Citation Nr: 21024728 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 15-03 619 DATE: April 26, 2021 ORDER Restoration of a compensable evaluation for malignant melanoma surgical scars since September 1, 2013, is denied. FINDING OF FACT At the time of the July 2012 and June 2013 rating decisions, the Veteran’s malignant melanoma scars did not demonstrate symptoms warranting a compensable rating. CONCLUSION OF LAW The criteria for restoration of a compensable disability evaluation for malignant melanoma surgical scars since September 1, 2013, have not been met. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105, 3.344, 4.118, Diagnostic Code (DC) 7833. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 2003 to January 2010. The procedural history of this claim has been thoroughly set forth in the March 2019 Board remand. Rating Reductions Where a reduction in the evaluation of a service-connected disability is considered warranted, and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating decision proposing the reduction must be prepared. This rating decision must set forth the material facts and reasons for the proposed reduction and mailed to the veteran’s address of record. The veteran must be allowed 60 days to respond with additional evidence in support of continuing the payments at their current level. The veteran must also be offered a predetermination hearing on the matter of the proposed reduction. Once these predetermination procedures have been completed, a final action using the evidence of record will be taken. 38 C.F.R. § 3.105 (d), (i). The circumstances under which an evaluation may be reduced are specifically limited and carefully circumscribed by regulations promulgated by the Secretary of VA. Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). VA will handle cases affected by change of medical findings or diagnosis to produce the greatest degree of stability of disability evaluations consistent with the laws and regulations governing disability compensation and pension. Where an evaluation has been in effect for less than five years, the service-connected disorder has not become stabilized, and/or the disability is likely to improve, an evaluation may be reduced based upon “reexaminations disclosing improvement, physical or mental,” of the disability. 38 C.F.R. § 3.344 (c). In considering the propriety of a reduction, the Board must focus on the evidence of record available to the Agency of Original Jurisdiction at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition has demonstrated actual improvement. Cf. Dofflemyer v. Derwinski, supra, at 281-82. If the VA examination report justifying the rating reduction is inadequate, the reduction cannot be upheld. See Tucker v. Derwinski, 2 Vet. App. 201 (1992) (holding that the failure of the examiner in that case to review the claims file rendered the reduction decision void ab initio). Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Brown (Kevin) v. Brown, 5 Vet. App. 413, 421 (1993). 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). Skin disability rating criteria prior to the August 13, 2018, regulatory changes The diagnostic criteria instructs 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. 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 square (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. 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 instructs 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. DC 7800 provides ratings for burn scars of the head, face, or neck; or scars of the head, face, or neck due to other cause; or other disfigurement of the head, face, or neck. 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. 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. Whether the reduction of the disability evaluation for malignant melanoma surgical scars from 100 percent to zero percent, effective September 1, 2013, was proper In an April 2012 rating decision, the regional office (RO) proposed to reduce the Veteran’s malignant melanoma surgical scars from 100 percent to 20 percent based on the medical findings at the February 2012 VA medical examination. The Veteran filed a notice of disagreement (NOD), stating that he disagreed with the assessment that there had been an improvement with his condition, and requested a hearing and a new examination. The Veteran’s response was received after the 60-day due process period. In a July 2012 rating decision, the RO reduced the Veteran’s rating to 20 percent effective October 1, 2012. In a late October 2012 correspondence, the Veteran withdrew his request for a hearing. The RO complied with the procedural protections noted in § 3.105 regarding notice to the Veteran of the proposed reduction and implementation of that reduction. In a November 2012 rating decision, the RO informed the Veteran that it proposed to reduce his scar disability rating from 20 percent to noncompensable because a clear and unmistakable error had occurred. The RO explained that photographs obtained at the February 2012 VA medical examination did not support the finding that the total area of the Veteran’s deep non-linear scars was large enough to warrant a 20 percent rating. The Veteran did not respond to the proposed reduction within the 60-day due process period, and in a June 2013 rating decision, the RO reduced the Veteran’s rating from 20 percent to noncompensable effective September 1, 2013. Once again, the RO complied with the procedural protections noted in § 3.105 regarding notice to the Veteran of the proposed reduction and implementation of that reduction. The next question is whether the reduction was proper based on the evidence of record. Pursuant to DC 7833 for malignant melanoma, the Veteran’s rating was increased to 100 percent effective April 26, 2010, when his malignant melanoma resurfaced and required chemotherapy treatment, which he completed in May 2011. Thus the Veteran’s 100 percent evaluation had been in effect for less than 5 years at the time of the reduction and the special protections under § 3.344 are not applicable. Under diagnostic code (DC) 7833, malignant melanoma is to be rated as scars (DCs 7801, 7802, 7803, 7804, 7805); disfigurement of the head, face, or neck (DC 7800); or impairment of function (under the appropriate body system). A note to DC 7833 indicates that 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. 38 C.F.R. § 4.118, DC 7833. At the February 2012 VA medical examination, the examiner noted the Veteran had multiple scars from the surgical removal of melanoma located on his trunk or extremities, but not on the head, face, or neck. The examiner also noted that none of the Veteran’s multiple scars were painful or unstable; that none of the scars demonstrated with frequent loss of skin covering; and that none of the scars were due to burns. Three linear scars located on the Veteran’s left upper extremity measured 17 cm, 4 cm, and 14 cm. The Veteran did not have non-linear or deep scars on his left upper extremity. Eight additional scars, noted as deep and non-linear, were seen on the Veteran’s posterior trunk that measured 2 cm sq. each. The examiner then noted that the combined total of the Veteran’s deep non-linear scars was 256 cm sq. No additional medical findings, such as depression, disfigurement, or abnormal pigmentation, was found on examination. The examiner noted the Veteran’s scar disability did not impact his ability to work. In a December 2014 addendum opinion, an examiner viewed the photographs of the Veteran’s scars taken at the February 2012 VA medical examination, and confirmed that the 8 deep, non-linear scars on the Veteran’s posterior trunk demonstrated as 2 cm sq. each for a total of 32 cm sq., not 256 cm sq. In a January 2015 statement, the Veteran contended that he had 9, not 8, deep non-linear scars, and that the scar on his left arm warranted consideration as a non-linear rather than as a linear scar because it was “wide” and “irregular.” The Veteran further stated that he experienced pain associated with his left arm scar. At the December 2019 VA medical examination, the examiner noted the Veteran demonstrated scars or disfigurement on his face, and scars on his trunk or extremities. The examiner noted that the scars on the Veteran’s trunk or extremities were not painful, unstable, or due to burns. The examiner measured the Veteran’s left upper extremity scars as 17 cm x .1 cm; 4 x .1 cm; and 14 x .1 cm. The examiner noted 5 deep, non-linear scars on the Veteran’s posterior trunk that each measured 2 cm x 2 cm. The examiner also noted a small scar identified by the Veteran on his upper lip that measured .1 cm x .1 cm. None of the Veteran’s scars demonstrated elevation, depression, underlying tissue pathology, or any other complications, distortions, or abnormal pigmentation. The examiner noted that the Veteran’s scars did not result in functional loss or limitation in function, nor impact his ability to work. In a February 2020 statement, the Veteran reported that he forgot to tell the VA examiner that when he put his left arm under his head while sleeping that his left arm would fall asleep and that he believed this was in connection to his left arm cancer scars. The Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis. See Layno, 6 Vet. App. 465, 469; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, while the Veteran has attempted to establish a nexus between his symptomatology and his condition through his own lay assertions, the Veteran is not competent to link his observable symptomatology to his service-connected condition. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Malignant melanoma scars require specialized training for determinations as to diagnosis, causation, and manifestations, and is therefore not susceptible to lay opinions. Thus, the Veteran is not competent to render such a nexus opinion or attempt to present lay assertions to establish a nexus between his current symptomatology and its relationship to service-connected cancer scars. VA treatment records indicate the Veteran was seen annually for his melanoma by the oncology department, and had not demonstrated additional recurrence of his malignant melanoma diagnosis. Furthermore, annual consultations with the dermatology department indicate the Veteran’s scars demonstrated as “well-healed” with no evidence of bleeding or other skin irritations. The reductions of the Veteran’s rating were proper. In accordance with the rating criteria for malignant melanoma, the Veteran’s cancer scars were reevaluated not sooner than 6 months after the end of his chemotherapy treatment in May 2011. Medical findings at the February 2012 VA medical examination did not indicate scars that were painful, unstable, or demonstrating other findings that warranted a compensable rating. The correction of the clear and unmistakable error was also proper, as the total area of the Veteran’s scars on his posterior trunk did not total 256 cm sq. but rather 32 cm sq. as confirmed by photographic evidence. Finally, the Veteran’s scars did not demonstrate compensable attributes prior to nor since the August 2018 regulatory changes. The July 2012 and June 2013 reductions were proper. The appeal for restoration of a compensable disability rating is denied. 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.