Citation Nr: 21008018 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 13-14 984 DATE: February 11, 2021 ORDER Entitlement to an initial disability rating greater than 10 percent for service-connected residual scars due to basal cell carcinoma (BCC) and actinic keratosis of the head, face, and neck is denied. FINDING OF FACT The preponderance of the evidence does not show the Veteran’s residual scars due to BCC and actinic keratosis of the head, face, and neck manifested in 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. CONCLUSION OF LAW The criteria for an initial disability rating greater than 10 percent for service-connected residual scars due to BCC and actinic keratosis of the head, face, and neck have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes (DC) 7801-7805 (in effect prior to August 13, 2018, and effective August 13, 2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1970 to August 1990. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded for additional development by the Board in September 2014, April 2015, August 2017, and March 2019. The Board has remanded this case several times as the Veteran’s condition has worsened to get VA examinations that examine the worsened condition under all relevant criteria for assigning higher disability ratings. The RO obtained outstanding private and VA treatment records and scheduled the Veteran to undergo a VA examination. There has been substantial compliance with the March 2019 Remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the AOJ requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. VA requested records for which the Veteran submitted a proper release. The duty to assist is not a one way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Entitlement to an initial disability rating greater than 10 percent for service-connected residual scars due to BCC and actinic keratosis of the head, face, and neck. The Veteran contends a disability rating greater than 10 percent for service-connected residual scars due to BCC and actinic keratosis of the head, face, and neck is warranted. Scars are evaluated pursuant to DCs 7800, 7801, 7802, 7804, and 7805. 38 C.F.R. § 4.118. Scars or disfigurement of the head, face, or neck are rated pursuant to DC 7800. Effective August 13, 2018, the rating criteria for skin disabilities were revised. See 73 Fed. Reg. 32, 592 (July 13, 2018). As this appeal was pending on August 13, 2018, the revised criteria are applicable, but only for the period beginning August 13, 2018. Former Rating Criteria Scars of the head, face or neck are rated pursuant to DC 7800. Under DC 7800, a 10 percent rating is warranted for one characteristic of disfigurement. A 30 percent rating is warranted for 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. Note (1) following DC 7800 identifies 8 characteristics of disfigurement, for the purposes of evaluation under § 4.118: (1) scar 5 or more inches (13 or more cm.) in length; (2) scar at least one-quarter inch (0.6 cm.) wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and (8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Scars, not of the head, face, or neck are rated pursuant to DCs 7801 and 7802. As the Veteran’s scar is located on his head, DCs 7801 and 7802 are inapplicable. Scars that are unstable or painful are rated pursuant to DC 7804. A 10 percent rating is warranted for one or two scars that are unstable or painful. Note (1) defines an unstable scar as one where there is frequent loss of covering of skin over the scar. Note (2) states that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) states that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under this DC when applicable. 38 C.F.R. § 4.118. Revised Rating Criteria Under the revised DC 7800 - Scars of the head, face or neck a 10 percent rating is warranted with one characteristic of disfigurement. A 30 percent rating is warranted 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. Note (1) identifies the characteristics of disfigurement for purposes of evaluation under § 4.118 as: scar 5 or more inches (13 or more cm.) in length, scar at least one-quarter inch (0.6 cm.) wide at widest part, surface contour of scar elevated or depressed on palpation, scar adherent to underlying tissue, skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.), sin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.), underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.), and skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). The revised DCs 7801 and 7802 deal with scars not of the head, face, or neck. As the Veteran’s scar is located on his head, DCs 7801 and 7802 are inapplicable. DC 7804 was not affected by the revision. Under both the former and revised criteria, DC 7805 provides that scars should be evaluated pursuant to DCs 7800 through 7804 and adds that any disabling effect(s) not considered in those rating criteria should be evaluated under an appropriate DC. 38 C.F.R. § 4.118. VA and private treatment records do not contain pertinent scar findings. The Veteran underwent VA examinations in July 2010, May 2015, and December 2019. The July 2010 VA examiner identified the following scars: a 1.5 cm linear scar inside of his left ear just posterior to the external auditory canal; a 2.5 cm scar, anterior to the left ear; a Z-shaped scar located below the left ear on the lateral aspect of the neck measured 3.5 cm, 2.5 cm, and 2.0 cm; a 1.5 cm scar below the left anterior mandible on the superior aspect of the neck; a linear 2.0 cm scar on the left proximal forearm; and a rectangular scar on the right frontal area of the forehead which was slightly depressed and superficial, measuring 0.5 cm long by 0.4 cm wide for a total area of 0.2 cm. All scars were superficial, noninflamed, nontender, with no areas of skin breakdown. There was no facial asymmetry or distortion and most of the facial scars resulted in excellent cosmetic results. A May 2015 VA examiner noted the Veteran did not have benign or malignant skin neoplasms, systemic manifestations due to any skin diseases, debilitating or non-debilitating episodes in the past 12 months due to urticaria, primary cutaneous vasculitis, erythema multiforme or toxic epidermal necrolysis. The examiner identified the following scars: a linear scar inside of his left ear just posterior to the external auditory canal that measures 1.5 cm in length and is barely palpable, not degenerating and blanched; anterior to the left ear is the donor site for skin grafting inside of the ear (it is about 2.4 cm in length and an excellent plastic procedure); below the left ear on the lateral aspect of the neck is a Z-shaped scar comprised of three separate linear scars (measuring 2.5 cm, 3.5 cm, 2.0 cm); below the left anterior mandible on the superior aspect of the neck 1.4 cm; on the right frontal area of the forehead is a superficial scar from apparently a punch biopsy (it is rectangular and is 0.5 cm long by 0.4 cm wide for a total area of 0.2 cm squared). A December 2019 examiner stated the Veteran’s head, face, or neck scars were not due to burns nor were they painful, unstable with frequent loss of covering of skin, elevation, depression, adherence to underlying tissue, missing underlying soft tissue, abnormal pigmentation or texture, gross distortion or asymmetry of facial features, or visible or palpable tissue loss. The examiner identified the following scars: a linear scar inside of his left ear, no disfigurement or distortion of the external ear, due to BCC removal (measuring 1.5 X 0.1 cm); anterior to the left ear is the donor site for skin grafting for the same ear, no disfigurement or distortion of the external ear, due to BCC removal (measuring 2.2 cm X 0.1 cm); two visible scars below left ear on the side of the neck (measuring 2.5 cm x 0.2 cm and 3.0 cm x 0.2 cm), prior reports note three “legs” to the scar, but only 2 are visible due to healing and fading; below the left anterior mandible (measuring 1.4 cm X 0.1 cm); right frontal area of the forehead - punch biopsy scar (measuring 0.5 cm x 0.3 cm); “Y-shaped” scar (measuring 3 cm x 0.1 cm and 2 cm x 0.1 cm); and top of scalp (measuring 1.5 cm x 0.5 cm). After a review of all the pertinent evidence of record, the Board finds that a rating greater than 10 percent is not warranted for residual scars due to BCC and actinic keratosis of the head, face, and neck under the former nor the revised diagnostic codes. In order to warrant a higher disability rating under DC 7800, there would need to be 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. (Continued on the next page)   DC 7801 and 7802 are inapplicable, as they deal with scars not of the head, face or neck. DC 7804 does not warrant a separate compensable rating as the evidence of record does not show that the Veteran’s scars are painful or unstable. The VA examiners found no evidence of painful or unstable scars. The Veteran is competent to report his experienced symptoms and medical procedures he experienced; however, his belief that his scars are painful and more disabling than as indicated by the assigned rating is outweighed by the competent and credible medical examinations that evaluated the extent of impairment based on objective data coupled with statements of the Veteran. A VA examiner has the training and expertise to determine the type and degree of the impairment associated with the Veteran’s scars, and greater evidentiary weight is placed on the physical examination findings. Accordingly, his lay statements are entitled to low probative value. Additionally, the Board notes that the Veteran’s scars do not result in any other disabling manifestations which would entitle the Veteran to a compensable rating under any other diagnostic codes not contemplated by the diagnostic codes pertaining to the scars. Accordingly, the Board concludes that the criteria for a rating of 10 percent have been met throughout the entire appeal period under both the former and the revised criteria for the Veteran’s right tragus scar under DC 7800. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mohammad Mahmoudi, 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.