Citation Nr: 0007846 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 98-07 551 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an initial compensable evaluation for residuals of basal cell carcinoma of the left neck. ATTORNEY FOR THE BOARD N. L. Rippel, Associate Counsel INTRODUCTION The veteran served on active duty from June 1972 to May 1974, from August 1974 to May 1982, and from March 1984 to June 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which granted service connection for residuals of basal cell carcinoma of the left neck and assigned a noncompensable rating for that disability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's residuals of basal cell carcinoma of the left neck are manifested a scar which is no more than slight and which causes no functional limitation of any affected part; the scar is neither superficial and poorly nourished with repeated ulceration, nor superficial, tender and painful on objective demonstration; there is no exfoliation, exudation or itching, and the area affected is exposed but small. CONCLUSION OF LAW The criteria for an initial compensable evaluation for residuals of basal cell carcinoma of the left neck have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.14, 4.118 Diagnostic Codes 7800, 7803, 7805, 7806, 7818 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran seeks a compensable evaluation for his residuals of basal cell carcinoma of the left neck. Disability ratings are determined by applying the criteria set forth in the 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.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses is to be avoided. See 38 C.F.R. § 4.14. By a rating decision rendered in July 1995, the RO granted service connection for residuals of basal cell carcinoma and assigned a 0 percent or noncompensable evaluation, effective July 1, 1994. The veteran filed a notice of disagreement with respect to the 0 percent evaluation, and this appeal ensued. It is noted that the veteran had moved from the Seattle area to Indianapolis during the pendency of his appeal, and that the claim is now on appeal from the Indianapolis RO. A statement of the case was never forwarded to the veteran following his initial disagreement until April 1998, and the Board notes that the initial claim has thus been open since the initial notice of disagreement. As this is a claim of disagreement with the initial rating assigned following a grant of service connection, separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staging." See Fenderson v. West, 12 Vet. App. 119 (1999). The Board finds that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a), which gives rise to the VA's duty to assist. See Fenderson, 12 Vet. App. at 127. Under these circumstances, the VA must attempt to obtain all such medical evidence as is necessary to evaluate the severity of the veteran's disability from the effective date of service connection through the present. Fenderson, 12 Vet. App. at 125-127, citing Goss v. Brown, 9 Vet. App. 109, 114 (1996); Floyd v. Brown, 9 Vet. App. 88, 98 (1996); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). See also 38 C.F.R. § 4.2 (ratings to be assigned "in the light of the whole recorded history.") The Board finds that all relevant evidence has been obtained and that no further duty is required under the provisions of 38 U.S.C.A. § 5107. Specifically, it is noted that, while the veteran missed an examination in Seattle in 1995, the veteran explained that he missed the examination because he was in the process of moving his residence. He was subsequently afforded two VA examinations in Indianapolis in connection with this appeal. The evidence includes service medical records which show that the veteran underwent excision of an eight millimeter lesion on the left side of the neck in March 1994 with a diagnosis of basal cell carcinoma. Post-service records include those from VA examinations and outpatient treatment clinics showing no residual function limitation from the removal of the neck lesion. VA outpatient treatment records show a skin consultation in December 1995. Several erythematous lesions were noted on the head and forearms, but there was no indication of abnormality in the area of the excised neck lesion. The veteran was afforded VA examinations in July 1997 and April 1998. A report of VA examination dated in July 1997 reveals no signs or symptoms of functional impairment related to the neck scar. The examiner observed that the veteran was very fair skinned and that he had a 1 1/2 centimeter by 3 millimeter white flat scar on the left neck. There was no evidence of active skin cancer on the face or neck. The scar was white, flat, soft, nontender, not painful, and without keloid or hypertrophy. There was no adherence or herniation, and no inflammation or swelling. The vascular supply appeared good and there was no ulceration. The examiner stated that cosmesis was not an issue and there was no limitation of function. The assessment was history of basal cell carcinoma of the left neck, resultant scar after surgery and several actinic keratoses in this fair skinned and sun damaged individual. A report of VA examination dated in April 1998 reveals no symptoms, itching, pain, tenderness, adherence, elevation or depression in or around the scar area. There was no underlying tissue loss, no edema, no skin breakdown, no inflammation or keloid formation. It was also noted that there was no disfigurement or limitation of function. An addendum, consisting of photograph slides, was attached to the examination report. The veteran's residuals of basal cell carcinoma of the left neck are rated under Diagnostic Code 7818 pertaining to new malignant growths of the skin. 38 C.F.R. § 4.118, Diagnostic Code 7818 (1999). These, in turn, are rated according to scars, disfigurement, etc., on the extent of constitutional symptoms and physical impairment. Id. Also, the criteria for eczema, dependent upon location, extent, and repugnant or otherwise disabling character manifestations must be considered. See Note to 38 C.F.R. § 4.118. As to the veteran's scar, a disfiguring scar of the head, face or neck which is slight is rated as noncompensable, whereas such a scar which is moderately disfiguring is rated as 10 percent disabling; a scar which is severe, especially if producing a marked and unsightly deformity of the eyelids, lips or auricles, is rated at 30 percent, and a scar causing complete or exceptionally repugnant deformity of one side of the face or marked or repugnant bilateral disfigurement, is rated at 50 percent. 38 C.F.R. § 4.118, Diagnostic Code 7800. A scar which is superficial, poorly nourished, with repeated ulceration is rated as 10 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7803. A scar which is superficial, tender and painful on objective demonstration is also is rated as 10 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7804. Finally, a scar can also be rated according to functional limitation of the affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805. As noted, the veteran's condition may also be rated as eczema. Eczema which is productive of slight, if any, exfoliation, exudation or itching on a nonexposed or small area, is rated as noncompensable, while eczema producing exfoliation, exudation or itching, if involving an exposed surface or extensive area, warrants a 10 percent rating. 38 C.F.R. § 4.118, Diagnostic Code 7806. The record is replete with reference to the fact that the veteran's residuals of basal cell carcinoma of the left neck cause no functional limitation. Rather, the residuals consist of a scar. This scar has been described on both recent examinations as essentially asymptomatic. It was flat, non-disfiguring, nontender, without ulceration, well- healed and with no adhesions. There was no evidence, not even complaints from the veteran, of pain or tenderness. Color slides show the veteran's scar and are consistent with the descriptions in the examination reports. The scar is no more than slight in its degree of disfigurement, and from a review of the entire record, the scar does not appear to be moderately disfiguring. It is not poorly nourished. Moreover, the scar, which is on a small area, is admittedly not itchy, nor is it productive of exfoliation or exudation. Thus, overall, the record affords no basis for a compensable evaluation for residuals of basal cell carcinoma of the left neck at any time. Additional diagnostic codes have been considered. However, in the absence of evidence of other significant findings or symptomatology, there is no basis for assignment of an evaluation in excess of the currently assigned evaluation under any other code provision. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In conclusion, the Board finds that the preponderance of the evidence is against the veteran's claim for a compensable evaluation for residuals of basal cell carcinoma of the left neck. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Further, there has been no showing that the veteran's disability, residuals of basal cell carcinoma of the left neck, has caused marked interference with employment, necessitated frequent periods of hospitalization, or otherwise renders impracticable the application of the regular schedular standards. Although the veteran indicated in written statements that his scar is unsightly, two examiners have observed that the scar is in fact not disfiguring. Moreover, there is no indication that the condition has in any way impaired the veteran in the performance of his occupation as a registered nurse. Thus, the Board concludes that this disability has not markedly interfered with any particular job. Under these circumstances, further consideration of an extra-schedular rating is not warranted. 38 C.F.R. § 3.321(b)(1); see also Bagwell v. Brown, 9 Vet. App. 237 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A compensable evaluation for residuals of basal cell carcinoma of the left neck is denied. S. L. KENNEDY Member, Board of Veterans' Appeals