Citation Nr: 1817840	
Decision Date: 03/22/18    Archive Date: 04/03/18

DOCKET NO.  16-19 522A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

Entitlement to an initial compensable disability rating for skin cancer (squamous cell carcinoma, basal cell carcinoma), skin cancer residuals, and precancerous lesions (actinic keratosis), prior to April 11, 2016.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Shauna M. Watkins, Counsel
INTRODUCTION

The Veteran served on active duty from February 1958 to January 1960.

The claim comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision from the Appeals Management Center (AMC) in Washington, DC.  The RO in Lincoln, Nebraska, currently has jurisdiction over the claim. 

The RO issued another rating decision in May 2016, which increased the disability rating to 10 percent.  The 10 percent rating was made retroactively effective from April 11 2016, the date of a VA examination.  This decision created staged ratings.  In his May 2016 Substantive Appeal (on VA Form 9) and at his January 2018 Board hearing, the Veteran stated that he was not seeking a disability rating higher than 10 percent; instead, he wanted the 10 percent disability rating back to the effective date of service connection (i.e., August 23, 2012).  See Board hearing transcript, page 4.  Thus, the Veteran expressly limited the scope of his appeal, and the Board has adjusted the title page accordingly.  See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating that a veteran is presumed to be seeking the highest possible rating unless he or she expressly indicates otherwise).

In January 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at the local RO at a videoconference Board hearing.  A copy of the hearing transcript has been associated with the claims file.

Additional medical evidence was submitted into the record by the Veteran following the most recent readjudication of this appeal by the Agency of Original Jurisdiction (AOJ) in the May 2016 Statement of the Case (SOC).  This new evidence has not been reviewed by the AOJ and a waiver of review of this evidence by the Veteran or his representative is not of record.  However, under section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154, if new evidence is submitted with or after a Substantive Appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the veteran explicitly requests AOJ consideration.  38 U.S.C. § 7105(e) (2012).  Here, the Veteran's Substantive Appeal was submitted on May 2016, and the Veteran has not explicitly requested AOJ consideration.  Therefore, the claim does not need to be remanded solely for consideration of such new evidence.  Id.

This appeal was processed using the paperless, electronic Virtual VA and Veteran Benefits Management System (VBMS) claims processing systems.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

Since August 23, 2012, the skin cancer (squamous cell carcinoma, basal cell carcinoma), skin cancer residuals, and precancerous lesions (actinic keratosis) has involved at least 5 percent, but less than 20 percent, of the entire body.


CONCLUSION OF LAW

Since August 23, 2012, the criteria for a 10 percent initial disability rating for skin cancer (squamous cell carcinoma, basal cell carcinoma), skin cancer residuals, and precancerous lesions (actinic keratosis) have been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.118, Diagnostic Codes (DCs) 7818-7806 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  VA's Duties to Notify and Assist

Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).
In his May 2016 Substantive Appeal and at his January 2018 Board hearing, the Veteran stated that he was not seeking a disability rating higher than 10 percent; instead, he wanted the 10 percent disability rating back to the effective date of service connection (i.e., August 23, 2012).  Thus, the Veteran expressly limited the scope of his appeal.  See AB, 6 Vet. App. at 38-39.  Given the Board's favorable disposition of the claim herein decided - awarding a 10 percent rating retroactively effective from August 23, 2012 - the Board finds that all notification and development action needed to fairly adjudicate the claim has been accomplished.  Hence, further discussion of due process considerations, to include the duties imposed by the VCAA, is unnecessary.

II.  Analysis

Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations.  Separate DCs identify the various disabilities.  See 38 U.S.C. § 1155; 38 C.F.R. § Part 4 (2017).

Where a veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ."  See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999).  If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found.  Id.

From August 23, 2012, to April 10, 2016, the Veteran is in receipt of a noncompensable (0 percent) disability rating under 38 C.F.R. § 4.118, DCs 7818-7806.  In this regard, if a veteran has an unlisted disability, as in this case, it will be rated under a disease or injury closely related by functions affected, symptomatology, and anatomical location.  38 C.F.R. § 4.20; see 38 C.F.R. § 4.27 (2017) (providing specific means of listing DC for unlisted disease or injury).  He seeks a higher initial disability rating.

DC 7818 provides that malignant skin neoplasms (other than malignant melanoma) are rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or rated on impairment of function.  A Note to DC 7818 provides that, 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, rating 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.

The RO has chosen to rate the Veteran's service-connected disability, by analogy, under DC 7806.  DC 7806 provides that dermatitis or eczema that involves less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy is required during the past 12-month period, is rated noncompensably (0 percent) disabling.  Dermatitis or eczema that involves at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period, is rated 10 percent disabling.  38 C.F.R. § 4.118.

In applying the above law to the facts of the case, the Board finds that the Veteran is entitled to an initial disability rating of 10 percent for his skin cancer (squamous cell carcinoma, basal cell carcinoma), skin cancer residuals, and precancerous lesions (actinic keratosis), retroactively effective since August 23, 2012.  Since August 23, 2012, the service-connected skin cancer has involved at least 5 percent, but less than 20 percent, of the entire body.  38 C.F.R. § 4.118, DC 7806.
Specifically, at his April 2016 VA examination, the VA examiner determined that the Veteran had a number of small non-disfiguring, nonpainful, nontender, well-healed scars scattered throughout the body, status post multiple treatments in the past.  The Veteran also submitted a January 2018 medical opinion from Dr. J.B., the Veteran's treating physician.  Prior to providing the opinion, Dr. J.B. reviewed the treatment records from the Veteran's treating dermatologist.  Dr. J.B. opined that the Veteran had excessive sun exposure during his time in the Navy and serving in the South Pacific.  Dr. J.B. determined that the Veteran's sun exposure "has resulted in cumulative skin damage, resulting in his skin cancers and precancerous lesions on multiple areas of his body, which has been ongoing since August 23, 2012, which covers approximately 10% of his body or more especially his face, neck, scalp, arms, abdomen, and back."  In a January 2018 medical opinion, Dr. J.L., the Veteran's treating dermatologist, stated that the Veteran had skin cancers and precancerous lesions located on his face, neck, scalp, chest, back, abdomen, and arms.

The Board has also considered the lay statements from the Veteran regarding his current symptoms.  At his Board hearing, the Veteran testified that his symptoms had not changed and had remained constant since he filed his service connection claim in August 2012.  See Board hearing transcript, page 16. 

The Board finds that the lay and objective medical evidence shows that the Veteran's symptoms have involved at least 5 percent, but less than 20 percent, of the entire body, which warrants a higher disability rating of 10 percent since August 23, 2012.  38 C.F.R. § 4.118, DCs 7818-7806.  The claim is granted.  As the claim on appeal has been expressly limited to a 10 percent rating, discussion and application of the criteria for a higher disability rating since August 23, 2012, is unnecessary.

Finally, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a total disability rating based on individual unemployability (TDIU) is considered part and parcel of an increased rating claim when the issue of unemployability is raised by the record.  In this case, the issue of unemployability is not raised by the record.  At the recent April 2016 VA examination, the VA examiner found that the service-connected skin cancer did not cause any functional impact.  The Veteran and his representative have not alleged that the service-connected skin cancer has resulted in unemployment.  Therefore, consideration of a TDIU is not warranted.


ORDER

An initial 10 percent disability rating for skin cancer (squamous cell carcinoma, basal cell carcinoma), skin cancer residuals, and precancerous lesions (actinic keratosis) is granted, effective August 23, 2012. 



____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs