Citation Nr: 21000955 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-40 389 DATE: January 6, 2021 ORDER Entitlement to an effective date earlier than July 12, 2011 for service connection for residuals of basal cell carcinoma of the left nasolabial groove status post excision is denied. REMANDED Entitlement to an initial compensable rating for residuals of basal cell carcinoma of the left nasolabial groove status post excision is remanded. FINDING OF FACT A formal or informal claim for service connection for residuals of basal cell carcinoma of the left nasolabial groove status post excision was not received prior to July 12, 2011. CONCLUSION OF LAW The criteria for an earlier effective date than July 12, 2011 for service connection for residuals of basal cell carcinoma of the left nasolabial groove status post excision have not been met. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400; 38 C.F.R. § 3.155(a) (as in effect prior to March 24, 2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1984 to September 1993. The Department of Veterans Affairs (VA) is grateful for his service. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing conducted in June 2020. A transcript of the hearing is of record. Entitlement to an effective date earlier than July 12, 2011 for service connection for residuals of basal cell carcinoma of the left nasolabial groove status post excision The Veteran contends that an earlier effective date is warranted for service connection for residuals of basal cell carcinoma of the left nasolabial groove status post excision than the July 12, 2011 date assigned. The Veteran in a notice of disagreement in July 2016 as well as in a VA Form 9 submitted in August 2016 expressed disagreement with the effective date assigned. However, neither in these submissions nor in testimony before the undersigned at his June 2020 hearing, nor in other statements or submissions did the Veteran or his authorized representative provide any evidence, argument, or explanation to support their contention that an earlier effective date for service connection was warranted. Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments are effective for claims and appeals filed on or after March 24, 2015. Thus, the regulations in effect prior to March 24, 2015, will be applied in this case. Under the prior regulations, any communication or action, indicating intent to apply for one or more benefits under laws administered by VA, from a claimant or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not previously been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a) (as in effect prior to March 24, 2015). By a January 2016 rating decision, the VA Regional Office (RO) granted service connection for residuals of basal cell carcinoma of the left nasolabial groove status post excision effective July 12, 2011. This was based on the Veteran’s claim submitted on that date. This decision effectuated a January 2016 Board decision which, granted service connection for skin cancer of the face. The record reflects that the earliest formal or informal claim received addressing the Veteran’s residuals of basal cell carcinoma of the nasolabial groove status post excision was received on July 12, 2011. Hence, there is no factual basis presented for an effective date earlier than July 12, 2011 for service connection for residuals of basal cell carcinoma of the left nasolabial groove status post excision. July 12, 2011 was the earliest date of receipt of a formal or informal claim. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. To arrive at this determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND Entitlement to an initial compensable rating for residuals of basal cell carcinoma of the left nasolabial groove status post excision At his hearing before the undersigned in June 2020, the Veteran testified that his facial scar status post excision of a basal cell carcinoma was intermittently painful and bothersome. He also then testified that the scar affected his nerves and mouth and “killed all my teeth,” so that he had to have his teeth extracted he now had dentures, and it affected the way he moved his mouth and the way he talked. (Hearing transcript (HT), p. 4.) He also testified that the scar was “very visible” and that due to the scar he usually wore a beard. (HT, pp. 4, 6.) The Veteran was afforded a VA examination in July 2016 to address his scar residuals of basal cell carcinoma of the nasolabial groove status post excision. The examiner found that there was no associated gross facial asymmetry; no disfigurement of the head, face, or neck; and no associated functional impairment. The examiner reported that photographs were not indicated, describing the scar as follows: “Left side of nose along nasolabial fold measuring 5cm x 0.25cm and extending diagonally to angle of the mouth. Scar is superficial, nontender, nonadherent, without crusting, scaling or hypo/hyper-pigmentation.” The examiner also found that the scar was not unstable and did not exhibit frequent loss of covering of skin over the scar. The Veteran is competent to testify to symptoms of disability as he perceives them. Thus, the Veteran’s testimony regarding pain and self-perceived impact on facial nerves, teeth and mouth functioning including speech must be considered. If a regulation does not speak to the evidence required, objective evidence is not required, and lay evidence may serve support the claim. Petitti v. McDonald, 27 Vet. App. 415 (2015). Notably, the Veteran is service connected for residuals of basal cell carcinoma of the nasolabial groove status post excision, which is not necessarily limited to the superficial scar identified by the July 2016 examiner. An additional examination is thus required to address the Veteran’s testimony in which he contends that he suffers additional impairment or disability associated with his residuals of basal cell carcinoma of the left nasolabial groove status post excision. The matter is REMANDED for the following actions: 1. Afford the Veteran and his authorized representative the opportunity to submit additional evidence or argument in furtherance of the remanded claim. 2. Obtain any VA treatment records and any pertinent private treatment records not yet associated with the claims file. The Veteran’s authorization or assistance should be requested, as appropriate. All requests, responses, and records received should be documented in the claims file. If any records cannot be obtained the Veteran should be appropriately notified. Thereafter, obtain a new examination by an examiner qualified to address nature, extent, and severity of the Veteran’s residuals of basal cell carcinoma of the left nasolabial groove status post excision. The examiner is to be advised that the new examination is required because the prior examiner in July 2016 addressed a superficial scar of the left nasolabial fold as a residual of excision of the Veteran’s basal cell carcinoma, whereas the Veteran provided testimony in June 2020 in which he contended that he had facial neurological involvement, that the condition resulted in his teeth being “killed” (hearing transcript, p. 4) necessitating extraction of his teeth and replacement with dentures, that he had resulting impairment in mouth movement and speech, and that there was associated facial disfigurement. The examiner must document and consider the Veteran’s own statements regarding his disability, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran’s self-reported history and contentions of disability or impairment associated with his residuals of basal cell carcinoma of the nasolabial groove status post excision, the examiner should so state and provide a complete explanation why this is so. Accordingly, the examiner is asked to address the complete nature and extent of any disability associated with or resulting from residuals of basal cell carcinoma of the left nasolabial groove status post excision, to include any tender or painful scar, any unstable scar, any facial disfigurement or asymmetry, any facial nerve involvement, any dental involvement including but not limited to any resulting necessity to remove teeth, any impairment of speech or masticatory functioning, or any other impairment of underlying parts. Color photographs should be provided with the examination report to allow the Board to better judge the nature of any associated disfigurement. (Continued on the next page)   The examiner should provide a complete explanation for any findings and conclusions. 3. Thereafter, readjudicate the remanded claim. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechter The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.