Citation Nr: 1303121 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 12-11 443 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for service-connected scar status post removal of a pilonidal cyst. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, served on active duty from January 1953 to January 1955. This case comes to the Board of Veterans' Appeals (Board) on appeal of a December 2011 rating decision of the Regional Office (RO) in Lincoln, Nebraska, which denied an increased rating for a scar status post removal of a pilonidal cyst. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT For the entire rating period of the appeal, the service-connected scar status post removal of a pilonidal cyst is located on the posterior trunk, is 7 centimeters by .2 centimeters in size, and is manifested by complaints of pain and discomfort and objective findings of pain and tenderness on palpation; the scar is not deep or unstable with frequent loss of covering of the skin and the scar does not affect the function of the posterior trunk affected or cause any other disabling effects. CONCLUSION OF LAW For the entire rating appeal period, the criteria for a disability rating in excess of 10 percent for the service-connected scar status post removal of a pilonidal cyst have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Codes 7801-7805 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of the VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). A "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), as was done in this case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO provided a VCAA notice letter to the Veteran in October 2011, prior to the initial adjudication of the claim. The letter notified the Veteran of what information and evidence must be submitted to substantiate a claim for an increased rating, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of his claim to the RO. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). VA has a duty to assist a claimant in the development of a claim. This duty includes assisting a claimant in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The VA treatment records dated from 2009 to April 2012 are associated with the claims folder and/or the virtual VA file. In October 2011, the RO asked the Veteran to identify treatment for the service-connected scar. The VCAA letter included an attachment of a VA Form 21-4142 that requested from the Veteran specific identifying information and request for authorization to obtain records from any treating medical professionals. The Veteran did not report any treatment for the scar. The Veteran underwent a VA examination in November 2011 to obtain medical evidence as to the nature and severity of the service-connected scar. The Board finds that the VA examination was adequate for rating purposes. The examination was performed by a medical doctor based on review of claims file, solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran. The VA examiner reported the size of the scar and identified all current symptoms due to the scar. The VA examiner discussed whether the scar affected the Veteran's ability to work. The examination report is accurate and fully descriptive. It provides an opinion as to the effects of the scar on the Veteran's ordinary activity and occupational impairment; therefore, the Veteran has been afforded an adequate examination of the service-connected disability. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). For these reasons, the Board finds that the duties to notify and assist the Veteran in this claim have been met, so that no further VCAA notice or assistance to the Veteran is required. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Disability Rating Laws and Regulations 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. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2012). Where there is a question as to which of two evaluations shall be applied, the higher rating 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. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. The United States Court of Appeals for Veterans Claims (Court) has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the assigned ratings for the service-connected scar status post removal of the pilonidal cyst were 0 percent from March 1992 under Diagnostic Code 7819, and 10 percent from February 2004 under Diagnostic Codes 7819-7804, based on the findings of tenderness and pain of the superficial scar on palpation. 38 C.F.R. §4.118. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27 (2012). The Board will assess the criteria under each diagnostic code below. In October 2011, the Veteran filed a claim for increased rating. The Veteran contends that he is entitled to a higher rating than 10 percent for the service-connected scar. He states that he has significant difficulty with prolonged sitting especially on hard surfaces because of the pain from the scar. Diagnostic Code 7819 provides that benign skin neoplasm should either be evaluated based on disfigurement of the head, face, or neck under Diagnostic Code 7800; as scars under Diagnostic Code 7801 to 7805; or based on impairment of function. 38 C.F.R. §4.118. Under Diagnostic Code 7801, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) warrant a 10 percent rating. A scar in an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq cm) warrants a 20 percent evaluation. A scar in an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq cm) warrants a 30 percent evaluation. A scar in an area or areas of at least 144 square inches (929 sq. cm.) or greater warrants a 40 percent evaluation. 38 C.F.R. § 4.118. Under Diagnostic Code 7802, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater warrant a 10 percent evaluation. Note (1) indicates that a superficial scar is one not associated with underlying soft tissue damage. Note (2) indicates that if multiple qualifying scars are present, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity. 38 C.F.R. § 4.118. Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent evaluation. Three or four scars that are unstable or painful warrant a 20 percent evaluation. Five or more scars that are unstable or painful warrant a 30 percent evaluation. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118. Under Diagnostic Code 7805, any disabling effects of other scars (including linear scars), and other effects of scars rated under Diagnostic Codes 7800, 7801, 7802, and 7804 not considered in a rating provided under Diagnostic Codes 7800-7804 are to be rated under an appropriate diagnostic code. 38 C.F.R. § 4.118. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the assignment of a disability evaluation in excess of 10 percent for the service-connected scar status post removal of a pilonidal cyst for the entire rating appeal period. The evidence shows that, for the rating period on appeal, the service-connected scar status post removal of a pilonidal cyst has been principally manifested by subjective complaints of pain and discomfort in the area of the scar and objective findings of pain and tenderness on palpation. The Veteran reported having persistent discomfort in the area of the scar. He indicated that he had difficulty with sitting as the area of the scar was painful and tender. The Veteran also stated that he had significant difficulty with prolonged sitting especially on hard chairs. The Veteran indicated that he had minimal discomfort with prolonged walking. He did not report any specific functional impairment to standing or walking. See the November 2011 VA examination report. The medical evidence shows that the service-connected scar status post removal of a pilonidal cyst is located on the posterior trunk, is 7 centimeters by .2 centimeters in size, and is manifested by pain and tenderness on palpation. The scar was not shown to be deep or unstable and there is no evidence of a frequent loss of skin over the scar. See the November 2011 VA examination report. Because the service-connected scar does not cover an area of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq cm), a 20 percent evaluation is not warranted under Diagnostic Code 7801. 38 C.F.R. § 4.118. With regard to other potentially applicable Diagnostic Codes, as there is only one scar that is service connected, higher ratings for multiple scars are not warranted under Diagnostic Codes 7802 or 7804. The Board finds that a higher rating is not warranted under Diagnostic Code 7805 and other appropriate diagnostic codes based upon any other disabling or other effects. The medical evidence does not establish any symptoms or effects of the service-connected scar other than the pain and tenderness on palpation and the complaints of discomfort and pain with prolonged sitting. 38 C.F.R. § 4.118. The November 2011 VA examination report indicates that the Veteran reported very infrequent episodes of drainage. Upon examination, the scar was described as well healed without skin breakdown. Physical examination revealed that the scar was not unstable. There was no significant swelling, inflammation, or recurrence of the pilonidal cyst. There was no abscess or infection in the past year. The VA examiner indicated that the Veteran did not have any other pertinent signs or symptoms such as muscle or nerve damage associated with the scar. The VA examiner indicated that the Veteran reported that he had minimal discomfort with walking and he did not report any specific impairment with standing or walking. The VA examiner opined that the scar did not impact the Veteran's ability to work. As there is no objective evidence on examination of disabling effects not considered in the rating provided under Diagnostic Codes 7818-7800, the Board finds that a higher rating is not warranted under Diagnostic Code 7805. 38 C.F.R. § 4.118. For these reasons, the Board finds that a disability rating in excess of 10 percent for the service-connected scar status post removal of the pilonidal cyst is not warranted for any period. As the preponderance of the evidence is against the claim for an increased rating, the claim for increase must be denied. 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration Finally, the Board has considered whether referral for an extraschedular evaluation is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). 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 the service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate a veteran's level of disability and symptomatology and is found inadequate, it must determine whether the veteran'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) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a veteran'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 the Compensation and Pension Service for completion of the third step, a determination of whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. As discussed, the Veteran's symptoms and impairment due to the scar disability (service-connected scar status post removal of a pilonidal cyst on the posterior trunk) are contemplated by the rating schedule, and the schedular rating criteria is adequate to rate the Veteran's disability. The rating criteria contemplate the Veteran's symptoms and impairment of painful or tender scar (both subjective and objective findings), and provides for potentially higher ratings based on other criteria such as the size of the scar, whether the scar is deep or unstable, frequency of loss of covering of the skin, and any other functional impairment the scar has on the affected area of the posterior trunk affected. See 38 C.F.R. § 4.118. For these reasons, the Board finds that the facts of this case do not present such an extraordinary disability picture such that the Board is required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1), which concern the assignment of extra-schedular evaluations in "exceptional" cases. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); Thun v. Peake, 22 Vet. App. 111, 115 (2008). ORDER An increased rating in excess of 10 percent for the service-connected scar status post removal of a pilonidal cyst is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs