Citation Nr: 18157638 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 18-11 603 DATE: December 13, 2018 ORDER Entitlement to an initial rating of 80 percent, but no higher, for basal and squamous cell carcinoma of the face is granted. FINDING OF FACT Throughout the period on appeal, the Veteran’s basal and squamous cell carcinoma of the face has been productive of no less than 6 characteristics of disfigurement. CONCLUSION OF LAW The criteria for an initial disability rating of 80 percent, but no higher, for basal and squamous cell carcinoma of the face have been met. 38 U.S.C. §§ 1155, 5103, 5107 (2012) 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.188, Diagnostic Codes 7800-7805 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from September 1960 to March 1961, October 1961 to August 1962, June 11, 1963 to June 16, 1963, and September 10, 1963 to September 12, 1963. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In a September 2018 rating decision, the Veteran was assigned a 50 percent rating for his basal and squamous cell carcinoma of the face, effective February 25, 2015. That decision did not constitute a full grant of the benefits sought on appeal. However, the Board has limited its consideration accordingly. Governing Law A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred in or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155. The Veteran’s service-connected basal and squamous cell carcinoma is rated under Diagnostic Code 7800. Under Diagnostic Code 7800 (scars of the head, face, or neck) a 50 percent disability rating is warranted where 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. The highest 80 percent disability rating is warranted where 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. Note (1) provides the following 8 characteristics of disfigurement: a scar 5 or more inches (13 or more cm.) in length; scar at least one-quarter inch (0.6 cm.) wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper- pigmented in an area exceeding six square inches (39-sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue missing in an area exceeding six square inches (39-sq. cm.); and skin indurated and inflexible in an area exceeding six square inches (39-sq. cm.). Analysis The Veteran asserts that he is entitled to an increased rating for his basal and squamous cell carcinoma of the face, as the disability is worse than contemplated by the currently assigned rating. At a September 2015 VA skin examination, the examiner diagnosed basal cell and squamous cell carcinoma of the face. At that examination, the Veteran reported that he had a history of basal and squamous cell skin cancerous cells removed from his face, which totaled 19 resections. His most recent related procedure occurred in April 2015, at which time a large flap of skin was taken from his forehead and placed on his nose. The examiner reported that the Veteran had a malignant neoplasm. No other pertinent findings were noted. At a September 2015 VA scars/disfigurement examination, the examiner reported that the Veteran’s scars were neither painful nor unstable, and that none were the result of burns. On examination, the Veteran had a vertical linear scar on the center of his forehead that measured 10 cm x 0.5 cm; a rounded forehead scar that measured at 2.5 cm x. 1.5 cm that was productive of surface contour depressed on palpation and with underlying soft tissue missing; and a nose scar that measured at 3 cm x 2 cm and was productive of surface contour elevated on palpation. The examiner reported that the approximate total area with missing underling soft tissue measured at 2.5 sq. cm. There was no evidence of gross distortion or asymmetry of facial features, or visible or palpable tissue loss. The examiner commented that the Veteran had more facial scars, but that such scars were not noted because they were no longer visible due to the loosening of the Veteran’s skin with age. The examiner reported that the Veteran’s scars were not productive of functional loss, and no other pertinent findings were noted. At a May 2018 VA skin examination, the examiner reported that the Veteran had a new diagnosis of keratinization skin disorder, which she indicated was a progression of his previous diagnosis of basal and squamous cell carcinoma. The Veteran denied experiencing any systemic manifestations due to his basal and squamous cell carcinoma, and he reported that he had not used oral or topical medication in the prior 12-month period. The examiner reported that the Veteran had a benign neoplasm, which had not required treatment. No other pertinent findings were recorded. At a May 2018 VA scar examination, the examiner reported that the Veteran had multiple scar on his head and face. On examination, the scars were neither painful nor unstable, and none were due to burns. The Veteran had a mid-face scar that measured at 16 cm x 3 cm; left check scar that measured at 11 cm x 0.25 cm; right check scar that measured at 1 cm x 0.25 cm; right check scar that measured at 3 cm x 0.5 cm; left nose scar that measured at 1 cm x 1 cm; right nose scar that measured at 2 cm x 0.25 cm; and a right eye scar that measured at 1 cm x 0.25 cm. Each scar showed evidence of surface contour depression on palpation as well as hypopigmentation, and each had irregular texture. Additionally, the Veteran’s left cheek scar was productive of induration and inflexibility. The total area of the head, face and neck with hypopigmentation and abnormal texture measured at 55 sq. cm. There was no evidence of gross distortion or asymmetry of facial features, or visible or palpable tissue loss. The examiner reported that the Veteran’s scars were not productive of functional loss, and no other pertinent findings were noted. Photographs of the Veteran’s head and face are of record. Those photographs have been reviewed and considered by the Board. After review of the evidence, lay and medical, the Board finds that an 80 percent rating for the Veteran’s basal and squamous cell carcinoma is warranted throughout the period on appeal. In this regard, the September 2018 VA examination report shows that the Veteran had 7 separate scars in which surface contour of the scar was depressed on palpation. Under Diagnostic Code 7800, an 80 percent rating is warranted when there are 6 or more characteristics of disfigurement, and the Veteran has been shown to have 7. As such, the Veteran is now in receipt of the maximum award for this condition under the applicable Diagnostic Codes. The Board also acknowledges that the September 2015 VA examination report does not definitively show that the Veteran had, at that time, 6 or more characteristics of disfigurement. However, the examiner indicated that the Veteran had other facial scars for which no information was reported. As such, the Board will afford the Veteran the benefit of the doubt that his basal and squamous cell carcinoma of the face has been productive of 6 or more characteristics of disfigurement throughout the entire period on appeal. The governing regulation also provides that disabling effects other than characteristics of disfigurement that are associated with an individual scar, such as pain, are to be separately evaluated, and combined, under 38 C.F.R. § 4.25, with the evaluation assigned for disfiguring scars. In this case, none of the Veteran’s scars were shown to be painful or unstable, and there is no evidence of residuals of associated muscle or nerve injury. Thus, the Board finds that the Veteran is not entitled to separate ratings under any other applicable Diagnostic Code. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. O’Donnell, Associate Counsel