Citation Nr: 21006802 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 19-11 451 DATE: February 5, 2021 REMANDED Entitlement to a higher initial rating for scars of the head, face, and neck under Diagnostic Code 7800 (currently right forehead scalp junction, left forehead, left temple, mid upper forehead, left sideburn, and right neck skin cancer excision scars), rated as 30 percent disabling, is remanded. Entitlement to a higher initial rating for scars not of the head, face, or neck under Diagnostic Code 7802 (currently right collarbone; mid-chest, anterior trunk; left forearm; and left dorsum medial forearm skin cancer excision scars), rated as noncompensable, is remanded. Entitlement to a higher initial rating for unstable or painful scars under Diagnostic Code 7804 (currently left forearm and posterior scalp skin cancer excision scars), rated as 20 percent disabling, is remanded. Entitlement to a higher initial rating for other scars under Diagnostic Code 7805 (currently left hand, left lateral wrist, and right chest skin cancer excision scars and a right elbow cystectomy scar), rated as noncompensable, is remanded. REASONS FOR REMAND The Veteran’s appeal of the ratings assigned for his residual scarring from skin cancer was previously before the Board of Veterans’ Appeals (Board) in July 2019, when it was remanded for further development. The Board acknowledges, at that time, it may not have precisely defined or acknowledged the full scope of the Veteran’s appeal due to a lack of clarity in his October 2017 notice of disagreement, which the Agency of Original Jurisdiction (AOJ) made attempts to clarify prior to the initial certification of the appeal to the Board in May 2019. Nevertheless, the record now clearly establishes the Veteran’s intent to appeal the initial ratings assigned for all his residual scarring, as noted in his January 2021 informal hearing presentation (IHP), rather than just the ratings assigned under Diagnostic Codes 7800 and 7805, which were referenced in the Board’s July 2019 remand, as well as the AOJ’s preceding February 2019 statement of the case (SOC) and subsequent June 2020 supplemental statement of the case (SSOC). See 38 C.F.R. § 4.118. The issue statements noted above represent the Board’s correction of the scope of the Veteran’s appeal to include the ratings currently assigned under Diagnostic Codes 7800, 7802, 7804, and 7805. Id. In July 2019, the Board directed the AOJ to schedule the Veteran for a new examination to assess the current severity of his disability and to obtain an opinion addressing whether his skin malignancy requires therapy that is comparable to that used to treat systematic malignancies, i.e., systematic chemotherapy, x-ray therapy more extensive than to the skin, or surgery more extensive than wide local excision. See 38 C.F.R. § 4.118, Diagnostic Code 7818. Although the AOJ obtained an adequate opinion regarding the Board’s inquiry into the scope of the Veteran’s skin cancer therapy, enabling an informed decision on the applicability of Diagnostic Code 7818, the February 2020 VA scars examination report is inadequate to make an informed decision on the ratings assigned under the various scar diagnostic codes applicable in the context of the Veteran’s appeal. As noted by the Veteran’s representative in his January 2021 IHP, the February 2020 examiner failed to include width measurements for some of the scars noted in Section I of the applicable disability benefits questionnaire (DBQ), i.e., the section pertaining to scars on the trunk and extremities. Further, there is no indication unretouched color photographs were taken in conjunction with the February 2020 examination, as contemplated by Note 3 to Diagnostic Code 7800 and specifically requested by the Veteran in the context of his appeal. See January 2021 IHP. Additionally, the February 2020 examiner erroneously noted the Veteran’s date of claim did not precede August 12, 2018 and therefore did not complete the “historical question” portion on the DBQ. The Board notes that on July 13, 2018, VA issued a final rule amending its regulations governing skin disabilities, which had been in effect since 2008 (the 2008 Regulations). The new regulations became effective on August 13, 2018 (the 2018 Regulations). The Board notes claims filed prior to August 13, 2018 must be evaluated under both the 2008 Regulations and the 2018 Regulations with the most favorable set of criteria applied. See 83 Fed. Reg. 32592-32601 (July 13, 2018). The rating period for the issues on appeal in this case dates back to December 2015, as the Veteran appealed the initial rating assigned for the residual scars from his skin cancer; therefore, VA must consider both the 2008 Regulations and the 2018 Regulations and apply the most favorable set in the context of the Veteran’s appeal. As a result, a new examination report that addresses the “historical question” for the criteria in effect at the time of the Veteran’s claim must be obtained. The matters are REMANDED for the following action: 1. Schedule the Veteran for new examination to assess the severity of the scarring resulting from his service-connected skin cancer. The examiner must explicitly note the Veteran’s date of claim precedes August 12, 2018 and complete the “historical question” portion of the applicable DBQ, or provide findings consistent with both the 2008 Regulations and the 2018 Regulations, as well as provide both length and width measurements for all scars noted on examination. 2. Readjudicate all the initial ratings assigned for residual scarring of skin cancer under Diagnostic Codes 7800 through 7805, to include consideration under both the 2008 Regulations and the 2018 Regulations and any change in diagnostic code that may be necessary based on the evidence of record. 3. If any benefit sought on appeal remains denied, issue a supplemental statement of the case that addresses all the ratings currently assigned for residual scars of skin cancer. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.