Citation Nr: 1318673 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 08-32 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an increased rating for the Veteran's service-connected pilonidal cyst, currently evaluated as 10 percent disabling. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Ogilvie, Counsel INTRODUCTION The Veteran served on active duty from December 1985 to August 1987. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In March 2011, the Veteran testified at a hearing before the undersigned at the RO. A transcript of the hearing has been associated with the Veteran's claims file. During the hearing, the undersigned granted a 60-day abeyance period for submission of additional evidence in support of the claim, but no additional evidence was received during this period. At the hearing, the Veteran testified that his pilonidal cyst has interfered with his employment, and he had to switch careers. See Board Hearing Tr. at 16. He noted, however, that he started a new company and was able to "pay [his] bills and get by." Id. As the Veteran remains gainfully employed, the Board finds that a claim of entitlement to a total disability rating based upon individual unemployability (TDIU) has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, is part of a claim for increased compensation). In October 2012, the Board remanded the Veteran's claim for further evidentiary development. The requested development was completed, and the case has been returned to the Board for further appellate action. FINDING OF FACT For the entire period on appeal, the Veteran's service-connected pilonidal cyst has been manifested by one superficial painful scar that is stable, encompasses an area less than 12 square inches, and causes no limitation of motion. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a pilonidal cyst have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.118, Diagnostic Code 7899-7805 (2008 & 2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 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. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2012). The VCAA notice requirements apply to all five elements of a claim: Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the Agency of Original Jurisdiction (AOJ). Id.; Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. In a July 2006 letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim, as well as what information and evidence must be submitted by him, and what information and evidence would be obtained by VA. This letter also contained information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess. The rating decision, issued in October 2006, represents the initial adjudication following issuance of this notice. As such, the July 2006 letter meets both the content of notice requirement and the VCAA's timing of notice requirement. All relevant evidence necessary for an equitable resolution of the Veteran's claim have also been identified and obtained. The evidence of record includes VA and private outpatient treatment records, reports of multiple VA examinations, statements from the Veteran, and the transcript of a March 2011 hearing before the undersigned. The Veteran and his representative have not identified any other outstanding relevant evidence. The Veteran was afforded VA examinations to assess the severity of his pilonidal cyst in September 2006, January 2009, and November 2012. The reports of these examinations are adequate for rating purposes as they reflect the examiners interviewed and examined the Veteran, reviewed the claims file, and reported the clinical findings in detail. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (finding that VA must provide an examination that is adequate for rating purposes). The Veteran was provided an opportunity to set forth his contentions on the issues on appeal during the March 2011 hearing before the undersigned. The United States Court of Appeals for Veterans Claims (Court) has held that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board and that a Veterans Law Judge has a duty to explain fully the issues and to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The record reflects that at the March 2011 hearing the undersigned explained the issues, focused on the elements necessary to substantiate the claim, and sought to identify any further development that was required to help substantiate the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. The Board also notes that the case was remanded in October 2012 to obtain VA records and provide the Veteran with an examination. On remand, as noted above, the Veteran was afforded a VA examination in November 2012 and the appropriate records were obtained. The AOJ was also instructed to obtain treatment records relating to the Veteran from the medical facility at which he purportedly underwent pilonidal cyst removal surgery in 2006 and/or 2007. In correspondence dated in November 2012, the AOJ requested that the Veteran provide a completed VA Form 21-4142 to identify at which facility he underwent surgery and to authorize VA to obtain these records on his behalf. The Veteran did not respond to this request. In order for VA to process claims, individuals applying for VA benefits have a responsibility to cooperate with the agency in the gathering of the evidence necessary to establish allowance of benefits. See Morris v. Derwinski, 1 Vet. App. 260, 264 (1991). As the Veteran failed to respond to the AOJ's request for information regarding the records from his surgery, the Board finds that VA has no further duty to assist in this regard. The Board finds that there was substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Increased Rating for Pilonidal Cyst Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). 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 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). 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 7899-7805. 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 (2012). Here, the hyphenated diagnostic code indicates that an unlisted skin disorder (Diagnostic Code 7899) is rated under the criteria for other scars (Diagnostic Code 7805). See 38 C.F.R. § 4.20 (2012). The Board notes that during the pendency of the appeal, the applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended effective October 2008. However, the October 2008 revisions are only applicable to applications for benefits received by the VA on or after October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008). While the Veteran filed his claim prior to this date, in a May 2009 statement, the Veteran specifically argued that his disability warranted a 20 percent rating under the current criteria. Thus, the Board interprets this statement as a request for additional review under the revised criteria. Under the previous criteria, the next highest rating of 20 percent is assigned for a deep scar or a scar causing limited motion and covering an area exceeding 12 square inches (77 square centimeters). See 38 C.F.R. § 4.118, Diagnostic Codes 7801 to 7804 (2008). Under the current criteria, the next highest rating of 20 percent 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); or one or two scars that are unstable and painful; or three or four scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Codes 7801 to 7804, 7804 Note (2) (2012) (emphasis added). After reviewing the medical and lay evidence of record, the Board finds that the Veteran's pilonidal cyst symptoms do not meet the criteria for a 20 percent rating under either the previous or current criteria at any time since his June 2006 claim for an increased evaluation. On VA examination in September 2006, the Veteran reported that he was currently asymptomatic and had not experienced drainage of his cyst recently, as it had been excised in March 2004. Examination revealed a well-healed, two centimeter scar, which was nontender to palpation. No fluctuance, discharge, or mass was found. The Veteran was diagnosed with pilonidal cyst with flare-ups occurring approximately seven times per month. At the time of the examination, he was asymptomatic. On VA examination in January 2009, the Veteran reported having another incision and drainage procedure in 2007 for a flare of his pilonidal cyst. His current symptom was mainly sharp pain in his tailbone area after sitting for 30 to 40 minutes, at which point he needed to stand. The Veteran denied having any flare ups, such as bulging or discharge from the cyst for "a long time" (estimated by the Veteran to be at least seven to eight months). The Veteran reported that his cyst mainly limited his travel because he was unable to sit for long period of time. Examination revealed no acute swelling, mass, or discharge in the tailbone area. He had a vertical, well-healed scar at the top of his gluteal crease that was approximately one inch in length. On palpation, it was superficially not tender. On deeper palpation on the lower portion, the Veteran reported tenderness when palpating against the bone. There were no underlying defects on palpation. There was no fluctuance, no mass, and no discharge. The rectal area was normal on inspection and not tender. The Veteran was diagnosed with pilonidal cyst with pain after sitting for 30 to 40 minutes, without current flare-up. The scar was well healed and not in an exposed body surface area. It was without ulceration, skin breakdown, or keloid formation. It was superficial. There was no adherence to underlying tissue, and it did not affect functional capacity or joint function. On skin and scar VA examination in November 2012, the Veteran reported that his sole symptom of his pilonidal cyst was pressure and numbness in the middle of his back after sitting for long periods of time. The examiner noted that the only current residual of the Veteran's pilonidal cyst was his scar. The scar was not unstable and not due to burns. The examiner described a midline vertical linear scar at the top of the gluteal cleft, measuring four centimeters by half a centimeter. The examiner noted that the Veteran's symptoms limited his ability to sit for long periods of time and prevented him from work that required prolonged sitting such as long distance driving. Mild tenderness to palpation over the scar without induration, erythema, or open areas was noted. The scar was adherent to underlying tissue. The Veteran has not exhibited any symptoms during this rating period that would warrant a rating in excess of 10 percent, including a deep scar or deep and nonlinear scar. Further, the Veteran's scar has not caused limitation of motion. Examiners have noted that the Veteran only has one scar as a residual of his pilonidal cyst. While the Veteran's scar has been described as painful, it has not been found to be unstable. In short, the criteria for a 20 percent rating, or higher, have not been shown under either the previous or current criteria for this rating period. 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) (2012). In deciding this appeal, the Board has also considered the Veteran's lay statements of record. At his hearing, the Veteran testified that he has experienced pain and numbness in his back and legs since his surgery. Board Hearing Tr. at 6-7. He implied that there may be multiple surgical scars, but he was unsure. Id. at 8-10. He also noted that he was unable to continue his job as a truck driver partially due to pain from his cyst, and had to move to a new career in janitorial services. Id. at 8. Here, the Veteran's lay statements do not warrant a rating in excess of 10 percent. A 10 percent rating is assigned under the previous rating criteria for a scar that is superficial and painful on examination. Further, under the new rating criteria, a 10 percent rating is assigned for one or two scars that are painful. Thus, the Veteran's pain from his superficial scar is contemplated in the 10 percent rating that has already been assigned. The Board has also considered the applicability of alternative skin diagnostic codes for evaluating the Veteran's pilonidal cyst, but finds that no higher rating is assignable. The Veteran does not have any disfigurement of the head, face, or neck, as his scar is on his posterior trunk. Thus, the criteria set forth in Diagnostic Code 7800 do not apply. Further, the Veteran's only current residual of his pilonidal cyst is a scar, which has not been shown to be deep or causing limited motion; therefore, rating the Veteran under the previous or current Diagnostic Code 7801 does not provide for a higher rating. The remaining skin diagnostic codes do not apply to the Veteran's disability. While the Board notes that the Veteran had prior drainage and seepage from his pilonidal cyst, for the rating period on appeal, the Veteran's pilonidal cyst has remained asymptomatic. In this regard, examinations continually revealed a well-healed scar as the only remaining residual of his pilonidal cyst. Although the September 2006 examiner diagnosed the Veteran with pilonidal cyst with flare-ups occurring approximately seven times per month, the Veteran reported that he had not experienced drainage of his cyst anytime recently. The Board recognizes that at his January 2009 VA examination, the Veteran reported undergoing surgery to drain and excise his cyst sometime in 2007. As discussed in detail above, on remand, the Board requested that the Veteran identify these surgical records and provide VA with authorization to obtain such records. No response was received. Furthermore, on his substantive appeal, the Veteran noted that he had a radical pilonidal cystectomy at the VA Medical Center in Portland in 2006. The medical evidence of record, however, indicates that the Veteran actually underwent this surgery in March 2004. See March 2004 VA operative note (indicating that the Veteran's cyst was completely excised). There is no medical record of any subsequent surgery. Notably, the Veteran testified at his hearing that his last surgery occurred sometime in 2004 or 2005. See Board Hearing Tr. at 11. Thus, while the Board recognizes that the Veteran is competent to report on matters observed or within his or her personal knowledge, see Layno v. Brown, 6 Vet. App. 465, 470 (1994), there is simply no indication in the medical evidence of record that the Veteran underwent surgery or had any residual symptoms of his cyst other than a painful scar during the current rating period on appeal. As such, the Veteran's current disability has not been shown to involve any other factors that would warrant evaluating the disability under any other provision of VA's rating schedule. In addition to the Board's consideration of the propriety of the rating assigned at each stage, as discussed above, the Board has also considered whether staged rating of the disability is warranted. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Board finds that the Veteran's pilonidal cyst symptoms have been consistent with a 10 percent rating for the entire time period on appeal. The record does not indicate any significant increase or decrease in such symptoms during the appeal period, and symptoms warranting the next higher rating have not been shown during the period on appeal. Accordingly, staged ratings are not warranted, and the assigned 10 percent rating is appropriate for the entire rating period discussed above. 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, therefore, 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) (2012). 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. The Veteran's pilonidal cyst symptoms primarily involve pain. 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. In short, 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 ratings assigned above; the Veteran's disability picture is not shown to be 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). ORDER A rating in excess of 10 percent for pilonidal cyst is denied. ____________________________________________ Donnie R. Hachey Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs