Citation Nr: 21011189 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 12-08 631 DATE: March 1, 2021 REMANDED Entitlement to a compensable rating prior to October 16, 2016, and a rating in excess of 10 percent thereafter, for actinic keratosis (a skin disorder) with multiple basal cell carcinoma and malignant melanoma excisions (scars), is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1985 to May 2005. On appeal is an October 2009 rating decision issued by a Department of Veteran Affairs (VA) Regional Office (RO) that denied a compensable rating for the Veteran’s service-connected actinic keratosis with multiple basal cell carcinoma and malignant melanoma excisions. In August 2016, when the matter initially came before the Board of Veterans Appeals (Board), the Board remanded for additional development, to include obtaining a VA examination. After the requested development was completed, in May 2017, the RO granted an increased rating of 10 percent effective April 7, 2017. As this disability rating was not a total grant of the benefits sought on appeal, the claim for an increase remained before the Board. AB v Brown, 6 Vet. App. 35, 39 (1993). In April 2018, the Board denied a compensable rating prior to April 7, 2017 and a rating in excess of 10 percent thereafter. The Veteran appealed to the United States Court of Appeals for Veteran’s Claims (Court). In March 2019, the Veteran’s representative and the VA General Counsel filed a joint motion for remand (JMR) as the parties had agreed that the Board erred in its reliance on an April 7, 2017 examination report that was inadequate. The parties also noted that the rating criteria for skin disabilities was revised during the pendency of this appeal, with the Secretary’s expressed intent that “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 Court granted the JMR in March 2019, vacating the Board’s April 2018 decision that denied entitlement to a compensable disability rating for service-connected actinic keratosis, multiple, with basal cell carcinoma and malignant melanoma excisions, prior to April 7, 2017, and in excess of 10 percent thereafter. In July 2019, the Board remanded a second time, noting the Veteran had submitted additional evidence and specifically requested the Agency of Original Jurisdiction (AOJ) review this additional evidence. In December 2020, the RO issued a rating decision that granted an earlier effective date for the grant of the increased rating of 10 percent, now effective October 16, 2016. The matter has now returned to the Board for appellate review. Entitlement to a compensable rating prior to October 16, 2016, and a rating in excess of 10 percent thereafter, for actinic keratosis with multiple basal cell carcinoma and malignant melanoma excisions is remanded. The Board regrets any further delay in this matter, but finds additional development is needed before the Board can render a decision in this matter. Upon review of the Veteran’s case file, it is clear to the Board that the Veteran has a service-connected skin disorder (actinic keratosis) that has resulted in multiple lesions on his skin (basal cell carcinoma as well as malignant melanoma); that many of these lesion have been removed from his skin (excisions); and, that his condition has progressively worsened. The Board acknowledges VA examinations of the Veteran’s condition were obtained in May 2009, October 2016, and November 2020. However, the Board finds that the number of scars, as well as the location of these scars, varies significantly among these various examinations, as illustrated below: May 2009 VA exam 0 scars – face 1 scar - neck 4 scars – chest 3 scars - back 1 – right upper extremity (RUE) 0 – LUE “Upon physical exam, a total number of 30 scars were noted…” October 2016 VA exam 1 scar – face 2 scars - neck 2 scars – chest 1 scar - back 1 – RUE 2 - LUE “There are approximately 35 areas of circular hypopigmented scarring scattered diffusely…” November 2020 VA exam 0 scars – face 1 scar - neck 1 scar – chest 3 scars - back 1 – RUE 1 – LUE 1 – RLE 1 - LLE No narrative about the additional 30-35 scars noted above in the other examinations. Given the discrepancies in the number of scars and their location; as well as the most recent VA examination having a significantly lower number of total scars despite progression of the disorder; and it also appearing the VA examinations did not provide the total area squared (in centimeters or inches) for all of the scars noted, including the additional 30 -35 scars, consistent with the new VA rating criteria for scars under Diagnostic Codes 7800, 7801, and 7802, a remand for a new VA examination is necessary to evaluate the current severity of the Veteran’s condition. The matter is REMANDED for the following action: Schedule the Veteran for a VA skin and scar examinations to assess the current severity of his service-connected actinic keratosis with multiple basal cell carcinoma and malignant melanoma excisions. All symptomatology associated with the Veteran’s actinic keratosis with multiple basal cell carcinoma and malignant melanoma excisions, consistent with the VA rating criteria, should be reported including: • the total number of scars on the Veteran’s body; • the location of scars on the Veteran’s body, including whether there are any on the Veteran’s head, face or neck; • the area (in squared inches or squared centimeters) of each scar and skin condition found; • whether any of these scars are unstable or painful; and, • any characteristics of disfigurement. (Continued on the next page)   Unretouched color photographs of the Veteran’s scars and skin conditions must be taken and associated with his claim’s file. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Jiggetts 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.