Citation Nr: 21021149 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 13-24 940A DATE: April 9, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for status post skin cancer of the right cheek, left cheek, lower lip, right ear, and right forehead with residual disfiguring scars for the period prior to January 20, 2011 is denied. REMANDED Entitlement to an evaluation in excess of 30 percent for status post skin cancer of the right cheek, left cheek, lower lip, right ear, and right forehead with residual disfiguring scars for the period from January 20, 2011 is remanded. Entitlement to a total disability rating based on unemployability (TDIU) is remanded. FINDING OF FACT Prior to January 20, 2011, 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 were not demonstrated. CONCLUSION OF LAW Prior to January 20, 2011, the criteria for entitlement to an evaluation in excess of 10 percent for status post skin cancer of the right cheek, left cheek, lower lip, right ear, and right forehead with residual disfiguring scars are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.102, 4.1-4.7, 4.118, Diagnostic Codes (DCs) 7818, 7800. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1951 to February 1955. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was last remanded in October 2020 for VA to obtain the Veteran’s private and VA medical records, this development was completed, and the case has returned to the Board. 1. Entitlement to an evaluation in excess of 10 percent for status post skin cancer of the right cheek, left cheek, lower lip, right ear, and right forehead with residual disfiguring scars for the period prior to January 20, 2011 is denied. The Veteran seeks a rating in excess of 10 percent for his service-connected status post skin cancer of the right cheek, left cheek, lower lip, right ear, and right forehead with residual disfiguring scars under Diagnostic Codes 7818-7800, indicating scars from malignant neoplasms. Prior to January 20, 2011, the Veteran had fewer scars from his service-connected skin cancer disability. The VA regulations regarding the skin have been updated, effective August 13, 2018. However, the August 2018 changes apply, in pertinent part, to Diagnostic Codes 7801 and 7802, both of which apply to scars not of the head, face, or neck. Diagnostic Code 7800, specifically, did not undergo changes after the August 13, 2018 regulation update. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. Scars are rated under Diagnostic Codes 7800-7805 within 38 C.F.R. § 4.118. Pursuant to the rating schedule, Diagnostic Code 7800 rates scars of the head, face, and neck, and the Veteran’s scars on his right cheek, left cheek, lower lip, right ear, and right forehead fall within this code. Under Diagnostic Code 7800, scars 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 warrant a 30 percent rating. Scars 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 warrant a 50 percent rating. Scars 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 warrant an 80 percent rating. 38 C.F.R. § 4.118, Diagnostic Code 7800. Scars with one characteristic of disfigurement are assigned a 10 percent evaluation. The eight characteristics of disfigurement include: a scar with 5 or more inches (13 or more cm.) in length; a scar at least one-quarter inch (0.6 cm.) wide at widest part; surface contour of the scar is elevated or depressed on palpation; the scar is adherent to underlying tissue; the skin is hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); the skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); the underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.); or the skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.). See Id., Note 1. The Veteran was assigned a 10 percent evaluation from prior to January 20, 2011 based on one characteristic of disfigurement. Medical records show the Veteran underwent additional excision of skin cancers January 20, 2011 and February 21, 2011. As to the period prior to January 20, 2011, the Veteran was examined in April 2010 and the examiner found the scar has no gross distortion or asymmetry of facial features or visible palpable tissue loss. The examiner specifically noted that scarring or disfigurement was not present. The examiner noted zero percent of the Veteran’s exposed skin was affected. Ulceration, exfoliation, or crusting were not present. He was diagnosed with three skin cancers resolved. See April 2010 Examination. According to the April 2010 VA examination, the Veteran does not meet the criteria for an evaluation in excess of 10 percent for status post skin cancer of the right cheek, left cheek, lower lip, right ear, and right forehead with residual disfiguring scars prior to January 20, 2011, as the scars do not exhibit 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 warrant a 30 percent rating. An increased rating under any other diagnostic code of the skin, such as DC 7804 (for painful or unstable scars) is not warranted based on the evidence of record prior to January 20, 2011. Therefore, the Board finds the preponderance of the evidence shows that the Veteran’s status post skin cancer of the right cheek, left cheek, lower lip, right ear, and right forehead with residual disfiguring scars prior to January 20, 2011 did not meet the criteria for a rating in excess of 10 percent. 38 C.F.R. § 4.118, DC 7800. In reaching such determination, the Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim, such doctrine is not applicable, and it must be denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. As discussed below, the latter period of the appeal requires additional development. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 30 percent for status post skin cancer of the right cheek, left cheek, lower lip, right ear, and right forehead with residual disfiguring scars for the period from January 20, 2011 is remanded. The Board finds remand is required to obtain an examination of the current severity of the Veteran’s skin disabilities, the latest examination report indicates that the Veteran was diagnosed with a new, active neoplasm of the right cheek in 2019. See April 2019 Examination. The examiner further notes that this new diagnosis is among additional skin cancer lesions which have developed on the Veteran’s face and require additional surgical removals. Since the April 2019 VA examination, the Veteran has asserted additional disfigurement of the face, noting subsidence of the left cheek due to lost muscle tissue. The Veteran also reports the onset of numbness of the left side of his face. See February 2021 Appellate Brief. The Board finds that these are newly reported symptoms possibly suggest the Veteran’s disability has worsened since he was last examined in April 2019. As such, a remand is necessary to afford the Veteran a new VA examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 2. Entitlement to a total disability rating based on unemployability (TDIU) is remanded. The Board must defer consideration of the issue of entitlement to a TDIU, as it is inextricably intertwined with the issue of entitlement to an increased rating for skin cancer residuals. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined if one claim could have significant impact on the other). The matters are REMANDED for the following action: (Continued on the next page)   Schedule the Veteran for a VA examination to clarify the current nature and severity of skin cancer residuals of the right cheek, left cheek, lower lip, right ear, and right forehead with residual disfiguring scars. The examiner should fully document in detail all signs and symptoms necessary for rating the Veteran’s service-connected residual scars and/or disfigurement from his skin cancer, to include but not limited to, palpable tissue loss, the size, shape, and location of his scars. A.M. CLARK Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Trickey 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.