Citation Nr: 0006053 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 97-19 066 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an increased rating for a low back disorder, currently evaluated as 20 percent disabling. 2. Entitlement to an increased rating for basal cell carcinoma, currently evaluated as 30 percent disabling. 3. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU) due to service- connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Schlosser, Associate Counsel INTRODUCTION The veteran had active military service from September 1955 to July 1958, excluding 203 days lost including multiple periods of absence without leave. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1997 rating decision Department of Veterans Affairs (VA) Regional Office (RO), in which the RO denied increased ratings for basal cell carcinoma and a low back disorder, and denied entitlement to a TDIU. The veteran appealed and requested a hearing at the RO. By statement of March 1999, the veteran withdrew his request for a hearing. By rating decision of February 1998, the RO denied service connection for a nervous disorder as secondary to the veteran's service-connected basal cell carcinoma. In a March 1999 statement, in conjunction with his withdrawal of a request for a personal hearing, the veteran indicated a desire for his appeal to go directly to the Board for consideration of service connection for a nervous disorder. The March 1999 statement could possibly be construed as a notice of disagreement (NOD) to the February 1998 rating decision. However, appellate review of the claims folder reflects that the RO did not send the veteran notice of the February 1998 rating decision which denied secondary service connection for a nervous disorder, nor did they send the veteran a copy of his appellate rights with respect to the denial thereof. As such, the veteran's claim for entitlement to secondary service connection for a nervous disorder remains open and this issue is referred back to the RO for appropriate action. The RO should provide the veteran with proper notice of the rating decision and provide him with an opportunity to exercise his appellate rights should he so desire. The issue of entitlement to a TDIU is deferred pending completion of the development requested below. REMAND Low Back Disorder The Board notes that the veteran's disability, characterized as low back strain, is currently rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5295 (1999). This code contemplates impairment manifested by limitation of motion and/or pain on motion. For this reason, medical evidence is required as to the degree of functional loss caused by the veteran's pain from this disability. See DeLuca v. Brown, 8 Vet.App. 202 (1995) (evaluation of musculoskeletal disorders rated on the basis of limitation of motion requires consideration of functional losses due to pain). This is especially so in light of the veteran's complaints of pain. When rating musculoskeletal disability, it should be remembered that "a part which becomes painful on use must be regarded as seriously disabled." 38 C.F.R. § 4.40 (1998). In DeLuca, supra, the United States Court of Appeals for Veterans Claims (Court) cited the case of Bierman v. Brown, 6 Vet.App. 125, 129 (1994) in which 38 C.F.R. § 4.10 was quoted for the proposition that a rating examination must include a "full description of the effects of disability upon the person's ordinary activity." DeLuca, at 206 (emphasis added). In order to effectuate this requirement, the Court explained that, when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional loss are to be "'portray[ed]' (§ 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare- ups." Id. This is what is required in the context of a VA medical examination concerning the veteran's disability. On VA orthopedic examination in January 1997, the veteran described low back pain, aggravated by standing or physical exercise with no radiation to the legs. He indicated that because of his low back pain, his balance is poor and he has numbness in the soles of both feet. On examination, there was mild distal leg weakness with normal strength in the upper extremities. There was distal sensory loss to vibration and touch below the ankles and in the soles of both feet. Deep tendon reflexes were absent at the ankles, barely elicitable at the knees and 1+ in the upper extremities. The veteran was able to tandem walk and walk on his tiptoes, but he had difficulty walking on his heels, presumably due to the mild anterior leg compartment weakness. The diagnostic impression included chronic low back pain with no evidence of active radiculopathy, presumably due to degenerative spine disease. The Board notes that the VA examination report was almost completely devoid of clinical findings related to the low back. No range of motion testing was conducted for the veteran's back and no attempt was made to quantify the veteran's pain as required by DeLuca. Considered in its entirety, the examination report was not responsive to the mandate in DeLuca that the examiner express the functional losses experienced by the veteran in terms that can be used to apply the criteria of the applicable diagnostic codes. For example, while a veteran may have normal range of motion demonstrated in a clinical setting, his functional loss due to pain or flare-ups may be comparable to a disability level contemplated by more severe limitation of motion. If so, he must be rated accordingly. The only way to apply this rule is for the examiner to provide his/her best judgment as to what level of disability is caused by the pain or flare-ups, etc., and to report such an opinion in terms that can be used to apply the rating criteria. In order to obtain this kind of evidence, a remand is required. Basal Cell Carcinoma The veteran's basal cell carcinoma has been rated by analogy to disfiguring scars on the head, face or neck under the provisions of 38 C.F.R. § 4.118, Diagnostic Code 7800 (1999). When scarring on the head, face or neck is slight, a noncompensable rating is assigned. 38 C.F.R. § 4.118, Diagnostic Code 7800 (1999). When scarring is moderate and disfiguring, a 10 percent rating is warranted. Id. When scarring is severe, especially if producing a marked and unsightly deformity of eyelids, lips or auricles, a 30 percent rating is assigned. Id. When scarring of the head, face or neck is complete or productive of exceptionally repugnant deformity of one side of the face or marked or repugnant bilateral disfigurement, a 50 percent rating is assigned. Id. On VA examination in February 1997, the veteran reported a history of exposure to A-bomb detonations in service in August 1957. Twenty years later, the veteran noted the presence of 2-3 lesions on his chest; a subsequent biopsy of those lesions revealed basal cell epitheliomata. These were successfully treated with liquid nitrogen. Since that time, the veteran reported having developed 150 additional lesions, all but two of which were located on his face and chest (the other two were located on his shoulder). He had surgery for the removal of a squamous cell carcinoma on the right temple which required post-operative grafting. Nine other lesions were surgically removed and the remainder were treated with liquid nitrogen. The veteran indicated that a lesion lateral to the left eyebrow had recently been diagnosed as a squamous cell carcinoma. On examination, the veteran was noted to have hyperkeratotic lesions lateral to the left eyebrow including two on the left cheek, two on the left neck, two on the posterior right neck, nine on the chest, four on the back, and one on the left upper arm. There was a round, four centimeter graft on the right temple, and a hypopigmented , fibrous scar on the left lateral forehead. There were numerous, round, deep pigmented macula scars evident on the chest, neck and back. The diagnostic impression was post treatment of basal cell epithelioma with scarring on the face, neck, chest and back, basal cell epitheliomata on the face, neck, chest and back, and post-excision squamous cell carcinoma from the right temple with a resulting graft scar. On the most recent VA examination in January 1998, the veteran was noted to have "many, approximately 20, red, scaling, hyperkeratotic spots on the chest. Ulceration, exfoliation and crusting are absent." The diagnostic impression was actinic keratosis and basal cell epitheliomata. The Board notes that neither the February 1997 nor January 1998 VA examinations were adequate for the purpose of evaluating the current severity of the veteran's service- connected basal cell carcinoma. There is a complete absence of clinical findings which would allow for the consideration of an assignment of a higher rating under the applicable diagnostic code. Based on the foregoing, the case is REMANDED to the RO for the following action: 1. The RO should contact the veteran and ask him whether he has received any treatment for his service-connected low back disorder since January 1997 or his service-connected basal cell carcinoma since January 1998, the date of the most recent VA examinations for those disorders. Based on his response, the RO should obtain a copy of all treatment records referable to the either service- connected disability from the identified source(s), and associate them with the claims folder. 2. Following the receipt of the above- requested evidence, if any, the RO should schedule the veteran for a VA orthopedic examination. The examiner should review the claims file, examine the veteran and provide findings that take into account all functional impairments identified in 38 C.F.R. §§ 4.40, 4.45 (1999), including pain, incoordination, weakness, fatigability, abnormal movements, etc. The examiner should identify each functional limitation legitimately experienced by the veteran as a result of his service-connected low back strain only. Functional loss due to such difficulties should be described in terms of additional range-of-motion loss beyond that which is clinically observed. See DeLuca, supra. If such analysis is not possible, the reasons for this impossibility should be set forth. If the veteran is examined at a time of maximum disability, this should be noted. All findings, opinions and bases therefor should be set forth in detail. 3. The veteran should also be afforded a complete VA dermatological examination to assess the current severity of his basal cell carcinoma. The RO should also schedule the veteran for a comprehensive VA examination with a dermatologist. The purpose of the examination is to ascertain the current extent and severity of the veteran's skin disorder. The claims file should be made available to the examiner prior to the examination. The examiner should indicate in his/her written report that a review of the claims file was accomplished. All findings should be reported in detail. Following a complete examination of the veteran's skin, the examiner should (a) identify the location of all demonstrated lesions; (b) indicate whether there is ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or whether the veteran's skin disorder produces exceptional repugnance. With respect to the residual scarring of the veteran's head, face and neck, the VA examiner should indicate whether such scarring is severe, especially if producing a marked and unsightly deformity of the eyelids, lips, or auricles, or whether such scarring is complete or productive of exceptionally repugnant deformity of one side of the face or marked or repugnant bilateral disfigurement. It is requested that the examiner include several unretouched color photographs of the veteran's skin disorder to illustrate its current severity. 4. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the aforementioned development action has been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. The RO should then review the record and all of the issues on appeal should be re-adjudicated, including consideration of entitlement to a TDIU. If any determination remains adverse to the veteran, he and his representative should be provided with a SSOC that contains a summary of the relevant evidence and a citation and discussion of the applicable laws and regulations, and given the opportunity to respond within the applicable time. Thereafter, the case should be returned to the Board, if in order. The appellant need take no action unless otherwise notified, but he has the right to submit additional evidence and argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this remand is to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of the remanded issues. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for further development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. BRIAN LEMOINE Acting Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).