Citation Nr: 1320495 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 02-17 722A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an increased disability rating on an extra-schedular basis for residuals of pilonidal cyst with hidradenitis suppurativa. REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from April 1954 to July 1957. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 1996 decision of the Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was requested and scheduled, and the Veteran failed to report for such hearing. In June 2006 and August 2008, the Board remanded the claims for further evidentiary development. In September 2010, the Board denied the claim. The Veteran appealed that decision and in March 2011, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion to remand this appeal to the Board. In compliance with the joint motion, the Board again remanded the claims in December 2011. Thereafter, in February 2013, the Board increased the Veteran's disability rating for residuals of pilonidal cyst with hidradenitis suppurativa to 50 percent on a schedular basis. In that same decision, the Board remanded the remaining issues of consideration of this claim on an extra-schedular basis, as well as whether the Veteran was entitled to separate disability rating for scars associated with this disability. In an April 2013 rating decision, the RO granted separate ratings for scars associated with the Veteran's residuals of pilonidal cyst with hidradenitis suppurativa. The Veteran has not appealed the initial ratings or effective dates assigned, so the claims are no longer at issue. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement (NOD) must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and the effective date). See, too, 38 C.F.R. § 20.200 (2012). The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal. Thus, these records have been considered in rendering the decision below. 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 The applicable rating criteria for the Veteran's residuals of pilonidal cyst with hidradenitis suppurativa reasonably describe the disability picture of the Veteran's disability. CONCLUSION OF LAW The criteria for an extra-schedular rating for residuals of pilonidal cyst with hidradenitis suppurativa are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.118 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). 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). In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, September 2002, June 2006, and December 2011 letters advised the Veteran of the evidence and information necessary to substantiate his increased rating claim as well as his and VA's respective responsibilities in obtaining such evidence and information. The claim was last readjudicated in April 2013. Relevant to the duty to assist, the Veteran's service treatment records as well as post-service VA, Social Security Administration (SSA), and private treatment records have been obtained and considered. The Veteran was also afforded VA examinations in August 1995, April 2002, July 2006, March 2012, and April 2013. The Board specifically notes that VA records, which were obtained following the prior December 2011 Board remand, have been associated with the Veteran's electronic claims file. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. The Board previously adjudicated the schedular aspect of the claim for an increased rating for his skin disability. The Board's February 2013 remand discussed the criteria for an extraschedular rating for this disability. The claim was remanded so that the RO could consider whether referral to the Director of VA's Compensation and Pension Service was appropriate to consider the issue of entitlement to an extraschedular rating in accordance with 38 C.F.R. § 3.321(b)(1). This was accomplished upon remand, and the AMC issued an April 2013 supplemental statement of the case (SSOC) on this matter. Therefore, the Board finds that the April 2013 remand directives have been substantially complied with such that no further action is necessary in this regard with respect to the issue being decided. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument to support his claim. Therefore, he was 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. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis-Extra-Schedular Consideration Here, the Veteran contends that his residuals of pilonidal cyst with hidradenitis suppurativa are more disabling than reflected in his current schedular disability rating of 50 percent, such that consideration on an extra-schedular basis is warranted. By way of background, service connection was awarded for scars, pilonidal and abscessed cysts, thighs and buttocks, by an April 1959 rating decision. A 10 percent disability rating was assigned, effective November 3, 1958. The current appeal stems from an April 1995 claim for an increased rating. The January 1996 rating decision continued the 10 percent rating. A July 1996 rating decision increased the evaluation to 30 percent. In February 2013, the Board increased the Veteran's disability rating to 50 percent. The Veteran's disability is rated at 50 percent by analogy to 38 C.F.R. § 4.118, Diagnostic Code 7806. In adjudicating the schedular rating in the prior February 2013 decision, the Board used the provisions of 38 C.F.R. § 4.118, Diagnostic Code 7806 effective prior to August 30, 2002, as they were most favorable to the claim. Under these provisions, a 50 percent rating is assigned for eczema with ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or exceptionally repugnant. Disability ratings "represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations." 38 C.F.R. § 4.1. The ultimate percentage of a disability rating assigned to a veteran is "considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of the disability." Id. Where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director of Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (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 extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The medical evidence of record shows that the Veteran was afforded a VA examination in August 1995. At that time, the Veteran reported pain in the pilonidal area, which makes it impossible for him to bend because of a pulling sensation. The Veteran reported the use of antibiotics due to drainage of the skin disability. Upon physical examination, the examiner noted a 10 cm. long, well-healed incision in the midline of the pilonidal area. To the right of the incision, the examiner noted edema and exquisite tenderness, with less tenderness on the left side. Superficial scarring was noted on both of the buttocks, but the examiner stated that may represent hidradenitis. The examiner ultimately diagnosed three time recurrent pilonidal abscess, and superficial hidradenitis of both buttocks. No additional findings were noted. Following this VA examination, the Veteran sought treatment from two private physicians, Drs. Wojcik and Price. In August 1995, Dr. Wojcik found scarring at the base of the pilonidal tract to presacral fascia, with immobility and fixation of the scar at that location. He opined that this scar was the cause of the Veteran's buttock and lower back pain. In January 1996, a letter from Dr. Price described the Veteran's disability and noted the Veteran's complaints of pain, recurrent discharge, and infection. Additionally, extensive scarring was noted and Dr. Price indicated that with prolonged sitting, moving, and bending, the scar splits open, causing recurrent infection and drainage. Dr. Price stated there is discharge and a foul odor associated with the scar when it splits open, and requires the use of antibiotics. As such, Dr. Price concluded that this disability has adversely affected the Veteran's life. Additionally, the Veteran's VA treatment records from 1995 to 2002 note his continued treatment for this skin disability, including the use of antibiotics, as described above. In April 2002, the Veteran was afforded another VA examination to reassess the severity of his skin disability. He reported that oral antibiotic therapy worked well for his hidradenitis suppurativa. His pilonidal cyst scar flared up occasionally with bumps. He also reported getting hidradenitis suppurativa in his entire groin area, bilateral thighs and between both buttocks. He had chronic pain from the hidradenitis suppurativa and pilonidal cyst scar. He also reported bumps in bilateral axillae. On examination, the Veteran had a pilonidal cyst scar over the sacrum measuring 10 centimeters (cm.) in length. He had scores of black scars in the entire inguinal region with a great deal of coalescence. There were several firm nodules scattered in the groin which the Veteran related were from his most recent outbreak of bumps. There were 5 to 10 scattered healed lesions in each axillae from old outbreaks of hidradenitis suppurativa. The examiner's assessment was pilonidal cyst scar with chronic, daily pain and hidradenitis suppurativa with several episodes a month and chronic daily pain. In his July 2002 substantive appeal, the Veteran described his condition as repugnant. Additional statements from female acquaintances of the Veteran, received in March 2004, note that the Veteran has sores on his body in his genital area; one statement indicated that the sores "smell repugnant." The Veteran was afforded another VA examination in July 2006. He reported using antibiotics as needed for his hidradenitis suppurativa. He also relayed that he had 15 to 20 minor surgeries over the years to lance boils. The last hospitalization for boils was about 1980. He denied ever using or needing corticosteroids or immunosuppressive drugs. He reported that his lesions had burst in the past and had some odor afterwards. The examiner also noted that the Veteran had chronic pain from hidradenitis suppurativa. Pursuant to the March 2011 joint motion, the Board remanded this claim in December 2011 for another VA compensation examination. The Veteran was scheduled for this examination in March 2012. The March 2012 VA examiner noted the Veteran's complaints of pain near the anus; drainage from the abscesses, sometimes watery and other times thick and foul, smelling like pus; and, boils that "pop open." The examiner indicated the Veteran uses topical hydrocortisone on a near constant/constant basis, but the examiner stated this is not considered a systematic corticosteroid therapy. He concluded that the total body area affected involves approximately 40 percent of the Veteran's body, and 0 percent for the exposed area. Upon further examination, it was noted "there is some crusted lesions on the buttocks and several between the thighs," but was not considered extensive. Exfoliation and ulceration were not noted. The VA examiner also stated that the Veteran's condition is rightfully considered repugnant, and in the setting of sexual intercourse, very repugnant. VA treatment records from 2002 through October 2012 show the Veteran continued to use antibiotics fairly consistently for outbreaks. An infected cyst and abscesses are noted in 2003, and erythema in 2004. In February 2005 the Veteran had inflammation mostly in the axillae and groin. It was noted that he had one nodule on his face. In April 2013, in compliance with the Board's February 2013 remand directives, the Veteran was again scheduled for a VA examination. At that time, hundreds of scars on the Veteran's axillae, abdomen, groin, buttocks, and upper legs were noted. Following a physical examination of the Veteran, the examiner determined that the scarring is result of his military service. As noted in the Introduction, separate ratings for scarring have been assigned. After carefully reviewing the relevant evidence, the Board finds that the Veteran's skin disability does not warrant referral for consideration of an extra-schedular rating as the 50 percent evaluation presently assigned to his skin disability adequately addresses the Veteran's disability picture. Specifically, his reported skin disability symptoms are contemplated by the applicable rating criteria, in this case Diagnostic Code 7806. This Code provides for ulceration, extensive exfoliation or crusting, and systemic and nervous manifestations. It also contemplates exceptional repugnance. The Veteran has argued that that condition is repugnant, even though it primarily affects non-exposed areas. He has argued that he suffers from recurrent active lesions and boils that pop, smell, and are painful, and that his pilonidal cyst reopens and is painful. When assigning the 50 percent rating in the February 2013 decision, the Board considered the painful active lesions, recurrent lesions, reopening of the pilonidal scar analogous to ulceration, as well as the general repugnance of the condition to include a bad odor and the visual impact of the lesions during intimate moments to find that his disability more nearly approximated the higher 50 percent rating criteria rather than the lower 30 percent rating, notwithstanding that the condition was not extensive or exceptionally repugnant as required in the rating criteria. The Board notes that the Veteran is also separately rated at 70 percent for a dysthymic disorder resulting from his skin disability. Further, his scarring has been separately rated, and he is currently in receipt of a total rating based on individual unemployability based on his service connected disabilities. In short, the Board finds the 50 percent rating presently assigned for his skin disability adequately contemplates the nature and symptomatology of his residuals of pilonidal cyst with hidradenitis suppurativa. Moreover, under the version of the rating schedule effective August 30, 2002, a higher 60 percent rating is warranted where more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. Thus, as of that date, the rating schedule provides for an even higher evaluation, the criteria for which have not been met as reflected in the medical evidence. Accordingly, the Board finds the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. ORDER Entitlement to a disability rating in excess of 50 percent for residuals of pilonidal cyst with hidradenitis suppurativa on an extra-schedular basis under 38 C.F.R. § 3.321(b) (1) is denied. ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs