Citation Nr: 0336043 Decision Date: 12/22/03 Archive Date: 12/29/03 DOCKET NO. 02-07 208 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased evaluation for an abscess of the perineal lymph nodes, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. M. Davis, Associate Counsel INTRODUCTION The veteran served on active duty from May 1968 to April 1971. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a November 2000 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). The RO increased the rating for an abscess of the perineal lymph nodes from noncompensable to 10 percent disabling. FINDING OF FACT An abscess of the perineal lymph nodes covers less than 20 percent of the entire body, is not in an exposed area, does not require systemic therapy, does not contain a scar that exceeds 12 square inches, and is not characterized by constant exudation and itching, extensive lesions, or marked disfigurement. CONCLUSION OF LAW An abscess of the perineal lymph nodes is no more than 10 percent disabling. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7806, 7819, 7899 (2003); 38 C.F.R. § 4.118, Diagnostic Codes 7806, 7819, 7899 (2002). REASONS AND BASES FOR FINDING AND CONCLUSION I. VCAA On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The final rule implementing the VCAA is codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2003). This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA (November 9, 2000), and to claims filed before the date of enactment but not yet final as of that date. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). First, VA has a duty to notify the veteran of the evidence and information necessary to substantiate his claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2003); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In the January 2002 statement of the case, the RO provided the veteran with the previous rating criteria for the skin. In the October 2002 supplemental statement of the case, the RO provided the veteran with the new rating criteria for the skin. Second, VA has a duty to inform the veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf. In an April 2003 VCAA letter, under a heading entitled "VA's Duty to Assist You in Obtaining Evidence for Your Claim," the RO stated that it would help the veteran obtain medical records, employment records, or records from other Federal agencies, but that the veteran had to provide the RO with sufficient information so that it could obtain the records from the appropriate person or agency. The RO stressed that it was still the veteran's responsibility to make sure that the records were received by it. Third, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. In this case VA has obtained the veteran's VA treatment records. The veteran has not indicated the existence of any additional records that would aid in substantiating his claim. For the reasons stated above, the Board finds that the requirements of the VCAA have been met. II. Factual Background In a July 1971 rating decision, the RO granted service connection for an abscess of the perineal lymph nodes, with a noncompensable evaluation under Diagnostic Code 7899. In a July 1997 rating decision, the RO continued a noncompensable evaluation of an abscess of the perineal lymph nodes, left buttock and left scrotal area, under Diagnostic Codes 7899- 7819. In a September 2000 VA outpatient treatment report, the veteran complained of swelling and drainage of the buttock. Upon rectal physical examination, the examiner noted fluctuant mass with discharge, eight centimeters from the anus, with an adjacent skin tag, moderately tender. The examiner entered an assessment of perirectal fistula, referred the veteran to the proctology clinic, and stated that the perirectal fistula might be treated simultaneously with the veteran's right axillar abscess. In November 2000, a 10 percent evaluation was assigned for the disability. In a June 2002 statement, the veteran explained that he had lost time from work, that he drove a truck and that most of his work was done sitting, and that riding on rough road for hours causes swelling and irritation. He stated that most of the time he misses work, stays home, and is told to soak in hot water. He stated that approximately six times per year, the abscess grows to the size of an egg, is very painful, and renders the veteran unable to sit or walk. He stated that he had had several surgeries which were supposed to end the problem, and that he has suffered embarrassment from being in public places when the abscess would burst and mess up his clothes and exude a bad smell. In an August 2002 VA examination report, the veteran reported recurrence of an infection every two to three months regarding cysts in his right groin area. He reported that when it flares up, the pain is a 10 out of 10, with initial itching. He reported that he had been followed up by a physician outside the military as well as with a VA physician. He was given intermittent Cipro for these multiple infected nodules, and at times, resorted to incision and drainage. He had never been hospitalized regarding this matter, but had to nurse himself at home because of the severity of the pain. Upon physical examination, the examiner noted multiple nodularities less than one by one centimeter on the right groin as well as on the suprapubic area. There was a scar formation due to multiple incisions and drainage. There was no active ulceration or active infection at the time of the examination. The veteran reported fever or chills during the flare-ups. The examiner entered an assessment of recurrent furunculosis suprapubic area, right inguinal area with scarring. III. Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. See 38 U.S.C.A. § 1155 (West 2002). If there is a question as to which evaluation to apply to the veteran's disability, 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. See 38 C.F.R. § 4.7 (2003). Under the previous Diagnostic Code 7806 (effective prior to August 30, 2002), eczema manifested by exfoliation, exudation, or itching, if involving an exposed surface or extensive area, warrants a 10 percent evaluation. A 30 percent evaluation requires findings of constant exudation or itching, extensive lesions, or marked disfigurement. A 50 percent evaluation is warranted where there is ulceration or extensive exfoliation or crusting and systemic or nervous manifestations, or exceptionally repugnant disfigurement. See 38 C.F.R. § 4.118, Diagnostic Code 7806 (2002). Under the current Diagnostic Code 7806, dermatitis or eczema covering 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 6 weeks during the past 12-month period warrants a 10 percent disability rating. Dermatitis or eczema covering 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, during the past 12-month period warrants a 30 percent disability rating. Dermatitis or eczema covering more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12- month period warrants a 60 percent disability rating. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2003). Under the current Diagnostic Code 7819, benign skin neoplasms are rated as disfigurement of the head, face, or neck, or as scars, or as impairment of function. 38 C.F.R. § 4.118, Diagnostic Code 7819 (2003). Under Diagnostic Code 7801, scars, other than head, face, or neck, that are deep or that cause limited motion in an area or areas exceeding 12 square inches warrant a 20 percent disability evaluation, and in an area or areas exceeding 72 square inches warrant a 30 percent disability evaluation. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2003). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). IV. Analysis The Board finds that the preponderance of the evidence is against a grant of an increased evaluation for an abscess of the perineal lymph nodes. The veteran's abscess of the perineal lymph nodes is currently rated as 10 percent disabling. The Board notes that new rating criteria regarding the skin were effective during the pendency of this appeal. When the law changes during the pendency of an appeal, the Board must consider the potential applicability of each version. VAOPGCPREC 2-2003. The veteran was rated under Diagnostic Code 7899-7819 prior to the change in the rating criteria. Under the previous Diagnostic Code 7819, new growths, benign, skin, were rated as for eczema, Diagnostic Code 7806. Under the new Diagnostic Code 7819, benign skin neoplasms are rated as disfigurement of the head, face, or neck, or as scars, or as impairment of function. 38 C.F.R. § 4.118, Diagnostic Code 7819 (2003). However, the RO rated the veteran's abscess of the perineal lymph nodes under the new Diagnostic Code 7806, for eczema. The Board notes that this is not incorrect since the veteran's disability is rated under a hyphenated Diagnostic Code 7899-7819. Accordingly, under the new regulations, the Board will consider possible evaluations under Diagnostic Code 7801, for scars, as well as Diagnostic Code 7806. Under the new regulations, in order to warrant a 20 percent disability rating, the evidence must show scars, other than head, face, or neck, that are deep or that cause limited motion in an area or areas exceeding 12 square inches. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2003). In order to warrant a 30 percent disability rating, the evidence must show scars, other than head, face, or neck, that are deep or that cause limited motion in an area or areas exceeding 72 square inches. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2003). A 30-percent disability evaluation is also warranted for an area covering 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, during the past 12-month period for a 30 percent evaluation. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2003). Under the old regulations, a 30 percent evaluation is warranted for constant exudation or itching, extensive lesions, or marked disfigurement, and a 50 percent evaluation is warranted where there is ulceration or extensive exfoliation or crusting and systemic or nervous manifestations, or exceptionally repugnant disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2002). In the August 2002 VA examination report, the examiner noted a scar formation due to multiple incisions and drainage. There was no active ulceration or active infection at the time of the examination. The examiner entered an assessment of recurrent furunculosis suprapubic area, right inguinal area with scarring. The Board finds that the veteran's scarring is not deep, does not cause limited motion, and does not exceed 12 square inches, and thus a 20 percent evaluation is not warranted under the new regulations under Diagnostic Code 7801. In the September 2000 VA outpatient treatment report, the veteran complained of swelling and drainage of the buttock. Upon rectal physical examination, the examiner noted a fluctuant mass with discharge, eight centimeters from the anus, with an adjacent skin tag, moderately tender. The examiner entered an assessment of perirectal fistula. In the August 2002 VA examination report, the veteran reported recurrence of an infection every two to three months regarding cysts in his right groin area. He reported that when it flares up, the pain is a 10 out of 10, with initial itching. He was given intermittent Cipro for these multiple infected nodules, had never been hospitalized regarding this matter, but had to nurse himself at home because of the severity of the pain. Upon physical examination, the examiner noted multiple nodularities less than one by one centimeter on the right groin as well as on the suprapubic area. As noted above, the assessment was recurrent furunculosis suprapubic area and right inguinal area with scarring. The veteran has asserted that he has lost time from his work as a truck driver due to his ailment, that most of his work was done sitting, and that riding on rough road for hours causes swelling and irritation. He stated that approximately six times per year, the abscess grows to the size of an egg, is very painful, and renders the veteran unable to sit or walk. He stated that he would soak in hot water. Based upon this evidence, the Board finds that the veteran's abscess of the perineal lymph nodes area does not cover 20 to 40 percent of the entire body; rather, it is limited to the suprapubic and right inguinal area. Further, there are no exposed areas affected. Finally, systemic therapy such as corticosteroids or other immunosuppressive drugs was not indicated; the only treatment indicated was Cipro and soaking in hot water. Thus, the veteran does not meet the criteria for a 30 percent disability evaluation under new Diagnostic Code 7806. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2003). Further, the veteran does not warrant a 30 percent disability evaluation under the previous Diagnostic Code 7806. The veteran has reported swelling and drainage of the abscess, and the examiner noted a fluctuant mass with discharge. Further, the veteran noted initial itching when the abscess flairs up. However, while the exudation and itching is recurrent, it is not constant. The veteran reported recurrence of an infection every two to three months, and there was no active ulceration or infection at the time of the August 2002 examination. Further, there are no reports of extensive lesions or marked disfigurement. Thus the veteran does not meet the criteria for a 30 percent disability evaluation under the old Diagnostic Code 7806. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2002). Finally, the Board notes that the veteran reported that he suffered embarrassment from being in public places when the abscess would burst, mess his clothes, and exude a bad smell. However, the examination reports do not describe any odor from the abscess, and what the veteran has described seems to occur infrequently. The Board finds that this does not create an exceptionally repugnant condition to establish a 50 percent disability evaluation. The Board finds that the preponderance of the evidence is against a grant of an increased evaluation for an abscess of the perineal lymph nodes, and there is no doubt to be resolved. Gilbert, 1 Vet. App. at 55. Review of the record reveals that the RO has expressly considered referral of this case to the Under Secretary for Benefits or the Director, Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2003). This regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Under Secretary or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The RO, in the November 2000 rating decision, January 2002 statement of the case, and the October 2002 supplemental statement of the case, found that the evidence did not show that this case presented such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Although the veteran reports some lost time from work, his statements as to frequency and duration were not specific and even if accepted as true do not establish marked impairment. The Board concludes that referral of this case to the Under Secretary or the Director, Compensation and Pension Service, for assignment of an extraschedular evaluation is not warranted. ORDER Entitlement to an increased evaluation for an abscess of the perineal lymph nodes is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2