Citation Nr: 18144666 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 16-27 418 DATE: October 25, 2018 ORDER Entitlement to an initial compensable rating for a scar of the left chest wall as a residual of squamous cell carcinoma removal, effective since November 12, 2014, is denied. FINDING OF FACT Throughout the appeal period, the Veteran’s left chest scar, which is not of the head, face, or neck, did not affect an area sufficient for VA purposes and is not otherwise unstable or painful. CONCLUSION OF LAW The criteria for entitlement to an initial compensable rating for a scar of the left chest wall as a residual of squamous cell carcinoma removal, effective since November 12, 2014, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.20, 4.118, Diagnostic Codes 7800 to 7805, 7818 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from August 1976 through August 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to an initial compensable rating for a scar of the left chest wall as a residual of squamous cell carcinoma removal, effective since November 12, 2014. VA’s percentage ratings are based on the average impairment of earning capacity because of service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and criteria under which they will be rated, and the assignment of a Diagnostic Code (DC) depends wholly on the facts of the case. Butts v. Brown, 5 Vet. App. 532, 538 (1993). If two disability evaluations are potentially applicable, 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. All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). VA examines all of the evidence submitted since the date of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings may be awarded if there are decreases or increases in symptomatology that meet the criteria for a different rating for a distinct period during the appeal period and ratings may reflect these differences in severity. Id. This decision will focus on the evidence pertinent to the rating criteria and disability severity during the relevant period on appeal, but the Board has considered the entire record to have a full picture of the disability. See 38 C.F.R. §§ 4.1, 4.2, 4.41; Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2000). The rating for the Veteran’s left chest scar, as a residual of squamous cell carcinoma, was made effective November 12, 2014, the date service connection was established. See April 2015 Rating Decision. The criteria for rating skin disabilities have changed once during the period covered by this appeal, effective August 13, 2018. See 83 Fed. Reg. 32,592 (July 13, 2018). When a law or regulation changes during the pendency of a Veteran’s appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. Under DC 7818, malignant skin neoplasms (other than malignant melanoma) are rated as disfigurement or scars (DCs 7800 to 7805) or impairment of function. If a skin malignancy requires therapy that is comparable to that used for systemic malignancies (i.e., systemic chemotherapy, X-ray therapy more extensive than to the skin, or surgery more extensive than wide local excision), a 100-percent evaluation will be assigned from the date of onset of treatment, and will continue, with a mandatory VA examination six months following the completion of such antineoplastic treatment. If there has been no local recurrence or metastasis, evaluation will then be made on residuals. However, if treatment is confined to the skin, the provisions for a 100-percent evaluation do not apply. 38 C.F.R. § 4.118, DC 7818 and Note. Under DC 7800, burn scars, scars, or other disfigurement of the head, face, or neck will be assigned as follows: A 10 percent rating is warranted for disfiguring scars (prior to August 13, 2018), or scars or other disfigurement (since August 13, 2008) of the head, face, or neck, which have one of the eight characteristics of disfigurement. 38 C.F.R. § 4.118, DC 7800. A 30 percent rating is warranted for disfiguring scars, or scars or other disfigurement of the head, face, or neck with 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. Id. A 50 percent rating is warranted for disfiguring scars, or scars or other disfigurement of the head, of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with four or five characteristics of disfigurement. Id. An 80 percent rating is warranted for disfiguring scars, or scars or other disfigurement of the head, of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features of paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with six or more characteristics of disfigurement. Id. Note 1 to DC 7800 defines the eight characteristics of disfigurement for these purposes: (1) scar 5 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 (sq.) inches (39 sq. cm); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six sq. inches (39 sq. cm); (7) underlying soft tissue missing in an area exceeding six sq. inches (39 sq. cm); and (8) skin indurated and inflexible in an area exceeding six sq. inches (39 sq. cm). Id. In addition to the above criteria, note 4 to DC 7800 provides that disabling effects other than disfigurement that are associated with individual scar(s) of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, shall be separately evaluated under the appropriate diagnostic code(s) and combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.118, DC 7800. Note 5 to DC 7800 provides that the characteristics of disfigurement may be caused by one scar or by multiple scars; the characteristics required to assign an evaluation need not be caused by a single scar to assign that evaluation. Id. Under DC 7801, burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear will be assigned a 40 percent rating for an area or areas of 144 sq. inches (929 sq. cm) or greater; 30 percent rating for an area or areas 72 sq. inches (465 sq. cm) or greater; 20 percent rating for an area or areas 12 square inches (77 sq. cm) or greater; and 10 percent rating for an area or areas 6 sq. inches (39 sq. cm) or greater. 38 C.F.R. § 4.118, DC 7801. Under DC 7802, burn scars or scars due to other causes, not of the head, face, or neck, that are superficial and nonlinear will be assigned a 10 percent rating for scars with an area or areas of 144 sq. inches or greater. 38 C.F.R. § 4.118, DC 7802. For DCs 7801 and 7802, prior to the August 31, 2018 revision, note 1 to DC 7801 defined a deep scar as one associated with underlying soft tissue damage, and Note 1 to DC 7802 defined a superficial scar as one not associated with underlying soft tissue damage. See 38 C.F.R. § 4.118, DCs 7801 and 7802. Effective August 13, 2018, the phrase “nonlinear” was removed from DCs 7801 and 7802. Additionally, the previous Note 1 to these codes with definitions was deleted; the term “deep” in DC 7801 was replaced with its definition of “associated with underlying soft tissue damage,” and the term “superficial” in DC 7802 was replaced with its definition of “not associated with underlying soft tissue damage.” Otherwise, the measurements and criteria for the specific percentages remain the same. See 38 C.F.R. § 4.118, DCs 7801 and 7802. Under DC 7804, one or more scars that are unstable or painful warrant a 10 percent rating; three or four scars that are unstable or painful warrant a 20 percent rating; five or more scars that are unstable or painful warrant a 30 percent rating. 38 C.F.R. § 4.118, DC 7804. These provisions were not changed by the August 13, 2018, revision. 38 C.F.R. § 4.118, DC 7804. Note 1 to DC 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar and that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7804. For DC 7804, Note 2 provides that that if one or more scars are both unstable and painful, 10 percent will be added to the evaluation that is based on the total number of unstable or painful scars. Note 3 provides that scars evaluated under DCs 7800, 7801, 7802, or 7805 may receive additional evaluation under DC 7804 when applicable. 38 C.F.R. § 4.118, DC 7804. Under DC 7805, other scars, including linear scars, and other effects of scars evaluated under DCs 7800, 7801, 7802, and 7804, any disabling effect(s) not considered in a rating provided under DCs 7800 through 7804 will be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118, DC 7805. Effective as of August 13, 2018, the phrase “including linear scars” was deleted from DC 7805; otherwise, the criteria remain the same. 38 C.F.R. § 4.118, DC 7805. The Veteran contends that he is entitled to an increased evaluation for his left chest wall scar, which is a residual of squamous cell carcinoma removal. The Veteran is competent to describe his observable symptoms and pain, as well as to summarize his treatment history and what his providers told him about the condition. His summary as to his symptoms and treatment is also credible because it is generally consistent with the medical records. Private treatment records document that the Veteran complained of a white lesion on his left chest that had been there for approximately one month. See November 2014 Progress Notes. He complained that it was slightly sore and fell on palpation. Id. The Veteran’s private physician diagnosed the lesion as a squamous cell carcinoma. See e.g., November 2014 Patient Report and Final Diagnosis. The records document the lesion size prior to removal as 0.8 x 0.8 + 0.5-centimeter margins. See December 2014 Operative Report. The final wound length after excision was 3.0 centimeters. Id. The wound was sutured. See December 2014 Prescription Blank. The Veteran submitted a color photograph in 2014 attached to a December 2014 patient report. The photograph shows a linear scar with sutures on the left side of the Veteran’s chest. The scar is approximately one inch in length. It appears this picture was taken after the carcinoma excision. This same photograph was resubmitted along with the Veteran’s substantive appeal (VA Form 9) as well as an additional color photograph in June 2016. The additional color photograph is a closer view of the same scar. An April 2015 VA examiner stated that the Veteran had residual scarring from surgical removal of squamous cell cancer, left chest wall, which occurred on December 1, 2014. He described the Veteran’s scar as being a “3.5 [centimeter] scar, superficial, well healed, skin colored, not deep not adherent. No skin breakdown or loss of cover. No induration, atrophy. No keloid or ulceration. Not tender to touch.” There is no evidence to show that this medical evidence is not competent and it is therefore probative. Applying the rating criteria under DC 7818, there is no indication that the Veteran has received treatment comparable to those used for systemic malignancies for his skin carcinoma. Instead, the Veteran’s carcinoma was surgically removed when it appeared. See December 2014 Operative Report. This is a wide local excision that is listed as an example of what does not qualify for 100 percent rating. Therefore, the 100 percent rating cannot be applied. Accordingly, the Veteran’s skin carcinoma must be rated under DCs 7800 to 7805 or impairment of function. As indicated, DC 7800 applies to burn scars, scars, or other disfigurement of the head, face, or neck. Because the scar in this instant appeal deals with the Veteran’s left chest, and not the head, face, or neck, DC 7800 is not applicable in this case. DC 7801 applies if a burn scar or scar is deep and nonlinear. Although, the rating criteria under this DC has been amended to remove the nonlinear language, a compensable rating is not warranted under either criterion because there is no evidence to suggest that the scar was “deep,” prior to August 13, 2018, or otherwise is “associated with underlying soft tissue damage,” as amended on August 13, 2018. Specifically, the April 2015 VA examiner described the scar as “not deep” and there is no objective evidence to suggest that the Veteran’s scar is associated with underlying soft tissue damage. Therefore, there is no objective evidence to show that DC 7801 is applicable before or after the August 13, 2018 amendment. A 10 percent rating is warranted under DC 7802 if the area or areas affected are at least 144 square inches (929 square centimeters) or greater. This is required before and after the August 13, 2018 amendment. Here, a compensable rating is not warranted because at no point in the appeal period has the affected area occupied a total area of at least 144 square inches. The April 2015 VA examiner described the scar as being 3.5 centimeters. Furthermore, the Veteran’s private treatment records document the lesion size prior to removal as 0.8 x 0.8 + 0.5-centimeter margins and the final wound length after excision as 3.0 centimeters. See December 2014 Operative Report. DC 7802 is not therefore applicable. A separate compensable rating under 7804 is not warranted because the evidence of record does not reflect the Veteran’s residual scar being painful or unstable. The only evidence describing pain is a statement from the Veteran stating the lesion was slightly sore to the touch, prior to its surgical removal. See November 2014 Progress Notes. Furthermore, the April 2015 VA examiner described the scar as being “not tender to touch.” The preponderance of the evidence is against the Veteran’s claim for entitlement to an initial compensable rating for a scar of the left chest wall as a residual of squamous cell carcinoma removal, effective since November 12, 2014. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). For these reasons, the claim is denied. (Continued on the next page)   Additionally, staged ratings are not warranted, as the Veteran has had a relatively stable level of symptomatology throughout the appeal. Any other increases in severity were not sufficient for a higher rating. See Fenderson, 12 Vet. App. at 126–27. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. McLendon, Associate Counsel