Citation Nr: 1329552 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 10-06 896 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial increased compensable evaluation for cysts. 2. Entitlement to service connection for disability exhibited by joint pain, to include as due to undiagnosed illness. 3. Entitlement to service connection for disability exhibited by muscle pain, to include as due to undiagnosed illness. 4. Entitlement to service connection for disability exhibited by gastrointestinal symptoms, to include as due to undiagnosed illness. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran retired from service in September 1991, after more than 20 years of active service, including service in Southwest Asia from August 1990 to March 1991. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for cysts with a noncompensable evaluation and denied service connection for joint pain, headaches, muscle pain, and gastrointestinal symptoms. In a September 2012 rating decision, service connection for headaches was granted. This is a full grant of the benefit sought on appeal with regard to this matter and therefore it is not before the Board. The issues of entitlement to service connection for disability exhibited by joint pain, muscle pain, and gastrointestinal symptoms 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. FINDING OF FACT The Veteran's cysts are not deep, nonlinear, unstable, or painful and affect less than 144 square inches of the Veteran's body. They do not affect the head, face, or neck and there is no associated functional loss. CONCLUSION OF LAW The criteria for a compensable evaluation for cysts have not been met. 38 U.S.C.A. § 115 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.118, Diagnostic Codes 7819, 7801, 7802, 7804 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's claim arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Initial Rating - Cysts Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection, and consideration of the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet App 119, 125-26 (1999). The regulations governing the rating criteria for skin disabilities have changed during the pendency of the appeal; however, the diagnostic codes applicable to this case have not changed. Under Diagnostic Code 7819, benign skin neoplasms, such as cysts, are rated as disfigurement of the head, face, or neck; scars; or impairment of function. 38 C.F.R. § 4.118. As explained below, the Veteran's service connected cysts do not disfigure or even affect his head, face, or neck. Likewise, there is no record of functional impairment caused by this disability. As such, this disability is most appropriately evaluated under the diagnostic criteria for scars. See 38 C.F.R. § 4.118, Diagnostic Code 7819. Under Diagnostic Code 7801, scars not of the head, face, or neck that are deep and nonlinear are rated based on the area or areas affected with a minimum area of six square inches for a compensable rating. See 38 C.F.R. § 4.118. Under Diagnostic Code 7802, scars not of the head, face, or neck that are superficial and nonlinear are rated based on the area or areas affected with a minimum area of 144 square inches (one square foot) for a compensable rating. See id. Under Diagnostic Code 7804, scars not of the head, face, or neck that are unstable (meaning there is frequent loss of covering over scar) or painful are rated based on the number of scars. See id. One or two scars that are unstable or painful are rated 10 percent disabling. See 38 C.F.R. § 4.118, Diagnostic Code 7804. Three or more scars that are unstable or painful are rated 20 percent disabling. Id. Five or more scars that are unstable or painful are 30 percent disabling. Id. In his November 2008 claim, the Veteran reported having cysts all over his body. VA treatment records show a history of cysts on the Veteran's legs and back since 2003 or earlier. The Veteran underwent a VA Gulf War guidelines examination in July 2009. At that time, the examiner found two cysts. One was on the anterior chest wall and caused discomfort from the pressure. The record does not show any associated functional loss. The other cyst was on the lower back with no associated symptoms. In July 2012, the Veteran underwent a VA skin examination in conjunction with this claim. At that time, the examiner noted that there had been no treatment for this condition since cyst removal in service. Specifically, the Veteran had not taken oral or topical treatment within last 12 months. This condition resulted in a scar on the left shoulder, but no scars of the head, face, or neck. The left shoulder scar was linear and measured 1 cm. This scar was not painful, unstable, or due to burns. There was no associated limitation of function and this disability had no impact on the Veteran's ability to work. No current cyst was noted. Based on the above, the Veteran's symptoms related to his service connected cysts most nearly approximate the criteria for the current noncompensable evaluation. The record does not show that the Veteran's cysts or resulting scars are deep and nonlinear; therefore, no compensable evaluation is available under Diagnostic Code 7801. The July 2012 VA examiner found only one linear scar measuring 1 cm. While the July 2009 examiner found two cysts, there is no indication that the affected area is 144 square inches or greater. While specific measurements were not recorded at that time, the Board notes that 144 square inches is a large area, particularly in respect to the Veteran's torso. The examiner's notation that the Veteran "was only able to find two cysts" - one on the Veteran's chest and one on his back - does not suggest that the area affected was large enough to meet the minimum requirements for a compensable evaluation is available under Diagnostic Code 7802. Likewise, the record does not show any unstable scars related to this disability. While the Veteran reported some discomfort due to pressure associated with one of his cysts in July 2009, this is not tantamount to a painful scar that would warrant a 10 percent evaluation under Diagnostic Code 7804. As such, a compensable evaluation is not warranted under any of the applicable diagnostic codes. Thus, the preponderance of the evidence is against a compensable rating for the Veteran's cysts. 38 C.F.R. § 4.7. The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disability, notably when the affected area is much larger, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disabilities, referral for extraschedular consideration is not in order. Likewise, the record does not show that this disability has rendered the Veteran unemployable. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is not raised. See Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009); but see Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER A compensable initial rating for cysts is denied. REMAND Joint Pain, Muscle Pain, and Gastrointestinal Symptoms The Veteran claims that he was exposed to a nerve agent in Iraq and that exposure has caused all of his claimed disabilities. See November 2008 claim. In his February 2009 statement, the Veteran further explained that he was with the 24th Infantry Division leaving Iraq in March 1991 when an ammunition depot was destroyed less than one mile away. He stated that this occurred near the Iraq/Saudi Arabia border and 60 miles outside of Baghdad. He believes that the munitions in that depot contained nerve agent. The Veteran's service records reflect that he served in Southwest Asia from August 1990 to March 1991. A Personnel Qualification Record shows that he was attached to 0024 IN DIV, HHC DIVISION from August 1990 and that his last CBT TOUR date was in March 1991 in Saudi Arabia. Additional development would be helpful to determine whether the Veteran was in fact exposed to nerve agent during service and, if so, whether that exposure has led to his claimed disabilities. Accordingly, the case is REMANDED for the following action: 1. Take appropriate action, to include contacting the Joint Services Records Research Center (JSRRC), to verify whether the Veteran was in close proximity to a destroyed ammunition depot in March 1991. A Personnel Qualification Record shows that he was attached to 0024 IN DIV, HHC DIVISION from August 1990 and that his last CBT TOUR date was in March 1991 in Saudi Arabia. If this incident can be verified, determine, to the extent feasible, whether nerve agent was present at that depot and, the Veteran's unit's proximity to the location. 2. If the above mentioned event can be verified, obtain an addendum opinion for each of the claimed disorders (disability exhibited by joint pain, muscle pain, and gastrointestinal symptoms), addressing whether it is at least as likely as not (50 percent probability or more) that the Veteran's disability is causally related to such nerve agent exposure. 3. Thereafter, readjudicate the claims in light of the additional evidence obtained. If any of the benefits sought on appeal remain denied, the Veteran must be provided a supplemental statement of the case. An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review. The appellant 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). 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). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs