Citation Nr: 1612629 Decision Date: 03/29/16 Archive Date: 04/07/16 DOCKET NO. 09-28 807 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased disability rating for skin cancer of the left arm, right cheek, and right forehead, evaluated as noncompensably disabling prior to May 3, 2010, and as 10 percent disabling from May 3, 2010. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from July 1947 to July 1951. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Jurisdiction over the Veteran's claims file was subsequently transferred to the Montgomery, Alabama RO. In January 2015, the Board remanded this claim for further development. The development requested having been completed, this case is now appropriate for appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). FINDINGS OF FACT 1. For the rating period prior to May 3, 2010, the Veteran's skin cancer scars did not manifest any characteristics of disfigurement, none of the scars were deep, they did not cause limitation of motion, did not meet or exceed 929 square centimeters in total area, and were neither painful nor unstable. 2. For the rating period from May 3, 2010, to April 12, 2015, the Veteran's skin cancer scars did not manifest more than one characteristic of disfigurement, none of the scars were deep, they did not cause limitation of motion, did not meet or exceed 929 square centimeters in total area, and were neither painful nor unstable. 3. From April 13, 2015, the Veteran's skin cancer scars did not manifest more than one characteristic of disfigurement, none of the scars were deep, they did not cause limitation of motion, did not meet or exceed 929 square centimeters in total area, and were not unstable; however, he had three painful scars. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for skin cancer have not been met for the rating period prior to May 3, 2010. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, Diagnostic Code (DC) 7800 (2015). 2. The criteria for disability rating in excess of 10 percent for skin cancer have not been met for the rating period from May 3, 2010. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, Diagnostic Code (DC) 7800 (2015). 3. Affording reasonable doubt in favor of the Veteran, the criteria for a separate 20 percent disability rating for painful scars have been met from April 13, 2015. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, Diagnostic Code (DC) 7804 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. As is the case here, where entitlement to compensation has already 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). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno, 6 Vet. App. At 469; 38 C.F.R. § 3.159(a)(2). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of a veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In this case, the Veteran was awarded service connection for skin cancer of the right cheek in a March 2007 rating decision. A noncompensable disability rating was assigned under the provisions of DC 7818, effective from May 8, 2003. In July 2007, the Veteran filed a claim for a compensable disability rating for his skin cancer. In the November 2008 rating decision on appeal, the Jackson RO noted that the diagnosis now included a scar on the left forearm, but continued the noncompensable disability rating, finding that there was no evidence of disfigurement, limitation of motion or function due to scarring, or painful or unstable scars. In January 2015, the Board remanded this claim for further development. Therein, the Board noted that an April 2010 rating decision denied service connection for a scar of the right forehead. However, the Board found that the service-connected skin cancer should include the scar on the right forehead, as the evidence of record showed that the lesion removed was found to be cancerous. Subsequently, in a May 2015 rating decision, the Montgomery RO awarded a higher 10 percent disability rating for skin cancer, effective from May 3, 2010, the date of the VA examination and as of which it found that one characteristic of disfigurement was demonstrated by the evidence. The Board notes that the language of the May 2015 rating decision is somewhat confusing, in that, in one portion of the discussion section, it states that "[a]n evaluation of 10 percent is assigned from May 3, 2010, the date your VA examination showed you had a characteristic of disfigurement (hypopigmented scar of the right forehead)." Later in the decision, it states that "[w]e have assigned a noncompensable evaluation for your skin cancer (previously basal cell carcinoma, right cheek) and squamous cell carcinoma, left arm, based on: one or more linear scars." The associated May 2015 rating code sheet is equally confusing, as it lists, under disabilities subject to compensation: scars of the face and left forearm from skin cancer removal (previously rated DC 7818, as skin cancer (previously basal cell carcinoma, right cheek, and squamous cell carcinoma, left arm), evaluated at 10 percent from May 3, 2010, under DCs 7805-7800; and skin cancer (previously basal cell carcinoma, right cheek, and squamous cell carcinoma, left arm), evaluated as noncompensably disabling from May 8, 2003 to April 13, 2015, under DC 7818. However, the May 2015 supplemental statement of the case (SSOC) issued at the same time makes it clear that the RO meant to grant a compensable 10 percent disability rating for skin cancer of the face and forearm, effective from May 3, 2010, to maintain the noncompensable disability rating for skin cancer prior to that date, and to change the diagnostic code under which the skin cancer was evaluated to DC 7805-7800 effective May 3, 2010. Therefore, the issue on appeal has been characterized as it appears on the title page of this decision. The Veteran contends that he is entitled to a higher disability rating for his skin cancer because some of his scars are itchy and painful, as well as disfiguring. The criteria for rating disabilities of the skin were revised since VA received the Veteran's claim of entitlement to an increased rating in July 2007. When the rating criteria are revised during the course of a claim and appeal, VA must determine the rating to be assigned, taking into consideration both the revised and unrevised criteria and assigning the rating based on the criteria most favorable to the claimant, keeping in mind that the revised criteria may not be applied to any time period before the effective date of the change unless retroactive application has been specifically authorized. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The revision effective October 23, 2008 included the statement that a veteran whose scars were rated by VA under a prior version of Diagnostic Codes 7800, 7801, 7802, 7803, 7804, or 7805, as in effect before October 23, 2008, may request review under Diagnostic Codes 7800, 7801, 7802, 7804, and 7805, irrespective of whether his or her disability has worsened since the last review. The Board does not consider this statement to necessarily operate to the disadvantage of a veteran by requiring that he or she specifically request review of the disability under the revised criteria but only that he or she may request review without asserting that the disability has worsened since the last assignment of a disability rating. In short, the Board finds the direction provided in Kuzma to be controlling in this case and thus considers both rating criteria in deciding this appeal. The rating schedule in effect when the Veteran filed his claim (and the criteria under which his scars were initially evaluated) included DC 7818, which contemplates malignant skin neoplasms other than malignant melanoma. DC 7818, which was not changed by the 2008 amendments, instructs that the disability should be rated as disfigurement of the head, face, or neck (DC 7800), scars (DCs 7801, 7802,7803, 7804, or 7805), or impairment of function. The pre-2008 revised rating schedule also included DC 7800, which addresses scars or disfigurement of the head, face, or neck. Under this DC, a 10 percent disability rating is assigned when there is one characteristic of disfigurement. A 30 percent evaluation is assigned when there is 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, lips), or; with two or three characteristics of disfigurement. The next higher, 50 percent, rating is assigned when there is 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. An 80 percent rating is assigned when there is visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features, or; with six or more characteristics of disfigurement. 38 C.F.R. § 4.118 (2008). DC 7800 remained unchanged by the 2008 regulatory revisions. 38 C.F.R. § 4.118 (2015). Note (1) to DC 7800 lists the eight characteristics of disfigurement for purposes of evaluation under § 4.118, as follows: (1) scar five or more inches (13 or more centimeters (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.). Note (5) states that the characteristics of disfigurement may be caused by one scar or by multiple scars, and that the characteristics required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation. Id. Note (3) to DC 7800 provides that unretouched color photographs are to be taken into consideration when evaluating under these criteria. Moreover, Note (4) states that disabling effects of scars other than disfigurement, such as pain, instability, and residuals of associated muscle or nerve injury, are to be evaluated separately under the appropriate diagnostic code(s). Id. DC 7801 was revised by the October 2008 amendments. Prior to October 23, 2008, DC 7801 contemplates scars, other than head, face, or neck, that are deep or that cause limited motion, and provides up to a 40 percent disability rating depending on the total area of the scar(s). 38 C.F.R. § 4.118 (2008). The revised DC 7801 contemplates burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear, and also provides up to a 40 percent disability rating, depending on the area of the scar(s). 38 C.F.R. § 4.118 (2015). Under both the pre-and post-amended criteria, a deep scar is defined as one associated with underlying soft tissue damage. Next, DC 7802, prior to the 2008 amendments, contemplates scars, other than head, face, or neck, that are superficial and that do not cause limited motion, and allows for the assignment of a 10 percent disability rating. 38 C.F.R. § 4.118 (2008). The revised DC 7802 addresses burn scars or scars due to other causes, not of the head, face, or neck, that are superficial and nonlinear, and also provides for the assignment of a 10 percent disability rating. 38 C.F.R. § 4.118 (2015). Under both the pre- and post-amended criteria, a superficial scar is one not associated with underlying soft tissue damage. Also included in the pre-amended rating criteria for scars were DC 7803, titled "Scars, superficial, unstable," which provided for a 10 percent rating, and DC 7804, titled "Scars, superficial, painful on examination," which also provided for a 10 percent rating. 38 C.F.R. § 4.118 (2008). An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7803, Note (1) (2008). A superficial scar is one not associated with underlying soft tissue damage. Id. Under the revised criteria, DC 7803 was eliminated, and scars that are unstable or painful are to be assigned a 10 percent rating if there are one or two such scars; a 20 percent rating is assigned if there are three or four such scars; and a 30 percent rating is assigned where there are five or more such scars. 38 C.F.R. § 4.118, DC 7804 (2015). Note (2) under that Diagnostic Code provides that if one or more scars are both unstable and painful, 10 percent is to be added to the evaluation. Note (3) provides that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive a rating under DC 7804. The definition of an unstable scar was unchanged from the earlier version. For other scars (including linear scars) and other effects of scars evaluated under DCs 7800, 7801, 7802, and 7804, any other disabling effects not considered in a rating provided under DCs 7800 - 7804 are to be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118, DC 7805 (2015). Similarly, prior to the revision, DC 7805 provided that other scars are to be rated on limitation of function of the affected part. 38 C.F.R. § 4.118, DC 7805 (2008). As noted above, prior to May 3, 2010, the Veteran was in receipt of a noncompensable disability rating under the provisions of DC 7818 for his skin cancer of the left arm, right cheek, and right forehead. From May 3, 2010, he is in receipt of a 10 percent disability rating under the provisions of DC 7805-7800. The Board will first consider the rating period prior to May 3, 2010, under both the pre- and post-amended rating criteria (with the caveat that the amended criteria cannot be applied prior to October 23, 2008, as noted above), to determine whether compensable disability rating is warranted. Based on a review of the evidence, lay and medical, the Board finds that a compensable disability rating for skin cancer is not warranted for the rating period prior to May 3, 2010, as the evidence does not demonstrate the presence of any characteristics of disfigurement, as required for the assignment of a compensable disability rating under Diagnostic Code 7800. Indeed, even the May 2010 VA examination report, upon which the assignment of a higher 10 percent disability rating was based, does not demonstrate even a single characteristic of disfigurement. The Board has considered whether a compensable disability rating is warranted prior to May 3, 2010 under any other diagnostic code. However, none of the Veteran's scars other than head, face, or neck, are deep or cause limited motion, so DC 7801 does not allow for the assignment of a compensable disability rating. Moreover, although the Veteran's forearm scar is superficial and does not cause limited motion, its total area does not meet the criteria for a compensable disability rating under DC 7802. The June 2009 pathology report indicates that the right forehead biopsy specimen measured 1.0 by 0.6 by 0.3 centimeters, which does not even approach the minimum of 929 square centimeters required for a 10 percent disability rating under DC 7802. Prior to May 3, 2010, the evidence does not demonstrate that any of the Veteran's scars were unstable or painful, so DC 7803 (under the pre-amended regulations) and DC 7804 do not allow for a compensable disability rating prior to that date. For these reasons, the Board finds that the weight of the evidence is against a finding of a compensable disability rating for skin cancer for the rating period prior to May 3, 2010. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and, hence, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Next, the Board has considered the rating period from May 3, 2010, to determine if a disability rating in excess of 10 percent is warranted. Based on a review of the evidence, lay and medical, the Board finds that a disability rating in excess of 10 percent for skin cancer is not warranted from May 3, 2010, as more than one characteristic of disfigurement has not been demonstrated by the evidence, nor is there visible or palpable tissue loss and either gross distortion or asymmetry of one features or paired set of features (nose, chin forehead, eyes, ears, cheeks, lips), as required for the assignment of a 30 percent disability rating under Diagnostic Code 7800. Indeed, the Board finds that the evidence does not demonstrate the presence of any characteristics of disfigurement, but will not disturb the current 10 percent disability rating in place. For instance, the May 2010 VA examiner specifically noted the absence of breakdown or loss of subcutaneous tissue. The April 2015 VA examiner also specifically noted no gross distortion or asymmetry of facial features or visible or palpable tissue loss. Further, although all five scars described by the 2015 VA examiner had hypopigmentation, the total hypopigmented area was five square centimeters, where the minimum affected area for a finding of a characteristic of disfigurement manifested by hypopigmentation is 39 square centimeters. The longest scar was 6 centimeters (the vertical scar anterior to the right ear described by the 2015 VA examiner), where the minimum length to be described as a characteristic of disfigurement is 13 or more centimeters. Further, the widest scar, or, in this case, neoplasm, is 0.5 centimeters (the probably malignant ulcer under the right eye described by the 2015 VA examiner), where the minimum width to be considered a characteristic of disfigurement is 0.6 centimeters. The Board notes that the 2010 VA examiner described the right forehead scar as being 4.3 centimeters in transverse dimension, but this appears to be a typographical error, as it is in contrast with the 2009 biopsy report referenced above, as well as the 2015 VA examiner's description of the two forehead scars as measuring 0.1 and 0.2 centimeters in width. Finally, both the 2010 and 2015 VA examiners noted the absence of elevated or depressed scars, adherence to underlying tissue, abnormal texture, missing underlying soft tissue, or indurated or inflexible skin. Moreover, the Board finds that no other diagnostic codes allow for a disability rating in excess of 10 percent for the rating period from May 3, 2010. None of the scars are deep, and the total area does not meet or exceed 929 square centimeters, so Diagnostic Codes 7801 and 7802 do not allow for a higher rating. The Board also notes that the 2015 VA examiner found that, although the Veteran reported that some of his scars were itchy, the diagnostic criteria for a diagnosis of dermatitis, eczema, or similar diagnosis were not met, so diagnostic codes relevant to those diagnoses are not applicable. However, the Board finds that the criteria for a separate 20 percent disability rating for three painful scars under DC 7804 have been met for the rating period from April 13, 2015. The April 2015 VA examiner noted that the Veteran had two scars on his forehead which stung, and also noted that he had a lesion below his right eye - which was probably skin cancer - that burned. Although the lesion below the eye had not yet been biopsied as of the date of the VA examination, the VA examiner stated that it was most likely cancerous. Affording reasonable doubt in favor of the Veteran as to the nature and diagnosis of the lesion below the eye, the Board finds that a separate 20 percent disability rating is warranted under DC 7804 for the three painful scars/neoplasm from April 13, 2015. A separate rating for painful scars under DC 7804 is not warranted prior to April 13, 2015; notably, the 2010 VA examiner specifically noted that none of the Veteran's scars were painful, and there is no other evidence to suggest that he had painful scars prior to that date. For the foregoing reasons, the Board finds that the weight of the evidence is against a finding of a compensable disability rating for skin cancer for the rating period prior to May 3, 2010, and a disability rating in excess of 10 percent for the period from May 3, 2010. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and, hence, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. However, based on the Veteran's report of stinging and burning of the two scars on his forehead and the likely cancerous lesion under his right eye, the Board finds that a separate 20 percent disability rating is warranted under Diagnostic Code 7804 for three painful facial scars for the rating period from April 13, 2015. The Board has considered whether an extraschedular evaluation is warranted for the Veteran's skin cancer. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation 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." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, 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 extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairments caused by the Veteran's service-connected disabilities are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The Veteran has not expressly raised the matter of entitlement to an extraschedular rating. His contentions have been limited to those discussed above, i.e., that his skin cancer scars are more severe than is reflected by the assigned ratings. As was explained in the merits decision above in denying higher ratings, the criteria for higher schedular ratings were considered, but the ratings assigned were upheld (except as otherwise indicated) because the rating criteria are adequate. In view of the circumstances, the Board finds that the rating schedule is adequate, even in regard to the collective and combined effect of all of the Veteran's service-connected disabilities, and that referral for extraschedular consideration is not warranted under the circumstances of this case. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Beyond the above, the Board has considered the issue of whether unemployability (TDIU) has been raised by the record. In this regard, the Board must note no indication that the issue of TDIU has been raised by this record. Although the Veteran has noted problems with his service connected disability, he has not indicated he is unable to work or attend school due to his skin cancer disability (nor does the evidence of record suggest this). The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a). In this case, the duty to notify was satisfied by way of the November 2008 rating decision and a January 2009 letter. Any untimeliness in the notice provided is nonprejudicial, as the Veteran had ample opportunity to submit additional evidence prior to readjudication of the claim in the statement of the case and supplemental statements of the case. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence, including affording a VA examination. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records, VA examination reports, and the Veteran's statements. The Veteran has been afforded an adequate examination on the issue decided herein. As noted above, VA provided him with examinations in 2010 and 2015. His history was taken, and complete examinations with clinical measures were conducted. Conclusions reached and diagnoses given were consistent with the examination reports. For these reasons, the Board finds that the Veteran has been afforded an adequate examination on the issue decided herein. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The 2015 VA examination also satisfied the Board's January 2015 remand directives. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER A compensable disability rating for skin cancer is denied prior to May 3, 2010. A disability rating in excess of 10 percent for skin cancer is denied from May 3, 2010. A separate 20 percent disability rating is granted for three painful scars for the rating period from April 13, 2015, subject to the rules governing payment of monetary benefits. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs