Citation Nr: 21024360 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-24 733A DATE: April 22, 2021 ORDER An initial disability rating in excess of 20 percent since January 1, 2015, for left elbow generative arthritis and lateral epicondylitis, status post ulna fracture (left elbow disability), is denied. An initial compensable disability rating since January 1, 2015, for malignant melanoma is denied. FINDINGS OF FACT 1. Since January 1, 2015, the Veteran’s left elbow disability manifested with pain, fatigue, weakness, and limited pronation with motion lost beyond the last quarter of the arc or that his hand did not approach full pronation. 2. Since January 1, 2015, the Veteran’s malignant melanoma disability manifested with no current visible scar and warrants a noncompensable disability rating. CONCLUSIONS OF LAW 1. Since January 1, 2015, the criteria for an initial disability rating in excess of 20 percent for a left elbow disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5213 (2019). 2. Since January 1, 2015, the criteria for an initial compensable disability rating for malignant melanoma have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.10, 4.14, 4.118, Diagnostic Code (DC) 7833 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1990 to December 2014. The case was remanded in August 2020 for evidentiary development and for new medical examinations. All actions ordered by the remand have been accomplished. Effective January 1, 2015, the Veteran’s combined schedular evaluations for his multiple service-connected disabilities total 100 percent, and he is in receipt of separate grants of special monthly compensation on various bases. Increased Rating Disability ratings are determined by applying criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as “staged ratings.” See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). Additionally, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Musculoskeletal System Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. Provision 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the criteria discussed in sections 4.40 and 4.45 are not subsumed by the DCs applicable to the affected joint). The provisions of 38 C.F.R. § 4.59 recognize that painful motion is an important factor of disability. Joints that are painful, unstable, misaligned, or due to healed injury are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011) (holding that pain alone does not constitute function loss and is just one fact to be considered when evaluating functional impairment). Skin Ratings Changes to the rating schedule for skin disabilities became effective August 13, 2018. The amended rating criteria, if favorable to the Veteran’s claim, can be applied only for periods from the effective date of the regulatory change. However, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). In every instance where the schedule does not provide a 0 percent rating for a diagnostic code, a 0 percent rating shall be assigned when the requirements for a compensable rating are not met. See 38 C.F.R. § 4.31. Skin disability rating criteria prior to the August 13, 2018, regulatory changes The diagnostic criteria instruct that scars (including linear scars) and other effects of scars are rated as burn scar(s) of the head, face, or neck (DC 7800); scar(s) not of the head, face, or neck, that are deep and nonlinear (DC 7801); scar(s) not of the head, face, or neck, that are superficial and nonlinear (DC 7802); or, unstable or painful scars (DC 7804), depending upon the predominant disability. Alternatively, disabling effects not considered under ratings for scars are to be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118, DC 7805. Under the applicable criteria for evaluating scars, compensable (10 percent) ratings are assigned for scars of the head, face, or neck or other disfigurement of the head, face, or neck with one characteristic of disfigurement. See 38 C.F.R. § 4.118, DC 7800 (2017). 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. Compensable (10 percent) ratings are also assigned for scars, not affecting the head, face, or neck, that 1) are deep and cover an area of at least 6 sq. inches (39 sq. cm.) but less than 12 sq. inches (77 sq. cm) (a deep scar is one associated with underlying soft tissue damage); 2) are superficial and cover an area of 144 sq. inches or greater (929 sq. cm) (a superficial scar is one not associated with underlying soft tissue damage); or 3) are unstable or painful (an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar). See 38 C.F.R. § 4.118, DCs 7800, 7801, 7802, 7804 (2017). Higher ratings may be assigned where the scar is manifested by visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features or three characteristics of disfigurement (of the head, face or neck), deep and covers an area of at least 12 sq. inches but less than 72 sq. inches or unstable or painful (three or four scars). Skin disability rating criteria as of August 13, 2018, regulatory changes The diagnostic criteria instruct that scars (including linear scars) and other effects of scars are rated as burn scar(s) of the head, face, or neck (DC 7800); scar(s) not of the head, face, or neck, that are that are associated with underlying soft tissue damage (DC 7801); scar(s) not of the head, face, or neck, that are that are not associated with underlying soft tissue damage (DC 7802); or, unstable or painful scars (DC 7804), depending upon the predominant disability. Alternatively, disabling effects not considered under ratings for scars are to be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118, DC 7805. Under DC 7800, scars with one characteristic of disfigurement warrants a 10 percent rating. 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 raring. 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, DC 7800. 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. Under 7801, burn scars or scars due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage, warrant a 10 percent rating if the scar area covers at least 6 square inches (30 sq. cm.), but less than 12 square inches (77 sq. cm.). Under 7802, scars not of the head, face, or neck, that are not associated with underlying soft tissue damage warrant a 10 percent rating if the scar covers an ear of 144 square inches (929 sq. cm.) or greater. For the purposes of DCs 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk. See Id., Note 1. A separate evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones of the body. Combine the separate evaluations under §4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. See Id., Note 2. Under 7804, one or two scars that are unstable or painful warrant a 10 percent rating. Three or four scars that are unstable or painful warrant a 20 percent rating. Five or more scars that are unstable or painful warrant a 30 percent rating. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. See Id., Note 1. 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. See Id., Note 2. Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. See Id., Note 3. 1. Entitlement to an initial disability rating in excess of 20 percent since January 1, 2015, for left elbow degenerative arthritis and lateral epicondylitis, status post ulna fracture (left elbow disability) The Veteran’s service-connected left elbow disability has been evaluated as 20 percent disabling since January 1, 2015, under the schedule of ratings for the musculoskeletal system for impairment of supination or pronation of the elbow. See 38 C.F.R. § 4.71a, DC 5213. The Veteran’s left elbow disability was previously rated under DC 5206 for limitation of forearm flexion, and under 5207 for limitation of forearm extension. The Veteran’s left arm is his minor arm. Under DC 5206 for limitation of forearm flexion, flexion limited to 110 degrees is noncompensable. Flexion limited to 100 degrees warrants a 10 percent evaluation for both the major and minor forearm. Flexion limited to 90 degrees warrants a 20 percent evaluation for both the major and minor forearm. Flexion limited to 70 degrees warrants a 20 percent evaluation for the major arm and a 30 percent evaluation for the major arm. Flexion limited to 55 degrees warrants a 30 percent evaluation for the minor arm and a 40 percent evaluation for the major arm. Flexion limited to 45 degrees warrants a 40 percent evaluation for the minor arm and a 50 percent evaluation for the major arm. 38 C.F.R. § 4.71a, DC 5206. Under 5207 for limitation of forearm extension, extension limited to 45 degrees warrants a 10 percent evaluation for both the major and minor forearm. Extension limited to 60 degrees also warrants a 10 percent evaluation for both the major and minor forearm. Extension limited to 75 degrees warrants a 20 percent evaluation for both the major and minor forearm. Extension limited to 90 degrees warrants a 20 percent evaluation for the minor arm and a 30 percent evaluation for the major arm. Extension limited to 100 degrees warrants a 30 percent evaluation for the minor arm and a 40 percent evaluation for the major arm. Extension limited to 110 degrees warrants a 40 percent evaluation for the minor arm and a 50 percent evaluation for the major arm. 38 C.F.R. § 4.71a, DC 5207. Under DC 5213 for impairment of supination or pronation, limitation of supination to 30 degrees or less warrants a 10 percent evaluation for both the major and minor arm. Limitation to pronation to motion lost beyond the last quarter of the arc, where the hand does not approach full pronation, warrants a 20 percent evaluation for both the major and the minor arm. Limitation of pronation to motion lost beyond the middle of the arc warrants a 20 percent evaluation for the minor arm and a 30 percent evaluation for the major arm. Loss of bone fusion, where the hand is fixed near the middle of the arm or moderate pronation, warrants a 20 percent evaluation for both the major and minor arm. Loss of bone fusion where the hand is fixed in full pronation warrants a 20 percent evaluation for the minor arm and a 30 percent evaluation for the major arm. Loss of bone fusion where the hand is fixed in supination or hyperpronation warrants a 30 percent evaluation for the minor arm and a 40 percent evaluation for the major arm. 38 C.F.R. § 4.71a, DC 5213. VA treatment records indicate the Veteran’s prior medical history included a note that he had osteoarthritis in his left elbow diagnosed prior to registering with the VA medical center (VAMC) system. Private February 2014 treatment records indicate an electrodiagnostic study revealed no muscle weakness or muscle atrophy in the left hand or left forearm. The examiner concluded the Veteran did not demonstrate significant left ulnar neuropathy, cervical radiculopathy, or peripheral nerve entrapment. The examiner advised the Veteran to avoid prolonged pressure over the medial left elbow aspect. At the September 2014 VA medical examination for elbow and forearm conditions, the Veteran denied flareups. Left arm range of motion (ROM) testing revealed left elbow flexion from zero to 145 degrees or greater with no objective evidence of painful motion; and no limitation of extension with no objective evidence of painful motion. The Veteran performed repetitive-use testing with no loss of ROM. The examiner noted the Veteran did not demonstrate functional loss or impairment of his elbow or forearm nor localized tenderness or pain on palpation. Muscle strength testing revealed normal strength in both flexion and extension. The Veteran’s left elbow did not demonstrate ankylosis; flail joint; joint fracture; or impairment of supination or pronation. The Veteran did not have any other pertinent physical findings, complications, conditions, signs, or symptoms. Diagnostic imaging did not indicate degenerative or traumatic arthritis. The Veteran’s left forearm demonstrated supination to 85 degrees with no painful motion, and post-test pronation to 80 degrees. The Veteran’s left forearm did not demonstrate contributing factors of weakness, fatigability, incoordination, or pain during flareups or repeated use over time. The examiner noted the Veteran did not demonstrate a left elbow diagnosis. Imaging indicated evidence of an old left forearm fracture, but no evidence of significant bone or soft tissue abnormality in the Veteran’s left elbow. November 2018 VA treatment records indicate the Veteran received physical therapy for complaints of left shoulder and left elbow pain. The Veteran rated his left elbow pain as 8/10, with 10 being extremely painful. The examiner reviewed October 2018 imaging that showed mild to moderate degenerative changes to the Veteran’s left elbow ulnotrochlear joint. In December 2018 the Veteran reported decreased left elbow pain; that he was complying with the suggested stretching exercises; and that he used the counterforce brace and elbow compression sleeve. The examiner noted that the Veteran tolerated the epicondylitis strengthening program without difficulty. In January 2019 the Veteran denied left elbow pain. At a January 2020 VA medical examination for elbow and forearm conditions, the Veteran reported his left elbow locked, demonstrated evidence of crepitus, and that he had difficulty extending his arm fully. The Veteran also denied flareups. The examiner noted the October 2018 imaging findings and that the Veteran underwent left elbow arthroscopy in either 2012 or 2013. The examiner diagnosed the Veteran with left elbow lateral epicondylitis. ROM testing revealed flexion from 20 degrees to 145 degrees; extension from 145 degrees to 20 degrees with pain; forearm supination to 85 degrees; and forearm pronation to 80 degrees. The Veteran’s abnormal ROM contributed to functional loss because the Veteran was limited in his ability to lift his left arm. The examiner noted pain on extension, and moderate tenderness or pain on palpation in the vicinity of the left olecranon that was consistent with degenerative arthritis; pain on weight bearing; and evidence of crepitus. The Veteran was able to perform repetitive-use testing without additional functional loss or loss of ROM. Although the examiner noted that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time, the examiner noted that pain, fatigue, and weakness were factors that limited the functional ability with repeated use over time. The examiner described these limitations in terms of ROM as 20 degrees to 145 degrees; extension from 145 degrees to 20 degrees; forearm supination to 85 degrees; and forearm pronation to 80 degrees. The examiner also noted that the examination was neither medical consistent nor inconsistent with the Veteran’s statements regarding flareups, which he denied. Contributing factors to the Veteran’s disability included less movement than normal and interference with lifting and grasping due to pain. Muscle strength testing was normal with no evidence of muscle atrophy. The Veteran did not demonstrate ankylosis, flail joint, joint fracture, ununited fracture, malaligned fracture, or supination or pronation impairment. The examiner noted the Veteran’s elbow arthroscopy and that the Veteran demonstrated residuals from the surgery, to include reduced ROM and pain. The Veteran’s left elbow arthroscopic scars were not painful or unstable. The Veteran reported using an elbow brace to reduce pain and to increase stability. The examiner also noted the October 2018 imaging revealed mild to moderate degenerative changes of the ulnotrochlear joint, and that these findings were consistent with arthritis that caused the Veteran’s chronic left elbow pain. The functional impact of the Veteran’s disability included difficulty lifting the left arm due to pain, and increased pain in the left elbow. The Veteran demonstrated objective evidence of pain on non-weight bearing; passive ROM testing that was the same as active ROM testing; and pain in the same planes in passive ROM testing as in active ROM testing. The examiner remarked the Veteran’s symptoms of epicondylitis were a progression of his service-connected left elbow disability. At an October 2020 VA medical examination for elbow and forearm conditions, The Veteran reported increased pain with any movement; decreased ROM; an inability to push or pull his left hand or arm; and treatment with injections and physical therapy. The Veteran also denied flareups. ROM testing revealed flexion from 30 degrees to 130 degrees with pain; extension from 130 degrees to 30 degrees with pain; forearm supination from zero degrees to 75 degrees with pain; and forearm pronation from zero to 40 degrees with pain. Pain contributed to functional loss which the examiner described as difficulty pushing, pulling, or reaching. The Veteran did not demonstrate localized tenderness or pain on palpation; pain with weight bearing; or objective evidence of crepitus. The Veteran performed repetitive use testing with no functional loss or loss of ROM. Although the examination was not medical consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time, the examiner noted that pain was a factor in causing the Veteran’s functional loss, and the examiner described the functional loss in terms of ROM as flexion from 30 degrees to 125 degrees; extension from 125 degrees to 30 degrees; forearm supination from zero degrees to 70 degrees; and forearm pronation from zero to 40 degrees. The examiner noted the examination was neither medically consistent nor inconsistent with the Veteran’s description of functional loss during flareups, but described the Veteran’s ROM during a flareup as flexion from 30 degrees to 125 degrees; extension from 125 degrees to 30 degrees; forearm supination from zero degrees to 70 degrees; and forearm pronation from zero to 40 degrees. There were no additional contributing factors to the Veteran’s left elbow disability. Muscle strength testing was normal with no evidence of muscle atrophy. The Veteran’s left elbow also did not demonstrate ankylosis, flail joint, joint fracture, ununited fracture, malaligned fracture. The examiner noted the Veteran demonstrated pronation impairment and indicated the Veteran’s left elbow demonstrated limited pronation with motion lost beyond the last quarter of the arc or that his hand does not approach full pronation. The examiner noted the Veteran’s elbow debridement arthroscopic surgery, that his scars from that surgery were not painful or unstable, and that residuals of that surgery demonstrated as decreased ROM. The Veteran did not endorse using an assistive brace at this examination. The functional impact of the Veteran’s disability included difficulty extending his left arm and hand; no pushing or pulling; and that the Veteran could only perform light office-type work. The examiner remarked the Veteran demonstrated pain on non-weight bearing; that the Veteran demonstrate pain on passive ROM testing in the same planes that the Veteran experienced pain during active ROM testing. Since January 1, 2015, the Veteran’s left elbow disability manifested with pain, fatigue, weakness, and limited pronation with motion lost beyond the last quarter of the arc or that his hand does not approach full pronation, and warrants a 20 percent evaluation. A higher evaluation is not warranted because the Veteran’s disability did not demonstrate with flexion limited to 55 degrees; extension limited to 100 degrees; or left hand fixed in supination or hyperpronation. Given these facts, the Board finds that a 20 percent evaluation since January 1, 2015, adequately reflects the Veteran’s left elbow disability during the relevant period. 38 C.F.R. § 4.7. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 2. Entitlement to an initial compensable disability rating since January 1, 2015, for malignant melanoma with facial scarring The Veteran’s service-connected malignant melanoma with facial scarring disability has been evaluated as noncompensable since January 1, 2015, under the schedule of ratings for the skin. See 38 C.F.R. § 4.118, DC 7833. The Veteran is also service-connected for actinic keratosis; however, this condition is not on appeal. Under DC 7833, malignant melanoma is to be rated as scars; disfigurement of the head, face, or neck; or impairment of function under the appropriate body system. 38 C.F.R. § 4.118, DC 7833. If a skin malignancy requires therapy that is comparable to that used for systemic malignancies, (i.e., systemic chemotherapy, x-ray therapy more extensive than to the skin, or surgery more extensive than wide local excision) a 100-percent evaluation will be assigned from the date of onset of treatment, and will continue, with a mandatory VA examination six months following the completion of such antineoplastic treatment, and any change in evaluation based upon that or any subsequent examination will be subject to the provisions of § 3.105 (e). If there has been no local recurrence or metastasis, evaluation will then be made on residuals. If treatment is confined to the skin, the provisions for a 100-percent evaluation do not apply. Id., Note. At an October 2014 VA medical examination for skin diseases, the examiner noted diagnoses of actinic keratoses and melanoma. The examiner noted that the Veteran’s skin conditions did not cause scarring or disfigurement of the head, face, or neck, did not refer to malignant skin neoplasms including malignant melanoma, and did not require oral or topical medications or any other treatments or procedures. The examiner noted that the Veteran demonstrated a potential suspicious legion on his right temple measuring 1 mm x 1 mm that was flat, and was a bluish-black color. The examiner strongly advised the Veteran to followup immediately with his primary care physician. In June 2015 the Veteran’s treating physician referred the Veteran to a dermatologist after noting right-cheek facial skin lesions that appeared irritated after shaving. At an October 2019 VA annual evaluation, the examiner noted that in 2007 the Veteran had a malignant melanoma removed from his right cheek during service. The examiner also noted itchy keratosis legions on his leg. The examiner noted the Veteran’s right cheek excision site appeared benign and treated the Veteran’s keratoses lesion. At an October 2019 VA medical examination for skin diseases, the examiner noted the Veteran’s 2007 malignant melanoma diagnosis, and that current records did not indicate diagnostic or pathology data since 2007 for malignant melanoma recurrences. The examiner noted that the Veteran noticed a second spot on his right cheek that was awaiting evaluation by a dermatologist. The examiner noted the Veteran had not been treated in the past 12 months for his melanoma disability. The examiner also noted the malignant melanoma no longer demonstrated as an exposed skin condition but rather as a skin condition without any visible characteristic lesions at the time of the examination. The examiner noted there was no visible scarring from the 2007 excision. The examiner noted the Veteran’s malignant melanoma was in remission and did not demonstrate with any residual conditions or complications. The examiner noted no functional impact of the Veteran’s malignant melanoma disability. At a December 2019 VA dermatology consultation, the examiner noted the Veteran had a right cheek melanoma excised in 2007, and that the Veteran also reported a burning sensation on his right cheek associated with a small lesion near his prior excision. The examiner conducted a waist-up skin examination and noted the Veteran did not demonstrate evidence of a lesion of concern for malignant melanoma. At a November 2020 VA medical examination for skin diseases, the examiner noted the Veteran had a right cheek scar from his 2006 lesion excision. The examiner noted the facial scar was not painful nor unstable. The scar measured 3 cm x .2 cm (for a total of .6 sq. cm), and did not demonstrate with elevation, depression, or any underlying tissue pathology. The scar did not demonstrate with abnormal pigmentation or texture, tissue loss, or distortion of facial features. The examiner noted no functional impact of the Veteran’s melanoma scar disability. The examiner explained that the pathology report from the August 2006 cheek incision did not confirm the presence of melanoma. The reported noted that the Veteran demonstrated a solar lentigo with foci of keratinocytic atypia. The examiner opined that the Veteran’s current right cheek scar was less likely than not related to his melanoma. Since January 1, 2015, the Veteran’s malignant melanoma disability manifested with no current visible scar and warrants a noncompensable disability rating. A compensable rating is not warranted because the Veteran’s malignant melanoma disability did not manifest with a visible scar that was at least 5 percent, but less than 20 percent, of the entire exposed area; or required intermittent or systemic therapy for a total duration of less than 6 weeks during the past 12-month period; or with at least one characteristic of disfigurement. Given these facts, the preponderance of the evidence is against the claim for an increased rating and the appeal will be denied. 38 C.F.R. § 4.7. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Anwar, Attorney-Advisor 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.