Citation Nr: 0813398 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 01-08 400A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for post-operative reoccurring perianal cysts to include perirectal fistulae. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Chaplin, Counsel INTRODUCTION The veteran served on active duty from December 1988 to January 1995. This matter comes before the Board of Veterans' Appeals (Board) from a May 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that granted entitlement to service connection for reoccurring perianal cyst, postoperative, evaluated as zero percent disabling effective from August 8, 1997. The veteran disagreed with the evaluation and in a rating decision in August 1999 the RO assigned a 10 percent disability evaluation effective from August 8, 1997. That grant, however, does not represent a total grant of benefits sought on appeal, thus this claim for increase remains in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). In March 2005 the veteran withdrew his request for a hearing before a member of the Board. Regulations provide that a veteran may withdraw a hearing request at any time before the date of the hearing. See 38 C.F.R. § 20.704(e) (2007). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. The Board remanded the claim in January 2001 and in May 2005 for further development. The Board also noted in the May 2005 remand, that the veteran had filed claims for a clothing allowance and a total disability rating due to individual unemployability based on his service-connected disabilities and referred these issues to the RO for disposition. It does not appear from the claims file that action has been taken on these issues; therefore, they are again referred to the RO for appropriate consideration. In a November 2006 statement from the veteran, he stated that his knee pain and neck pain with mobility problems due to each were getting worse. This is considered an implied claim for an increased rating for his service-connected cervical spine and left knee disorders and is referred to the RO for appropriate consideration. REMAND Further development is required prior to appellate review. This appeal arises from the veteran's dissatisfaction with his initial rating following the grant of service connection for post-operative reoccurring perianal cyst. In such a case, the United States Court of Appeals for Veterans Claims has held that separate or "staged" ratings must be assigned where the evidence shows varying levels of disability for separate periods of time. Fenderson v. West, 12 Vet. App. 119 (1999); see also Meeks v West, 12 Vet. App. 352 (1999), (38 U.S.C.A. § 5110 and its implementing regulations do not require that the final rating be effective from the date of the claim). The veteran's disability was assigned a 10 percent evaluation under Diagnostic Codes 7899-7803, as analogous to a rating for superficial, unstable scars. In a statement of the case issued in October 2001, the RO also considered evaluation by analogy under the provisions for evaluation of anal fistula under Diagnostic Code (DC) 7335 in the schedule of ratings for the digestive system. DC 7335 provides that a disability of fistula in ano is to be rated as for impairment of sphincter control which is DC 7332. 38 C.F.R. § 4.114, DCs 7335-7332. Pursuant to the Board instructions in a May 2005 remand, the veteran was provided a VA examination in October 2007. The examiner provided an opinion that the veteran's perirectal fistulae were most likely due to or the result of the veteran's service- connected recurrent postoperative rectal cysts. In a supplemental statement of the case issued in October 2007, the RO again considered evaluating the veteran's disability under DCs 7335 and 7332 but found that the veteran did not meet the criteria for a 30 percent evaluation under these DCs. The issue has been recharacterized to include perirectal fistulae. The examination report indicates that the veteran has had several surgeries for reoccurring perianal cyst and perirectal fistulae with the most recent having been in 2004. The examiner also referred to a most recent scar with a suture in situ. In an August 2005 statement, the veteran mentioned the difficulty in his obtaining transportation to appear for a VA examination and stated that traveling by some means irritated and made the surgical area from his perianal cyst flare-up. The veteran has also previously reported that when he has a cyst surgery, he is incapacitated for several months. A review of the record, however, does not find any medical records related to a surgery in 2004 for perirectal fistula. As this evidence might show a varying level of disability for a separate period of time related to the 2004 surgery to include consideration of entitlement to a temporary total rating under the provisions of 38 C.F.R. § 4.30, a remand is necessary to obtain records relating to the 2004 perirectal fistula surgery to include pre-surgery, surgery, and post-surgery. 38 C.F.R. § 3.159(c)(4). In addition, in the May 2005 remand, the Board had requested that VA treatment records be secured from several facilities to essentially cover the period from August 2002 to the time of the request. Our review finds that in October 2003, when seen at the Fort Myers VA outpatient clinic the veteran stated that he was moving to West Palm Beach the following month. The first record from the New Orleans VA Medical Center is dated in December 2004 which was for intake as the veteran was new to that facility. An additional attempt should be made to secure VA treatment records for the period from October 2003 to December 2004 to include a request to the West Palm Beach VA Medical Center. 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. Request information from the veteran as to the medical facility(ies) at which he was treated during the period from October 2003 and December 2004. He should also furnish information as to the date and place of his perirectal fistula surgery in 2004. Based on the information he provides, request the pertinent VA treatment records. If there is no reply, request treatment records from the West Palm Beach VA Medical Center from October 2003 to December 2004. If the veteran has received private medical treatment from October 2003 to the present for his recurring perianal cysts and perirectal fistulae and/or the perirectal fistula surgery in 2004 was performed by a private medical provider, request that the veteran furnish identifying information and authorization for VA to request the private medical records. 3. Then, readjudicate the veteran's claim for an initial rating in excess of 10 percent to include entitlement of a temporary total rating due to perirectal fistula surgery in 2004. Additional evidence submitted or secured after certification of the case to the Board should be considered. If the benefits sought on appeal remain denied, the appellant and his representative should be provided a supplemental statement of the case and allowed an appropriate time for response. Thereafter, the case should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2007).