Citation Nr: 1423155 Decision Date: 05/21/14 Archive Date: 05/29/14 DOCKET NO. 12-23 442 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial compensable rating for scars on the ears and face and arms, resulting from the removal of skin cancer. ATTORNEY FOR THE BOARD Y. Curtis, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from September 1999 to July 2002. The claim is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in June 2010 of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2013, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran submitted additional arguments while the claim was on appeal. FINDING OF FACT The service-connected scars on the ears, face, and arms are not unstable, painful or deep; do not result in loss of function; and do not result in disfigurement or cover an area in excess of 144 square inches. CONCLUSION OF LAW The criteria for an initial compensable rating for scars on the ears and face and arms, resulting from the removal of skin cancer. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The appeal arises from the Veteran's disagreement with the initial rating following the grant of service connection. Once service connection is granted the claim is substantiated, additional VCAA notice is not required. Dunlap v. Nicholson, 21 Vet. App. 112 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Higher Ratings A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Squamous Cell Carcinoma The service-connected scars on the ears, face, and arms, resulting from the removal of skin cancer, are rated noncompensable under 38 C.F.R. § 4.118, Diagnostic Code 7818-7800. Skin cancer is rated as disfigurement of the head, face, or neck under Diagnostic Code 7800, or as scars under Diagnostic Codes 7801, 7802, 7803, 7804, 7805 (impairment of function). Under Diagnostic Code 7800, scars of the head (ears), face, or neck, or other disfigurement of the head, face, or neck, are rated as follows. A scar with one characteristic of disfigurement warrants a 10 percent rating. The eight characteristics of disfigurement, for purposes of rating under 38 C.F.R. § 4.118 , are: (1) A scar 5 or more inches (13 or more cm.) in length; (2) a scar at least one-quarter inch (0.6 cm.) wide at the widest part; (3) the surface contour of a scar is elevated or depressed on palpation; (4) a scar is adherent to underlying tissue; (5) the skin is hypo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); (6) the skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) the underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.); and (8) the skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Under Diagnostic Code 7801, the criteria for a 10 percent rating are scars, other than head, face, or neck, that are deep or that cause limited motion and cover an area or exceeding 6 square inches (39 sq. cm.). Under Diagnostic Code 7802, the criteria for a 10 percent rating are scars, other than head, face, or neck that are superficial and nonlinear and cover an area of 144 square inches (929 sq. cm.). Under Diagnostic Code 7804, the criteria for a 10 percent rating are scars that are unstable or painful on examination. Under Diagnostic Code 7805, scars may be rated on limitation of function of the affected part. A review of the evidence shows that the skin cancer has resulted in superficial scars of the head, face, and arms, and Diagnostic Codes 7800, 7802, 7804, and 7805 apply. As the scars are not deep or cause limited motion and cover an area or exceeding 6 square inches (39 sq. cm.), Diagnostic Code 7801 does not apply. Evidence During service, the Veteran presented with a scab on his left ear that would not heal. The diagnosis was a left ear scabbed lesion of unknown etiology. After service on VA examination in December 2009, the Veteran stated that he had surgery to remove malignant skin lesions. He stated that he experienced scarring, itching, pain, and loss of feeling following surgery. He reported that he continues to seek treatment on an annual basis and must avoid direct sunlight. He also stated that surgery recovery times result in time away from work. Treatment records from the Dermatology Center from April 2005 to November 2010 reveal the Veteran had several lesions removed from his ears and arms. In an accompanying statement from Dr. J.O. stated that the Veteran had squamous cell carcinoma and required at least one annual treatment to prevent the potential progression of the skin cancer. Treatment records from the Piedmont Ear, Nose, Throat & Related Allergy show that the Veteran had a benign [not cancerous] squamous papilloma removed from his tongue in June 2011. On VA examination in January 2012, the examiner noted that the scars on the upper extremities were superficial and non-linear and not painful or unstable. The dimensions of the scars of the right upper extremity were as follows: Scar #1 .5 x .5 centimeters, scar #2 .5 x .5centimeters, and scar #3 .33 x .33 centimeters. The approximate total area of scars on the right upper extremity was 1.15 square centimeters. The dimensions of the scars of the left upper extremity were as follows: Scar #1 .75 x .75centimeters m and scar #2 .33 centimeters x .33 centimeters. The approximate total area of scars on the left upper extremity was 1.15 square centimeters. The scars of the head, face or neck were not painful or unstable. The scars were also not elevated, depressed, adherent to underlying tissue, or missing underlying soft tissue. There was no abnormal pigmentation or texture noted and the scars did not result in limitation of function. Additionally, there was no gross distortion or asymmetry of facial features or visible tissue loss. The right posterior auricular scar was 1.0 x .15 centimeters and the left posterior auricular scar was .25 x.25 centimeters. The examiner noted that the scars did not impact the Veteran's ability to work. On examination in October 2013, the examiner noted a scar on the left ear that resulted in decreased sensation in the tissue around the ear. The scar was not painful on examination and there was no evidence of skin breakdown. The scar was superficial with no underlying tissue damage. The examiner indicated that the scar was not disfiguring. There was no keloid formation and no limitation of function due to the scar. The scar was minimally perceptible when compared to the other ear. It measured .5 cm x .6 centimeters with minimal 1 millimeter depression. Analysis The Veteran seeks a compensable rating for the scars on the ears, face, and arms, resulting from the removal of skin lesions. The Veteran asserts that the combined area of all of the scars warrants a compensable rating and the loss of sensation warrants a compensable rating due to loss of function. The Veteran also asserts that the scars have resulted in asymmetrical disfigurement for a compensable rating. The Veteran argues that the Diagnostic Codes for rating scars are not appropriate for rating cancer, because he is unable to spend outdoors for work and for leisure. As for the scars of the head, face, or neck, the Veteran states that the scars have resulted in asymmetrical disfigurement under Diagnostic Code 7800. However the evidence does not show that the scars of the head (ears), face, or neck are disfiguring. In January 2012, the VA examiner described the scars as not resulting in gross distortion or asymmetry of facial features. In October 2013, VA examiner specifically noted that a scar on one ear was not disfiguring and was minimally perceptible when compared to the other ear. Both VA examiners' findings are supported by color photographs, which show barely perceptible scars of the ears. As the two VA examiners made findings regarding the lack of disfigurement, which are supported by the photo evidence, the Board need not address the characteristics of disfigurement outlined in Note 1 of Diagnostic Code 7800. As for the scars on the upper extremities, Diagnostic Codes 7802 and 7804 apply. The Veteran asserts that the combined area of all the scars warrants a compensable rating. The area covered by the scars under Diagnostic Code 7802 is limited to scars other than scars of the head, face, or neck. Area covered by scars of the ears and face are ratable separately under Diagnostic Code 7800 as disfigurement, but disfigurement is not shown. On examination in January 2012, the combined area of the superficial scars, not of the head, face, or neck, was 2.3 square centimeters. As the evidence shows that the scars of the upper extremities are superficial and do not cover an area of at least 144 square inches (929 sq. cm.), the criterion for a compensable rating under Diagnostic Code 7802 are not met. Under Diagnostic Code 7804, although the Veteran stated that the scars were painful after surgery, both VA examiners noted that the scars were stable and not painful and the criterion for a compensable rating under Diagnostic 7804 are not met. On examination in October 2013, VA examiner noted a loss of sensation in the area surrounding the left ear scar, but that the scar did not result in limitation of function or movement of the ear under Diagnostic 7805. Also, the loss of sensation does not approximate or equate to a painful scar under Diagnostic 7804 as the loss of sensation is the lack of sensation, that is, the lack of pain. And the loss of sensation does not approximate or equate to moderate incomplete paralysis of the facial nerve under Diagnostic Code 8207, the criterion for a compensable rating. And in the absence of evidence of therapy comparable to that used for systemic malignancies, a compensable rating under Diagnostic Code 7818 is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for such a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is therefore adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008) aff'd Thun v. Shinseki, 2009 WL 2096205 (Fed. Cir. July 17, 2009). The Board finds that the rating criteria reasonably describe the Veteran's symptomatology. In other words, the Veteran does not have symptomatology not already encompassed in the Rating Schedule and the assigned schedular rating is adequate. Therefore, referral for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is not warranted. Total Disability Rating for Compensation based on Individual Unemployability Although the Veteran indicated that the scars impact his ability to work outdoors, the Veteran does not allege and the evidence does not show that he is unable to work because of service-connected scars. Accordingly, the Board finds that a claim for total disability rating for compensation based on individual unemployability is not raised by the record. ORDER An initial compensable rating for scars on the ears and face and arms, resulting from the removal of skin cancer, is denied. ____________________________________________ George E. Guido Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs