Citation Nr: 1520125 Decision Date: 05/11/15 Archive Date: 05/26/15 DOCKET NO. 09-28 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an initial increased rating for recurrent actinic keratosis with history of basal and squamous cell carcinoma in excess of zero percent prior to August 30, 2002, and in excess of 10 percent thereafter. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Joshua Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1966 to April 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2008 rating decision of the Pittsburgh, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection for a skin disability and assigned a noncompensable rating, effective June 17, 2002. In June 2009, the RO increased the disability rating 10 percent, effective August 30, 2002. As the increase did not satisfy the appeal in full, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). In November 2013, the Board remanded the case for further development. In April 2015 the Veteran, by his duly authorized representative, waived RO review of the evidence submitted subsequent to the most recent supplemental statement of the case in June 2014. See 38 C.F.R. § 20.1304(c) (2014). The appeal is REMANDED to the agency of original jurisdiction. VA will notify the Veteran if further action is required. REMAND The Veteran seeks an initial increased rating for recurrent actinic keratosis with history of basal and squamous cell carcinoma in excess of zero percent prior to August 30, 2002, and in excess of 10 percent thereafter. The appeal stems from a June 2006 claim for service connection that was ultimately implemented in the April 2008 rating decision on appeal following a November 2007 grant of service connection. During the pendency of the appeal, the criteria for evaluating disabilities of the skin were twice revised, on August 30, 2002, and again on October 23, 2008. For the time period prior to August 30, 2002, pre-August 2002 regulations apply. For the time period on and after August 30, 2002, the pre-August 2002 or post-August 2002 regulations may apply, whichever is more beneficial to the Veteran. For the time period on or after October 23, 2008, the post-October 2008 regulations are applicable upon the Veteran's request, in addition to the pre-August 2002 and post-August 2002 regulations, whichever is more beneficial to the Veteran. See, e.g., Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003) (("[C]ongressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result.") (citations omitted)). In July 2014, the Veteran reported that his dermatologist, Dr. Benjamin, told him that his skin disability affects 20 percent of his exposed skin and 40 to 50 percent of his entire body. On August 5, 2014, the Veteran reported that he was scheduled to undergo surgery to remove malignant melanoma on August 15, 2014. The most recent VA examination in December 2013 shows that the malignant melanoma was in watchful waiting status and that the skin disability affected less than 5 percent of exposed and total body areas. As the evidence suggests a material change in the disability since the most recent VA examination, reexamination is warranted under 38 C.F.R. § 3.327 (2014). Upon remand, the Veteran is invited to submit additional medical evidence, such as a statement from Dr. Benjamin, in support of the assertion that his skin disability affects 20 percent of his exposed skin and 40 to 50 percent of his entire body. Accordingly, the case is REMANDED for the following actions: 1. Invite the Veteran to submit additional medical evidence, such as a statement from Dr. Benjamin, in support of the assertion that his skin disability affects 20 percent of his exposed skin and 40 to 50 percent of his entire body. Provide him a reasonable period of time to submit this evidence. 2. After obtaining any authorization necessary for the release of such documents, contact the Veteran's private dermatology clinic and request copies of the Veteran's treatment records dated from July 2014 to present. All attempts to procure the private records should be documented in the file. If the records identified cannot be obtained, a notation to that effect should be included in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 3. Obtain any outstanding VA treatment records. 4. Thereafter, schedule the Veteran for a VA examination by an appropriate medical professional. The examiner is to identify the current severity of the Veteran's service-connected skin disability. The entire claims file, to include any electronic files, must be reviewed by the examiner. The examination report must include a complete rationale for all opinions expressed. The examiner is to specifically address the Veteran's July statement that Dr. Benjamin told him that his skin disability affects 20 percent of his exposed skin and 40 to 50 percent of his entire body. 5. Finally, after conducting any other development deemed necessary, readjudicate the appeal. In doing so, consider the criteria for evaluating the skin that was in effect prior to the August 30, 2002 revisions. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 2014). _________________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).