Citation Nr: 21005847 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 18-06 975 DATE: February 2, 2021 ORDER Entitlement to an initial 50 percent rating, but no higher, for residual scars from basal cell carcinoma is granted, subject to controlling regulations governing the payment of monetary awards. FINDING OF FACT The evidence is approximately evenly balanced as to whether symptoms of the Veteran's residual scars from basal cell carcinoma were manifested with four or five characteristics of disfigurement; but not visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for a 50 percent rating, but no higher, for service-connected residual scars from basal cell carcinoma are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.114, Diagnostic Code (DC) 7800. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1973 to June 1977, September 1978 to September 1980, and January 1982 to January 2004. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for residual scars from basal cell carcinoma. Following a June 2013 Supplemental Claim (VA Form 21-526b), the RO issued a July 2014 rating decision which granted a higher 10 percent disability rating effective February 1, 2004, for residual scars from basal cell carcinoma based on clear and unmistakable error (CUE). In August 2014 the Veteran filed a notice of disagreement (NOD) and in January 2018 the RO issued a statement of the case (SOC). In January 2018 the Veteran filed a substantive appeal (via VA Form 9). In an April 2019 decision, the Board, in pertinent part, denied a rating greater than 10 percent for residual scars from removal of basal cell carcinoma. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans’ Claims (Court). In March 2020, while the matter was pending before the Court, the Veteran’s attorney and VA’s General Counsel filed a joint motion for partial remand (JMPR). In March 2020, the Court granted the parties’ motion, vacated that portion of the Board’s April 2019 decision which denied a rating greater than 10 percent for the Veteran’s service-connected residual scars from basal cell carcinoma, and remanded the matter for action consistent with the JMPR. In September 2020 the Board remanded the Veteran’s claim for further evidentiary development, specifically, to obtain a medical opinion to determine the current severity of the Veteran’s residual scars from basal cell carcinoma. The Board instructed the RO to request an opinion to determine the nature and etiology of additional basal cell carcinoma scars that were surgically excised following the Veteran’s grant of service connection and subsequent increase in disability rating. For the reasons stated in the discussion below, the Veteran was afforded an adequate VA medical opinion and the RO substantially complied with the remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). Residual scars from basal cell carcinoma The Veteran's residual scars from basal cell carcinoma is currently rated under the provisions of 38 C.F.R. § 4.118, DC 7800. The Veteran contends that he is entitled to an initial rating greater than 10 percent for residual scars from basal cell carcinoma. Also, in a January 2015 statement, the Veteran contends that he continues to develop basal cell cancers that necessitate surgical excision and that these scars should be included when rating his service-connected residual scars of basal cell carcinoma. Under DC 7800, a 10 percent rating is warranted for a scar with one characteristic of disfigurement. A 30 percent rating is warranted for a scar with 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, lips), or; with two or three characteristics of disfigurement. A 50 percent rating is warranted for a scar with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. An 80 percent rating is warranted for a scar with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. There are eight characteristics of disfigurement, including: a scar 5 or more inches (13 or more centimeters) in length, scar at least one-quarter inch (0.6 centimeters) wide at its widest part, surface contour of scar elevated or depressed on palpation, scar adherent to underlying tissue, skin hypo-or hyperpigmented in an area exceeding six square inches (39 sq. centimeters), skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches, underlying soft tissue missing in an area exceeding six square inches, and skin indurated and inflexible in an area exceeding six square inches. As background, a December 2004 VA examiner noted that the Veteran had skin cancer removed on his nose and a Mohs procedure performed in 1971. Because of the deformity a cartilage graft was done to the top of his nose coming from the left postauricular cartilage performed in 1996. The VA examiner noted there is no deformity on the nose, no disfigurement, the skin is almost the same color as the surrounding skin, it was not raised or depressed, non-keloid and nontender. The VA examiner also noted that skin cancer was removed on the back of his neck on the lower part of the mid area. The VA examiner noted that the Veteran’s neck scar measured 7 x 10 millimeters, was hypopigmented, flat, no depression or induration, no inflexibility, nontender, and did not limit the range of motion of the neck. A February 2011 private treatment note indicates that the Veteran underwent Mohs surgery to remove basal cell carcinoma from the left upper lip and near the left sideburn. A December 2014 private treatment note indicates that the Veteran underwent Mohs surgery to excise basal cell carcinoma on the left nose ala crease and the mid upper lip with the donor site on his left clavicle. A May 2016 private treatment note indicates that the Veteran underwent Mohs surgery to excise basal cell carcinoma on the left nasal root of his nose. A July 2017 VA examiner diagnosed multiple scars as a result of the Veteran’s basal cell carcinoma surgical excisions. The Veteran’s left upper lip scar measured 1.5 x 0.1 (0.15 sq. cm.) and was described as non-keloidal, nontender or discolored. The scar on the back of his neck measured 1.0 x 1.0 (1 sq. cm.) and was described as superficial in appearance, near skin color, and nontender. Residual scars were also identified in four different areas of the nose. The scar on the tip of the Veteran’s nose was circular and measured 0.6 centimeter in diameter. The scar on the right side of the Veteran’s nose was circular and measured 1.0 centimeter in diameter. The scar across the bridge of the Veteran’s nose was linear and measured 2.0 x 0.1 (0.2 sq. cm.). The scar on the left side of the Veteran’s nose was circular and measured 1.0 centimeter in diameter. All scars were described as non-disfiguring, barely visible, nontender and near skin color. The harvest site scar on his left ear cartilage measured 2.0 x 0.2 (0.4 sq. cm.) and was described as superficial, near skin color, nontender, and non-keloidal. The scar on his center upper lip measured 1.5 x .05 (0.075 sq. cm.) and was described as having no elevation, depression, adherence to underlying tissue or missing underlying soft tissue. The Veteran reported that his center upper lip scar caused him nagging, sharp pain. Also, it was noted that the scar on the Veteran’s left clavicle scar measured 4 centimeters long. A June 2014 VA examiner diagnosed multiple scars as a result of basal cell carcinoma surgical excisions. The Veteran’s left upper lip scar measured 1.5 x .1 (0.15 sq. cm.) and was described as non-keloidal, nontender or discolored. The scar on the back of his neck measured 1.0 x 1.0 (1 sq. cm.) and was described as nontender, superficial in appearance and near skin color. Residual scars were also identified in four different areas of the nose. The scar on the tip of the Veteran’s nose was circular and measured 0.6 centimeter in diameter. The scar on the right side of the Veteran’s nose was circular and measured 1.0 centimeter in diameter. The scar across the bridge of the Veteran’s nose was linear and measured 2.0 x .01 (0.2 sq. cm.). The scar on the left side of the Veteran’s nose was circular and measured 1.0 centimeter in diameter. All scars were described as non-disfiguring, barely visible, nontender and near skin color. The harvest site scar on his left ear cartilage measured 2.0 x 0.2 (0.4 sq. cm.) and was described as superficial, near skin color, nontender, and non-keloidal. The Veteran was originally granted service connection for residual scars from basal cell carcinoma in March 2005 based on the Veteran’s neck and nose scars. In a June 2013 VA Form 21-526b the Veteran stated that the RO committed clear and unexplainable error (CUE) when it did not grant a compensable rating even though the Veteran’s nose scar measured at least one-quarter inch (0.6 cm.) at the widest part. Also, the Veteran stated that the RO did not consider his left ear scar even though it was the site of a cartilage graft and was noted on the December 2004 VA examination. In July 2014, the RO determined that CUE was committed in the March 2005 decision. The RO issued a July 2014 rating decision which granted an initial higher rating for residual scars from basal cell carcinoma (to include the nose, left upper lip, left ear, and back of neck) with an evaluation of 10 percent, effective February 1, 2004. The RO granted a 10 percent rating under DC 7800 based on one of the Veteran’s scars which measured at least one-quarter inch (0.6 cm.) at the widest part. In the March 2020 JMPR the parties agreed that the Board did not provide an adequate statement of reasons or bases in its April 2019 Board decision because it did not address the July 2017 VA examination in which the Veteran reported that he experienced nagging, sharp pain on his center upper lip scar. Also, the April 2019 Board decision was inadequate because the Board did not address the January 2015 Disability Benefits Questionnaire (DBQ) in which a private physician noted that the Veteran had additional scars on his left clavicle which measured 10.5 centimeters long, on his nose ala crease which measured 1.2 x 0.7 centimeters and on his mid upper lip scar (through vermillion border, cupid’s bow, and up philtrum to lower nose) which measured 2.6 x 0.6 centimeters. On the January 2015 DBQ the physician specifically noted that the only scars she reviewed were the “new scars” from surgeries in December 2014. The private physician noted that the surface contour was elevated on palpation and depressed on palpation for the mid upper lip scar. The mid upper lip scar had underlying soft tissue missing while the left nose crease scar had hypopigmentation, induration and inflexibility and abnormal texture. Additionally, at the July 2017 VA examination the Veteran reported that his center upper lip scar caused him pain and the Board remanded the Veteran’s claim to determine whether a separate rating is warranted for this painful scar. The question in this case is whether a higher initial rating should be assigned for the Veteran’s service-connected residual scars from basal cell carcinoma and whether the Veteran’s recent basal cell carcinoma scars should be included in his higher initial rating claim. An October 2020 VA examiner opined it is less likely than not that the Veteran’s additional basal cell carcinoma scars had their onset during his service or are otherwise causally related to an event or circumstance of his service. The VA examiner explained that according to medical literature, sun exposure is the most important environmental cause of basal cell carcinoma and most risk factors relate directly to a person’s sun exposure habits or susceptibility to solar radiation. These risk factors include having fair skin, light-colored eyes, red hair, northern European ancestry, older age, childhood freckling, and an increased number of past sunburns. The use of tanning beds also places a person at risk for early development of basal cell carcinoma. The VA examiner explained that while the Veteran had sun exposure while on active duty, the medical literature suggests that either his childhood or post-military sun exposure is more important and more likely the cause of the Veteran’s basal cell carcinoma. The October 2020 VA examiner also opined it is less likely than not that the Veteran’s additional basal cell carcinoma scars were caused or aggravated by his currently service-connected basal cell carcinoma. The VA examiner explained that the medical literature is against a causal relationship and that unlike hypertension, diabetes mellitus, or congestive heart failure, basal cell carcinoma is not a chronic medical condition once removed. Therefore, each and every basal cell cancer event is an isolated, singular event unrelated to the previous episode and not a metastases. The VA examiner also explained that the reoccurrence of basal cell carcinoma would be expected due to his sun exposure and therefore does not constitute an aggravation of the condition, but rather, an expected response to an environmental exposure. The VA examiner also noted that the ensuing scars are what would be expected from the removal of the basal cell cancers and do not constitute aggravation. As the October 2020 VA examiner provided an opinion on a direct and secondary basis, with separate findings and rationales relating to causation and aggravation, the RO substantially complied with the September 2020 remand instructions. The Board finds that the scars incurred as a result the recent basal cell carcinoma surgical excisions are not complications for which the Veteran is entitled to additional benefits under 38 C.F.R. § 3.155(d)(2). See Bailey v. Wilkie, __ Vet. App. __, No. 19-2661 (Jan. 6, 2021) (explaining that the Board must consider such complications under the regulation even in the absence of a formal claim). The October 2020 VA examiner provided a negative nexus opinion and explained the reasons for his conclusion based on an accurate characterization of the evidence of record. Therefore, his opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Outside of a generalized statement claiming that these scars meet the rating criteria and should be service connected, the Veteran has not explained how his scars relate to his service. Thus, the specific opinion provided by the October 2020 VA examiner is of greater probative weight than the generalized conclusory opinion from the Veteran. See Nieves-Rodriguez, 22 Vet. App. at 304. In consequence, the painful scar on the Veteran’s upper lip cannot be separately rated and the Veteran’s recent scars as noted on the January 2015 DBQ will not be considered in this higher initial rating claim. With regards to the Veteran’s service-connected residual scars from basal cell carcinoma, in the August 2014 NOD the Veteran identified two characteristics of disfigurement due to the width and depression of his scars. The Veteran also stated his scars warrant a higher rating due to asymmetry and distortion which are documented on his lip, nose, and left ear. He also stated there was palatable tissue loss on his ear as cartilage does not regenerate. Based on the results of the June 2014 and July 2017 VA examinations, there are four noted disfigurements based on four scars being at least one-quarter inch (0.6 centimeters) wide at its widest part. The scar on the back of his neck measured 1.0 x 1.0 (1 sq. cm.), the scar on the tip of the Veteran’s nose was circular and measured 0.6 centimeter in diameter, the scar on the right side of the Veteran’s nose was circular and measured 1.0 centimeter in diameter, and the scar on the left side of the Veteran’s nose was circular and measured 1.0 centimeter in diameter. Notably, the characteristic(s) of disfigurement may be caused by one scar or by multiple scars; the characteristic(s) required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation. See 38 C.F.R. § 4.118, DC 7800, Note (5). Thus, in affording the Veteran the benefit of the doubt, the Board finds that the Veteran's residual scars from basal cell carcinoma are manifested by four or five characteristics of disfigurement and the criteria for an initial 50 percent rating is warranted. The Board finds that a rating in excess of 50 percent under DC 7800 is not warranted. The evidence does not reflect and none of the VA examiners noted that the Veteran has visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. While the Veteran has four scars being at least one-quarter inch (0.6 centimeters) wide at its widest part, the evidence does not reflect that the Veteran has at least six or more characteristics of disfigurement to warrant an 80 percent rating under DC 7800. To the extent the Veteran feels his residual scars from basal cell carcinoma warrants a higher rating, he is competent to describe observable symptomology. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Nevertheless, the objective medical findings provided by the Veteran's VA examination reports have been accorded greater probative weight. Based on the above, the Board finds that the preponderance of the evidence is against the award of a disability rating in excess of 80 percent for residual scars from basal cell carcinoma at any point during the appeal period. As a preponderance of the evidence is against the award of an initial 80 percent rating, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Board has considered the Veteran’s residual scars could be separately rated under an alternative diagnostic code. However, his residual scars were not shown to be deep and nonlinear (associated with underlying soft tissue damage) or cover sufficient area to warrant consideration under DC 7801 or DC 7802. The residual scars were also not painful, warranting a compensable rating under DC 7804 and are not shown to have any disabling effects. The Veteran's scars were not painful, unstable, or greater than 39 square centimeters. Finally, the Board notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the matters on appeal. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Miller, Associate Counsel 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.