Citation Nr: 21008067 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 14-05 567 DATE: February 11, 2021 ORDER A 10 percent disability rating, but not higher, under Diagnostic Code 7804, for a painful scar is granted for the Veteran’s service-connected right posterior scalp scar (previously rated as residuals, excision of basal cell carcinoma), for the period from August 4th 2009. For the period prior to August 4th, 2009, an increased compensable disability rating for service-connected right posterior scalp is denied. Entitlement to an initial increased rating for right posterior scalp scar (previously rated as residuals, excision of basal cell carcinoma), rated as noncompensable for the period prior to December 18, 2018, and 10 percent disabling under Diagnostic Code 7800 thereafter is denied. FINDINGS OF FACT 1. The Veteran’s right posterior scalp scar is not manifest by visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, or; two or three characteristics of disfigurement from March 1, 2004 to August 3, 2009. 2. The Veteran’s right posterior scalp scar is manifest by irritation, itchiness, and bleeding on occasion from August 4, 2009 through January 19, 2012. 3. There are no relevant medical records for the period beginning on January 20, 2012 and ending on August 17, 2018. 4. The Veteran’s right posterior scalp scar is manifest by mild tenderness that could not be contributed specifically to his scar, basal cell carcinoma residuals, or a seborrheic keratosis that recurred over the scar and was first noted on December 18, 2018. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for right posterior scalp scar have not been met prior to August 4, 2009. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. 2. Effective August 4, 2009, the criteria for a 10 percent, but not higher disability rating for right posterior scalp scar have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. 3. The criteria for a compensable disability rating for right posterior scalp scar have not been met prior to December 18, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7800. 4. The criteria for a disability rating in excess of 10 percent for right posterior scalp scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7800. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from October 1961 until his honorable discharge in June 1965. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902(c). These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2009 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran was granted service connection for residuals for excision of basal cell carcinoma on his scalp in February 2008 with an evaluation of 0 percent effective March 1, 2004. The Veteran then objected to the rating decision in a statement in support of claim in July 2008 stating, “Please evaluate me for an increased rating on my service connected basal cell carcinoma” and “I now, with continued severity and increases and surgeries [sic] I would like to be evaluated for a current higher rating.” The RO deferred decision on the increased evaluation for residuals, excision of basal cell carcinoma, in July 2009. The claim was decided in August 2009 and the noncompensable evaluation was continued and notice of that decision was mailed to the Veteran on August 25, 2009. The Veteran submitted a statement in support of claim in August 2010 stating he never received a response to his July 15, 2009 claim for increased evaluation for his basal cell carcinoma. No such claim was attached to his statement, the RO could not locate such a claim, and the Board cannot find a July 2009 claim after a thorough review of the file. The RO responded by “reopening” the Veteran’s prior claim from July 2008. A RO decision becomes final unless a notice of disagreement is filed, or new and material evidence is received within the one year appeal period. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b) (in effect prior to February 19, 2019), 20.1103. If VA fails to act on an appeal by issuing a statement of the case or on new and material evidence by reopening the claim, the claim remains pending. See 38 C.F.R. § 3.160(c) ("A claim which has not been finally adjudicated"); Ingram v. Nicholson, 21 Vet. App. 232, 240 (2007) (holding a claim remains pending, even for years, if the Secretary fails to act on a claim before him). While the Veteran’s statement in support of the claim could function as a notice of disagreement, it in no way refers to the August 2009 rating decision. As a result, this decision is final unless new and material evidence was received. In this regard, the United States Court of Appeals for the Federal Circuit recently held that the creation of VA treatment records containing new and material evidence within one year of a legacy decision may vitiate the finality of that decision, without regard to whether VA adjudicators are notified of the existence of these records within one year of the issuance of that decision. See Lang v. Wilkie, 971 F.3d 1348, 1353 (Fed. Cir. 2020). Here, the record demonstrates that the Veteran received VA treatment within one year of the issuance of the August 2009 rating decision. See May 2010 VA Treatment Records (stating that the Veteran had “problems with a hyperkeratotic papule previously frozen many times, yet it has not resolved.”). As such, VA is presumed to be on notice of these relevant records at that time and they render the August 2009 rating decision non-final. In April 2018, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to obtain updated VA treatment records and schedule the Veteran for a VA examination. A VA examination took place in December 2018 and the claim was then readjudicated. The RO issued a rating decision in June 2019. In July 2019, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and opted into the modernized review system, also known as the Appeals Modernization Act (AMA), from a June 2019 supplemental statement of the case (SSOC). In February 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and opted into the AMA from the same June 2019 SSOC. In July 2020, the RO issued a rating decision and denied the claim based on the evidence of record at the time of that decision. In July 2020, VA received a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), in which the Veteran elected the Direct Review option. The issues of entitlement to an “earlier effective date” for a right scalp scar as a residual of basal cell carcinoma and entitlement to an earlier effective date for a right posterior scalp will be addressed in a separate Board decision under the AMA system. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one disorder is not duplicative of the symptomatology of the other disorder. 38 C.F.R. § 4.14 (2017); Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). Medical History The Veteran was granted service connection for residuals for excision of basal cell carcinoma on his scalp in February 2008 with an evaluation of 0 percent effective March 1, 2004. The Veteran appealed and was eventually granted a 10 percent evaluation effective December 18, 2018. The Veteran was diagnosed with basal cell carcinoma of the scalp in April 1990, which was removed at that time. December 2007 VA Examination. The excision of his basal cell carcinoma left a 1-centimeter by 1-centimeter scar on his occipital scalp. Id. The Veteran then began to experience recurrent lesions over top of the scar. He reported to a private physician in December 2003 for the excision and subsequent testing of the lesion to ensure that it was not recurrent basal cell carcinoma. See January 2004 Private Treatment Records. The Veteran sought treatment at that time because the lesion was becoming “painful and itchy over the last several weeks.” Id. It was determined that the lesion was not a recurrence of his basal cell carcinoma. The Veteran had a VA examination in December 2007 that focused on service connection and did not elaborate on the severity of the Veteran’s disability. There was no finding of pain, tenderness, or instability. The Veteran then sought treatment at the VA in 2008 for a recurrence of the lesion where it was noted that he had a long standing history of “flesh-colored papule on his posterior scalp” with a “differential diagnosis [of] a filiform wart versus a seborrheic keratosis.” March 2008 VA Treatment Records. Although the records indicate that the lesion was “not healing” there is no reference to tenderness, pain, or instability of the area. The Veteran’s treatment outlook changed in August 2009, where, although the lesion was not tender to the touch, it was excoriated and the Veteran reported that it would bleed. See August 2009 VA Examination. The Veteran also complained of a recurrent lesion at the site of his basal cell carcinoma incision during the August 2009 VA examination. The examiner noted that the recurrent lesion was diagnosed as a wart and was not a recurrence of the Veteran’s basal cell carcinoma. August 2009 VA Examination. The Veteran reported that the lesion had begun to bleed, and he had to be very careful when combing, brushing his hair, or getting a haircut to prevent the lesion from getting bumped or abraded. Id. Upon examination, the examiner noted that the lesion was at the center of a 3-centimeter incision scar and was not tender to the touch. Id. However, the lesion was “excoriated.” Id. VA treatment records from April 2010 again state that the lesion was nontender. The Veteran then had the lesion biopsied in May 2010 where he was diagnosed as having a hyperkeratotic filiform papule, seborrheic keratosis. A later July 2011 VA treatment note explains, “Seborrheic keratosis overlying a basal cell carcinoma scar. Given the fact that this is becoming irritated and pruritic and bleeding on occasion, we treated this with cryotherapy for destruction today. It was explained to him that this was likely to recur.” The Veteran’s most recent VA examination in December 2018 found that “Both his current scalp scar and his seborrheic keratosis are mildly tender and I cannot sort out the exact degree to which these separate and unrelated lesions contribute to his symptom of scalp discomfort as they sit so closely together and symptoms overlap.” For this reason, the Veteran was awarded a 10 percent evaluation effective December 18, 2018. The examiner stated, “The veteran has noted mild tenderness in the area of his right posterior scalp scar ever since excision of a basal cell carcinoma many years ago.” He explained that, “The [Veteran] reports that this area of his scalp has remained abnormal ever since that time [1990s]. He has mild residual tenderness and has to be careful how he wears his cap so that it doesn't rub this area. His barber has to be very careful when cutting his hair around this area.” Diagnostic Codes and Pyramiding The Veteran is already rated under two separate diagnostic codes (DC): 7800 and 7804. The Veteran was granted ten percent under DC 7800 because at least one character of disfigurement was present, and he was granted ten percent under DC 7804 because his scar was unstable or painful. As the December 2018 examiner explained, the Veteran’s basal cell carcinoma and seborrheic keratosis cannot be separated. The lesion overlaps with the scar and the examiner found that the symptoms could not be attributed to one or the other. Thus, a separate rating based on the same symptoms would constitute impermissible pyramiding. See 38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 262. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture.” Esteban, 6 Vet. App. at 262. Entitlement to an earlier effective date for the 10 percent evaluation of right posterior scalp scar (previously rated as residuals, excision of basal cell carcinoma). The Veteran asserts that he is entitled to a ten percent rating earlier than December 18, 2018. The Veteran was granted an evaluation of 0 percent effective March 1, 2004 to December 17, 2018, and then 10 percent thereafter. The period on appeal is from March 1, 2004 to the present. In order to appropriately rate the Veteran’s claim, the Board must apply the evidence over the period on appeal to the relevant regulatory criteria. The rating for a right posterior scalp scar is governed by 38 C.F.R. § 4.118, which encompasses DC 7800 and 7804. Over the period on appeal that regulation has been changed four times in 2002, 2008, 2012, and 2018. The periods of appeal and the awards granted are as follows: March 1, 2004 to October 22, 2008 (2002 Regulation): noncompensable. October 23, 2008 to January 19, 2012 (2008 Regulation): 10 percent awarded under DC 7804. January 20, 2012 to August 12, 2018 (2012 Regulation): 10 percent awarded under DC 7804. August 13, 2018 to August 17, 2018 (2018 Regulation): 10 percent awarded under DC 7804. August 18, 2018 to present (Post Aug. 18, 2018 VA Exam): rating awarded in June 2019 rating decision is continued, ten percent under DC 7800 and ten percent under DC 7804 effective December 18, 2018. 2002 Regulation: March 1, 2004 to October 22, 2008 The Veteran is not entitled to an increased rating during this period as evaluated using the 2002 version of 38 C.F.R. § 4.118. The 2002 version of § 4.118 states in relevant part as follows: 7800 Disfigurement of the head, face, or neck: … With visibile or palpable tissue loss and either gross distortion os 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 (30 percent). With one characteristic of disfigurement (10 percent). Note (1): The 8 characteristics of disfigurement, for purposes of evaluation under § 4.118, are: 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.). Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm). Skin indurated an inflexible in an area exceeding six square inches (39 sq. cm.). … 7803 Scars, superficial, unstable (10 percent). Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2): A superficial scar is one not associated with underlying soft tissue damage. 7804 Scars, superficial, painful on examination (10 percent). Note (1): A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118 (2002). This version of the regulation governs the appeal period from March 1, 2004 to October 22, 2008 when the regulation was updated effective in August 30, 2002. The Veteran had his basal cell carcinoma removed in 1990 and then had a benign seborrheic keratosis removed in December 2003. See Dr. J.R. Private Treatment Records. Neither of these dates are included in the period on appeal. At this time, the Veteran’s claim was being developed and reviewed for service connection. The RO denied the Veteran’s claim due to a lack of medical evidence connecting his basal cell carcinoma to service; however, the Board remanded the case to the RO in October 2007 for a VA medical examination. The subsequent November 2007 VA examination described the Veteran’s condition as follows: “The patient has a 1 x 1-cm triangular scar on his right occipital scalp with an overlying 5 x 5-mm verrucous papule. He also has multiple ill-defined, erythematous, scaling macules and papules scattered on his face and forearms bilaterally consistent with actinic keratoses.” The examiner stated that the Veteran reported having multiple biopsies of the lesion with his dermatologist Dr. S. See November 2007 VA Examination. No such records are associated with the Veteran’s file. The only medical records other than the November 2007 examination available for this period are from a 2008 dermatology consultation. A January 2008 dermatology consultation described the disability as follows: [radiotherapy] scalp in occipital area raised rough non-pigmented non-tender irregular lesion about 1 cm in diameter no discharge[. Patient complains of] skin lesion on lt scalp not healing has [history] of [basal cell carcinoma] removed from the same spot…” A physical examination in March 2008 described the scalp, stating, “On his posterior scalp is a flesh-colored papule with a verrucous appearance measuring approximately 5 mm in size.” The physician removed the lesion with liquid nitrogen and instructed the Veteran to “keep the area clean with soap and water and apply Vaseline until well healed.” The medical evidence from this period of the appeal does not meet the regulatory criteria for a compensable rating. The Veteran’s scar does not have a characteristic of disfigurement as required under DC 7800 10 percent rating. The scar is only 1 cm in length and non-pigmented. Likewise, there was no instability or pain noted upon examination. The liquid nitrogen was used to remove the benign verrucous lesion. As a result, an increased rating for the period from March 1, 2004 to October 22, 2008 is denied. 2008 Regulation: October 23, 2008 to January 19, 2012 The Veteran is entitled to an increased rating of 10 percent disabling for part of this period as evaluated using the 2008 version of 38 C.F.R. § 4.118, DC 7804. The 2008 version of § 4.118 was updated to add notes (4) and (5) to DC 7800, remove DC 7803, and revise DC 7804. The relevant updates are as follow: 7800 [disfigurements] Note (4): Separately evaluate disabling effects other than disfigurement that are associated with individual scar(s) of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, under the appropriate diagnostic code(s) and apply § 4.25 to combine the evaluation(s) with the evaluation assigned under this diagnostic code. 7804 Scar(s), unstable or painful: … One or two scars that are unstable or painful (10 percent). Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2): 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): Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. 38 C.F.R. § 4.118 (2008). This version of the regulation governs the appeal period from October 23, 2008 to January 19, 2012 when the regulation was updated effective October 23, 2008. The Veteran’s treatment outlook changed in August 2009, where, although the lesion was not tender to the touch, it was excoriated and the Veteran reported that it would bleed. See August 2009 VA Examination. The Veteran reported that the lesion had begun to bleed, and he had to be very careful when combing, brushing his hair, or getting a haircut to prevent the lesion from getting bumped or abraded. Id. Upon examination, the examiner noted that the lesion was at the center of a 3-centimeter incision scar and was not tender to the touch. Id. However, the lesion was “excoriated.” Id. VA treatment records from April 2010 again state that the lesion was nontender. The Veteran then had the lesion biopsied in May 2010 where he was diagnosed as having a hyperkeratotic filiform papule, seborrheic keratosis. A later July 2011 VA treatment note explained, “Seborrheic keratosis overlying a basal cell carcinoma scar. Given the fact that this is becoming irritated and pruritic and bleeding on occasion, we treated this with cryotherapy for destruction today. It was explained to him that this was likely to recur.” Although the scar does not meet any of the characteristics of disfigurement under DC 7800 for this period on appeal, the Board finds that the Veteran meets the 10 percent disabling criteria under DC 7804 effective August 4, 2009 through January 19, 2012 due to the excoriation, irritation, and bleeding of the seborrheic keratosis overlying the basal cell carcinoma scar. Subsequent examiners found that the symptoms of pain could not be distinguished between the scar and the lesion. See December 2018 VA Examination. The benefit of the doubt weighs in favor of the Veteran’s claim. 2012 Regulation: January 20, 2012 to August 12, 2018 The Veteran is entitled to an increased rating of 10 percent disabling for this entire period as evaluated using the 2012 version of 38 C.F.R. § 4.118, DC 7804. The 2012 version of § 4.118 was updated to add notes (4) and (5) to DC 7800, remove DC 7803, and revise DC 7804. The only update in 2012 was to add the following to the Note (1) list of the characteristics of disfigurement: “Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.).” 38 C.F.R. § 4.118 (2012). This version of the regulation governs the appeal period from January 20, 2012 to August 12, 2018 when the regulation was updated effective January 20, 2012. There are no relevant medical records from this period even though the Veteran was seeking treatment with VA for other conditions at the same time. See VA Treatment Records. Based on the medical evidence of record during this time the Board will find that the benefit of the doubt weighs in favor of the Veteran and continue the 10 percent rating under DC 7804. 2018 Regulation: August 13, 2018 to December 17, 2018 Although 38 C.F.R. § 4.118 was updated in 2018 and became effective August 13, 2018, none of those updates are relevant to this claim and DC 7800 and 7804. Again, there are no relevant medical records from this period even though the Veteran was seeking treatment with VA for other conditions at the same time. See VA Treatment Records. Based on the medical evidence of record during this time the Board will find that the benefit of the doubt weighs in favor of the Veteran and so the Board continues the 10 percent rating under DC 7804. 2018 VA Examination: August 18, 2018 to the Present In June 2019 the RO awarded the Veteran a ten percent rating under DC 7800 and DC 7804 effective December 18, 2018, the date of his most recent VA examination. The ten percent disability criteria of DC 7800 were met because the Veteran’s scar had one characteristic of disfigurement, a scar that was wider than one-quarter inch (0.6 centimeter). See December 2018 VA Examination. The ten percent disability criteria of DC 7804 were met because the Veteran had one painful scar. The Board agrees with this evaluation based on the medical evidence of the December 2018 VA examination where the examiner stated, “Both his current scalp scar and his seborrheic keratosis are mildly tender and I cannot sort out the exact degree to which these separate and unrelated lesions contribute to his symptom of scalp discomfort as they sit so closely together and symptoms overlap.” This statement weighs in the Veteran’s favor and meets the criteria of DC 7804 for a painful scar. The examiner also reported that “The veteran has noted mild tenderness in the area of his right posterior scalp scar ever since excision of a basal cell carcinoma many years ago.” He explained that “The veteran reports that this area of his scalp has remained abnormal ever since that time [1990s]. He has mild residual tenderness and has to be careful how he wears his cap so that it doesn’t rub this area. His barber has to be very careful when cutting his hair around this area.” While the examiner found that the scar was one centimeter by one centimeter, no prior medical examination has found that the scar was larger than one-quarter inch or 0.6 centimeters wide. As a result, only this period on appeal is awarded a ten percent rating under DC 7800. The Veteran is competent to state his symptoms and he did so in 2018. However, the same statements that his lesion was tender or in pain were not made in prior VA examinations or VA treatment records. The Board gives greater weight to his statements at the various times throughout the various periods of appeal as well as the medical evidence which does not support a ten percent rating for the entire period on appeal. The Veteran is awarded staged ratings as follow: 10 percent effective August 4, 2009 under DC 7804 and 10 percent effective December 18, 2018 under DC 7800. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. A. Johnston, 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.