Citation Nr: 1320377	
Decision Date: 06/25/13    Archive Date: 07/05/13

DOCKET NO.  09-42 959	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUES

1. Entitlement to an evaluation in excess of 10 percent for perianal abscess and pilonidal cyst.

2. Entitlement to a temporary total evaluation under 38 C.F.R. § 4.30 (2012) for service-connected perianal abscess and pilonidal cyst.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. M. Celli, Associate Counsel



INTRODUCTION

The Veteran served on active duty from June 1975 to June 1978 with additional service in the Army National Guard.

These matters are before the Board of Veterans' Appeals (Board) on appeal from September 2008 and November 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island.  

The issue of entitlement to an evaluation in excess of 10 percent for perianal abscess and pilonidal cyst is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center in Washington, DC.


FINDING OF FACT

The competent, clinical evidence of record does not demonstrate that treatment of the Veteran's service-connected perianal abscess and pilonidal cyst resulted in surgery necessitating at least one month of convalescence, surgery with respect to severe postoperative residuals, or immobilization by cast of one major joint or more.

CONCLUSION OF LAW

The criteria for a temporary total evaluation under 38 C.F.R. § 4.30 for service-connected perianal abscess and pilonidal cyst have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.30 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

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, 3.326(a) (2012).  

Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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); 38 C.F.R. § 3.159(b); 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.  VCAA notice should be provided to a claimant before the initial unfavorable decision of the Agency of Original Jurisdiction (AOJ) on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  

In March 2006, the U.S. Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim.  As previously defined by the courts, those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded.  

In this case, VCAA notice to the Veteran of the information and medical and/or lay evidence that was necessary to substantiate the claim, as well as addressing the criteria for assignment of a disability rating and/or effective date in the event of award of the benefit sought, was not completed prior to the initial AOJ adjudication denying the claim decided herein.  As such, the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini.  However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant.  Conway  v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule).  

Here, the Board finds the timeliness of the VCAA notice was not prejudicial to the Veteran since the record reflects that the Veteran had actual notice of the information and evidence necessary to substantiate the claim.  In this regard, the Board notes that this information was provided in a May 2009 Statement of the Case.  In addition, the Veteran has been represented by an accredited representative during the appeal who has submitted various written statements noting the criteria and information necessary to establish entitlement to a temporary total evaluation under 38 C.F.R. § 4.30.  See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006).  Thus, the Veteran has been provided with a meaningful opportunity to participate in the claims process and has done so.  Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran.  Therefore, any such error is harmless and does not prohibit consideration of these matters.  See Conway, 353 F.3d at 1374.

Duty to Assist

With regard to the duty to assist, the Veteran's claims file contains service treatment records, VA treatment records, and lay statements.  In addition, the September 2008 operation report, subsequent VA treatment records, and the representative's statements provide all the necessary evidence to allow the Board to render an informed determination with regard to the issue of entitlement to a temporary total evaluation under 38 C.F.R. § 4.30.  Consequently, the Board finds that the duty to assist has been fulfilled and no further action is necessary under the mandates of the VCAA.

As all relevant facts have been properly and sufficiently developed in this appeal, no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim.  Essentially, all available evidence that could substantiate the claim has been obtained.

Legal Criteria 

It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled.  38 C.F.R. §§ 4.15, 4.16(b) (2012).  In the case of disability which is temporary in nature, such as that period of convalescence following surgery, governing regulations provides for a temporary total disability rating during convalescence.  38 C.F.R. § 4.30.  

Temporary total ratings will be assigned from the date of hospital admission and continue for one, two, or three months from the first day of the month following hospital discharge when treatment of a service-connected disability results in: (1) surgery necessitating at least one month of convalescence; (2) surgery with respect to postoperative residuals such as incompletely healed surgical wounds, stumps and recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more.  38 C.F.R. § 4.30(a).

Analysis

The Veteran contends that a temporary total evaluation pursuant to 38 C.F.R. § 4.30 is warranted for convalescence following surgery performed for his service-connected perianal abscess and pilonidal cyst.  

A September 2008 VA operation report shows the Veteran had a pre-operative diagnosis of anal fistula and right flank cyst.  VA treatment records reflect that the Veteran was admitted to the VA hospital on September 19, 2008 and released the same day.  The Veteran underwent a colonoscopy, examination under anesthesia, biopsy of rectal ulcer, and excision of a right flank cyst.  The post-operative diagnosis was questionable rectal ulcer and right flank cyst, and there were no immediate complications.  A September 2008 post-procedure note indicates the Veteran was to resume his medications and that for the next 24 hours, he was not supposed to drive, consume alcohol, operate heavy machinery, make major life-changing decisions, or sign legal documents.  The Veteran was to take note of any inflammation at the intravenous site and remove the flank dry sterile dressing after 48 hours but not the steri strips.  He was released to his home via walking.

An October 2008 VA emergency room record reflects that the Veteran complained of right flank pain since surgery 12 days prior.  The VA physician noted the Veteran had a hemangioma removed from his right flank in September 2008.  The Veteran reported that he ran out of medication and had persistent right flank pain radiating into his right abdominal wall.  He denied fever and drainage.  The VA physician diagnosed post-operative induration and found no hospitalization was required.  

An additional October 2008 VA treatment record shows the Veteran was seen for a follow-up from surgery for a flank lesion and rectal drainage.  He complained of some continued pain on the right side and swelling, although he believed it was improving.  The Veteran felt the mass on the side was the border of the ribs.  The VA physician noted the flank had a hematoma that was resolving.  The Veteran reported intermittent bloody drainage from the rectum but felt that this was also improving.  The VA physician stated that if the Veteran continued to have rectal symptoms, the VA physician would have him follow up with another physician in the colorectal clinic.

In November 2008, the Veteran reported continued rectal bleeding with bowel movements.  Examination showed a well-healed right flank excision with induration along the incision line.  There were no external findings on rectal examination.  

A January 2009 VA treatment record shows an assessment of a lesion seen on colonoscopy, pathologically benign, with a diagnosis of "consistent with fistula"; recurrent perianal abscess; and mild softness in the left anal area, non-tender, non-erythematous.  Physical examination revealed well-healed pilonidal; perianal, no scar, normal contour; questionable soft, non-tender spot left lateral; normal digital rectal examination, normal temperature, no masses; and normal rigid procto.  An additional January 2009 VA treatment record reflects that the Veteran had continued hematochezia after surgery.  

In January 2009, the Veteran had an anal examination under anesthesia with a pre-operative diagnosis of anal leakage and rule out fistula.  The post-operative diagnosis was no abnormality.

A November 2009 VA emergency room record shows the Veteran complained of an abscess.  Physical examination revealed a one by one centimeter, purple, minimally thrombosed external hemorrhoid.  No hospitalization was required. 

In a May 2013 brief, the Veteran asserted that the surgical procedure he underwent was directly related to his service-connected perianal abscess and pilonidal cyst.

Based on the above evidence, the Board finds the Veteran has not met the criteria for a temporary total evaluation under 38 C.F.R. § 4.30.  Here, the evidence does not show that surgery for the service-connected disability necessitated at least one month of convalescence.  Rather, the September 2008 post-operative report shows limitations with respect to the next 24 hours following surgery, in that the Veteran was not supposed to drive, consume alcohol, operate heavy machinery, make major life-changing decisions, or sign legal documents.  

In addition, the record does not indicate the service-connected disability resulted in surgery with respect to postoperative residuals such as incompletely healed surgical wounds, stumps and recent amputations; therapeutic immobilization of one major joint or more; application of a body cast; the necessity for house confinement; or the necessity for continued use of a wheelchair or crutches.  Here, examination in November 2008 and January 2009 showed well-healed right flank excision with induration along the incision line and well-healed pilonidal, respectively.  A January 2009 anal examination revealed no abnormality.  The record also does not indicate the Veteran was confined to his home or unable to walk following surgery.  In fact, the September 2008 operation report noted the Veteran was released to his home via walking.  Finally, treatment for the service-connected disability did not result in immobilization by cast of one major joint or more.  Thus, although VA treatment records demonstrate on-going treatment for the Veteran's service-connected disability post-surgery, the Board finds the evidence does not support the criteria necessary for a temporary total evaluation under 38 C.F.R. § 4.30.  

The Board has considered the Veteran's reports of his symptoms.  Lay persons can attest to observable symptomatology, and the statements made by the Veteran describing his symptoms are considered to be competent evidence.  Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  However, these statements must be viewed in conjunction with the objective clinical evidence as required by the criteria for a temporary total evaluation under 38 C.F.R. § 4.30.  Here, the Board finds the post-surgery clinical evidence more probative for the purpose of determining entitlement to a temporary total evaluation.  In the absence of the conditions enumerated above, there is no legal basis for the assignment of convalescence benefits under 38 C.F.R. § 4.30.  

Consequently, the Board finds that the preponderance of the evidence is against the assignment of a temporary total evaluation under 38 C.F.R. § 4.30.  As such, the benefit of the doubt rule is not applicable, and the claim must be denied.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).


ORDER

Entitlement to a temporary total evaluation under 38 C.F.R. § 4.30 for service-connected perianal abscess and pilonidal cyst is denied.


REMAND

In August 2008, the Veteran was afforded a VA examination in connection with his claim of entitlement to an evaluation in excess of 10 percent for perianal abscess and pilonidal cyst.  In a May 2013 brief, the Veteran's representative asserted that the Veteran's symptoms had worsened in severity since the August 2008 VA examination.  Specifically, the representative stated that the Veteran had submitted additional evidence dated in February 2011 showing on-going treatment for his service-connected disability.  The Court has held that "[w]here the veteran claims a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination."  Olson v. Principi, 3 Vet. App. 480, 482 (1992).  While a new examination is not required simply because of the time that has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination.  VAOPGCPREC 11-95; see also Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that VA's duty to assist includes conducting a thorough and contemporaneous examination of the veteran that takes into account the records of prior examinations and treatment).  In this case, the representative's assertions in the May 2013 brief indicating an increase in the severity of the Veteran's symptoms since the prior VA examination are enough to require a new VA examination.

Accordingly, the case is REMANDED for the following actions:

1. Schedule the Veteran for a VA examination to determine the severity of his service-connected perianal abscess and pilonidal cyst.  The claims file should be made available for review by the examiner.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  The examiner should elicit a complete history of symptomatology from the Veteran, the pertinent details of which should be included in the examination report.  Following examination of the Veteran and review of the claims file, the examiner should identify all currently present manifestations of the service-connected perianal abscess and pilonidal cyst, to include whether the condition has healed; the presence and extent of any leakage; the frequency of any involuntary bowel movements; and whether there is complete loss of sphincter control.  

A complete rationale for any opinion expressed should be included in the examination report.

2. Then, re-adjudicate the Veteran's claim of entitlement to an evaluation in excess of 10 percent for perianal abscess and pilonidal cyst.  If the benefit sought on appeal remains denied, issue the Veteran and his representative a Supplemental Statement of the Case and provide a reasonable opportunity to respond before the case is returned to the Board for further appellate review.

The Veteran has the right to submit additional evidence and argument on the matter 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. 2012).



______________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs