Citation Nr: 18160899 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 17-45 791 DATE: December 28, 2018 REMANDED The appeal for a disability rating greater than ten percent for skin cancer to include squamous cell carcinoma of the right scalp, basal cell carcinoma of the right cheek, and actinic keratosis of the head, is remanded. [The issues of entitlement to service connection for blepharitis, an irregular pupil, vitreous degeneration, and diabetic retinopathy, as well as entitlement to an initial increased rating for glaucoma are the subject of a separate Board decision.] REASONS FOR REMAND The Veteran served on active duty from June 1946 to October 1949. In May 2017, the Veteran testified during a hearing before the undersigned Veterans Law Judge, by videoconference, as to the issue of an increased rating for skin cancer only. A transcript of that hearing is of record. The Board issued a decision denying a disability rating greater than 10 percent for the skin disabilities at issue in September 2017. The Veteran perfected an appeal of this denial to the United States Court of Appeals for Veterans Claims (Court). In an August 2018 Order, the Court granted a July 2018 Joint Motion for Remand filed by both parties to the case, vacated the Board’s decision, and remanded for further action pursuant to the Joint Motion. The Veteran had been represented for most of this appeal by the Veterans of Foreign Wars of the United States. However, that organization has submitted a motion to withdraw as the Veteran’s representative, which the Board has accepted, upon a showing of good cause. In October 2018, the Board offered the Veteran an opportunity to appoint a new representative prior to final Board review of this appeal. No response was received from the Veteran. Additionally, the Veteran was represented before the Court by a private attorney; however, the private attorney has not filed the required paperwork to represent the Veteran before the Board. Therefore, we will proceed with appellate review at this time. In the September 2017 decision, the Board referred an informal claim raised by the Veteran for entitlement to service connection for actinic keratosis affecting the body; i.e., other than his head, where actinic keratosis is service-connected. when a claimant submits a communication indicating a desire to apply for VA benefits, but the communication does not meet the standards of a complete claim for benefits, the communication will be considered a request for an application form for benefits under 38 C.F.R. § 3.150(a). When such a communication is received, VA shall notify the claimant and the claimant's representative of the information necessary to complete the application form or form prescribed by the Secretary. 38 C.F.R. § 3.155 (a). No such action has been taken by VA and the Veteran has not yet been provided with the appropriate form. Therefore, the Veteran's informal claim is again referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. 38 C.F.R. § 19.9. The appeal for a disability rating greater than 10 percent for skin cancers involving the head is remanded. In the July 2018 Joint Motion, the parties to this case agreed that the Board had failed to ensure the VA examination provided to the Veteran was fully adequate. In particular, they point to the Veteran’s own contentions that his symptoms had worsened since the 2016 examination and that his ear scarring is painful in nature. They also questioned whether there is sufficient information of record to identify the percentage of exposed area of the head affected by the Veteran’s various skin cancers. Lastly, the parties suggested further evaluation of the aspect of disfigurement related to raised scarring. Therefore, upon remand, the Veteran should be provided with another VA dermatologic examination to identify all current skin disability involving the Veteran’s head, to include specific identification of the percentage of exposed area of the head affected by the Veteran’s various skin cancers, whether ear scarring is painful, and the question of disfigurement, including whether raised scarring is disfiguring. Because this appeal arose from a claim for an increased disability rating, filed by the Veteran in July 2016, the time period for consideration here is from July 2015 to the present. If the Veteran has received private dermatological care since 2015, then records reflecting such care should be obtained for review. Likewise, his VA treatment records should be updated for the file. In this regard, all skin treatment records uploaded to VISTA imaging which reflect treatment provided during the time period at issue should be separately associated with his claims file for review by adjudicators. After accomplishing this development, the RO should perform a review to ascertain that all service-connected skin disability involving the head is accounted for in the ratings, to include consideration of painful scars, raised scarring, and the percentage of exposed area of the head affected by the Veteran’s skin cancers, to include consideration of the most appropriate Diagnostic Code(s) for rating the Veteran’s service-connected skin disabilities. See Butts v Brown, 5 Vet. App. 532, 538 (1993); Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In addition, the Board observes that VA published a final rule amending its regulations on skin disabilities on July 13, 2018. The amendment, among other changes, added a General Rating Formula for the Skin for Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824. In applying the new criteria, VA’s intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. As the Veteran’s claims were filed prior to the effective date of the revised regulations, the RO must be given the opportunity to perform an initial review as to which criteria are more favorable for rating the Veteran’s scars. The matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA dermatological care provided since July 2015, to include the Central Wyoming Skin Clinic. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records for the period from March 2018 to the Present. All skin treatment records uploaded to VISTA imaging which reflect treatment provided since July 2015 should be separately associated with his claims file for review by adjudicators. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected skin disabilities affecting his head. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to his skin disabilities alone and discuss the effect of the Veteran’s skin disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner should state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In particular, the examiner should include specific identification of the percentage of exposed area of the head affected by the Veteran’s various skin cancers, whether ear scarring is painful, and address the question of disfigurement, including whether raised scarring is disfiguring. 4. Perform a review of the Veteran’s service-connected scar ratings under the new and old skin rating criteria, as outlined above. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Heather J. Harter