Citation Nr: 23055441 Decision Date: 10/11/23 Archive Date: 10/11/23 DOCKET NO. 20-12 763 DATE: October 11, 2023 REMANDED Entitlement to an initial compensable rating for service-connected squamous cell carcinoma of the nasal cavity is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from March 1968 to October 1970. This case comes to the Board of Veterans' Appeals (Board) on appeal from a January 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for squamous cell carcinoma of the nasal cavity and assigned a noncompensable rating effective July 25, 2017. The Veteran appeals for a higher rating. In February 2022, he testified at a Board virtual hearing before the undersigned; a transcript of the hearing has been associated with the claims file. In February 2022, he submitted additional evidence in the form of a statement from his private oncologist as well as private medical treatment records. Entitlement to a compensable rating for squamous cell carcinoma of the nasal cavity The Veteran claims that his disability warrants a compensable rating, particularly as he did not undergo surgery to remove his tumor until after the effective date of his award of service connection for the disability on July 25, 2017 (i.e., first the first few weeks of his service connection award, his cancer was in an active phase and as-yet untreated). He also testified in February 2022 with regard to his postoperative problems to include acute inflammatory responses and ear/eustachian tube issues. A review of the record shows that further development is needed in order to decide the claim, to include obtaining private treatment records and a VA examination. The Veteran's squamous cell carcinoma of the nasal cavity is evaluated under 38 C.F.R. § 4.118, Diagnostic Code (Code) 7818, which provides that malignant skin neoplasms (other than malignant melanoma) are rated as disfigurement of the head, face, or neck (Code 7800), scars (Codes 7801, 7802, 7803, 7804, or 7805), or impairment of function. A note to this rating code adds that a maximum disability rating of 100 percent is warranted if a skin malignancy requires therapy that is used for systemic malignancies, such as systemic chemotherapy, x-ray therapy, or surgery more extensive than wide local excision. If a disability rating of 100 percent is warranted due to treatment, the Veteran will continue with a 100 percent evaluation from the onset of such treatment as required for systemic malignancies. The 100 percent evaluation will continue for six months after the completion of such antineoplastic treatment, at which time a mandatory VA examination will be afforded. If there has been no local recurrence or metastasis (of the skin malignancy), evaluation will be made on residuals. If the treatment for the skin malignancy is confined to the skin, the provisions for a 100 percent evaluation do not apply. 38 C.F.R. § 4.118, Code 7818. Medical records and Board hearing testimony demonstrate that the Veteran's basal cell carcinoma was not "in remission" until after he underwent surgery for resection of his tumor on August 16, 2017. (The Veteran contends he was not declared free of disease until well after his surgery.) Thus, his skin cancer was in an active phase at the time of his award of service connection for the disability. He also experienced postoperative residuals including acute inflammatory responses that required several biopsies and an MRI, which required months in which to heal, according to the Veteran's testimony. He also had ear-related difficulties that necessitated a myringotomy with tube placement. In a February 2022 statement, his oncologist briefly summarized his diagnosis of basal cell carcinoma and treatment. She asserted that postoperative follow up visits revealed some "abnormal" findings in the nasal cavity and on the tongue but that the biopsies had all been negative for malignancy. She also noted his eustachian tube dysfunction and tube placement (with later removal), as well as vasomotor rhinitis that was being treated. While the evidence shows that skin cancer was definitely present from the effective date of service connection on July 25, 2017 to the date of the surgery on August 16, 2017, it is unclear whether a 100 percent rating is warranted during this phase of the cancer under Code 7818. This is because the criteria requires evidence that the malignancy required therapy that is used for systemic malignancies such as chemotherapy or X-ray therapy (which the Veteran did not have) or that surgery involving more than a wide local excision was needed. Without the August 16, 2017 operative report and other pertinent medical evidence to explain the nature of the surgery more fully including whether treatment for the cancer was confined to the skin, it cannot be discerned whether the Veteran warrants a 100 percent schedular rating under Code 7818. It is also noted that the provisions of 38 C.F.R. § 4.30 allow for a temporary total (100 percent) rating based on the need for convalescence after surgery, but it is not clear whether the surgery necessitated at least one month of convalescence (and if so, how long) and/or whether it resulted in severe postoperative residuals, as required under the regulation. Moreover, the evidence is insufficient to evaluate the residuals of the Veteran's disability, as the nature and extent of all postoperative residuals have not been clarified. He appears to have had such residuals as eustachian tube dysfunction (or, in his words, damage to the eardrum). At the hearing, he indicated that he no longer had a tube in his ear and that it was no longer problematic, but the evidence on file does not show the nature of his ear dysfunction, when his tube was removed, and when his ear problems ceased. Also, in a January 2019 statement, the Veteran asserted he had permanent tinnitus in both ears, but private records on file indicate his tinnitus, which was diagnosed in June 2010, pre-existed the basal cell carcinoma (and in fact, he was denied service connection for tinnitus in a September 2011 rating decision). His oncologist indicated in a February 2022 statement that the Veteran was being treated for vasomotor rhinitis, but other private records in 2010 show he had a history of nasal congestion and allergies, along with having undergone a nasal septoplasty with turbinate reduction. The extent to which the Veteran's squamous cell carcinoma may have worsened pre-existing disabilities should be determined. In short, the Veteran should undergo a VA examination to address the nature of the August 2017 surgery and the extent of any required convalescence after the surgery and to determine the nature and severity of all postoperative residuals. He underwent an examination in January 2019, but it focused on the presence of any current skin conditions and did not provide answers to some of the questions that need to be addressed for evaluating the Veteran's disability. Further, the claims file already contains many relevant private treatment records, but some reports such as his August 16, 2017 operative report and post-surgical treatment records are not of record and should be obtained. Any updated private records should also be sought. (In that regard, it is noted the Veteran testified he received no VA treatment.) The matter is REMANDED for the following action: 1. Request the Veteran to submit private records of treatment relevant to his squamous cell carcinoma of the nasal cavity and its residuals (which have not already been submitted), including any current records of treatment as well as the records pertaining to his August 16, 2017 operation, post-surgical treatment, and discharge. Inform him that alternatively he may file a medical release that authorizes the VA to obtain such private records on his behalf. If he submits a medical authorization, obtain the records. 2. Then, arrange for a VA examination of the Veteran to determine the nature and severity of his service-connected basal cell carcinoma of the nasal cavity, to include its postoperative residuals. The examiner should provide a full description of all residuals and report all signs and symptoms necessary for evaluating the disability or disabilities under pertinent rating criteria. The examiner is specifically asked to respond to the following: (a). Describe the nature and severity of any functional impairment caused by the Veteran's squamous cell carcinoma of the nasal cavity for the month leading up to his surgery on August 16, 2017. (b). Address whether or not the August 16, 2017 surgery for squamous cell carcinoma of the nasal cavity was more extensive than wide local excision. Was the surgery confined to the skin? (See the rating criteria under 38 C.F.R. § 4.118, Diagnostic Code 7818.) (c). Describe the Veteran's course of recovery following the August 16, 2017 surgery and any need for (and duration of) convalescence. Also, describe the presence of any severe postoperative residuals. "Convalescence" may be defined as the stage of recovery following an attack of disease, a surgical operation, or an injury, and recovery may be defined as the act of regaining or returning toward a normal or healthy state. For example, did the Veteran require aid during the immediate post-surgical period when he may have had incompletely healed wounds or may have been wheelchair-bound, or when there may have been similar circumstances indicative of transient incapacitation associated with recuperation from the immediate effects of his operation? (d). Describe the Veteran's inflammatory response after the August 16, 2017 surgery and the nature and extent (and duration of time) to which it may have functionally impaired him. (e). Describe the Veteran's eustachian tube dysfunction following his August 16, 2017 surgery and the extent (and duration of time) to which it may have functionally impaired him. When was the tube removed? Address whether the surgery aggravated (increased in severity beyond natural progression) the Veteran's pre-existing, nonservice-connected tinnitus (diagnosed initially in 2010)? (f). Address whether there were any postoperative residuals related to nasal congestion and rhinitis. Did the August 16, 2017 surgery aggravate (increase in severity beyond natural progression) any pre-existing, nonservice-connected nasal conditions including allergies? (g). Has there been any recurrence or metastasis of his basal cell carcinoma of the nasal cavity? Complete rationale should accompany all opinions. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Breitbeil, Debbie 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.