purposes. In addition, outstanding private and VA treatment records were obtained. Thus, the Board finds that the January 2011 remand directives were complied with. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate the claim the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with either claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters on appeal at this juncture. See Mayfield , 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is entitlement to a higher initial rating since the grant of service connection, evaluation of the medical evidence since the award of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126. The RO has already awarded staged ratings for the Veteran's service-connected squamous cell carcinoma of the face; the Veteran is currently assigned a 10 percent disability rating prior to May 23, 2012, and a 30 percent disability rating since May 23, 2012. Hence, the Board will consider the propriety of the rating at each stage, as well as whether any further staged rating is warranted. During the pendency of the Veteran's claim, the VA regulation containing the criteria for rating skin disabilities, 38 C.F.R. § 4.118, was amended twice. The first change in the regulation became effective August 30, 2002. See 67 Fed. Reg. 49,596 (July 31, 2002). The rating criteria for Diagnostic Codes 7800 - 7804 were then again amended effective in October 2008. See 73 Fed. Reg. 54708 (September 23, 2008). Unless there is no indication that the revised criteria are intended to have retroactive effect, VA has a duty to adjudicate the claim only under the former criteria for any period prior to the effective date of the new diagnostic codes, and to consider the revised criteria for the period beginning on the effective date of the new provisions. See Wanner v, Principi, 17 Vet. App. 4, 9 (2003); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). See also VAOPGCPREC 3-2000 (2000) and 7-2003 (2003). Revised statutory or regulatory provisions may not be applied to any time period before the effective date of the change. Id; see also 38 U.S.C.A. § 7104(c) (West 2002); Rhodan v. West, 12 Vet. App. 55, 57 (1998), vacated on other grounds by 251 F.3d 166 (Fed. Cir. 1999). The reverse is not true with respect to application of former schedular criteria prospectively. However, the revisions in October 2008 are only applicable to claims for benefits received by the VA on or after October 23, 2008. See 73 Fed. Reg. 54708 (September 23, 2008). In this case, the Veteran filed his initial service-connection claim in March 2001, and has not requested reevaluation under the current criteria; therefore, the applicable criteria is the pre-October 23, 2008 criteria, to include the criteria in effect prior to August 30, 2002. Under the criteria effective prior to August 30, 2002, 38 C.F.R. § 4.118, Diagnostic Code 7800 states that for scars, disfiguring, head, face or neck: a slight scar warrants a noncompensable evaluation. Moderate, disfiguring warrants a 10 percent disability rating is warranted. Severe, especially if producing a marked and unsightly deformity of eyelids, lips, or auricles warrants a 30 percent disability rating. Complete or exceptionally repugnant deformity of one side of face or marked or repugnant bilateral disfigurement warrants a 50 percent disability rating. Note to Code 7800 states that when in addition to tissue loss and cicatrization there is marked discoloration, color contrast, or the like, the 50 percent rating under Code 7800 may be increased to 80 percent, the 30 percent to 50 percent, and the 10 percent to 30 percent. The most repugnant, disfiguring conditions, including scars and diseases of the skin, may be submitted for central office rating, with several unretouched photographs. Under Diagnostic Code 7803m a 10 percent disability rating is warranted for scars, superficial, poorly nourished, with repeated ulceration. Under Diagnostic Code 7804, a 10 percent disability rating is warranted for scars, superficial, tender and painful on objective demonstration. Note to Diagnostic Code 7804 stated that the 10 percent rating will be assigned, when the requirements are met, even though the location may be on tip of finger or toe, and the rating may exceed the amputation value for the limited involvement. For the period from August 30, 2002, to October 23, 2008, the criteria of Diagnostic Code 7800 (2008) (disfigurement of the head, face or neck) are as follows. A rating of 10 percent is warranted with one characteristic of disfigurement. A rating of 30 percent is assigned for 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, or lips) or with two or three characteristics of disfigurement. A rating of 50 percent is assigned for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features or with four or five characteristics of disfigurement. A rating of 80 percent is assigned for visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or sets of features or with six or more characteristics of disfigurement. The characteristics of disfigurement cited in Diagnostic Code 7800 are as follows. (1) Scar 5 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.). (8) Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). When evaluating under these criteria, unretouched color photographs should be taken into consideration. Note (2) to Diagnostic Code 7800 provides that tissue loss of the auricle is to be rated under Diagnostic Code 6207 (loss of auricle), and anatomical loss of the eye under Diagnostic Code 6061 (anatomical loss of both eyes) or Diagnostic Code 6063 (anatomical loss of one eye), as appropriate. Note (3) provides that unretouched color photographs are to be taken into consideration when rating under these criteria. 38 C.F.R. § 4.118. Diagnostic Code 7803 provides a 10 percent rating for superficial unstable scars. Note (1) to Diagnostic Code 7803 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7804 provides a 10 percent rating for superficial scars that are painful on examination. Note (1) to Diagnostic Code 7804 provides that a superficial scar is one not associated with underlying soft tissue damage. Note (2) provides that a 10-percent rating will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable rating. 38 C.F.R. § 4.118. Diagnostic Code 7804 also directs the rater to see 38 C.F.R. § 4.68 (amputation rule). 38 C.F.R. § 4.118. During his May 2001 VA examination, the Veteran reported that he had had surgery in January and would be seen again in May but he had a lesion on his forehead on examination; he stated that they appeared two months prior. Small scars were noted where the area of the carcinoma was removed. In April 2002, the Veteran had squamous cells of his face removed. During the May 2006 VA examination the Veteran did not have any evidence of squamous cell carcinoma. During a December 2006 VA examination in December 2006 and he stated that the onset of squamous cell pathology found on the residual at this time is a minor scar on the right side of the nose measuring 1 centimeter without keloid or tissue loss; he denied any associated problems or symptoms with the scar. He had a new lesion on his midforehead that was .5 centimeters, irregular raised lesion with irregular borders, and a mild dark speckling in it. He stated that he did not have any dermatology treatment since 2005 and was followed on about a 12 month return basis or when a new lesion arose on his mid forehead. The Veteran's skin lesions were considered to be one percent of the exposed area and the scars were minimal and difficult to find without careful examination. A private note stated that the Veteran was undergoing treatment in December 2007; however, the diagnosis requiring treatment was not mentioned. Private treatment records from October 2008 to April 2009 indicated that he had no reoccurrences of squamous cell carcinomas of the face. In a June 2009 statement, the Veteran's private physician stated that he had known the Veteran since October 2000. He noted that the Veteran had multiple nonmelanoma skin cancers including squamous cell carcinoma of the right side of the nose; he also had multiple actinic keratoses. He indicated that he had treated the Veteran for actinic keratosis on an ongoing basis and monitored him for any recurrence of his skin cancers or any new primary skin cancers. The physician assessed amount of the Veteran's actinic damage as moderate and noted that he had two treatments for precancerous growths with cream. On VA examination in January 2011, it was noted that the Veteran had a minor scar on the right side of the nose that measured one centimeter without keloid or tissue loss; he denied any associated problems or symptoms with this scar. During the Veteran's May 2012 VA examination his scar of the right nasal bridge was measured as .8x 2 cm at the widest part; it had hypo pigmentation and abnormal texture; the total area of head, face, and neck with hypo or hyperpigmented area was two centimeters squared; and with abnormal texture was two centimeters squared. There was no evidence of elevation, depression, adherence to underlying tissue or missing underlying soft tissue. In addition, there was no limitation of function. As noted above, the Veteran is currently in the receipt of a 10 percent disability rating prior to May 23, 2012, and 30 percent from May 23, 2012. However, the Board finds that at no point during the pendency of the appeal does he warrant an increased rating. In order for the Veteran to warrant a rating in excess of 10 percent prior to May 23, 2012, under the rating criteria in effect prior to August 30, 2002, there would need to be evidence of scars of the face that are severe, especially if producing a marked and unsightly deformity of eyelids, lips, or auricles; or scars that are superficial, poorly nourished, with repeated ulceration. Under the rating in effect from August 30, 2002, to October 23, 2008, his squamous cell carcinoma of the face would have to be manifested by visible or palpable tissue loss, either gross distortion or asymmetry of one feature or paired set of features or two or more characteristics of disfigurement. However, on May 2001 VA examination, the scars at the locations of his carcinomas were described as small and in May 2006 there was no evidence of any squamous cell carcinoma of the face. In addition, the scars were described a minor in December 2006 and January 2011. On December 2006 and January 2011 VA examinations ,the Veteran's scar was described as one centimeter, while it was not specified if this referred to width or length in order to be most favorable to the Veteran the Board finds that it is to width since that would give the Veteran one characteristic of disfigurement. However, there is no evidence that the Veteran meets additional characteristics of disfigurement since it was specifically stated in the December 2006 and January 2011 VA examination reports that there was no keloid or tissue loss and no other characteristics of disfigurement were described. Moreover, the Veteran does not assert nor does the medical evidence indicate that he has deformity of eyelids, lips, or auricles or gross distortion or asymmetry of one feature or paired set of features. In addition, there is no evidence of any scars that are superficial, poorly nourished, with repeated ulceration. Thus, the Board finds that, for the period prior to May 23, 2012, the Veteran's squamous cell carcinoma of the face does not warrant a higher rating of 30 percent under any applicable rating criteria. The Board notes that in the June 2013 Informal Hearing Presentation, the Veteran's representative argued that when the RO granted the Veteran the increased rating of 30 percent it was based on scarring which had been evident since the surgeries and that the Veteran's scars have not increased in size; thus, the Veteran was entitled to a 30 percent rating back to the date of claim. However, the Board notes that the August 2012 rating decision granted the Veteran the higher rating of 30 percent even though he did not meet the criteria for a 30 percent rating. On May 2012 VA examination, his only characteristic of disfigurement was a scar that was at least .6 cm wide at the widest part (his scar was 2 cm wide); while the Veteran had hypopigmentation and abnormal texture both were described as being in an area of two square centimeters and not 39 square centimeters as required by Diagnostic Code 7800. Moreover, there was no evidence of a scar that was five or more inches in length, elevation, depression, adherence to underlying tissue, missing underlying tissue, or indurated or inflexible skin in an area exceeding six square inches. Nor was there evidence of a marked and unsightly deformity of eyelids, lips, or auricles or visible or palpable tissue loss, either gross distortion or asymmetry of one feature or paired set of features. Thus, while the RO granted the Veteran an increased rating of 30 percent in error, and the Board will not reduce the Veteran's disability rating, despite the representative's argument, the Board will also not repeat the error. "[T]he Board, as the final trier of fact, is not constrained by favorable determinations below." McBurney v. Shinseki, 23 Vet. App. 136, 139 (2009). Therefore, the Board finds that, for the period prior to May 23, 2012, the Veteran's squamous cell carcinoma of the face does not warrant the next higher, 30 percent rating under any applicable rating criteria. Since May 23, 2012, in order for the Veteran to warrant a rating in excess of 30 percent under the rating criteria in effect prior to August 30, 2002, there would have to be evidence of scars of the face that are complete or exceptionally repugnant deformity of one side of face or marked or repugnant bilateral disfigurement. Such simply is not shown here. Under the rating criteria in effect from August 30, 2002, to October 23, 2008, his squamous cell carcinoma of the face would have to be manifested by visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features or with four or five characteristics of disfigurement. However, as discussed above, the pertinent evidence does not support a finding that the Veteran's scarring meets the criteria for the 30 percent rating assigned-much less, the next higher 50 percent rating. As noted by the May 2012 VA examiner, the Veteran's squamous cell carcinoma of the face was only manifested by one characteristic of disfigurement-his scar was 2 centimeters wide. The length of the Veteran's scar was .8 centimeters and thus, it was no manifested by 13 or more centimeters in length. While the scar on his nose was noted to be both hypopigmented and an abnormal skin texture, it was only in an area of two square centimeters and not in an area of six square inches or 39 square centimeters. In addition, the Veteran does not assert nor does the medical evidence indicate that he has complete or exceptionally repugnant deformity of one side of face or marked or repugnant bilateral disfigurement or gross distortion or asymmetry of two features or paired sets of features. Moreover, there is no evidence of visible or palpable tissue loss. Thus, the Board finds that since May 23, 2012, the Veteran's squamous cell carcinoma of the face does not warrant a rating in excess of 30 percent under any applicable rating criteria. Additionally, the Board finds that at no point pertinent to this appeal has the disability been shown to be so exceptional or unusual to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disabilities with the established criteria provided in the rating schedule for the disabilities. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned ratings are therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. The Board finds that the applicable schedular criteria are adequate to rate the disability under consideration at all points pertinent to this appeal. As discussed above, the applicable rating criteria fully contemplates the type of symptoms and level of impairment associated with the Veteran's disability, and provides for ratings higher than that assigned based on more significant functional impairment. Significantly, there is no medical indication or argument that the applicable criteria are otherwise inadequate to rate the disability. As noted above, the May 2012 VA examiner clearly indicated that the Veteran did not have any limitation of function associated with his disability, nor did it impact his ability to work. As the Board thus concludes that symptoms and impairment of the Veteran's squamous cell carcinoma of the face are contemplated in the rating criteria discussed above, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Accordingly, referral of the claim for consideration of an extra-schedular rating is not warranted. For all the foregoing reasons, there is no basis for any further staged rating for the service-connected squamous cell carcinoma of the face, pursuant to Hart, and the claim for higher rating at each stage must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of any higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An initial rating in excess of 10 percent for squamous cell carcinoma of the face, prior to May 23, 2012, is denied. A rating in excess of 30 percent for squamous cell carcinoma of the face is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs