Citation Nr: 21029294 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 18-32 170 DATE: May 13, 2021 REMANDED Entitlement to an initial compensable rating for basal cell carcinoma (BCC), left ear is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1946 to January 1949 and from November 1951 to December 1953, with additional service in the National Guard. The Veteran testified before the undersigned Veterans Law Judge in a May 2019 Board of Veterans' Appeals (Board) hearing. A transcript of the hearing is in the claims file. This appeal originates from a September 2016 Rating Decision, which granted service connection and assigned a noncompensable rating for the Veteran's BBC, left ear disability. The Board denied the claim in September 2019 Board decision. The Veteran appealed the September 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2020 Joint Motion for Partial Remand (JMPR), the parties determined that a vacatur and remand was warranted for the Veteran's BCC, left ear disability. The parties agreed that the September 2019 Board decision relied on inadequate VA examinations and that relevant private treatment records were not obtained. This decision has been written in order to comply with the JMPR. 1 1. Initial Compensable Rating for BCC, Left Ear A remand is necessary in order to ensure compliance with the JMPR. Addendum Medical Opinion In the November 2020 JMPR filed with the Court, the parties agreed that the Board relied on inadequate VA examinations from December 2015 and April 2018 in denying the claim. See September 2019 Board Decision. Specifically, the parties stated, "[d]espite both examiners noting a left ear disfigurement neither examination contains information addressing the precise nature of Appellant's skin around his ear, to include the size of the scar, width of the scar, or any pertinent characteristics of the skin (color, texture, inflexibility, etc.)" See November 2020 JMPR (internal citations omitted). Thus, the parties agreed that the Board was required to obtain an adequate medical opinion that addresses the criteria under Diagnostic Code (DC) 7800. Id. Additionally, the parties agreed that the Board should "seek any other evidence the Board feels is necessary." See November 2020 JMPR (internal citations omitted). In this regard, the Board notes that the Veteran's representative argued that the Board did not address whether the Veteran's BCC, left ear met the 30 percent criteria under DC 7800 for assymetry between his ears. Accordingly, a remand is necessary for a new VA examination and addendum medical opinion which provides a detailed report including an accurate description of the Veteran's BCC, left ear disability specifying the presence or absence of each characteristic of disfigurement, and whether there is assymetry of the ears. The examiner should also provide information to allow consideration of a rating under DCs 7804 and 7806. This information includes whether the scar is painful and/or unstable, the total area of exposed and unexposed skin affected by both scar, and the frequency of use of medication to treat these conditions. Private Treatment Records The parties also agreed that relevant private treatment records were not obtained. Particularly, the parties stated that "the record reveals that Appellant was seen in April 2018 at West Georgia Medical Center for a Mohs procedure to treat his basal cell carcinoma on his left helix. This record is not in the record, nor did VA make any attempts to obtain such record." See November 2020 JMPR (internal citations omitted). Thus, on remand the VA should attempt to obtain these records. The Board also notes the claims file reflects that the Veteran has been receiving treatment from the Atlanta VA Medical Center (VAMC), to include the Austell Community Based Outpatient Clinic (CBOC), and that records dated through October 2020 are associated with the file; however, more recent records may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). These matters are REMANDED for the following action: 1. Obtain the Veteran's comprehensive VA treatment records for the period from October 2020 to the present, to include from VA medical centers, clinics, counseling centers, hospitals, and outpatient treatment centers. See 38 C.F.R. § 3.159(c)(3) (2020). The Board observes that the Veteran has been treated at various VA facilities, to include Atlanta VAMC, and Austell CBOC 2. Contact the Veteran and ask him to complete a release form authorizing VA to obtain private treatment records from West Georgia Medical Center particularly the April 2018 Mohs treatment record. Ask the Veteran to identify all other providers of evaluations or treatment he has received for his service-connected BCC, left ear disability and to provide authorizations for VA to obtain records of any such private evaluations or treatment. Obtain for the record copies of the complete clinical records (i.e., any not already associated with the record) from the providers identified. All efforts to obtain treatment records or negative responses should be documented in the claims file. If records are obtained, such should be associated with the claims file. If any records sought are determined to be unavailable, the Veteran must be notified of that fact pursuant to 38 C.F.R. § 3.159. 3. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 4. After completing the foregoing development, schedule the Veteran for a VA examination to describe the nature and extent of any scarring or disfigurement of the face, head, or neck as a result of his service-connected BCC, left ear disability. The examiner should review the claims file with particular attention to prior VA examinations from December 2015 and April 2018, as well as private dermatology records. Based on this review and the evaluation of the Veteran, the examiner should respond to the following inquiries. 5. Identify any characteristics of disfigurement of the head, face, or neck attributable to the scarring, including scar 5 or more inches (13 or more cm.) in length; scar at least one-quarter inch (0.6 cm) wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 square inches (39 sq. cm.); underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); or skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). 6. Also state whether there is visible or palpable tissue loss and either gross distortion or asymmetry of one, two, or three features or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips) attributable to the scarring. 7. Describe whether there is any impairment associated with the scarring of the face, whether the scars are tender to palpation, painful or unstable, and the approximate measurements of the scars. 8. A color photograph of the left ear must be taken and included in the examination report. The examiner should include the measurement instrument in the photographs to enable Board corroboration of the actual scar measurements, if possible. A rationale for all opinions expressed should be provided in the examination report. If medical literature is relied upon in rendering any opinion(s), the VA examiner should identify and specifically cite each reference material utilized. 9. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Lilly, Associate Counsel 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.