Citation Nr: 18148521 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 13-21 985A DATE: November 7, 2018 ORDER Entitlement to a 10 percent rating, and no more, for residuals, squamous cell carcinoma of the chest is granted. Entitlement to a separate initial rating of 10 percent for residuals, basal cell carcinoma of the mid-scalp is granted. FINDINGS OF FACT 1. The Veteran’s residuals, squamous cell carcinoma of the chest is manifested by a painful scar, but not by three or more painful or unstable scars. 2. The Veteran’s residuals, basal cell carcinoma of the mid-scalp is manifested by a painful scar, but not by three or more painful or unstable scars. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for a 10 percent rating, but no higher, for residuals, squamous cell carcinoma of the chest, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.118, Diagnostic Codes (DCs) 7801, 7804 (2017). 2. The criteria for a separate initial 10 percent rating, but no higher, for residuals, basal cell carcinoma of the mid-scalp, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.118, Diagnostic Codes (DCs) 7800, 7804 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1954 to May 1956. In an August 2017 decision, the Board denied the Veteran’s claim for entitlement to service connection for multiple myeloma; entitlement to an increased rating for residuals of squamous cell carcinoma of the chest; and entitlement to a separate rating under DC 7804 for residuals of basal cell carcinoma of the mid-scalp. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (the Court). In July 2018, the Court granted a Joint Motion for Partial Remand and remanded the August 2017 decision addressing the claims. The Board notes that the Veteran requested the Court dismiss the issue of entitlement to service connection for multiple myeloma; therefore, this issue is not before the Board. Entitlement to a rating in excess of 10 percent for squamous cell carcinoma of the chest and whether a separate initial rating is warranted for the service-connected residuals, basal cell carcinoma of the mid-scalp Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity because of a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 as to the degree of the disability 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 resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In determining the propriety of an initial disability rating, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Fenderson v. Brown, 12 Vet. App. 119, 126-27 (1999). Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. 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 favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Veteran’s squamous cell carcinoma of the chest is currently assigned a noncompensable evaluation pursuant to 38 C.F.R. § 4.118, DC 7805. Diagnostic Code 7805 provides that scars and other effects of scars are to be evaluated under DCs 7800, 7801, 7802, and 7804, or under another appropriate code if such disabling effects are not considered under DCs 7800, 7801, 7802, or 7804. Under DC 7800, a 10 percent rating is warranted for scars that are located on the head, face, or neck when there is one characteristic of disfigurement. 38 C.F.R. § 4.118, DC 7800. A 30 percent rating is warranted 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, or lips), or; with two or three characteristics of disfigurement. A 50 percent rating is warranted 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. A maximum 80 percent rating is warranted 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. Id. Diagnostic code 7801 refers to burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear. A deep scar is one associated with underlying soft tissue damage. Note 1, diagnostic code 7801. Diagnostic code 7802 provides that scars, other than the head, face, or neck, that are superficial and nonlinear that are of an area or areas of 144 square inches (929 square centimeters) or greater warrant a 10 percent disability rating. Id. A superficial scar is not one associated with underlying soft tissue damage. See Note (1), DC 7802. Pursuant to DC 7804, which applies to unstable or painful scars, a 10 percent rating is warranted for one or two scars that are unstable or painful; a 20 percent rating is warranted for three or four scars that are unstable or painful; and a 30 percent rating is warranted for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, DC 7804. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note 1. If one or more scars are both unstable and painful, VA is to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id. at Note 2. Additionally, scars that are evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804 when applicable. Id. at Note 3. Analysis The Veteran contends that his disability is more severe than the noncompensable rating depicts. In January 2009, the Veteran was seen for non-healing lesion at the top of his scalp. The examiner shaved a 0.6 x 0.5 cm from the Veteran’s scalp. He was diagnosed with basal cell carcinoma, nodular pattern. The Board also notes that the Veteran’s post-service treatment record notes complaints and treatments for scar on his chest. In July 2012, the Veteran was afforded a VA examination to determine the nature and etiology of his scars. The examiner diagnosed the Veteran with scars, scalp and upper chest. The examiner noted a 1 cm scar on the Veteran’s anterior trunk, i.e., his upper mid-chest. It was not due to burns. The scar was neither painful nor was it unstable, with frequent loss of covering of skin over the scar. The examiner also noted a hypopigmented scar that was 1 cm in diameter on the top of the Veteran’s head. The scar was not painful nor was it unstable, with frequent loss of covering of skin over the scar. The scar was not due to burns. There was no elevation, depression, or adherence to underlying tissue or missing underlying soft tissue. There was no gross distortion or asymmetry of facial features or visible or palpable tissue loss. The Veteran’s scar did not result in limitation of function. There were no other pertinent physical findings, complications, conditions, signs, and/or symptoms (such as muscle or nerve damage) associated with any scar or disfigurement. The Veteran’s scar did not impact his ability to work. In September 2012, the Veteran was afforded a VA examination to determine the severity of his scars. The examiner diagnosed the Veteran with squamous cell. The Veteran had scars on his trunk other than his head, face, or neck. He also had scars or disfigurement of the head, face, or neck. The Veteran had a linear scar on his anterior trunk measuring 7.5 cm. His posterior trunk was not affected. The scar on the Veteran’s trunk was not painful nor was it unstable, with frequent loss of covering of skin over the scar. The scar was not due to burns. The Veteran’s upper and lower extremities were not affected. The scar on the crown of the Veteran’s head measured 0.8 cm x 0.8 cm in diameter and was hypopigmented. The scar was not painful nor was it unstable, with frequent loss of covering of skin over the scar. The scar was not due to burns. There was no elevation, depression, or adherence to underlying tissue or missing underlying soft tissue. There was no gross distortion or asymmetry of facial features or visible or palpable tissue loss. The Veteran’s scar did not result in limitation of function. There were no other pertinent physical findings, complications, conditions, signs, and/or associated with any scar or disfigurement. The Veteran’s scar or disfigurement of the head did not impact his ability to work. In November 2013, the Veteran was afforded another VA examination to determine the severity of his scars. The examiner diagnosed the Veteran with surgical scars of the upper chest and top of his scalp. The examiner noted that there was no evidence of residual carcinoma on the Veteran’s upper chest or top of his scalp. The Veteran had an 8 cm scar on his chest. He stated that it was uncomfortable “drawing,” “numbness,” intact. It was painful. However, the scar was not unstable, with frequent loss of covering of skin over the scar, and it was not due to burns. It was linear and healed. He did not have nonlinear scars. The scar was sunken compared to the surrounding skin; however, it was not of abnormal depth. The posterior trunk was not affected. The Veteran’s upper and lower extremities were not affected. The Veteran had a 1 cm x 1 cm, almost circular, scar at the mid-top of his head. The scar was not due to burns. Due to the scar, he experienced “numb pain,” intact. The Veteran did not take medication for his scar. There was no elevation, depression, or adherence to underlying tissue or missing underlying soft tissue. There was also hypopigmentation which was 3 cm squared in area. There was no gross distortion or asymmetry of facial features or visible or palpable tissue loss. The Veteran’s scar did not result in limitation of function. There were no other pertinent physical findings, complications, conditions, signs, and/or symptoms associated with any scar or disfigurement. The Veteran’s scar did not impact his ability to work. Based on the evidence of record, the Board finds that a 10 percent rating and no more is warranted for residuals, squamous cell carcinoma of the chest. During the relevant period, the Veteran’s residuals have been manifested by physical findings of one linear scars measuring 8 cm located on his upper chest area. The July and September 2012 VA examiners, noted that the scare was not painful. However, the November 2013 VA examiner noted that the scar was uncomfortable, numb, and painful. It was also noted that it caused no limitation of function and no pertinent physical findings, complications, conditions, signs or symptoms such as muscle or nerve damage were associated with the scar. Considering the foregoing evidence, the Board resolves all reasonable doubt in the Veteran’s favor and finds that the Veteran experienced pain that can be attributed to the scar on his chest. Consequently, the Veteran’s complaints of pain, combined with his one scar, are most appropriately rated, by analogy, under DC 7804 as one or two scars that are painful, and a 10 percent rating is in order under that DC. Under DC 7804, a higher rating is not available unless there is evidence of three or four scars that are painful. The Board also considered whether a higher rating was warranted under any other DC. The Board notes that the scar on the Veteran’s chest was sunken compared to surrounding skin; however, the examiner noted that the scar was not of abnormal depth. Additionally, there is no evidence that the scar covered an area of at least twelve square inches to warrant a 20 percent rating under DC 7801. Based on the evidence of record, the Board finds that a separate rating of 10 percent is warranted for the Veteran’s residuals, basal cell carcinoma of the mid-scalp. The VA examiners noted that the Veteran had a scar at the mid-top of his head. The July and September 2012 VA examiners stated that the Veteran’s scar on top of the Veteran’s head was not painful nor was it unstable with frequent loss of covering of skin over the scar. However, the November 2013 examiner stated that due to the scar, the Veteran experienced “numb pain.” Therefore, resolving reasonable doubt in the Veteran’s favor, the Board finds that a separate rating under DC 7804 is warranted for the Veteran’s residuals, basal cell carcinoma of the mid-scalp. The Board assigns a 10 percent rating for one or two scars that are painful. A higher rating is not available unless there is evidence of three or four scars that are painful. The Board also considered whether a higher rating is warranted under any other DC. However, there was no gross distortion or asymmetry of facial features or visible or palpable tissue loss. Additionally, the examiner notes that the scar caused no limitation of function and no pertinent physical findings, complications, conditions, signs or symptoms such as muscle or nerve damage were associated with the scar. Therefore, a higher rating under DC 7800 is not warranted. The Board acknowledges the Veteran and his representative’s statements regarding the pain he experienced due to his residuals, squamous cell carcinoma of the chest to be both competent and credible. However, as lay persons, they do not have the training or expertise to render a competent opinion which is more probative than the VA examiners’ opinions on this issue, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Thus, the Board finds that the lay opinions by themselves are outweighed by the VA examiners’ findings. Accordingly, the preponderance of the evidence is against a disability rating greater than 10 percent for the Veteran’s residuals, squamous cell carcinoma of the chest. 38 C.F.R. § 4.3. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Henry, Associate Counsel