Citation Nr: 1317508 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 05-18 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for residuals of a pilonidal cyst for the time period from August 16, 2003 to May 11, 2011. 2. Entitlement to an initial evaluation in excess of 20 percent for residuals of a pilonidal cyst for the time period since May 12, 2011. 3. Entitlement to a compensable initial rating for limited motion of the thoracolumbar spine. 4. Entitlement to a compensable initial rating for limited right hip flexion. 5. Entitlement to a compensable initial rating for limited left hip flexion. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active duty for training (hereinafter: ACDUTRA) from December 1997 to April 1998. He also performed ACDUTRA and inactive duty training at various other times of unverified dates. He performed active service from September 2001 to August 2003. This case arises to the Board of Veterans' Appeals (Board) from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, that in pertinent part granted service connection for residuals of a pilonidal cyst and assigned a noncompensable rating. The Veteran appealed for a compensable rating. In October 2006, the RO assigned a 10 percent schedular rating, effective August 16, 2003, the day following active service. In February 2008, the Board denied an initial rating in excess of 10 percent for residuals of a pilonidal cyst. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In February 2009, the Court vacated and remanded that portion of the February 2008 Board decision that had denied a rating greater than 10 percent for the pilonidal cyst residuals. In April 2009, the Board remanded the case to VA's Appeals Management Center (hereinafter: AMC) for development. In September 2009, the AMC assigned a temporary total rating (100 percent) effective December 16, 2008, through January 31, 2009. A 10 percent schedular rating was re-assigned effective February 1, 2009. In August 2012, the AMC assigned a 20 percent rating effective May 12, 2011 for the pilonidal cystectomy scar. In September 2012, the Board again remanded the case. In March 2013, the AMC granted separate service connection and a noncompensable rating for a deep non-linear scar of the posterior trunk effective June 2009, granted separate service connection and a noncompensable rating for limitation of motion of the thoracolumbar spine effective June 2009, granted separate service connection and a noncompensable rating for limited right hip flexion effective June 2009, and granted separate service connection and a noncompensable rating for limited left hip flexion effective June 2009. The rating decision notifies the Veteran that he need not take additional steps to appeal these ratings as they are already in appellate status by virtue of being inextricably intertwined with the pilonidal cyst rating. The Board has therefore added these initial ratings to Page 1 to reflect the Board's jurisdiction. A July 2012 RO rating decision awarded a 20 percent rating for residuals of pilonidal cyst effective May 12, 2011. The record consists of the paper claims files and an electronic evidence file known as Virtual VA. In May 2007, the Veteran executed a VA Form 21-22, Appointment Of Veterans Service Organization As Claimant's Representative, appointing the Veterans Service Organization that appears on page 1 of this decision. While the case was before the Court, the Veteran was represented by a private attorney; however, at no time has the Veteran revoked his appointment of Veteran's Service Organization to represent him before VA. See generally 38 C.F.R. § 14.631 (f) (1) (2). The issues involving the ratings for limitation of motion of the thoracolumbar spine effective June 2009, limited right hip flexion effective June 2009, and limited left hip flexion effective June 2009 are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the portion of the appeal period prior to October 23, 2008, the residuals of a pilonidal cyst were manifested by severe pain, weeping and oozing of sanguineous fluid from an active sinus, and a painful, unstable linear scar of the gluteal cleft. 2. The rating criteria for scars changed significantly on October 23, 2008. 3. For the portion of the appeal period from October 23 through December 15, 2008, the residuals of a pilonidal cyst were manifested by severe pain, weeping and oozing of sanguineous fluid from an active sinus, and painful, unstable, linear scar of the gluteal cleft. 4. For the portion of the appeal period beginning on February 1, 2009, the residuals of a pilonidal cyst have been manifested by continued drainage, recurrent inflammation, and a 5 3/8-inch by 3/8-inch unstable, painful, deep, linear scar. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for residuals of a pilonidal cyst, for the time period from August 16, 2003, through October 22, 2008, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Codes 7800-7804 (effective prior to October 23, 2008). 2. The criteria for an initial 20 percent rating for residuals of a pilonidal cyst for the period from October 23 through December 15, 2008, are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Codes 7800-7804 (effective prior to October 23, 2008); § 4.118, Diagnostic Codes 7800-7804 (2012). 3. The criteria for an initial 20 percent rating, and no higher, for residuals of a pilonidal cyst for the period beginning on February 1, 2009, are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Codes 7800-7804 (effective prior to October 23, 2008); § 4.118, Diagnostic Codes 7800-7804 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has remanded the case for development. When the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, all remand orders have been complied with. VA must notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. § 5103A (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and his representative of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the claim for a higher initial scar rating, the notice of disagreement (hereinafter: NOD) as to the initial rating does not trigger additional notice obligations under 38 U.S.C.A. § 5103 (a). See 38 C.F.R. § 3.159 (b) (3) (2012). Rather, the claimant's appeal of an initial rating triggers VA's duty to develop that claim, as set forth at 38 U.S.C.A. §§ 5104, 7105; 38 C.F.R. § 3.103. Under these, VA is required to advise the claimant of what evidence is necessary to obtain the maximum benefit allowed by the evidence and the law. This has been accomplished in a statement of the case (hereinafter: SOC). The SOC provided the claimant with the relevant rating criteria for scar and skin ratings, as listed at various diagnostic codes. The claimant was informed of the evidence needed to achieve the next-higher schedular rating, and also to obtain even higher ratings. Thus, VA's duties under 38 U.S.C.A. §§ 5104 and 7105 have been satisfied. VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in obtaining service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained all VA and private clinical records reasonably identified. The claimant was afforded VA medical examinations. Neither the claimant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). Disability Ratings Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119, 126-7 (1999), the Court distinguished a claim for an increased rating from that of a claim arising from disagreement with the initial rating assigned after service connection was established. This case arises from a disagreement with the initial scar rating assigned after service connection was established. The Court has also held that where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Residuals of Pilonidal Cyst A pilonidal cyst was initially rated 10 percent under Diagnostic Code 7803 prior to excision surgery and drainage in December 2008. The surgery and convalescent period triggered a temporary total rating from December 16, 2008, through January 31, 2009, and then a return to the 10 percent rating on February 1, 2009. The RO assigned a 20 percent rating effective May 12, 2011, under Diagnostic Code 7803. Diagnostic Code 7803 was removed from the rating schedule on October 23, 2008. Where the rating schedule changes during an appeal period, the Veteran is entitled to whichever version favors him. Another applicable Diagnostic Code, Diagnostic Code 7804, was significantly revised effective October 23, 2008. Therefore, the prior version of Diagnostic Code 7804, as well as the current version, must be considered. Diagnostic Code 7805, which is also applicable, has remained unchanged during the appeal period. Under Diagnostic Code 7803, superficial, unstable scars warrant a 10 percent rating. A 10 percent rating is the only rating offered under Diagnostic Code 7803. Regardless of that fact, the RO assigned a 20 percent rating under that code for a more recent portion of the appeal period. This error will be remedied in the decision below. The additional rating notes and guidance supplied at Diagnostic Code 7803 advise us that an unstable scar is one, where for any reason, there is frequent loss of covering of skin over the scar. The additional guidance also defines a superficial scar as being one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7803 (effective prior to October 23, 2008). During active service, corrective surgery for a pilonidal cyst was performed. Following active service, the Veteran trained for and then worked as a peace officer. As a state trooper, he was in his squad car for many hours per day. This caused pain, swelling, and complications in the gluteal cleft, the site of the pilonidal cyst. His medical condition was so problematic that he underwent surgery on December 16, 2008. The medical evidence reflects that for the earliest portion of the appeal period, the pilonidal cyst was manifested by severe pain, weeping and oozing of sanguineous fluid from an active sinus, and a four-inch painful, unstable scar of the gluteal cleft. In his substantive appeal, the Veteran reported limited motion and other functional limitations caused by the scar. Comparing the above manifestations with the criteria of Diagnostic Code 7803, it is clear that for the period prior to December 16, 2008, the scar was unstable and therefore approximated the 10 percent criteria. Because a 10 percent rating is the only rating offered under Diagnostic Code 7803, and because a 10 percent rating has already been assigned, no further analysis is warranted under that diagnostic code; however, other codes must be considered. Diagnostic Code 7800 (effective prior to October 23, 2008) is used for rating disfigurement of the head, face, or neck. It cannot be applied to this case. Diagnostic Code 7801 (effective prior to October 23, 2008) is used for rating scars, other than the head, face, or neck, that are deep, or that cause limited motion. Under this code, the 10 percent rating criteria need not be addressed, as the pilonidal cyst residuals already had a 10 percent rating. A 20 percent rating is warranted under Diagnostic Code 7801 where the total scar area or areas exceed 12-sq. in. or 77-sq. cm. In November 2003, a VA examiner described an approximately 1-inch scar, although no width was reported. In September 2007, a VA examiner measured a 4-inch midline scar of the gluteal area, but failed to report its width. While the medical evidence of the total scar area is lacking during this earliest rating period, it appears highly unlikely that the 20 percent criteria are more nearly approximated. This is because in October 2012, a VA dermatologist calculated the total scar area to be only 4.5-sq.cm (9-cm by 0.5-cm). Diagnostic Codes 7802 and 7804 (effective prior to October 23, 2008) are used for rating superficial scars; however, because these code offer only a 10 percent rating, they need not be discussed further, as they could not benefit the Veteran. Diagnostic Code 7805, which has not changed during the appeal period, will be discussed briefly. Under Diagnostic Code 7805, scars are to be rated on limitation of function of the part affected under Code 7805. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2012). The Veteran reported functional limitations of the lower back and legs and VA has recently granted secondary service connection for the lumbar spine and for both hips. The evidence does not indicate that the pilonidal cyst and scar have caused functional limitation of any body part other than the back and hips. The ratings and effective dates for these secondary back and hip disabilities are addressed in the Remand portion of this decision. Thus, no further discussion of Diagnostic Code 7805 is necessary. Overall, for the portion of the appeal period prior to October 23, 2008, the manifestations of the residuals of a pilonidal cyst more nearly approximate the criteria of a 10 percent rating under Diagnostic Code 7803. The appeal for a schedular rating greater than 10 percent for that portion of the appeal period must therefore be denied. This decision does not affect any ratings or effective dates that may be assigned for limited motion of the lumbar spine and both hips. The joint motion for remand, which the Court based its remand of the previous Board decision on the matter, calls for consideration of the fluctuating nature of the pilonidal cyst residuals, due to flare-ups of bleeding. The rating assigned above considers such flare-ups and attempts to rate the disability on the basis of the most severe manifestations shown during the appeal period. As mentioned above, the rating criteria changed significantly on October 23, 2008. Pursuant to VAOPGCPREC 7-2003 (69 Fed. Reg. 25179 (2004)), where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant normally applies, absent Congressional intent to the contrary. The change in rating criteria on October 23, 2008, has created a very short rating period prior to pilonidal cyst excision surgery performed privately on December 16, 2008. If a rating greater than 10 percent is found to be warranted under the revised rating criteria, the increased rating may only be applied from October 23, 2008. 38 C.F.R. § 4.118 specifically reminds the rater that the rating criteria for the skin changed effective October 23, 2008, and that any increase in a disability rating due to these changes cannot be made effective prior to October 23, 2008. Under revised Diagnostic Code 7800, only scars of the head, face, and neck are rated. This code clearly doesn't apply to the Veteran's scar. Under revised Diagnostic Code 7801, deep, non-linear scars located anywhere are rated. Because the pilonidal scar was neither deep nor non-linear during this brief rating period from October 23 through December 15, 2008, the revised Diagnostic Code 7801 cannot be applied. The revised Diagnostic Code 7802 is not for application because it cannot be applied to a scar that also causes limited motion, which this scar certainly does. As mentioned above, effective October 23, 2008, Diagnostic Code 7803 no longer exists. Diagnostic Code 7805 will be addressed in the Remand portion of the decision. This leaves only the revised Diagnostic Code 7804 for consideration. See 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7801, 7802, 7804, 7805 (2012). Under revised 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. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2012). Note (2) to revised Diagnostic Code 7804 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. Note (3) provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under diagnostic code 7804, when applicable. As explained above, Diagnostic Codes 7800, 7801, 7802 cannot be used in this case. An evaluation under Diagnostic Code 7805 will be addressed in the Remand portion of the decision. The evidence dated prior to December 16, 2008, reflects one gluteal scar that clearly was unstable and painful. Thus, Note (2) to revised Diagnostic Code 7804 applies: where the 10 percent rating could be assigned based on one painful scar, add 10 percent if that scar is both painful and unstable. Therefore, for the brief period beginning October 23 through December 15, 2008, a 20 percent rating is warranted under revised Diagnostic Code 7804 for a painful, unstable scar. The 20 percent rating under Diagnostic Code 7804 cannot be assigned simultaneously with the 10 percent rating already assigned under Diagnostic Code 7803. Therefore, for the period commencing on October 23, 2008, through December 15, 2008, a single 20 percent rating is granted for residuals of a pilonidal cyst under Diagnostic Code 7804. This decision does not affect any ratings or effective dates that may be assigned for limited motion of the lumbar spine and both hips. The rating assigned for the brief rating period above considers the fluctuating nature of the disability, including flare-ups, and attempts to rate the disability on the basis of the most severe manifestations shown during this appeal period. During the temporary total rating period, December 16, 2008, through January 31, 2009, because a total rating was assigned during this period, the maximum available benefit has been granted. No further discussion of this period is necessary. Turning to the final rating period, that is, beginning on February 1, 2009, the pilonidal cyst had undergone surgery and had healed, although the Veteran reported continued drainage. A June 2009 VA compensation examination report reflects that the recent surgery scar measures 5 3/8-inches by 3/8-inches. It was tender and it adhered to underlying tissues. The underlying cyst and draining sinus had been excised, but this resulted in a permanent loss of underlying tissue, which changed the classification of the scar from "superficial" to "deep." The Veteran reported that as a State policeman, climbing and crawling put tension on the scar and limited the range of motion of the trunk and torso. He also reported scar pain. An April 2010 VA compensation examination report reiterates the previous description of the scar, although the examiner also mentioned "tethering," a term that the Board interprets to mean binding or adhesion. The scar measured 10.0-cm. by 0.8-cm (8-sq. cm.). The Veteran reported that he had to change occupational duties because of these manifestations. A May 2011 VA compensation examination report adds that the gluteal scar is hypertrophic. A May 2011 addendum report reflects that the Veteran reported continued bleeding. The examiner reported a 3-mm scab over a "0.5-mm deep hole" and concluded that the scar was unstable, inflamed, and painful. An April 2012 VA compensation examination report adds that there were 5 or more coccygeal scars that were both painful and unstable. The examiner then reported, confusingly, there was only one linear scar. An October 2012 VA scars examiner confirmed that there is only one scar and found it neither painful nor unstable, but, confusingly, then indicated on the disability benefits questionnaire that the scar is both unstable and painful. It measured 9.0-cm. by 0.5-cm. It caused hip and thigh limitation of motion, thoracolumbar spine limitation of motion, and gluteal-cleft pain. As noted in the Introduction, in March 2013, the AMC granted separate service connection and a noncompensable rating for a deep linear scar of the posterior trunk effective June 2009 under Diagnostic Code 7801. A 20 percent rating, effective May 12, 2011, was continued under Diagnostic Code 7803. From the above facts, the Board finds that the final rating period should begin immediately following the temporary total rating period to reflect the disability level following convalescence from surgery. Therefore, the final rating period begins on February 1, 2009. A June 30, 2009, VA examination report confirms the post-surgery level of the disability. Beginning February 1, 2009, the residuals of a pilonidal cyst have been manifested by continued drainage, instability of the skin covering, recurrent inflammation, and a 5 3/8-inch by 3/8-inch tender, deep, linear scar. Comparing these manifestations to the rating criteria of Diagnostic Code 7803, the criteria for a 10 percent rating are more nearly approximated throughout the latter appeal period. Although the AMC had assigned a 20 percent rating under Diagnostic Code 7803 effective May 11, 2011, this assignment represents error, as Diagnostic Code 7803 does not offer a 20 percent rating. Under the revised Diagnostic Code 7801, scars not of the head, face, or neck that are deep and non-linear warrant a 20 percent rating where they cover an area of at least 12-sq. in (465-sq. cm.). Although the RO has also assigned a noncompensable rating under Diagnostic Code 7801, this code does not apply because the instant scar has been described by a physician as a linear scar. In any event, it does not cover at least 12 sq. in. and therefore a rating greater than the 10 percent rating already granted under Diagnostic Code 7803 is not available. Turning to the revised Diagnostic Code 7802, because this code is for linear superficial scars, it is not applicable. The medical evidence reflects that the instant scar is now a linear deep scar. Only the revised Diagnostic Code 7804 remains for consideration. As set forth above, under revised Diagnostic Code 7804, where there is only one scar that is unstable or painful, it warrants a 10 percent evaluation; however, under Note (2) a single scar that is both painful and unstable is rated 20 percent. Because the scar has been shown to be unstable and painful during the most recent appeal period, the criteria for a 20 percent rating are more nearly approximated under revised Diagnostic Code 7804. This single scar cannot be rated 10 percent under Diagnostic Code 7803 for instability and simultaneously be rated 20 percent under Diagnostic Code 7804 for pain and instability, as this would be pyramiding. Separate evaluations for the same manifestations are prohibited under 38 C.F.R. § 4.14. Thus, for the period commencing on February 1, 2009, a single 20 percent rating under Diagnostic Code 7804 will be granted. This decision does not affect any ratings or effective dates that may be assigned for limited motion of the lumbar spine and both hips. The rating assigned above considers the fluctuating nature of the disability, including flare-ups, and attempts to rate the disability on the basis of the most severe manifestations shown during this appeal period. The medical opinions offered in this case are at times confusing, but ultimately they are persuasive, as they are based on accurate facts and are supported by a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). Likewise, the lay evidence is competent evidence with regard to descriptions of symptoms of disability. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent if lay person is competent to identify the medical condition). In this case, the evidence demonstrates distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal. The assignment of staged ratings is therefore necessary. Hart, 21 Vet. App. at 510. After considering all the evidence of record, the Board finds that for the period from August 16, 2003, through October 22, 2008, the date that the rating schedule changed, the preponderance of the evidence is against an initial schedular rating greater than 10 percent under Diagnostic Code 7803. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine need not be applied. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). This decision does not affect any ratings or effective dates that may be assigned for limited motion of the lumbar spine and both hips. For the short rating period from October 23 through December 15, 2008, the evidence favors a 20 percent schedular rating under revised Diagnostic Code 7804. This decision does not affect any ratings or effective dates that may be assigned for limited motion of the lumbar spine and both hips. For the final rating period commencing on February 1, 2009, the evidence favors a 20 percent schedular rating under revised Diagnostic Code 7804. This decision does not affect any ratings or effective dates that may be assigned for limited motion of the lumbar spine and both hips. Extraschedular Consideration The joint motion for remand, upon which the Court based its remand of the prior Board decision, calls for consideration of an extra-schedular rating. The provisions of 38 C.F.R. § 3.321(b) provide that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected disability, an extra-schedular evaluation will be assigned. Where the Veteran has alleged or asserted that the schedular rating is inadequate or where the evidence shows exceptional or unusual circumstances, the Board must specifically adjudicate the issue of whether an extra-schedular rating is appropriate, and if there is enough such evidence, the Board must direct that the matter be referred to the VA Central Office for consideration. Colayong v. West 12 Vet. App. 524, 536 (1999); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Court has stressed that consideration of whether a claimant is entitled to an extra-schedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (Fed. Cir.2009). The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. If the adjudicator determines that this is so, the second step of the inquiry requires the adjudicator to "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires the adjudicator to refer the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extra-schedular rating is warranted. Id. In Thun v Shinseki, 572 F.3d 1366 (Fed. Cir. 2009), the Federal Circuit interpreted and then affirmed the Court's three-part test to determine whether an extra-schedular rating is warranted. The Federal Circuit stressed that (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Id, at 1368. In this case, the established schedular criteria have not been shown or alleged to be inadequate to describe the severity and symptoms of the claimant's disability; the case does not present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and, there is no evidence that an extra-schedular disability rating would be in the interest of justice. In the absence of evidence of such factors, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b) (1). Additionally, if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, neither the record nor the Veteran has reasonably raised the question of unemployability. ORDER For the portion of the appeal period from August 16, 2003, through October 22, 2008, an initial rating in excess of 10 percent for residuals of a pilonidal cyst is denied. This decision does not affect any ratings or effective dates that may be assigned for limited motion of the lumbar spine and both hips. For the portion of the appeal period from October 23 through December 15, 2008, an initial 20 percent rating for residuals of a pilonidal cyst is granted, subject to the laws and regulations governing payment of monetary benefits. This decision does not affect any ratings or effective dates that may be assigned for limited motion of the lumbar spine and both hips. For the portion of the appeal period beginning February 1, 2009, an initial 20 percent rating for residuals of a pilonidal cyst is granted, subject to the laws and regulations governing payment of monetary benefits. This decision does not affect any ratings or effective dates that may be assigned for limited motion of the lumbar spine and both hips. REMAND The question of entitlement to compensable initial ratings for limitation of motion of the thoracolumbar spine, limited right hip flexion, and limited left hip flexion and entitlement to earlier effective dates for service connection for each must be developed prior to Board adjudication. The Board appreciates that in a March 2013 rating decision, the AMC granted service connection for limitation of motion of the thoracolumbar spine, limited right hip flexion, and limited left hip flexion, as each of these disabilities was found to be secondary to a service-connected pilonidal cyst surgery scar that had caused tethering and binding in the gluteal cleft area. The AMC assigned noncompensable ratings to each of the three newly service-connected disabilities and also assigned an effective date of June 30, 2009, for each and then returned the case to the Board for de novo review. Regarding the noncompensable ratings, the evidence reflects limited motion of these joints due to scar adhesions. Thus functional loss is shown. 38 C.F.R. §§ 4.40, 4.45. This functional loss must be carefully considered as a basis for compensable ratings. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Moreover, while the RO assigned effective dates of June 30, 2009, to each of the three newly service-connected disabilities, the evidence clearly reflects that these disabilities arose much earlier than the assigned effective dates. The Board is not aware of any NOD having been filed after issuance of the March 2013 rating decision, but, this fact is not surprising. In the March 2013 rating decision, the AMC informed the Veteran that he need not submit an NOD, as these issues are already on appeal by virtue of the fact that they are inextricably intertwined with the appealed scar rating. Thus, while the AMC led the Veteran to believe that an NOD is not necessary to place the new issues and sub-issues on appeal, and that the issues are indeed already on appeal, the AMC then failed to issue an SOC addressing these issues. The lack of an NOD from the Veteran raises new questions concerning the Board's jurisdiction. In VAOPGCPREC 16-92 (see 57 Fed. Reg. 49747 (1992)), VA's General Counsel stressed that a Veteran's NOD must identify the specific determinations with which the Veteran disagrees. 38 C.F.R. § 20.201. To-date, the Veteran has not filed an NOD to any part of the March 2013 decision. He has a one-year period to file an NOD. The Board has no way of knowing whether he intends to appeal for compensable ratings and/or earlier effective dates for these three service-connected disabilities, or the basis of such an appeal. Lack of an NOD could deprive the Board of jurisdiction to address these issues, notwithstanding the AMC's belief that they are inextricably intertwined with the present appeal. See 38 U.S.C.A. § 7105 (a) (Appellate review will be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished as prescribed in this section). According to 38 U.S.C.A. § 7105 (a); 38 C.F.R. §§ 19.29-19.31, all matters on appeal to the Board must be addressed in an SOC or SSOC. Because no SOC or supplemental SOC has been issued discussing the basis for the noncompensable ratings and the effective dates for service connection for limitation of motion of the thoracolumbar spine, limited right hip flexion, and limited left hip flexion, these issues must be remanded. Moreover, the Veteran has not been offered a hearing on these matters. In a case such as this, the Veteran might be unfairly prejudiced by not having been afforded the full benefits of these procedural safeguards. Finally, it is doubtful that previous notice letters sent to the Veteran would fully satisfy the notice requirements set forth in Dingess v. Nicholson, 19 Vet. App. 473 (2006),with respect to the initial ratings and effective dates for limitation of motion of the thoracolumbar spine, limited right hip flexion and limited left hip flexion. This shortcoming too, must be remedied prior to adjudication. Accordingly, the case is REMANDED for the following action: 1. The AMC should issue a notice letter with respect to the initial ratings and effective dates for thoracolumbar spine limited motion and right and left hip limited motion. The letter should address all five service connection elements and relevant effective date matters, as discussed Dingess v. Nicholson, 19 Vet. App. 473 (2006). 2. The AMC must issue an SOC discussing the basis for the noncompensable ratings and the effective dates for service connection for limitation of motion of the thoracolumbar spine, limited right hip flexion, and limited left hip flexion. The SOC must inform the Veteran that, regardless of earlier information sent to him by VA, he must submit a timely VA Form 9, Appeal to the Board of Veterans' Appeals, or other correspondence containing the necessary information. 3. Thereafter, if a timely substantive appeal is filed by the Veteran, the AMC should return the case to the Board for further consideration. The Veteran 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ DENNIS CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs