Citation Nr: 1331711 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 11-18 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a rating greater than 10 percent for pilonidal cyst. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to September 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. FINDING OF FACT For the entire appellate term, the Veteran's pilonidal cyst has been manifested by one superficial painful and unstable scar, which encompasses an area less than 12 square inches and causes no limitation of motion. CONCLUSION OF LAW The criteria for a 20 percent rating for a pilonidal cyst have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.118, Diagnostic Code 7899-7804 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) VA has fulfilled its duty to notify the appellant in this case. In a June 2010 letter, the RO informed the claimant of the applicable laws and regulations, the evidence needed to substantiate the claim decided herein, and which party was responsible for obtaining the evidence. 38 C.F.R. § 3.159. Thus, the notice required by the VCAA and implementing regulations was furnished to the claimant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. The Board also finds that all necessary assistance has been provided to the appellant including requesting information regarding pertinent medical treatment he may have received and requesting records from the identified providers. In terms of VA examinations, the Board finds that despite not having the appellant's claims file to review, the July 2010 examination report contains sufficient findings with which to properly decide this claim. Lastly, the appellant was provided with an opportunity to testify before the Board in September 2011. At the hearing the Veteran submitted additional evidence in support of his claim and waived initial RO review of such evidence. See 38 C.F.R. § 20.1304(c). Under these circumstances, VA has fulfilled its duty to notify and assist the appellant in the claim on appeal, and adjudication of this claim at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The appeal is now ready to be considered on the merits. II. Facts Service treatment records show that the Veteran underwent the excision of a pilonidal cyst in December 1970 due to intermitting drainage. Shortly after his service discharge, in September 1971, he underwent unroofing and curettement of pilonidal cyst due to recurrent drainage that began two months after the first surgery. The November 1971 hospital summary shows that the wound was practically healed at discharge except for a small area which was not yet completely epithelialized. In January 1972, the RO granted service connection for a pilonidal cyst and assigned a noncompensable rating effective September 1971. The RO increased this rating to 10 percent in a October 2005 rating decision. The Veteran was seen at a VA primary care clinic in July 2009 complaining of discomfort in the area of his pilonidal cyst. He said that the cyst area fills up with liquid once a month, gets sore and tender and breaks open, and heals on its own. Findings revealed a small opening at the top of the crack that was located in the scar tissue. There did not appear to be a pocket of fluid or a cyst. There was also no discharge, erythema or significant tenderness. The assessment was laceration of scar tissue. The physician's assistant who examined the Veteran felt that the splitting was based on the appellant's sitting position and noted that the scar tissue was not as strong as regular tissue. He prescribed an ointment to soften the area and prevent future splitting. VA outpatient records from September 2009 to April 2010 reflect the Veteran's near monthly reports that the area of his pilonidal cyst had broke open, with two such reports in April 2010. In April 2010, the appellant also reported bloody drainage. In April 2010, the Veteran filed a claim for an increased rating for his pilonidal cyst disability asserting that the condition had worsened. At a VA examination in July 2010, the Veteran reported that his cyst site becomes sore and cracks on a monthly basis, with the last incident occurring in June 2010. He said his wife applies over-the-counter Neosporin and he experiences bleeding at times. He said the cyst healed in a few days, but was uncomfortable at times when sitting, especially when sitting on a hard chair. He was otherwise noted to be able to perform his work duties as a cook at a VA medical facility. Surgery was not recommended due to the Veteran's prior two surgeries. There were no active infections at that time. Findings revealed an old pilonidal cyst scar in the gluteal fold that measured 6 centimeters (cm) linear by 0.5 cm indentation. There was a reddened area the size of a pinpoint. There was no drainage, swelling or edema. There was no loss of function or motion. The examiner found that 0.5% of unexposed skin was involved, and there was no involvement of exposed skin. The Veteran reported on his notice of disagreement dated in April 2011 that he felt that he was being penalized because he self-treats his pilonidal cyst when it flares every month rather than seeking treatment at a VA medical center. The Veteran reported on his substantive appeal in June 2011 that his pilonidal cyst was more than just a scar and that it breaks open up to three times a month after filling up with blood and water. He said that when it is about to break open he experiences pain and soreness in the area and is unable to sit on the area. In a VA medical statement dated in August 2011, a physician's assistant noted that the Veteran was his patient and still had an area located right over where his pilonidal cyst had been removed that breaks open with a sanginous fluid. He said the area was fluctuant at times. The appellant included specific dates that it had broken open including on three occasions in April 2011, once in June 2011, and once in July 2011. He reported that the current treatment consisted of cleaning the area with soap and water and putting antibiotic cream on the opening to prevent infection which his wife did. In August 2011, the Veteran's wife reported that the appellant's cyst area opened up from one to three times a month and that she cleaned the area with water and peroxide, and that she applies an antibiotic cream. She reported having to do this for two or three days or more until the area heals. She included a list of dates that the cyst area broke open which was nearly monthly from September 2009 to August 2011, except for three occasions in April 2011. The Veteran testified in September 2011 that his doctor did not recommend surgery because of his prior two surgeries and told him to just live with the pain and "let it go". The Veteran said the area was always painful just prior to breaking open, and that it drained blood and water when open. He denied applying any dressing to the area and said his wife cleans it and applies peroxide and antibiotic cream. He said he has to carefully watch how he sits down during flare-ups. He denied missing any work due to the disability and said he was currently retired due to putting in enough time at work. He said he could not remember the last time the area was infected, but it had been more than a couple of years. The Veteran and his representative requested that the disability be considered under a different diagnostic code or that an extra-schedular rating be considered. III. Analysis Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2013). For the rating period on appeal, the Veteran's pilonidal cyst has been evaluated as 10 percent disabling under 38 C.F.R. § 4.118, Diagnostic Code 7899-7804. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27 (2013). Here, the hyphenated diagnostic code indicates that an unlisted skin disorder (Diagnostic Code 7899) is rated under the criteria for painful and unstable scars (Diagnostic Code 7804). See 38 C.F.R. § 4.20. Under 38 C.F.R. § 4.118, Diagnostic Code 7801 a 20 percent rating is assigned for a deep and nonlinear scar of at least 12 square inches (77 square centimeters) but less than 72 square inches (465 square centimeters). Under 38 C.F.R. § 4.118, Diagnostic Code 7804 where there is one or two scars that are unstable or painful, a 10 percent rating is assigned. A 20 percent rating is assigned where there are three or four scars that are unstable or painful. Under Note (2) to 38 C.F.R. § 4.118, Diagnostic Code 7804, if one scar is unstable and painful add 10 percent to the evaluation based on the total number of unstable or painful scars. (emphasis added) The Board finds, based on the Veteran's credible statements, and VA medical records, that he experiences monthly flare-ups in the area of the pilonidal cyst scar. These flare ups occur when the pilonidal area breaks open causing drainage, pain and soreness, as well as discomfort when sitting. Treatment during flareups requires cleaning the area with soap and water, and applying peroxide and antibiotic cream. The Veteran asserts that these symptoms warrant a higher than 10 percent rating. The Board agrees. As noted above, a higher rating is warranted under Note (2) of Diagnostic Code 7804, for one or two scars that are unstable and painful. Note (1) under Diagnostic Code 7804 defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over scar. It is noteworthy that, though prior to the rating period on appeal, a VA physician in July 2009 examined the Veteran for complaints of discomfort in the area where his pilonidal cyst had been and noted a small opening at the top of the crack located in the scar tissue. The physician explained that scar tissue is not as strong as regular tissue and he prescribed an ointment to soften the scar and prevent future splitting. Subsequent medical records covering the period of this appeal show that the scar has continued to split monthly or more causing drainage, pain and discomfort, and has required treatment. The treatment consists of cleaning the area and the application of peroxide and antibiotic cream. Thus, although the VA examiner in July 2010 found the Veteran's pilonidal cyst scar to be stable, the monthly flare-ups in the area of the pilonidal cyst excision can, at the very least, be considered analogous to an unstable scar. Moreover, as previously discussed, the evidence clearly shows that this area causes pain and discomfort. Accordingly, the criteria for a painful and unstable scar have been met warranting a 20 percent rating. 38 C.F.R. § 4.118, Note (2). A higher than 20 percent rating is not warranted in this case under Code 7804 since a higher rating requires more than one scar. Regarding consideration of other possibly pertinent codes, the Veteran has not exhibited any symptoms during this rating period that would warrant a rating in excess of 20 percent, including a deep scar or deep and nonlinear scar. 38 C.F.R. § 4.118, Code 7801. While fully acknowledging that the Veteran has to be careful when sitting down during flare-ups, his scar has not caused limitation of motion. Also, the Veteran has not been diagnosed with multiple scars or a single superficial and nonlinear scar that affects one or more extremities in addition to the posterior portion of his trunk. Thus, separate evaluations are not warranted for his single scar under 38 C.F.R. § 4.118, Diagnostic Code 7802 Note (2). The Board has also considered whether referral for an extraschedular rating is appropriate. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (2013). Related factors include "marked interference with employment" and "frequent periods of hospitalization." Id. When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of Compensation Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. As noted, the Veteran's pilonidal cyst symptoms consist of monthly flare-ups when the area of the pilonidal cysts breaks open causing pain, discomfort and drainage. Such impairment is specifically contemplated by the rating criteria and the Veteran has been evaluated on that basis. Hence, the rating criteria reasonably describe the Veteran's disability. There is no indication in the record that the average industrial impairment from the Veteran's pilonidal cyst would be in excess of that contemplated by the rating assigned above. The Veteran's disability picture is not exceptional or unusual. Therefore, referral for assignment of an extraschedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). For the reasons articulated, the preponderance of the evidence supports entitlement to a 20 percent schedular rating for the Veteran's pilonidal cyst for the duration of the appeal period. ORDER Entitlement to a higher rating, to 20 percent, for pilonidal cyst is granted subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs