Citation Nr: 1829606
Decision Date: 06/27/18 Archive Date: 07/02/18
DOCKET NO. 14-23 681 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia
THE ISSUES
1. Entitlement to an initial compensable rating for one residual scar on the left upper extremity due to basal cell carcinoma.
2. Entitlement to an initial compensable rating for two residual scars on the posterior trunk region due to basal cell carcinoma.
3. Entitlement to an initial compensable rating for three residual scars on the anterior trunk region due to basal cell carcinoma.
REPRESENTATION
Veteran represented by: Virginia Department of Veterans Services
ATTORNEY FOR THE BOARD
A. Dellarco, Associate Counsel
INTRODUCTION
The Veteran served on active duty from April 1981 to April 1985, September 2001 to September 2002, February 2003 to June 2003, April 2006 to September 2006, February 2008 to July 2008, and May 2010 to March 2011.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).
FINDINGS OF FACTS
1. The evidence does not show that the Veteran's six residual scars, individually or collectively, cover an area measuring at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.).
2. Resolving all reasonable doubt in favor of the Veteran, the three residual scars on his left upper extremity and posterior trunk region are manifested by pain.
CONCLUSIONS OF LAW
1. The criteria for a compensable rating for a residual scar of the left upper extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7801 (2017).
2. The criteria for a compensable rating for two residual scars of the posterior trunk have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7801 (2017).
3. The criteria for a compensable rating for three residual scars of the anterior trunk have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7801 (2017).
4. The criteria for a separate 20 percent rating, but no higher, for three painful residual scars, one located on the left upper extremity and two located posterior trunk region, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7804 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran seeks a 20 percent rating for residual scars due to basal cell carcinoma.
The Veteran's six residual basal cell carcinoma scars are rated as noncompensable, effective May 7, 2012, under 38 C.F.R. § 4.118, Diagnostic Code 7833-7801.
Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the assigned rating. In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27. In this case, Veteran's basal cell carcinoma scars have been rated under Diagnostic Code 7801.
Diagnostic Code 7833 provides that if skin malignancy required 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 the treatment and will continue with a mandatory VA examination six months following the completion of such antineoplastic treatment. Any change in the rating based upon that or 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, the rating will then be made on residuals. If treatment is confined to the skin, the provisions for a 100 percent evaluation do not apply. Scars are to be rated under Diagnostic Code 7801, 7802, 7803, 7804, or 7805; disfigurement of the head, face, or neck is to be rated under Diagnostic Code 7800; or impairment of function is to be rated under the appropriate body system. 38 C.F.R. § 4.118, Diagnostic Code 7833.
Diagnostic Code 7801 provides for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear a 40 percent rating for an area or areas exceeding 144 square inches (929 sq. cm.), a 30 percent rating for an area or areas exceeding 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.), a 20 percent rating for an area or areas exceeding 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.), and a 10 percent rating for area or areas exceeding 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.). Note (1) to Diagnostic Code 7801 provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801.
Diagnostic Code 7802 provides a 10 percent rating for a scar at a location other than the head, face, or neck that is superficial and that does not cause limitation of motion of 144 square inches (929 sq. cm.) or greater. Note (1) provides that a superficial scar is one that is not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802.
Additionally and in pertinent part, Diagnostic Code 7804 provides that a 30 percent rating may be assigned where there are five or more scars that are unstable or painful, a 20 percent rating may be assigned where there are three or four scars that are unstable or painful, and a 10 percent rating may be assigned where there are one or two scars that are unstable or painful. Note (1) to Diagnostic Code 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin. Note (2) to Diagnostic Code 7804 provides that if one or more scars are both unstable and painful, then 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. Note (3) to Diagnostic Code 7804 provides that scars evaluated under Diagnostic Code 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code when applicable. 38 C.F.R. § 4.118, Diagnostic Code 7804.
The Veteran underwent a VA examination in August 2013, at which time the examiner reviewed the evidence of record and noted the Veteran's history of treatment for basal cell carcinoma. There was no reoccurrence of basal cell carcinoma at the treatment sites, and thus the examiner concluded that the appropriate diagnosis was residual scars from surgical excision of skin lesions. Objective examination revealed the following: Scar # 1 (a deep non-liner scar of the left upper extremity measuring 3 cm. by 0.7 cm.); Scar #2 (a deep non-liner scar of the anterior trunk region measuring 3.5 cm. by 0.3 cm.); Scar # 3 (a deep non-liner scar of the anterior trunk region measuring 0.5 cm. by 0.4 cm.); Scar # 4 (a deep non-liner scar of the anterior trunk region measuring 0.7 cm. by 0.7 cm.); Scar # 5 (a deep non-liner scar of the posterior trunk region measuring 1.5 cm. by 2 cm.); and Scar # 6 (a deep non-liner scar of the posterior trunk region measuring 0.5 cm. by 0.5 cm.). The examiner noted that the scars were not painful or unstable.
In multiple written statements, the Veteran stated that the August 2013 examination did not accurately portray his scar symptomatology. In a November 2013 statement, he stated that he identified three continuously painful scars to the examiner. Specifically, he reported that the scar on his left upper extremity and the two scars on his posterior trunk region were continuously painful. The Veteran stated that he did not have the same symptomology with the other three remaining scars located on the anterior trunk region.
As an initial matter, the Board finds that a compensable rating is not warranted for the Veteran's residual scars under Diagnostic Code 7801, as none of the six scars, when measured individually or by the total area affected, cover the requisite surface area for a compensable rating. See 38 C.F.R. § 4.118, Diagnostic Codes 7801 and 7802.
However, under Diagnostic Code 7804, the Veteran is entitled to a separate compensable rating for painful scars. The Board has considered the Veteran's consistent statements that he has three painful scars on his left upper extremity and posterior trunk. The Board finds the Veteran's statements are competent and credible, especially given his specificity regarding his painful versus nonpainful scars. The Veteran is competent to report his subjectively-experienced symptoms of pain from these scars because this requires only personal knowledge as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465 (1994).
While the August 2013 examination report does not include the Veteran's report of pain associated with his scars, the Board will resolve reasonable doubt in the Veteran's favor and find that the evidence as a whole demonstrates that a total of three residual scars, one located on the left upper extremity and two located on the posterior trunk region, are painful. As such, a separate 20 percent rating is warranted.
The Board further notes that the evidence does not support, nor does the Veteran contend, that his three remaining scars on his anterior trunk region are painful. Thus, there is no basis to assign a rating in excess of 20 percent under Diagnostic Code 7804.
This grant of a separate 20 percent disability rating under Diagnostic Code 7804 satisfies the Veteran's appeal. See June 2014 VA Form 9. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).
In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine and finds that the evidence does not support disability ratings higher than what has been upheld and assigned herein. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).
ORDER
Entitlement to an initial compensable rating for one residual scar on the left upper extremity due to basal cell carcinoma is denied.
Entitlement to an initial compensable rating for two residual scars on the posterior trunk region due to basal cell carcinoma is denied.
Entitlement to an initial compensable rating for three residual scars on the anterior trunk region due to basal cell carcinoma is denied.
Entitlement to a separate 20 percent rating, but no higher, for three painful residual scars, one located on the left upper extremity and two located posterior trunk region, due to basal cell carcinoma, is granted.
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DELYVONNE M. WHITEHEAD
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs