Citation Nr: 22004113 Decision Date: 01/26/22 Archive Date: 01/26/22 DOCKET NO. 17-52 331 DATE: January 26, 2022 ORDER A single 30 percent rating for squamous cell carcinoma scars of the head, face, or neck (including on the left ear, left law line, right ear, right jaw line, and right cheek) based on disfigurement under Diagnostic Code 7800 is granted. An extraschedular rating for skin cancer is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's service-connected squamous cell carcinoma scars of the head, face, or neck have been manifested by disability more nearly approximating visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired sets of features. 2. The Veteran's service-connected skin cancer has been manifested by painful scars and disfigurement of the head, face, or neck; has not resulted in impairment of function; has only required treatment localized to the skin; and is capable of evaluation by conventional means. CONCLUSIONS OF LAW 1. The criteria for a single 30 percent rating for squamous cell carcinoma scars of the head, face, or neck (including on the left ear, left law line, right ear, right jaw line, and right cheek) have been more nearly approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.118, Diagnostic Code 7800 (2020). 2. The criteria for an extraschedular rating for skin cancer have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.321(b) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1956 to July 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was initially before the Board in September 2019, at which time the Board granted a rating of 10 percent for painful scars under Diagnostic Code 7804, denied compensable ratings for skin cancer scars on the forearms, and remanded the issues of entitlement to higher ratings for squamous cell carcinoma scars on the left ear, left law line, right ear, right jaw line, and right cheek based on disfigurement under Diagnostic Code 7800. The Board also referred the issue entitlement to an extraschedular rating for skin cancer to the Director of Compensation Service pursuant to 38 C.F.R. § 3.321(b). In a February 2021 decision, the Director of Compensation Service denied an extraschedular rating. The matters were again remanded in May 2021 for further development. The requested development was completed, and in an October 2021 decision, the Director of Compensation Service again denied an extraschedular rating. The case has been returned to the Board for further appellate action. Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2020). 1. Entitlement to a higher rating for squamous cell carcinoma scars of the head, face, or neck (including on the left ear, left law line, right ear, right jaw line, and right cheek) based on disfigurement Malignant skin neoplasms (other than malignant melanoma) are to be rated as disfigurement of the head, face, or neck under Diagnostic Code 7800; scars under Diagnostic Codes 7801 to 7805; or impairment of function. 38 C.F.R. § 4.118, Diagnostic Code 7818. 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 rating 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 rating based upon that or any subsequent examination will be subject to the provisions of 38 C.F.R. § 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 rating do not apply. 38 C.F.R. § 4.118, Note to Diagnostic Code 7818. Scars of the head face or neck are evaluated under Diagnostic Code 7800. Scars other than of the head, face, or neck are evaluated under Diagnostic Codes 7801 and 7802. Scars that are painful or unstable are evaluated under Diagnostic Code 7804. Diagnostic Code 7805 provides that other disabling effects not considered under Diagnostic Codes 7800, 7801, 7802, and 7804 are rated under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Codes 7800 to 7805. As previously noted, the Board already addressed entitlement to a higher rating for scars other than of the head, face, or neck under Diagnostic Codes 7801, 7802, and 7805 and painful or unstable scars under Diagnostic Code 7804 in its September 2019 decision. Therefore, those issues are no longer before the Board. Under Diagnostic Code 7800, a 10 percent rating is assigned for one characteristic of disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800. A 30 percent rating is assigned for visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. Id. A 50 percent rating is assigned for 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. Id. A maximum 80 percent rating is assigned for 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. Id. The eight characteristics of disfigurement are: (1) scar five or more inches (13 or more centimeters (cm.)) in length, (2) scar at least one-quarter inch (0.6 cm.) wide at widest part, (3) surface contour of scar elevated or depressed on palpation, (4) scar adherent to underlying tissue, (5) skin hypo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm.), (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.), (7) underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.), (8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Id. at Note (1). The characteristic(s) of disfigurement may be caused by one scar or by multiple scars; the characteristic(s) required to assign a particular rating need not be caused by a single scar in order to assign that rating. Id. at note (5). The terms "gross distortion" and "asymmetry" are not defined by the rating criteria. The plain meaning of a statute must be given effect unless a literal application of the statute or regulation will produce a result demonstrably at odds with the intention of its drafters. See Gardner v. Derwinski, 1 Vet. App. 584, 586 (1991), aff'd sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd, 513 U.S. 115, 130 L. Ed. 2d 462, 115 S. Ct. 552 (1994); see also Roberto v. Dep's of the Navy, 440 F.3d 1341, 1350 (Fed. Cir. 2006) (rules of statutory interpretation apply to interpretation of agency regulations). "Gross" is defined as coarse or large; or visible to the naked without the use of magnification. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 808 (32nd ed. 2012); see also https://medical-dictionary.thefreedictionary.com/gross. "Distortion" is defined as the state of being twisted out of a natural or normal shape or position. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 556 (32nd ed. 2012); see also https://medical-dictionary.thefreedictionary.com/distortion. "Asymmetry" is defined as dissimilarity in corresponding parts or organs on opposite sides of the body that are normally alike. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 556 (32nd ed. 2012); see also https://medical-dictionary.thefreedictionary.com/asymmetry. Upon review of the record, the Board finds that the criteria for a 30 percent rating for scars of the head, face, or neck have been more nearly approximated. The Veteran underwent a VA scars examination in November 2016, during which it was noted that the Veteran had approximately 165 cryotherapy treatments, seven electrodesiccation and curettage procedures, five biopsies, and two Mohs surgeries to treat his service-connected skin cancer. Upon physical examination, the examiner observed four squamous cell carcinoma removal scars on the head, face, or neck. The first scar was on the right jaw line, measuring .5 cm. by .1 cm.; the second scar was on the left jaw line, measuring 1.5 cm. by .1 cm.; the third scar was on the right cheek, measuring 1 cm. by .5 cm.; and the fourth scar was on the right anterior ear/cheek, measuring 1 cm. by .5 cm. None of the scars were elevated, depressed, adherent to underlying tissue, or with soft tissue missing. However, the examiner indicated that some cartilage and skin had been removed from the left inner ear lobe during a Mohs surgery. Three of the scars were hypopigmented in an area measuring less than 36 square cm. The scar on the right cheek, which measured .5 square cm., exhibited induration and inflexibility. The examiner indicated that there was no gross distortion or asymmetry of facial features or visible or palpable tissue loss, and none of the scars of the head, face, or neck caused any impairment of function. The Veteran underwent another VA examination in June 2017, during which the examiner observed four scars on the head, face, or neck. The first scar was on the right upper cheek area, measuring 1 cm. by .3 cm.; the second scar was on the right jaw line, measuring 5 cm. by .5 cm.; the third scar was on the left ear outer helix, measuring 1 cm. by .5 cm.; and the fourth scar was on the left upper jaw, measuring 2.5 cm. by .5 cm. None of the scars were elevated, depressed, adherent to underlying tissue, or with soft tissue missing. All four scars were hypopigmented in a total area measuring 5 square cm. There was no induration, inflexibility, or abnormal texture noted. The examiner indicated that there was no gross distortion or asymmetry of facial features or visible or palpable tissue loss, and none of the scars of the head, face, or neck caused any impairment of function. The Veteran underwent another VA examination in January 2021, during which the examiner observed five scars on the head, face, or neck. The first scar was on the right ear, measuring .5 cm. by .3 cm.; the second scar was on the right jaw line, measuring 6 cm. by .5 cm.; the third scar was on the right cheek, measuring 3.5 cm. by .3 cm.; the fourth scar was on the left jaw line, measuring 7 cm. by .3 cm.; and the fifth scar was on the left ear, measuring 3 cm. by .3 cm. The scar on the right ear had underlying soft tissue missing in an area measuring .149 square cm., and the scars were hypopigmented in a total area measuring 10.05 square cm. There was no induration, inflexibility, or abnormal texture noted. The examiner indicated that there was no gross distortion or asymmetry of facial features, and none of the scars of the head, face, or neck caused any impairment of function. The Veteran underwent another VA examination in June 2021, during which the examiner observed two scars of the head, face, or neck. The first scar was on the left ear auricle, measuring 1 cm. by 2 cm., and the second scar was on the left ear superior helix, measuring 1 cm. by .5 cm. Both scars were hypopigmented in an area measuring less than five square cm. There was no abnormal texture noted. The examiner indicated that there was no gross distortion or asymmetry of facial features or visible or palpable tissue loss, and none of the scars of the head, face, or neck caused any impairment of function. The Veteran underwent another VA examination in July 2021, during which the examiner observed three scars of the head, face, or neck. The first scar was on the left jaw line, measuring 3 cm. by .8 cm; the second scar was on the left ear, measuring 3.5 cm. by 1 cm.; and the third scar was anterior to the right ear, measuring 5 cm. by 1 cm. All three scars were hypopigmented in an area measuring a total of 10.9 square cm. There was no abnormal texture noted. The examiner indicated that there was no gross distortion or asymmetry of facial features or visible or palpable tissue loss, and none of the scars of the head, face, or neck caused any impairment of function. The examiner also indicated that the Veteran will continue to develop skin cancers as a result of his in-service radiation exposure, which will require additional excisions and result in additional scarring. The Veteran has submitted numerous color photographs in support of his claim. One photograph, which was taken in June 2016, appears to show a large, discolored mark along the Veteran's right jawline with multiple stitches. Another photograph, which was taken in March 2017, appears to show a large area of missing cartilage in the Veteran's left ear following an electrodesiccation and curettage procedure. Another photograph, which was taken in May 2018, appears to show a fairly large area of skin missing from the Veteran's left cheek following an electrodesiccation and curettage procedure. A photograph taken in December 2018 appears to show a large, discolored area of missing skin behind the left ear following an electrodesiccation and curettage procedure. Another photograph, which was taken in September 2019, shows the Veteran with a large bandage along his right cheek/jaw line following a Mohs surgery. A photograph taken in January 2020 appears to show a small area of missing skin near the Veteran's right ear from a biopsy performed three weeks earlier. Another photograph, which was taken in January 2020, shows a large, discolored mark with multiple stitches near the Veteran's right ear and cheek following an electrodesiccation and curettage procedure. A photograph taken in February 2020 appears to show a long, discolored mark with numerous stitches along the Veteran's right ear and cheek. These photographs appear to show visible tissue loss at times, which is consistent with the observations of some of the VA examiners who noted missing cartilage from the left ear lobe in November 2016 and soft tissue loss around the right ear in January 2021. Additionally, the Board finds that these photographs clearly show times during the appeal period in which a facial feature was abnormally shaped and/or asymmetrical for a period of time while the areas healed after malignancies were removed. Although the VA examiners indicated that the Veteran's scars of the head, face, or neck did not result in gross distortion or asymmetry of facial features by the time the Veteran presented for his VA examinations, the record indicates that the Veteran will continue to develop skin malignancies, which will require additional testing and removal. Given the nature of the Veteran's ongoing skin malignancies and evidence of visible tissue loss and gross distortion or asymmetry of a facial feature for a period of time following each removal procedure, the Board finds that the Veteran's overall disability picture more nearly approximates visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired sets of features throughout the period on appeal. Accordingly, a rating of 30 percent is granted for scars of the head, face, or neck. The Board finds that a rating in excess of 30 percent is not warranted at any time, as the evidence of record does not show any distinct period of time during the appeal period in which there was gross distortion or asymmetry of two features or paired sets of features, or with four or five characteristics of disfigurement. Accordingly, a rating in excess of 30 percent is denied. Extraschedular Ratings Disability ratings are determined by applying the criteria set forth in the Rating Schedule and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. Id. When a condition is listed in the Rating Schedule, it should be rated under the diagnostic code that specifically pertains to it and may not be rated by analogy under a diagnostic code of a closely related disease or injury. Copeland v. McDonald, 27 Vet. App. 333, 336 (2015); Suttman v. Brown, 5 Vet. App. 127, 134 (1993). To accord justice to the exceptional case where the schedular evaluation is inadequate to rate a single service-connected disability, VA may assign an extraschedular rating commensurate with the average impairment of earning capacity due exclusively to that disability. Id.; see also 82 Fed. Reg. 57830 (Dec. 8, 2017) (eff. Jan. 8, 2018); Thurlow, 30 Vet. App. at 239-40 (holding that applying the amendment barring extraschedular ratings based on the combined effect of multiple service-connected disabilities to all claims pending before VA, the Court, or the Federal Circuit on January 8, 2018, did not have an impermissible retroactive effect). The governing norm in these exceptional cases is a finding that application of the regular schedular standards is impractical because the disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b). "[W]here a disability proves capable of evaluation by conventional means, it cannot be deemed exceptional." Long v. Wilkie, 33 Vet. App. 167, 173-75 (2020). 2. Entitlement to an extraschedular rating for skin cancer The Veteran seeks an extraschedular rating for his service-connected skin cancer because he has recurring malignancies, which require ongoing screenings, biopsies, treatments, and painful recoveries that will likely continue for the rest of his life. Upon review of the record, the Board finds that an extraschedular rating for skin cancer is not warranted at any time during the period under review. The Veteran's service-connected squamous cell and basal cell carcinomas have been evaluated under the criteria set forth in Diagnostic Code 7818, relating to malignant skin neoplasms other than malignant melanoma. As malignant skin neoplasms are listed in the Rating Schedule, the Veteran's service-connected skin cancer may not be rated by analogy under another diagnostic code. As previously noted, the Rating Schedule provides that malignant skin neoplasms (other than malignant melanoma) are to be rated as disfigurement of the head, face, or neck under Diagnostic Code 7800; scars under Diagnostic Codes 7801 to 7805; or impairment of function. 38 C.F.R. § 4.118, Diagnostic Code 7818. 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 rating 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 rating based upon that or any subsequent examination will be subject to the provisions of 38 C.F.R. § 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 rating do not apply. 38 C.F.R. § 4.118, Note to Diagnostic Code 7818. In this case, the Veteran's skin cancers have resulted in residual scarring, and he is in receipt of a 30 percent rating for disfigurement of the head, face, or neck and a separate 10 percent rating for painful scars. See 38 C.F.R. § 4.118, 7800, 7804. He is also in receipt of 0 percent ratings for scars on both forearms, which are not painful, unstable, or associated with underlying soft tissue damage. See 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7804. Additionally, the record shows no evidence of impairment of function resulting from the Veteran's skin cancers or residual scarring. See 38 C.F.R. § 4.118, Diagnostic Code 7805. Accordingly, the Board finds that all of the Veteran's residuals of skin cancer are contemplated by the assigned schedular ratings. With respect to the Veteran's skin cancer treatments, the record shows that he has undergone numerous biopsies, cryotherapies, electrodesiccation and curettage procedures, and Mohs surgeries. A biopsy is a procedure to remove cells or tissue from the body and is often used to test for cancer. See https://medlineplus.gov/biopsy.html. Skin cryotherapy is a procedure that involves superfreezing tissue in order to destroy warts and precancerous skin lesions. See https://medlineplus.gov/ency/article/007506.htm. Electro-desiccation and curettage is a procedure that involves scraping away a lesion and using electricity to kill any remaining cells. See https://medlineplus.gov / ency/article/000827.htm. Mohs surgery is a procedure that involves numbing the skin and removing a visible tumor along with a thin layer of tissue next to the tumor. See https://medlineplus.gov/ency/article/007634.htm. Thus, all of the Veteran's skin cancer treatments have been confined to the skin. The Rating Schedule provides that skin cancer treatments that are confined to the skin are to be evaluated based on residuals, and the schedular ratings are considered adequate to compensate for "considerable loss of working time from exacerbations and illnesses," which contemplates the Veteran's skin cancer screenings and localized treatments. See 38 C.F.R. §§ 4.1, 4.118, Diagnostic Code 7818. The Rating Schedule provides that a compensable rating may only be assigned for skin cancer treatment if the therapy is comparable to that used for systemic malignancies, including systemic chemotherapy, X-ray therapy more extensive than to the skin, and surgery more extensive than a wide local incision. See 38 C.F.R. § 4.118, Diagnostic Code 7818. As the record does not show that the Veteran has undergone therapy comparable to that used for systemic malignancies, a compensable rating may not be assigned for his skin cancer treatments, which have all been confined to the skin. While the Board is sympathetic to the Veteran's circumstances, malignant skin neoplasms are a listed condition in the Rating Schedule, and all of the Veteran's residuals and treatments are specifically contemplated by assigned schedular ratings. As the Veteran's service-connected skin cancer is capable of evaluation by conventional means, it cannot be deemed exceptional. See Long, 33 Vet. App. at 173-75. Therefore, an extraschedular rating is not warranted. In sum, the weight of the evidence persuasively shows that the Veteran's service-connected skin cancer does not present an exceptional disability picture that renders the Rating Schedule inadequate. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and ratings in excess of those already assigned are not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Banister, 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.