Citation Nr: 21028807 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-36 746 DATE: May 12, 2021 ORDER An initial compensable rating for a scar, status post basal cell carcinoma, of the anterior chest, is denied. An extraschedular rating for a scar, status post basal cell carcinoma, of the anterior chest, is denied. REMANDED An initial rating higher than 30 percent for a scar, status post basal cell carcinoma, of the nose. An initial compensable rating for a scar, status post basal cell carcinoma, of the left temple. FINDING OF FACT The Veteran's scar, status post basal cell carcinoma, of the anterior chest is not manifest by any disabling effects not considered under Diagnostic Codes (DCs) 7800-05. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for a scar, status post basal cell carcinoma, of the anterior chest, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.118, DC 7805. 2. The criteria for an extraschedular rating for a scar, status post basal cell carcinoma, of the anterior chest, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.118, DC 7805. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from September 1960 to August 1964. The case is on appeal from a June 2014 rating decision. In April 2019, the Veteran testified at a Board hearing. In a January 2020 decision, the Board granted service connection for prostate cancer. The initial higher compensable rating claims for residual scars of the nose and left temple, and of the anterior chest, status post basal cell carcinoma, were remanded for additional development. While the case was in remand status, by a rating decision in January 2021, the RO increased the initial rating for a residual scar, status post basal cell carcinoma, of the nose to 30 percent. As the increase did not satisfy the appeal in full, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The January 2021 supplemental statement of the case (SSOC) addressed the issue of a separate compensable rating for a scar, status post basal cell carcinoma, of the left temple. Thus, the Board has recharacterized the issues on appeal. The Board notes that, although the Veteran reported recent treatment for basal cell cancer, see July 2020 Correspondence, the areas involved were noted to be the right arm below the elbow and the face/eye. As the records are not relevant to the claims decided below, it is not necessary to remand the claims to obtain the records. Although the Board is remanding the initial higher rating claims for scars of the nose and left temple for additional development, remand is not necessary with respect to the higher initial rating claims for a scar of the anterior chest and an extraschedular rating for such, as there is no reasonable possibility that further assistance would substantiate those claims. See 38 C.F.R. § 3.159(d). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. An initial compensable rating for a scar, status post basal cell carcinoma, of the anterior chest. General Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Specific Legal Criteria Under 38 C.F.R. § 4.118, which is the rating schedule that pertains to the skin, DC 7805 pertains to scars and provides that scars be evaluated under DCs 7800, 7801, 7802, and 7804. This provision also instructs VA to evaluate any disabling effects not considered in a rating provided under DCs 7800, 7801, 7802, and 7804 under an appropriate diagnostic code. 38 C.F.R. § 4.118. VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, DC 7805 was not changed by the August 13, 2018, amendments. DC 7801 provides compensation for scar(s) due to other causes, not of the head, face, or neck. 38 C.F.R. § 4.118. A 10 percent rating is provided for scars exceeding 6 square inches (39 sq. cm.) in area but less than 12 square inches (77 sq. cm.) in area. 38 C.F.R. § 4.118. A 20 percent rating is provided for scars exceeding 12 square inches (77 sq. cm.) in area but less than 72 square inches (465 sq. cm.) in area. A 30 percent rating is provided for scars exceeding 72 square inches (465 sq. cm.) in area but less than 144 square inches (929 sq. cm.) in area. A 40 percent rating is provided for scars exceeding 144 square inches (929 sq. cm.) in area. Note (1) provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Note (2) provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or the trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Effective August 13, 2018, DC 7801 provides compensation for burn scar(s), other than on the head, face, or neck, that are associated with underlying soft tissue damage. 38 C.F.R. § 4.118. The rating criteria for DC 7801 were not changed by the recent amendments but the Notes have been amended. Note (1) now states that 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. Note (2) states that a separate evaluation may be assigned for each affected zone of the body under DC 7801 if there are multiple scars, or a single scar, affecting multiple zones of the body. Under such circumstances, separate evaluations are to be combined 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 DC 7801. DC 7802 provides compensation for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear. 38 C.F.R. § 4.118. A 10 percent rating is provided for area or areas of 144 square inches (929 square centimeters) or greater. Note (1) provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Effective August 13, 2018, DC 7802 provides compensation for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. The recent amendments changed the Notes associated with DC 7802 but did not change the rating criteria. DC 7804 provides compensation for painful or unstable scars. 38 C.F.R. § 4.118. A 10 percent rating is provided for one or two scars that are unstable or painful. A 20 percent rating is provided for three or four scars that are unstable or painful. A 30 percent rating is provided for five or more scars that are unstable or painful. Note (1) states that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118. Note (2) states that if one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. Note (3) states that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under DCs 7804, when applicable. No changes to DCs 7804 were made by the amendments that went into effect on August 13, 2018. As the Veteran's claim was filed on July 18, 2012, the Board will consider the new rating schedule for the skin that went into effect on August 13, 2018. 83 Fed. Reg. 32664 (July 13, 2018) (codified at 38 C.F.R. § 4.118). Whichever criteria more favorable to the Veteran will be applied. Analysis The Veteran seeks an initial compensable rating for a scar of the anterior chest. The noncompensable rating was assigned under DC 7805. Pursuant to the Board's January 2020 remand, the Veteran was afforded a VA examination in December 2020. The December 2020 VA examiner reported that the anterior chest scar measured 1 cm by 0.1 cm. See December 2020 VA addendum. The scar is not deep and nonlinear; does not involve a total area of at least 6 square inches (39 sq. cm) (DC 7801); is superficial and nonlinear, and does not cover an area or areas of 144 square inches (929 sq. cm) or greater (DC 7802); and is not unstable or painful (DC 7804). In addition, the examiner stated that the scar does not result in limitation of function or limit the Veteran's ability to function in an occupational environment. The Board has also considered the other DCs pertaining to scars. However, the Veteran's scar of the anterior chest is not of the head, face, or neck, is not deep and nonlinear, and is not associated with underlying soft tissue damage. Although it is superficial and not associated with underlying soft tissue damage, it does not cover an area or areas of 144 square inches or greater. Moreover, the Veteran's scar of the anterior chest is not unstable or painful. Therefore, a rating under DCs 7800, 7801, 7802, and 7804, both prior to and from August 13, 2018, is not appropriate. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Veteran does not assert, and the medical records do not show, that the Veteran's scar of the anterior chest is manifest by any disabling effects not considered in a rating provided under DCs 7800-04. In sum, the Board finds that the preponderance of the evidence is against the claim; the benefit of the doubt doctrine is not applicable; and a compensable rating for a scar, status post basal cell carcinoma, of the anterior chest is therefore not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. An extraschedular rating for a scar, status post basal cell carcinoma, of the anterior chest. Legal Criteria There is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first element requires the Board to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. This requires the Board to compare a veteran's specific symptoms and their severity with those contemplated by the rating schedule. King v. Shulkin, 29 Vet. App. 174, 178-79 (2017). If the Board determines that a veteran's symptoms or their severity is not contemplated by the rating schedule, the second element requires the Board to "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Thun, 22 Vet. App. at 116. Finally, if the first two elements are met, the final element mandates that the Board refer the claim to the Director of Compensation Service for a determination about whether an extraschedular rating is warranted. Id; see also 38 C.F.R. § 3.321(b). Additionally, a manageable judicial standard does not require absolute clarity and, in the case of an extraschedular rating, the standard is "average impairment in earning capacity." See Kuppamala v. McDonald, 27 Vet. App. 447, 454 (2015). Analysis The Veteran is seeking an extraschedular rating for his service-connected scar, status post basal cell carcinoma, of the anterior chest. At the April 2019 Board hearing, the Veteran's representative asserted that extraschedular consideration is needed under DC 7805 due to the impact the Veteran's chest scar has on his activities of daily living and employment. Therefore, the issue of whether an extraschedular rating is warranted has been expressly raised and will be addressed. The evidence related to the Veteran's service-connected scar, status post basal cell carcinoma, of the anterior chest has been largely addressed above. The December 2020 VA examiner indicated the Veteran's chest scar is not painful and is superficial with no underlying tissue damage. The examiner further reported that the chest scar does not result in limitation of function or limit the Veteran's ability to function in an occupational environment. The Board determines that the Veteran's rating for his chest scar does not present such an exceptional disability picture that it renders the rating schedule inadequate against a higher rating on an extraschedular basis. As such, the Board finds that the first Thun element is not satisfied for the claimed disability, as the Veteran's scar of the anterior chest and the severity caused by such scar is contemplated by the rating criteria. In this regard, the Board notes that is has been found that a DC need not list every word or type of symptom to contemplate the functional loss associated with such disability. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Court has recently addressed the standard for extraschedular claims in Long v. Wilkie, 33 Vet. App. 167 (2020). Focusing on Thun's first step, the Court in Long explained that because an extraschedular determination is, by nature, fact bound and highly contextual, it should be approached as a totality of the factors inquiry that considers whether the veteran's symptomatology presents an impairment so exceptional that the rating schedule is not capable of assessing it in the first instance. Thus, the first step in Thun is not met simply because the symptoms of the disability are not considered in the rating criteria for that disability; rather, it is met when the impairment cannot be evaluated by the rating schedule. To facilitate proper analysis of Thun's first step, the Court in Long provided six non-exhaustive or mandatory guiding principles. First, the sole focus of Thun's first step is on the ability of the rating schedule to evaluate the veteran's symptomatology; extraschedular consideration is not applicable to claims that may be properly evaluated with conventional schedular rating tools. See Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019). Second, Thun's first step deals exclusively with whether the veteran's symptoms are exceptional, whereas Thun's second step considers the functional effects of those symptoms. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). Third, where a symptom or impairment is not compensable under the rating schedule, it also does not warrant extraschedular consideration as this would amount to a backdoor means to obtaining compensation for a condition the rating schedule intends to exclude. Fourth, extraschedular consideration is not warranted for symptoms or effects that lack a nexus to service or to a service-connected disability. Fifth, the Board is only required to discuss the theories of entitlement raised by the veteran or reasonably raised by the record. Sixth, in reviewing the Board's analysis of referral for extraschedular consideration, the Court will be mindful of the rule against prejudicial error. Thus, a failure of the Board to discuss whether extraschedular consideration is warranted for a particular symptom does not require an automatic remand. In this case, the Board finds the rating schedule is adequate to evaluate the Veteran's scar of the anterior chest. As noted, the Veteran denied pain in the area of the chest scar. The Board acknowledges the Veteran's chest scar; however, the scar does not meet the criteria for a compensable rating. The Board finds there are no reported symptoms related to the service-connected chest scar which cannot be properly evaluated by the rating schedule. As the symptoms related to the scar do not present an exceptional disability picture, extraschedular consideration is not warranted. In sum, the preponderance of the evidence shows that the Veteran's scar, status post basal cell carcinoma, of the anterior chest does not present such an exceptional disability picture that it renders the rating schedule inadequate. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 115. Thus, the benefit-of-the-doubt doctrine is not applicable and an extraschedular rating for a scar, status post basal cell carcinoma, of the anterior chest is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. An initial rating in excess of 30 percent for a scar, status post basal cell carcinoma, of the nose. 2. An initial compensable rating for a scar, status post basal cell carcinoma, of the left temple. In July 2020, the Veteran noted recent VA and private treatment for basal/squamous cell carcinomas of the face/eye area and upper extremities. See July 2020 Correspondence. As such, remand is warranted to obtain the records. See 38 C.F.R. § 3.159. In addition, and although the January 2021 SSOC addresses a separate noncompensable rating for a scar, status post basal cell carcinoma, of the left temple, the separate rating assigned is not reflected in a rating decision. Thus, on remand, a rating decision should be issued reflecting the award of a separate noncompensable rating for a scar, status post basal cell carcinoma, of the left temple. Further, the Board notes that although the January 2021 rating decision reflects that the increase to 30 percent was based solely on the scar of the nose with two characteristics of disfigurement, the December 2020 VA examination report reflects hypopigmentation pertained to the scar of the left temple rather than of the scar of the nose, and induration and inflexibility pertained to a scar of the neck, status post basal cell carcinoma, not the nose scar. The Board notes that the characteristics of disfigurement may be caused by one scar or by multiple scars; the characteristics required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation. 38 C.F.R. § 4.118, DC 7800 Note (5). However, the RO has not addressed the neck scar. Additionally, the December 2020 VA examiner reported a scar, status post basal cell carcinoma, of the right and left forearm. See also November 2019 Medical Treatment Non-Government Facility. Thus, on remand, the scars of the right and left forearm, as well as the scar of the neck, status post basal/squamous cell carcinoma, should be addressed. The matters are REMANDED for the following action: 1. Obtain VA and private records reflecting treatment for basal/squamous cell carcinomas of the face/eye and upper extremities in June 2020, as well VA records since January 2021. (Continued on the next page) 2. Issue a rating decision reflecting the award of a separate noncompensable rating assigned for a scar, status post basal cell carcinoma, of the left temple. 3. After completion of the above and undertaking any additional development necessary, readjudicate the claims, including consideration of scars of the neck and forearms; and whether an extraschedular rating for the scars of the nose and/or left temple is warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Taylor 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.