Citation Nr: 1331215 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 10-44 044 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a disability rating higher than 10 percent for residuals of a recurrent pilonidal cyst, post-operative. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD O. Lopez, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to March 1972. This case comes to the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDING OF FACT Residuals of a pilonidal cyst, post operative are manifested by a scar that is superficial and covers less than 12 square inches. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for residuals of a pilonidal cyst, post-operative, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Codes 7801, 7802, 7804, 7805, 7806, 7819 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and to Assist Upon VA's receipt of a claim for veterans' benefits, the Veterans Claims Assistance of Act of 2000 (VCAA) imposes on VA: (1) a duty to notify and (2) a duty to assist. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012). As discussed below, VA complied with both these duties. The duty to notify requires VA to notify claimants of any information and evidence not of record that: (1) is necessary to substantiate the claim; (2) the VA will seek to provide; and (3) the claimant is expected to provide. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (citing 38 U.S.C.A. § 5103(a)); 38 C.F.R. § 3.159(b)(1). VA must also notify a claimant that a disability rating and an effective date for the award for benefits will be assigned if service connection is awarded. Id. Notice must be provided before an initial unfavorable decision on a claim by the agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Here, VA fulfilled its duty to notify by the sending the Veteran a letter, dated in January 2010, before the RO adjudicated his claim, that notified him of the information detailed above. In any event, the Veteran has not alleged any prejudice regarding VA's duty to notify, and the Board finds none. See Shinseki v. Sanders, 556 U.S. 396 (2009) (stating that the burden of showing harmful error rests with the party raising the issue). The duty to assist requires VA to help claimants develop their claims by: (1) obtaining evidence such as treatment records and other relevant evidence; and (2) providing a medical examination if warranted based on the factors set forth in McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, VA obtained the Veteran's service, VA, and private treatment records. VA also provided the Veteran examinations in February 2010 in June 2011. As will be explained in more detail in the merits section below, the medical evidence of record is adequate. The Veteran does not identify and the record does not indicate any additional pertinent evidence that is necessary to fairly adjudicate the claim. Therefore, the Board finds that the claim is fully developed and that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Merits of the Claim The Veteran was granted service connection for residuals of a recurrent pilonidal cyst, post-operative with a non-compensable rating from March 1972 to August 1975. The rating was increased to 10 percent in August 1975 and has been in effect since. The Veteran filed his current claim for an increased rating in January 2010. The Veteran notes that he is currently rated under the criteria for scars. The Veteran contends that the 10 percent rating for scars does not address his overall condition. The Veteran states the cyst causes him pain often, and that it has to be irrigated and drained. He reports that he has undergone multiple surgeries because of the cyst and that the "infections continue to come." He reports that the cyst flares up and keeps him away from work for two or three weeks a year. He also mentions that he feels pain in his lower spine that generates throughout his legs because of the condition. The Veteran requests that, due to the cyst's discharge, scars, and pain, that VA consider if there is another rating that more closely resembles the condition. The Veteran also states that he should be awarded a rating for the scars that have resulted from the various surgeries that he has undergone and an additional rating for the pilonidal cyst because a cyst is a not a scar. Disability ratings are determined by applying the criteria found in VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). The basis of disability evaluations is the ability of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Once service connection has been established and the Veteran is not disagreeing with the initial rating but rather is asserting that the disability has worsened and a higher rating is warranted, as in this case, "the relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim." See Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) (explaining a difference between an increased rating claim and a disagreement with the initial rating assigned). The Board must also consider if separate findings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings called "staging the ratings." Id. In deciding a claim, the Board must consider all information and lay and medical evidence of record. The Board must provide reasons and bases to support its decision. However, the Board need not discuss every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). When there is an approximate balance of positive and negative evidence, i.e., when the evidence is in a state of "equipoise," regarding any issue material to the determination of a matter, the Board must give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b) (West 2002 & Supp. 2012). If a disability more closely approximates the criteria for the higher of two ratings, the higher rating is assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all findings specified. However, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Initially, it should be noted that residuals of a post-operative pilonidal cyst is not a disability specifically listed under the Schedule for Rating Disabilities, 38 C.F.R., Part 4. The Veteran's service-connected residuals of a post-operative pilonidal cyst have thus been rated, by analogy, under 38 C.F.R. § 4.118 Diagnostic Code 7819-7803. 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. In this case, for the purposes of applying the rating schedule, residuals of a pilonidal cyst is analogous to a benign skin neoplasm, which is rated pursuant to Diagnostic Code 7819. See 38 C.F.R. § 4.20. Under Diagnostic Code 7819, benign skin neoplasms should be rated on the basis of disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or impairment of function. See 38 C.F.R. § 4.118. Diagnostic Code 7803, which pertained to superficial, unstable scars was eliminated as part of the revision of the criteria for rating scars that became effective October 23, 2008. 73 Fed. Reg. 54,708 (Sept. 23, 2008) (codified at 38 C.F.R. § 4.118, Diagnostic Codes 7800-05). Because the Veteran's claim was submitted after October 23, 2008, the revised criteria apply. Under the revised rating criteria, Diagnostic Code 7801 provides that scars not of the head, face or neck that are deep and nonlinear warrant a 10 percent rating when they cover an area or areas of at least 6 square inches (or 39 sq. cm.) but less than 12 sq. in. (77 sq. cm.). A 20 percent rating is warranted if the scar covers an area or areas of at least 12 sq. in. (77 sq. cm.) but less than 72 sq. in. (465 sq. cm.). A 30 percent rating is warranted if the scar covers an area or areas of at least 72 sq. in. (465 sq. cm.) but less than 144 sq. in. (929 sq. cm.). A 40 percent rating is warranted if the scar covers an area or areas of 144 sq. in. (929 sq. cm.) or greater. Note (1) indicates that a deep scar is one associated with underlying soft tissue damage. Note (2) is not pertinent to this appeal. 38 C.F.R. § 4.118, Diagnostic Code 7801. Diagnostic Code 7802 provides that a maximum 10 percent rating is warranted for a scar not of the head, face, or neck that is superficial and nonlinear and exceeds an area of 144 sq. in. (929 sq. cm.) or greater. Note (1) indicates that a superficial scar is one not associated with underlying soft tissue damage. Note (2) is not pertinent to this appeal. 38 C.F.R. § 4.118, Diagnostic Code 7802. Diagnostic Code 7804 provides that five or more scars that are unstable or painful warrant a 30 percent rating, three or four scars that are unstable or painful warrant a 20 percent rating, and one or two scars that are unstable or painful warrant a 10 percent rating. Note (1) indicates that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) indicates 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) indicates that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. 38 C.F.R. § 4.118, Diagnostic Code 7804. Diagnostic Code 7805 provides that any other scars, including linear scars, are to be rated based on any disabling effects and the appropriate diagnostic code for such effects. 38 C.F.R. § 4.118, Diagnostic Code 7805. Under Diagnostic Code 7806, which applies in cases where dermitis or eczema are present, a 10 percent disability rating is assigned when at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas are affected; or, intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is assigned where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is assigned where there is 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 is required during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. The Veteran's private medical records include treatment notes by the physician who has treated the cyst since 1985. The records document that the Veteran has a history of a recurrent infected pilonidal cyst and that the cyst was drained in May 2009. The physician also reports that he treated the Veteran in October 2009 for a small area of abscess which was resolved with antibiotics and that he has seen him several times for an infection that he irrigated and drained. The Veteran underwent a VA examination of his pilonidal cyst in February 2010. The report of examination shows that the examiner interviewed the Veteran and, thus obtained a medical history from him, in conjunction with the physical examination. The Board, therefore, finds this examination adequate upon which to base a decision with regard to the Veteran's claims. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once the VA undertakes an effort to provide an examination to develop a claim, even if not statutorily obligated to do so, the VA must ensure the examination provided is adequate). The Veteran reported that the cyst swells and flares up several times a year and then bursts and drains, creating odors. He further reported pain, tenderness, purulus drainage, itching, discomfort, severe pain, and the inability to walk during a flare up. The Veteran informed the examiner that the cyst causes him two or three weeks of bedrest a year. As to the current residuals of the Veteran's recurrent pilonidal cyst, the examiner noted the following: "redness and tenderness in crack of buttocks above the rectum ... severely affects his activities of daily living with exacerbation of infections requiring bedrest, sitz bath, antibiotics. 2-3 weeks a year he is entirely disabled." In his findings, the examiner endorsed that there was evidence of dermatitis. Regarding the cyst, the examiner stated: "recurrent abscess that drains large amount of purulent material several times a year. At times he is prescribed antibiotics with the addition of sitz bath. [A]lso has evidence of chronic supra rectal area dermatis with redness and tenderness on exam today." The examiner diagnosed "recurring abscess formation several times a year in pilonidal area status post-cystectomy with residual scars." The examiner stated that the effect of the condition on the Veteran's usual occupation and daily activities is the inability to the walk during flare ups. The examiner further diagnosed gluteal cleft scar, measuring 20 cm x 1 cm. He described it as tender on examination, but noted no frequent loss of covering of skin over the scar, such as from ulceration or breakdown of skin. The examiner found that that there was no elevation or depression of the surface contour of the scar on palpation, that the scar was superficial. Thus, the scar was not deep and had no underlying soft tissue loss or damage. The examiner described the scar as red and purple and noted no inflammation, edema, or keloid formation. The Veteran underwent a second examination in June 2011 to obtain a more current evaluation. The report of that examination shows that the examiner reviewed the claims file, medical records, and interviewed the Veteran in conjunction with the physical examination. Moreover, the Veteran's complaints were recorded in the report of the examination. The Board, therefore, finds this examination adequate upon which to base a decision with regard to the Veteran's claims. Id. The examiner described the scar as follows: Scar itself is proximal to the rectum itself and extends proximally up the area approximately 20 cm in length and 1 cm in width. There does appear to be some keloid formation. Slight elevation is now noted to the distal aspect about 2 cm in diameter. Very slight elevation. [Veteran] states just recently had another cyst that broke open and drained. So there is tenderness noted throughout that area. The scar itself appears to be more fixed, is not freely motile but very tender upon palpation, throughout the whole scar. Does not appear that the cyst itself forms in the exact same spot each time, but along that area of the scar. ... I do not see a skin breakdown at this time. [Veteran] states about a week ago he had a drainage. It would be noted as superficial because this is not a deep penetrating scar and not through by through. Does not appear to have tissue loss as noted with a deep scar. No edema is noted. No inflammation is noted. Very tender upon palpation. Scar measurement has been noted. Contour is essentially straight will slight elevation as stated. No abnormal tissue is noted. Pigmentation is essentially normal. Does not appear to have loss deep tissue. Regarding the Veteran's pilonidal cyst, the examiner noted the Veteran's complaints: The Veteran states he had problems with a cyst about a week ago and it is still tender, but the cyst is not noted at this time. He states during the warm, hot weather he will have more frequency of the cyst as apposed to the winter. He states during the summer he will end up having a cysts that ruptures at least monthly and usually takes a couple days to get over the drainage. He states that he has some antibiotics at home that he uses occasionally. Based on the competent and credible medical evidence of record, the Board finds that a rating in excess of 10 percent for the Veteran's service-connected residuals of a pilonidal cyst, post-operative is not warranted under the current skin regulations. The evidence indicates that the residual scar is neither deep nor nonlinear and covers at least 12 square inches (Diagnostic Code 7801). In addition, 10 percent is the maximum schedular rating for Diagnostic Code 7802. Diagnostic Code 7804 provides only a 10 percent rating for one or two scars that are either painful or unstable and a higher rating under this code would require more scars or scars both painful and unstable. The evidence of record noted in the February 2010 and June 2011 VA examinations showed that the Veteran has only one scar associated with his pilonidal cyst, that it is 20 cm in length and 1 cm in width, and that it is superficial. Further, Diagnostic Code 7805 evaluates scars, other (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804. This diagnostic code notes that any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-4, should be evaluated under an appropriate diagnostic code. As discussed above, the provided diagnostic codes have been considered. The Board acknowledges the Veteran's statement that he should be rated separately for the pilonidal cyst and for the scars that have resulted from it. However, the Board finds that criteria for rating scars to be the most appropriate criteria for rating the Veteran's disability in this case. This is because Diagnostic Code 7819, which is applied for benign skin neoplasms, describes the most analogous diagnostic criteria for the Veteran's service-connected pilonidal cyst residuals. In any event, the Board has considered whether the Veteran would be entitled to higher rating under Diagnostic Code 7806, the criteria for rating dermitis and eczema. Here, however, there is no evidence that any residual skin condition associated with the Veteran's post-operative pilonidal cyst covers 20 to 40 percent of his entire body or of the exposed area affected or that systemic therapy or immunosuppressive drugs are required for at least six weeks that would entitle him to the next higher rating of 30 percent. Additionally, in the deciding the appeal, the Board has considered whether, but does not find, that separate findings for different periods of time, i.e., staged ratings, are warranted. Hart v. Mansfield, 21 Vet. App. 505 (2008). The Board acknowledges that the disability is subject to flare-ups, requiring periodic drainage of the cyst. However, the Board concludes that the underlying disability has not changed significantly and that the flare-ups are adequately contemplated by the 10 percent rating during the entire time period in question. In sum, the Board finds that a rating in excess of 10 percent is not warranted under any of the applicable diagnostic codes. The Board has considered the Veteran's statements that a higher rating is warranted. The Veteran is certainly competent to report that his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating a claim for an increased schedular rating, VA must only consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Massey v. Brown, 7 Vet. App. 204, 208 (1994). To the extent that the Veteran argues or suggests that the clinical data supports an increased rating in excess of what has been assigned or that the rating criteria should not be employed, he is not competent to make such an assertion. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Bruce v. West, 11 Vet. App. 405, 410-11 (1998). His statements are outweighed by the more probative VA examinations in February 2010 and June 2011. The VA examination reports are the most probative evidence as they were based on physical examinations and they provided sufficient information so the Board could render an informed determination. As to the Veteran's statement that he suffers pain in his lower spine that generates throughout his legs and is due to the condition, the Veteran's private treatment records indicate that the source of that pain is rheumatoid arthritis and severe right L4 radiculopathy, not the pilonidal cyst. The Board has also considered whether referral is warranted for a rating outside of the schedule. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the case may be referred to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2013). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. 38 C.F.R. § 3.321(b). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, there has been no showing that the Veteran's disability picture is not contemplated adequately by the applicable schedular rating criteria discussed above. As noted above, the evidence of record does not establish that the schedular criteria are inadequate to evaluate the Veteran's disability. The criteria provide for higher ratings, but as has been explained herein, the currently assigned rating adequately described the severity of the Veteran's symptoms. Indeed, higher ratings are available under the applicable criteria for the current skin and scar ratings. The Veteran's assertion that he may lose two or three weeks of work per year because of his disability does not present and exceptional or unusual disability picture under the circumstances of this case. In this regard, the Veteran has not asserted that he has lost wages for this time off. Given that the applicable schedular rating criteria are adequate, the Board need not consider whether the Veteran's disability picture includes exceptional factors. Thus, the Board finds that the criteria for submission for assignment of an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, to the extent that the Veteran's statements about his inability to work due to flare-ups raise a claim of total disability due to individual unemployability (TDIU), the Board finds that the evidence does not support entitlement to TDIU. The Board acknowledges that the Veteran is currently unemployed and collecting Social Security (SSA) disability benefits. However, the evidence of record indicates that the Veteran's receipt of SSA benefits is not related to the pilonidal cyst. A VA treatment entry dated in February 2010 documents that the Veteran was considering applying for SSA benefits because of his rheumatoid arthritis. Moreover, in a report of medical examination, dated in October 2012, the Veteran terminated his employment due to breathing problems, back and leg pain, and arthritis. For the foregoing reasons, the Board finds that the preponderance of the evidence is against a disability rating in excess of 10 percent for service-connected residuals of a post-operative pilonidal cyst. In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine, but finds it inapplicable because the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b). ORDER Entitlement to a disability rating higher than 10 percent for residuals of a recurrent pilonidal cyst, post-operative is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs