Citation Nr: 21061845 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-49 103 DATE: October 5, 2021 ORDER Entitlement to an initial compensable rating prior to December 10, 2019, and a rating greater than 10 percent thereafter for basal cell carcinomas (skin disability) is denied. FINDINGS OF FACT 1. Prior to December 10, 2019, the Veteran's basal cell carcinomas affected an area of less than 5 percent of his entire body and less than 5 percent of the exposed areas. 2. From December 10, 2019, the Veteran's basal cell carcinomas affected an area of less than 20 percent of the entire body; less than 20 percent of the exposed areas; and required phototherapy of less than six weeks in duration. CONCLUSION OF LAW The criteria for entitlement to an initial compensable rating prior to December 10, 2019, and a rating greater than 10 percent thereafter for basal cell carcinomas, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from April 1966 to April 1970, to include service in the Republic of Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Combat Action Ribbon and the Vietnam Service and Campaign Medals. This matter is before the Board of Veterans' Appeal (Board) on appeal from a May 2017 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Board previously remanded the appeal in February 2020, and the matter has been returned for appellate consideration. The September 2020 rating decision increased the disability rating for basal cell carcinomas from noncompensable percent to 10 percent, effective December 10, 2019. However, as this grant does not represent a total grant of benefits sought on appeal, the claims for increase remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Finally, as reflected in the subsequent analysis, the development ordered by the Board in its previous remand has been completed. The Board finds substantial compliance with its remand instructions. Entitlement to an initial compensable rating prior to December 10, 2019, and a rating greater than 10 percent thereafter for basal cell carcinomas (skin disability). Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected basal cell carcinomas is rated as noncompensable under 38 C.F.R. § 4.118, Diagnostic Code 7818, prior to December 10, 2019, and 10 percent under 38 C.F.R. § 4.118, Diagnostic Code 7818-7806, thereafter. VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. 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. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to August 13, 2018, under Diagnostic Code 7806, a noncompensable rating is assigned for less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and no more than topical therapy required during the past 12 months. A 10 percent rating is assigned for at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is assigned for 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly during the past 12-month period. A 60 percent rating is assigned for more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or constant or near- constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12- month period. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7806. For claims filed prior to August 13, 2018, the Court held that a systematic therapy is one that that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body in treating a veteran's skin condition; and (2) whether the given treatment is "like" a corticosteroid or other immunosuppressive drug." Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Id. Effective August 13, 2018, VA regulations explicitly state that systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118(a). Additionally, effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118. Under this formula, a noncompensable rating is assigned for no more than topical therapy required over the past 12-month period and at least one of the following: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is assigned for at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12- month period. A 30 percent rating is assigned at least one of the following: characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is assigned for at least one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, General Rating for the Skin for Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824. The Veteran was afforded a January 2017 VA skin disease examination to determine the nature of the Veteran's skin disability. The VA examiner noted that the Veteran's skin condition did not cause scarring or disfigurement of the head, face, or neck, systemic manifestations, or required oral or topical medications. The Veteran's basal cell carcinoma was found to cover less than 5 percent of the Veteran's body. The May 2017 VA scars examination noted that the Veteran presented with scars or disfigurement secondary to basal cell carcinoma on the chest, back and right ear. The Veteran presented with one painful scar. The Veteran's chest scar was found to be linear and measured at 6 cm. The back scar was also linear and found to be 13 cm. The scar of the Veteran's right ear was found to be 1.0 x 0.25 cm. The August 2020 VA skin condition examination found that the Veteran presented with basal cell carcinoma, actinic keratoses, and seborrheic keratoses. The VA examiner noted that the Veteran underwent phototherapy, ultraviolent-B light (UVB) treatment for a period of less than 6 weeks. The Veteran was noted to have a skin condition without any visible characteristics lesions at the time of the VA examination. His malignant neoplasm was found to be in remission. The VA examiner noted that the Veteran presented with a chest, back and right ear scars that are well healed. The August 2020 VA scar examination noted that the Veteran presented with scars related to basal cell carcinoma excision. Those scars were not found to be painful or unstable. The Veteran's well-healed left chest wall scar measured at 7 x0.1, and the well-healed back scar measured at 4 x 0.1 cm with a total area of 1.1 cm (0.7 + 0.4). The VA examiner noted that the Veteran's right ear scar was well healed and not visible. Prior to December 10, 2019, review of the medical evidence of records, to include VA treatment records and VA examinations, the Board finds that a compensable rating is not warranted for the Veteran's skin disability. The Veteran is not entitled to a higher rating under the code prior to August 13, 2018, and thereafter as the Veteran's skin disability was found to be less than 5 percent of the entire body or less than 5 percent of exposed areas affected. Under both editions of the code, the Veteran would have to present with a skin disability covering at least 5 percent of the Veteran's body or exposed areas. The objective evidence does not indicate that the Veteran's skin disability covers at least 5 percent of his body or exposed area. As such, a compensable rating, prior to December 10, 2019, for the Veteran's skin disability is not warranted. From December 10, 2019, review of the medical evidence of records, to include VA treatment records and VA examinations, the Board finds that a disability rating greater than 10 percent is not warranted for the Veteran's skin disability. The Veteran is not entitled to a higher rating under the code prior to August 13, 2018, and thereafter as the Veteran's skin disability has not been shown to involve more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. The Veteran's skin disability has shown to cover less than 5 percent of the Veteran's body or exposed area. Moreover, the Veteran reported undergoing phototherapy, but for only a period of less than 6 weeks. As such, the Board finds a rating greater than 10 percent is not warranted for the period from December 10, 2019. The Board has also considered other related diagnostic codes, specifically Diagnostic Code 7804, for painful and unstable scars. The May 2017 VA examination noted that the Veteran presented with one painful scar, which the Veteran is already in receipt of a 10 percent rating for his painful scar. The Veteran did not present with three or more painful scars to qualify for a higher rating under Diagnostic Code 7804. See 38 C.F.R. § 4.118. As the Veteran does not have more than one scar that is painful or unstable and does not have a scar that is greater than 12 square inches, a rating more than 10 percent is not warranted for the Veteran's service-connected left shoulder scar. The Board acknowledges the Veteran's contention that he should be awarded a temporary total evaluation for convalescence under 38 C.F.R. § 4.30 for the surgical removal of his basal cell carcinomas. While the Board is cognizant that the Veteran underwent the surgical removal of his basal cell carcinomas, he is not eligible for a temporary total evaluation. The Veteran's surgical operation did not require at least one month of convalescence, surgery with severe postoperative residuals, or immobilization by cast of one of the major joints. Review of the treatment records related to the removal of the Veteran's carcinomas indicates that the Veteran's only aftercare instructions were the application of Vaseline and bandaid, with procedures for caring for the wound. As such, the Veteran is not eligible for a temporary total evaluation for convalescence under 38 C.F.R. § 4.30. The Board has also considered the Veteran's lay statements regarding the Veteran's symptomatology. The Board notes that the Veteran is competent to report observations with regard to the severity of his symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, and 1376-77 (Fed. Cir. 2007). The Board finds these lay statements to be credible and consistent with the ratings assigned. To the extent he argues his symptomatology is more severe, the Veteran's statements must be weighed against the other evidence of the record. Here, the specific examination findings of trained health care professionals and documented medical treatment records are of greater probative weight than the more general lay assertions that a higher rating is warranted. Accordingly, an initial compensable evaluation, prior to December 10, 2019, and greater than 10 percent, thereafter for the Veteran's service-connected basal cell carcinomas is denied. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.R. Higgins 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.