Citation Nr: 21032592 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 15-29 332 DATE: May 27, 2021 ORDER 1. A 30 percent (but no higher) rating for skin cancer residuals (actinic keratoses of the scalp, face, and neck) is granted throughout, subject to the regulations governing payment of monetary awards. 2. Entitlement to increases in the (10 percent prior to November 5, 2019, and 30 percent from that date) staged ratings assigned for scars of the head, face and neck is denied. 3. A 10 percent rating for right upper extremity scars is granted from November 5, 2019 (but not earlier), subject to the regulations governing payment of monetary awards. 4. A 10 percent rating for left upper extremity scars is granted from November 5, 2019 (but not earlier), subject to the regulations governing payment of monetary awards. FINDINGS OF FACT 1. The Veteran's skin cancer residuals (actinic keratoses of the scalp, face, and neck) is reasonably shown throughout to have been manifested by five or more scars that are unstable or painful. 2. Prior to November 5, 2019, the Veteran's scarring of the head, face and neck was not shown to have been manifested by 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; from that date, it was not shown to have been manifested by visible or palpable tissue loss; gross distortion or asymmetry of two features or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); four or five characteristics of disfigurement; or by limitation of function or other disabling effects. 3. Prior to November 5, 2019, the Veteran's right upper extremity scarring was superficial, not shown to be painful or unstable, or 144 square inches or greater in area, and did not cause functional limitations; from that date, it was reasonably shown to include one scar that was painful but not unstable. 4. Prior to November 5, 2019, the Veteran's left upper extremity scarring was superficial, not shown to be painful or unstable, or 144 square inches or greater in area, and did not cause functional limitations; from that date, it was reasonably shown to include one scar that was painful but not unstable. CONCLUSIONS OF LAW 1. A 30 percent rating for skin cancer residuals (actinic keratoses of the scalp, face, and neck) is warranted throughout (from September 9, 2010). 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.7, 4.21, 4.118, Diagnostic Codes (Codes) 7813, 7818, 7801-7805. 2. Ratings for scars of the head, face and neck in excess of 10 percent prior to November 5, 2019, and/or in excess of 30 percent from that date, are not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.7, 4.21, 4.118, Codes 7800, 7803, 7804, 7805. 3. The Veteran's right upper extremity scarring warrants "staged" ratings of 0 percent prior to November 5, 2019, and 10 percent from that date. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.7, 4.21, 4.118, Codes 7801-7805. 4. The Veteran's left upper extremity scarring warrants "staged" ratings of 0 percent prior to November 5, 2019, and 10 percent from that date. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.7, 4.21, 4.118, Codes 7801-7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1967 to February 1971. He died in October 2020. The appellant is his surviving spouse and has been substituted for him as claimant/appellant for claims pending before VA when he died. These matters are before the Board on appeal from November 2014 [which granted service connection for skin cancer residuals (actinic keratoses of the scalp, face, and neck), rated 20 percent, effective September 9, 2010] and July 2015 [which granted service connection for facial scars, rated 10 percent, right upper extremity scars, rated 0 percent, and left upper extremity scars, rated 0 percent, each effective September 9, 2010] Department of Veterans Affairs (VA) rating decisions. In October 2018, the matters were remanded for additional development. An interim (December 2015) rating decision granted a 30 percent rating for skin cancer residuals (diagnosed as actinic keratoses of the scalp, face, and neck), effective December 14, 2015; and another interim [May 2020] rating decision granted a 30 percent rating for scars of the head, face, and neck effective November 5, 2019. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 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. Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. With the initial rating assigned upon a grant of service connection, separate (staged) ratings may be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's skin cancer residuals/actinic keratoses of the scalp, face, and neck are rated under Codes 7813 and 7818 in the Schedule of Ratings Skin. Under Code 7813, a 30 percent rating is warranted for at least one of the following: characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the previous 12-month period. A 60 percent rating is warranted for constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the previous 12-month period; or for characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected. It may alternatively be rated as disfigurement of the head, face, or neck (Code 7800) or scars (Codes 7801-7805), depending upon the predominant disability. Under Code 7818, malignant skin neoplasms (other than malignant melanoma) are rated as disfigurement of the head, face, or neck (Code 7800) or scars (Codes 7801-7805), or impairment of function. Under Code 7800, a 10 percent rating is warranted for scars of the head, face, or neck with one characteristic of disfigurement, which include: scar 5 or more inches (13 or more centimeters) in length, scar at least one-quarter inch (0.6 centimeters) wide at its 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, skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches, underlying soft tissue missing in an area exceeding six square inches, or skin indurated and inflexible in an area exceeding six square inches. A 30 percent rating is warranted for scars of the head, face, or neck 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. A 50 percent rating is warranted for scars of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired set of features, or; with four or five characteristics of disfigurement. An 80 percent rating is warranted for scars of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features, or; with six or more of the characteristics of disfigurement listed. Note (4) to Code 7800 states that disabling effects other than disfigurement that are associated with individual scars of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, are to be separately evaluated under the appropriate Code, and 38 C.F.R. § 4.25 is to be applied to combine the evaluation with the rating assigned under Code 7800. Note (5) to Code 7800 states 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. Under Code 7801, scars not of the head, face, or neck that are deep and nonlinear warrant a 10 percent rating for areas of at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters); a 20 percent rating for areas of at last 12 square inches but less than 72 square inches (465 square centimeters); a 30 percent rating for areas of at least 72 square inches but less than 144 square inches (929 square centimeters); and a 40 percent rating for areas of 144 square inches or greater. Under Code 7802, a 10 percent (maximum) rating is warranted for scars not of the head, face, or neck, that are superficial and nonlinear of areas of 144 square inches or greater. Under Code 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful, a 20 percent rating is warranted for three or four scars that are unstable or painful, and a 30 percent rating is warranted for five or more scars that are unstable or painful. Under Code 7805, scars are evaluated for any disabling effects not considered in a rating under Codes 7800 to 7804 under an appropriate other Code. In every instance where the schedule does not provide a zero percent rating for a Code, a zero percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. On October 2010 VA treatment, the Veteran reported having lesions on exposed skin areas including his face, head, forearms, and part of the upper arms. He reported that his skin itched and burned when he was in the sun, and it was peeling off in some portions. A previous history of squamous cell carcinoma status post excision on the scalp in 1995 was noted. On physical examination, a scar was noted on the posterior scalp. Erythema was noted on the head and arms, with many 1 mm to 10 mm plaques on the face, head, and arms. On dermatology consult, over 15 actinic keratoses on the scalp, face, and neck were treated with cryosurgery. On June 2011 VA treatment, 6 actinic keratoses on the face and scalp were treated with cryosurgery. On November 2011 VA treatment, 10 actinic keratoses on the scalp and face were treated with cryosurgery. On June 2012 VA treatment, 7 actinic keratoses on the scalp, face, and hands were treated with cryosurgery. On September 2012 VA treatment, 15 actinic keratoses on the scalp, face, ears, and hands were treated with cryosurgery. On January 2013 VA treatment, 12 actinic keratoses on the scalp, forehead, and face were treated with cryotherapy. On March 2013 VA treatment, scattered actinic keratoses were noted on the face and ears; 10 actinic keratoses on the face and ears were treated. On August 2013 VA treatment, scaly erythematous lesions were noted on the face and neck; approximately 18 actinic keratosis lesions were treated. On October 2013 VA treatment, approximately 25 actinic keratosis lesions were treated on the scalp, face, and ears. On December 2013 VA treatment, approximately 30 lesions were treated on the scalp, face, left ear, and hands. On March, April, June, August, and October 2014 VA treatments, approximately 15 actinic keratosis lesions were treated each time. Based on this evidence, a November 2014 rating decision granted service connection for skin cancer residuals, diagnosed as actinic keratoses of the scalp, face, and neck, rated 20 percent, effective September 9, 2010. On May 2015 VA treatment, the Veteran reported noticing more scaly lesions on his scalp, and he recently noted a tan lesion under his chin area after shaving off his beard. Multiple scattered small red scaly and keratotic maculopapular lesions were noted on the scalp, forehead, temples, left ear, and cheeks. The left midline submandibular area had an 8 mm lesion, 4mm of which was tan/reddish pigmented macule and approximately 4 mm of which was hypopigmented white macular lesion. The assessment was actinic keratosis, with 30 lesions treated. Punch biopsy results of the skin at the left midline submandibular lesion indicated a lichenoid actinic keratosis. On July 2015 VA skin examination, the Veteran was noted to have required treatment of innumerable skin cancers and actinic keratoses over many years; the condition had become so severe that he required regular dermatology appointments for liquid nitrogen treatment. He reported that some of the skin lesions were tender prior to treatment, and all were temporarily painful after treatment, but the pain resolved, and he denied ongoing scar tenderness. He reported that he had required liquid nitrogen treatment throughout 2015 to date for 16 lesions in January, 26 lesions in March, 30 lesions in May, and 18 lesions in June. The condition caused scarring or disfigurement of the head, face, or neck. He had undergone multiple surgeries for malignant skin neoplasms, most recently a basal cell on the left side of the face in April 2011, with no residual conditions or complications. He had no systemic manifestations sue to any skin diseases. He had not been treated with oral or topical medication in the previous 12 months. He had received liquid nitrogen treatment for more than 6 weeks in the previous 12 months for exfoliative dermatitis or papulosquamous disorders. He had not had debilitating or non-debilitating episodes in the previous 12 months due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. On physical examination, he did not have any of the listed visible skin conditions. On July 2015 VA scars examination, the Veteran was noted to have undergone repeated treatment with surgery and liquid nitrogen for actinic keratosis and skin cancer of his head/face, neck, and arms/hands over many years, and the scars in these areas were now innumerable. He denied leg scarring. He reported that the skin lesions were sometimes painful prior to treatment and temporarily painful after treatment, but once the scars became chronic they were no longer painful. He reported the scarring on his face, neck and hands were socially embarrassing at times, noting that one of his grandchildren had expressed concern about his appearance. The scars of both upper extremities were not painful or unstable; they were too numerous to count, with approximate total area of 200 square centimeters of superficial non-linear scars on each arm. The scars of the head, face, or neck were not painful or unstable, and they were too numerous to count. There was no elevation, depression, adherence to underlying tissue, or missing underlying soft tissue. There was hypopigmentation of the affected scars of the head, face, or neck, which were too numerous to count; the approximate total area of the head, face, and neck with hypo- or hyperpigmented scars was 240 square centimeters. There was no gross distortion or asymmetry of facial features or visible or palpable tissue loss. The scars of the head, face, and neck did not result in limitation of function or have any other pertinent physical findings. The Veteran opined that it would be difficult for him to perform a job where he meets the public due to his facial scars. Based on this evidence, a July 2015 rating decision granted service connection for facial scars, rated 10 percent, right upper extremity scars, rated 0 percent, and left upper extremity scars, rated 0 percent, each effective September 9, 2010. On December 14, 2015 VA examination, the Veteran was noted to have undergone multiple treatments including excision of small lesions as well as numerous treatments with liquid nitrogen over the last several years. Treatment included constant/near-constant oral or topical medication in the previous 12 months, consisting of Gold Bond cream. There were no systemic manifestations due to any skin disease, and no debilitating or non-debilitating episodes in the previous 12 months due to any skin disease. He reported seeing a dermatologist and undergoing treatment every 6 to 7 weeks, typically with liquid nitrogen of anywhere from 15 to 25 lesions per visit. He reported having had well over one thousand separate lesions removed over the years that had resulted in numerous small superficial scars on the upper extremities and on the scalp, face, neck, and ears. He reported that the scars were painful at times, described as like bee stings. He reported tightness, pulling, and discomfort, which he tried to alleviate with a wet washcloth on his face and taking pain medication as needed. He reported having more acute pain following treatment, which ultimately resolved; even with the healed scars, there was tightness, pain, and discomfort, particularly to the scalp radiating to the right side of the face. He reported some tightness secondary to scarring of the left arm. On physical examination, the Veteran had intermittent eruption of new lesions, primarily actinic keratotic lesions, across the face, arms, and neck. Individual discrete superficial scars on the upper extremities and the face were too numerous to count. Scarring and superficial lesions affected more than 40 percent of the face; between 20 and 40 percent of the entire skin surface of the upper extremities, neck, face, and scalp; and more than 40 percent of the exposed skin. Five or more scars of the extremities were noted to be painful but not unstable. Superficial non-linear scarring covered more than 39 square inches (200 square centimeters) of each upper extremity. Five or more scars of the head, face, or neck were noted to be painful but not unstable. There was no elevation, depression, adherence to underlying tissue, or missing underlying soft tissue. Hypopigmented scars of the head, face, or neck were too numerous to count, with approximate total area of 240 square centimeters. There was no gross distortion or asymmetry of facial features or visible or palpable tissue loss. The scars of the head, face, or neck did not result in limitation of function, or any other pertinent physical findings. Based on this evidence, a December 2015 rating decision granted a 30 percent rating for skin cancer residuals, also diagnosed as actinic keratoses of the scalp, face, and neck, effective December 14, 2015, the date of the VA examination showing increased symptomatology. On April 2016 VA treatment, 16 actinic keratosis lesions on the scalp, forehead, temples, cheeks, and left forearm were treated with liquid nitrogen. On October 2016 VA treatment, 10 lesions on the forearms, right hand, cheeks, and left ear were treated; three suspicious lesions were biopsied, and shave biopsy results showed actinic keratosis of the hand, superficially invasive squamous cell carcinoma of the paranasal cheek, and basal cell carcinoma with severe actinic keratosis of the left nose. On March 2017 VA treatment, there was no evidence of recurrence of the carcinomas, which had been excised; 9 actinic keratosis lesions on the scalp, cheek, ear, and forearm were treated. On May 2018 VA treatment, 12 actinic keratosis lesions of the forehead, scalp, cheeks, temples, and hand were treated, and shave biopsy results showed a left upper lip lesion to be basal cell carcinoma. On September 2018 VA treatment, 15 actinic keratosis lesions on the scalp, face, ears, neck, and upper extremities were treated. At the October 2018 Board hearing, the Veteran testified that his scars had become more numerous as well as sore and painful to the touch. He reported very frequent visits to a provider for removal of new growths. On November 5, 2019 VA skin examination, the Veteran reported pain, itching, and bleeding of his sores. Treatment in the previous 12 months had included topical application of fluorouracil and liquid nitrogen, each for 6 weeks or more but not constant. On physical examination, actinic keratosis was found to affect between 5 and 20 percent of the total body area and between 5 and 20 percent of the exposed area. Red and tender scaly areas were noted on the scalp, face, left ear, and arms. He was noted to have had numerous surgeries, in addition to treatment with liquid nitrogen and fluorouracil over the previous 3 decades on the face, scalp, neck, and arms for malignant neoplasms. He had painful scars and new areas of cancer and actinic keratosis. He reported that he had problems with working outside, and the pain and itching would interfere with his work. On November 5, 2019 VA scars examination, the Veteran reported pain and itching of his scars. Scars to the right upper extremity measured 0.5 x 0.1 centimeters, 0.3 x 0.3 centimeters, 0.5 x 0.3 centimeters, 1 x 0.5 centimeters, 3 x 0.3 centimeters, 1 x 0.8 centimeters, 1 x 0.7 centimeters, and 0.5 x 0.5 centimeters. One scar was tender to palpation, and none were unstable; the approximate total area of scars without underlying tissue damage was 3.44 square centimeters. Scars to the left upper extremity measured 2 x 1 centimeters, 1 x 1 centimeters, 2 x 2 centimeters, 1 x 0.3 centimeters, 1 x 0.5 centimeters, 3 x 2 centimeters, and 1.2 x 0.6 centimeters. One scar was tender to palpation, and none were unstable; the approximate total area of scars without underlying tissue damage was 14.52 square centimeters. Regarding scars of the head, face, or neck, 5 or more of them were painful with touching, and none were unstable. Scars to the top of the scalp measured 5 x 0.3 centimeters, 2.5 x 1 centimeters, 0.8 x 0.7 centimeters, and 0.8 x 0.6 centimeters, and each was tender. A left temple scar measured 4 x 6 centimeters and was tender. A right temple scar measured 5 x 6 centimeters and was tender. Scars to the left side of the face measured 3 x 0.3 centimeters and 0.5 x 0.1 centimeters, and were tender. A scar to the left nose was 1.8 x 0.3 centimeters. A scar to the right neck measured 1 x 1 centimeters. Scars to the right cheek measured 0.8 x 0.8 centimeters, 0.7 x 0.1 centimeters, and 1 x 0.2 centimeters, and the last was tender. The surface contour depressed on palpation of two of the scars on top of the scalp. There was hypopigmentation to nearly all of the head, face, and neck scars, with approximately 62.39 square centimeters of affected total area. There was no gross distortion or asymmetry of facial features or visible or palpable tissue loss. The scars did not result in limitation of function or any other pertinent physical findings. Based on this evidence, a May 2020 rating decision granted a 30 percent rating for scars of the head, face, and neck effective November 5, 2019, the date of the examination showing increased symptomatology. VA and non-VA treatment records reflect symptomatology largely similar to that described on VA examinations. 1. A 30 percent rating for skin cancer residuals (actinic keratoses of the scalp, face, and neck) is granted throughout. The AOJ rated the Veteran's skin cancer residuals (actinic keratoses of the scalp, face, and neck) under Code 7818-7804. Prior to December 14, 2015, a 20 percent rating was assigned based on three or four scars that were unstable or painful; from that date, a 30 percent rating was assigned based on five or more scars that were unstable or painful. However, the Board finds there was no significant difference in the number of painful scars of the scalp, face, and neck shown on treatment records prior to the December 14, 2015 VA examination compared to on that examination. The Veteran and his treatment providers consistently noted numerous scars to the scalp, face, and neck that caused pain or discomfort, particularly at the time of treatment and afterward. Accordingly, a 30 percent rating is warranted for this disability throughout, from the September 9, 2010 award of service connection. At no time was this disability shown to have been manifested by constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the previous 12-month period; or characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or impairment of function, to warrant a further increased rating. 2. Entitlement to increases in the (10 percent prior to November 5, 2019, and 30 percent from that date) staged ratings assigned for scars of the head, face and neck, is denied. Prior to November 5, 2019, the evidence of record does not include any records showing that the above-listed criteria for a rating in excess of 10 percent were met (or approximated). It was not shown that the scarring of the head, face, or neck resulted in visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features or with two or three of the cited characteristics of disfigurement; caused any limitation of function; or had any disabling effects not considered in a rating under any other Code. Hypopigmentation in an area exceeding six square inches (30 square centimeters) was shown, but no other cited characteristics of disfigurement were shown prior to the November 5, 2019 VA examination. Treatment records and examinations did not find that the scarring caused any functional impairment. The evidence of record does not include any records showing that the above-listed criteria for a rating in excess of 30 percent were met (or approximated) at any time during the evaluation period. At no time during the appeal period is it shown that the scarring of the head, face, or neck resulted in visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired set of features; produced four or five of the cited characteristics of disfigurement; caused any limitation of function; or had any disabling effects not considered in a rating under any other Code. Treatment records and VA examinations did not find that the scarring caused any functional impairment. Accordingly, the appeal in this matter must be denied. 3., 4. A 10 percent rating is warranted for right and left upper extremity scarring, each, from November 5, 2019, but not earlier. Prior to November 5, 2019, the scars at issue were not shown to have been other than superficial, they were not shown to be painful or unstable, and they did not meet or exceed 144 sq. inches in area, or have any disabling effects. Accordingly, the scarring of each upper extremity did not meet the schedular criteria for a 10 percent rating during that period, and such rating was not warranted. However, the evidence reasonably shows that on the November 5, 2019 VA examination, one scar on each arm was tender to palpation, meeting the criteria for a 10 percent rating under Code 7804, for one or two scars that are unstable or painful. Accordingly, a 10 percent rating is warranted for right upper extremity scars and left upper extremity scars, each, from November 5, 2019. At no time did the scars of either upper extremity measure at least 12 square inches (77 square centimeters), or cause other disabling effects, to warrant a rating in excess of 10 percent. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechner, 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.