Citation Nr: 1605478 Decision Date: 02/11/16 Archive Date: 02/18/16 DOCKET NO. 08-14 600 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an evaluation in excess of 10 percent from February 13, 2012 for scarring due to basal cell carcinomas of the nose, right cheek, and behind the left ear. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The veteran had continuous active service from November 1977 to October 1986. In October 1986, the veteran was commissioned as an officer, and continued on active duty until December 2005, when he retired with more than 25 years of active service. This appeal initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). The board remanded the claim listed on the title page of this decision in November 2011 and in September 2014. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, a September 2015 color photograph establishes that scarring on the veteran's nose results in visible tissue loss and objective asymmetry of that feature. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for a 30 percent evaluation for scar disability of the veteran's nose are met from February 13, 2012. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.118, Diagnostic Code 7800 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Prior to the veteran's December 2005 service discharge, several basal cell carcinoma were removed. In July 2004, a basal cell carcinoma was removed from the veteran's nose, after "growing back." The service treatment records describe a non-healing area, but the Board is unable to locate a description of the initial surgery. In September 2004, a skin graft to the tip of the Veteran's nose was required. This resulted in "some broadening of the scar and on the left dorsum (of the nose) the tissue is a little more full." The final assessment was "healing bilobed transposition flap, nose." It was noted that a lesion was removed from the tip of the Veteran's nose by cryotherapy (freezing). In the report of a September 2005 VA examination, a scar on the veteran's nose was described as "level" and as measuring 5 cm x 0.4 cm. Service connection for a scar on the veteran's nose was granted. In February 2012, the scar on the veteran's nose was described as two centimeters by 2.5 cm in diameter on the mid-distal nose. The examiner described the scar as "very noticeable." However, the report of that examination appeared incomplete, and the claim was remanded for further development. A color photograph of the veteran's face, showing his nose, was added to the claims file in February 2013. This color photograph, which appears undated, shows more than one visible scar on the veteran's nose. A scar on the right side of the nose appears slightly elevated, and a scar on the Veteran's left nostril just above the nares is also well-healed but visible. Some asymmetry of the Veteran's nose is demonstrated in the photograph. However, it is not entirely clear whether the asymmetry is related to scars, to lesions removed without scarring, to the transposition flap performed on the nose in service, or to the quality of the photograph. A copy of a February 2013 letter was also added to the file. That letter states that there are no photographs in the file. A September 2014 private treatment note reflects that an area of actinic keratosis was removed from the left nasal tip. A March 2015 private treatment record reflects that the veteran sought evaluation of an area on the right nasal dorsum. The veteran reported that the lesion was growing. The treatment record states that the lesion had been previously treated with Mohs surgery. A biopsy of the dermis, right nasal dorsum, was submitted for pathology examination. The pathology report found a proliferation of neoplastic cells (basaloid keratinocytes) with tumor formation in the dermis, with peripheral palisading and numerous apoptotic bodies. In May 2015 a lesion was removed from the veteran's right nasal dorsum using Mohs micrographic surgery. The operative report reflects that the postoperative size was 1.4 cm x 1.2 cm. The treatment record includes a diagram of the veteran's face which reflects that the surgery was on the right side of the veteran's nose, in line with the nares and below the level of the bridge of the nose. VA examination conducted in September 2015. The scar was described as 4.0 cm x 1.0 cm, along the length of the nose, with some raised and some depressed areas. Two color photographs dated in September 2015 are associated with the Virtual VA electronic record. Those photographs disclose what appear to be several scars on the veteran's nose. One scar from the middle of the veteran's nose to a point above and nearing the right nares and tip of the nose. The examiner stated that there was no gross distortion or asymmetry of a facial feature. However, the examiner did not describe the elevations and depressions of the veteran's nose near the scar, and did not indicate whether each area of asymmetry of the veteran's nose was or was not related to the excision of a basal cell carcinoma first noted during the veteran's service. One examiner stated that the "scar" was disfiguring. One examiner stated that the scar was not disfiguring. Neither examiner discussed the effect of removals of basal cell carcinoma from the tip of the nose, or the effect of those tissue removals on the overall appearance of the Veteran's nose. The Board observes that the color photographs dated in 2013 and in 2015 do not show that one scar results in gross distortion or gross asymmetry of the veteran's nose, but the photographs do show visible distortion and asymmetry of the nose. The July 2004 service treatment records reflect that the Veteran incurred "ACQ[uired] nose deformity. The record does not include a picture of the Veteran's nose at the time of his service induction. However, it is know that the Veteran underwent excision of lesion on the right side of the nose, underwent cryotherapy of the tip of the nose, a second excision of a lesion from the right side of the Veteran's nose, and a transposition flap on the left side of the nose, in service. "Regrowths" at the area to the right side of the Veteran's nose and on the tip of the nose were again treated following service. The claims file and examination reports do not provide a clear history of the "ACQ[uired] nose deformity" present in July 2004. However, a July 2004 photograph of the Veteran shows a non-healing lesion in the center of his nose below the bridge. The scars on the left dorsum of the nose and on the right side of the nose present in the post-service photograph are not present on the July 2004 photograph, but an open lesion covers a large portion of the center of the Veteran's nose. In the post-service photograph, a visible area of raised tissue appears in the center of the Veteran's nose, between the scars on the left side and right side of the nose, where an open lesion appears on the July 2004 in-service photograph. Resolving reasonable doubt, the scars and asymmetry of the Veteran's nose visible in the post-service color photographs, to include a raised area in the center of the Veteran's nose and a small scar on the left side of the nose and a larger service connection r on the right side of the nose are all attributable to surgery performed during the Veteran's service or at the locations of prior in-service treatment. No scar or asymmetry of the Veteran's nose has been attributed to any disease or injury acquired before or after the Veteran's service from 1977 to 2005. The scars now visible reflect three characteristics of disfigurement, including a raised area in the center of the Veteran's nose which is also more than 1/4" wide, and asymmetry of one feature. Resolving any doubt in the Veteran's favor, the scarring on his nose meets the criteria for a 30 percent evaluation for disfigurement of the nose. The next higher evaluation, a 50 percent evaluation, is warranted if two or more features or paired features are affected. In this case, the Veteran does not allege that any other feature is affected other than the nose. No examiner has found a tender or painful scar or scar that limits motion at any location on the Veteran's body. A 50 percent evaluation is warranted if the scarring of the Veteran's nose meets four or five characteristics of disfigurement. Of the eight characteristics of disfigure, four require that the affected area is six square inches. The Veteran's nose is not six inches long or six inches wide, so he cannot meet the requirements for affected area for those four characteristics. Each of the examiners has stated that no scar is adherent to underlying tissue, so the Veteran does not meet that characteristic of disfigurement. Therefore, he does not meet four or five of the either characteristics of disfigurement. The preponderance of the evidence is against an evaluation in excess of 30 percent for disfigurement of the nose since February 13, 2012. The affected area does not total more than six square inches, since the Veteran's nose is less than six inches wide and six inches long. The Board has considered whether any other scar warrants a separate, compensable evaluation based on pain, tenderness, or limitation of motion, but finds no evidence of such additional scar disability. The evidence warrants assignment of a 30 percent evaluation, but no higher evaluation, for scars or disfigurement of the nose. Extraschedular evaluation The Board has considered whether referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321(b) is required. Such referral is required if the applicable 30 percent rating criteria fail to contemplate or encompass all social and occupational impairment resulting from the service-connected nose disfigurement disability. The award of an extraschedular disability rating is the result of a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The first step is to compare the level of severity and symptomatology of the appellant's disability with the established criteria in the rating schedule. If these criteria "reasonably describe the claimant's disability level and symptomatology" then the regular schedular rating system is adequate and extraschedular referral is not warranted. Id. If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun at 115-116. The Board cannot adjudicate entitlement to an extraschedular rating in the first instance. Rather, when those two elements are met (exceptional disability picture and marked interference with employment or frequent hospitalization), the appeal must be referred to the VA Under Secretary for Benefits or the Director of VA Compensation and Pension Service for initial consideration of the assignment of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). In this case, the criteria for evaluation of disfigurement of the face allow for higher ratings, if more than one facial feature is involved. However, the objective evidence does not show, and the Veteran does not allege, that more than one facial feature is affected. The 30 percent evaluation assigned in this decision encompasses all objective symptoms of the disfigurement disability of the nose that the Veteran manifests. Higher evaluations are available for service-connected disfigurement of the face, but the Veteran did not manifest the increased symptoms required for the higher ratings. The Board acknowledges that, under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, after applying the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional signs or symptoms of the service-connected disabilities addressed in this decision that have not been attributed to a specific service-connected disability, and the combined rating for this Veteran, with consideration of the favorable determination above, encompasses all signs and symptoms of disability reflected by the record. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. Duties to assist and notify The Veteran was notified of the criteria for service connection for scars of the face. The claim for service connection for scars of the nose was granted. Where a claim for service connection has been substantiated and an initial rating and effective date assigned, the filing of a Notice of Disagreement with the RO's decision as to the assigned disability rating does not trigger additional 38 U.S.C.A. § 5103(a) notice. Thus, no further notice is required. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Veteran's lengthy service treatment records have been obtained. VA treatment records have been obtained. The Veteran has been afforded VA examinations. The veteran has been afforded VA treatment or examination relevant to the claim addressed in this decision. The Veteran has not identified any non-VA clinical records or other additional records that should be obtained. Thus, the Board finds that VA has satisfied the duties to notify and assist the Veteran. No further notice or assistance to the Veteran is required to fulfill VA's duties to assist him to substantiate the claims addressed in this decision. 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). ORDER From February 13, 2012, an initial evaluation for scarring due to basal cell carcinoma of the nose is increased from 10 percent to 30 percent, but no higher, subject to law and regulations governing the effective date of an award of compensation. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs