Citation Nr: 1517120 Decision Date: 04/21/15 Archive Date: 04/24/15 DOCKET NO. 12-11 738 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to increases in the ratings for scar residuals of a pilonidal cyst (currently a midline buttock fold scar assigned staged ratings of 10 percent prior to April 5, 2014, and 20 percent from that date, and a superficial scar rated 0 percent). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1971 to June 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Providence, Rhode Island Department of Veteran Affairs (VA) Regional Office (RO) that continued a 10 percent rating for scar residuals of a pilonidal cyst. In August 2013, a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the record. In October 2014, the case was remanded for additional development. The Veteran had established service connection for a pilonidal cyst, rated 10 percent, effective June 29, 1973. A March 2010 rating decision granted separate service connection for a midline buttock fold scar associated with pilonidal cyst, rated 0 percent. The September 2011 rating decision on appeal denied the Veteran's claim for an increased rating for the midline buttock fold scar, and merged the two service connected entities, characterizing the service connected disability as "residuals of pilonidal cyst with midline buttock fold scar," rated 10 percent. Following the Board's February 2014 remand, a July 2014 rating decision increased the rating for residuals of a pilonidal cyst with midline buttock fold scar to 20 percent, effective April 5, 2014, and awarded separate service connection for a "superficial scar from pilonidal cyst associated with residuals of pilonidal cyst with midline buttock fold scar," rated 0 percent. The issue has been recharacterized to reflect that there are now two scars for consideration, and that "staged" ratings are assigned. FINDINGS OF FACT 1. Throughout, the Veteran's pilonidal cyst residuals have been manifest by a buttock fold scar that is reasonably shown to have been both unstable and painful; another scar that is small, superficial, and not noted to be painful or unstable has been noted more recently. 2. At no time under consideration are the Veteran's scar residuals of a pilonidal cyst (a midline buttock fold scar and a separate superficial scar) shown to have been manifested by deep, nonlinear scars with a total area of 465 sq. cm. or greater; superficial, nonlinear scars with a total areas of 929 sq. cm. or greater; more than two scars (with one both painful and unstable); or to cause impairment of function beyond painful prolonged sitting. CONCLUSIONS OF LAW 1. A 20 percent rating is warranted throughout for the Veteran's scar residuals of a pilonidal cyst (based on a deep linear buttock fold scar rated 20 percent, and a superficial nonlinear scar rated 0 percent). 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.118, Diagnostic Codes (Codes) 7801-05 (2014). 2. A combined rating in excess of 20 percent for the Veteran's scar residuals of a pilonidal cyst (a deep linear buttock fold scar and a small nonlinear superficial scar) is not warranted for any period of time under consideration. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.118, Codes 7801-05 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A (West 2014) have been met. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). By correspondence dated in July 2011, VA notified the Veteran of the information needed to substantiate and complete his claim, to include notice of the information that he was responsible for providing, the evidence that VA would attempt to obtain, and how VA assigns disability ratings and effective dates. At the August 2013 videoconference hearing, the undersigned explained how ratings for scars are determined, and suggested submission of evidence required to substantiate the claim. The Board finds that the notice duties mandated by 38 C.F.R. § 3.103(c)(2) have been met. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. He has not alleged that any pertinent records remain outstanding. In October 2014, this matter was remanded for updated VA treatment records and a new VA examination; the AOJ has substantially complied with the remand instructions. The Veteran was afforded VA examinations in August 2011, April 2014, and December 2014 (pursuant to the October 2014 remand). Together, the reports of these examinations are adequate for rating purposes; they reflect the examiners' familiarity with the disability picture presented and include findings sufficient to allow for application of the relevant rating criteria. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis The Board has reviewed the entire record, with an emphasis on the evidence relevant to this appeal. Although the Board must provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, with respect to the claim. Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In a claim for increase the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence contains factual findings that demonstrate distinct time periods when the service connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, staged ratings are to be considered. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating the level of disability of an increased rating claim begins one year before the claim was filed. As the instant claim for increase was received on July 14, 2011, the period for consideration is from July 14, 2010 to the present. The Veteran contends that his scar residuals of a pilonidal cyst are productive of symptoms and impairment warranting ratings in excess of 10 percent prior to April 5, 2014, and in excess of 20 percent from that date. Scars are generally rated under Codes 7800 through 7805. [The Board notes that Code 7800 applies only to scars of the head, face, or neck. As the scars at issue do not involve those areas, Code 7800 has no application.] Under Code 7801, burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear warrant a 10 percent rating if they occupy an area or areas of at least 6 square inches (39 sq. cm); a 20 percent rating for an area or areas of at least 12 square inches (77 sq. cm); a 30 percent rating for an area or areas of at least 72 square inches (465 sq. cm); and a maximum 40 percent rating for an area or areas of 144 square inches (929 sq. cm) or greater. Code 7802 provides that burn scars or scars due to other causes (not of the head, face, or neck) that are superficial and nonlinear warrant a maximum rating of 10 percent if they occupy an area or areas of 144 square inches (929 sq. cm) or greater. If multiple qualifying scars are present, or if a single qualifying scar affects both the anterior and the posterior portions of the trunk, separate evaluations are to be assigned based on the total area of the qualifying scars affecting the posterior and anterior portions of the trunk. Code 7804 provides for a 10 percent rating for one or two scars that are unstable or painful; a 20 percent rating for three or four scars that are unstable or painful; and a 30 percent rating for five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of the skin over the scar. If one or more scars are both unstable and painful, 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. Under Code 7805, any disabling effects of scars not considered in a rating provided under Codes 7800-04 are to be considered under an appropriate diagnostic code. 38 C.F.R. § 4.118. July 2011 VA records note that the Veteran's residuals of a pilonidal cyst caused periodic inflammation and discomfort, worsened by sitting or lying on his back. On August 2011 VA examination, the Veteran reported pressure pain in the scar area, and a history of skin breakdown over the scar annually or less often. On physical examination, the examiner noted a 7 cm. by 1.2 cm. scar occupying an area of less than 6 square inches. It was painful, but showed no signs of skin breakdown at the time. The examiner described it as deep, but found no other disabling effects. The skin showed signs of inflammation, edema, or keloid formation, and there was a thickened scar in the superior portion of the main scar, measuring about 1.5 cm. by 1.2 cm. The Veteran reported no time lost from work in the past year, but that his scar residuals interfered with his ability to work due to decreased concentration and pain. July 2013 VA records note that the Veteran had a long history of pilonidal cyst with continuing problems. He reported the scar was red and swollen, with no drainage, but becoming painful on sitting longer than 10 minutes. At the August 2013 hearing, the Veteran reported increasing discomfort and embarrassment at work, and that his scar residuals caused problems walking and sitting. He described the pain as 3/10 in severity without touching, increasing to 9/10 on touch. Usually, when he was sitting or lying on his back, the pain was about 9/10 in severity. At times, he had mild skin breakdown. The Veteran also reported flare-ups, when the area became inflamed. He denied missing days at work due to his scar residuals. On April 5, 2014 VA examination, the Veteran reported that he felt his pilonidal cyst had grown. He also stated that he noticed his skin was breaking down more frequently, and that he was treating a fungal infection at the scar site at the time. On physical examination, the examiner noted a deep (approx. 1 fingerbreadth), 7 cm. by 1.2 cm. scar with pain on palpation. There was thickening of the scar on the superior 1.5 cm. by 1.2 cm. portion of the scar, and redness within and around the scar that was well demarcated. There was no sign of skin breakdown. The examiner also described it as superficial and non-linear, with a total area of 14.6 square centimeters. The Veteran reported interference with his ability to work due to pain that required him to get up frequently during the day. On December 2014 VA examination, a history of one scar that was both painful and unstable was noted. The Veteran stated that he could not sit or lean against anything due to aggravation of his daily discomfort from the scars. On physical examination, the examiner noted there were two distinct scars; one linear, 6 cm. long, and the other was superficial and nonlinear, measuring 7 by 1.2 cm, with an approximate area of 8.4 square centimeters. The scars were found to impair the Veteran's ability to sit comfortable for any length of time. The examiner acknowledged review of the photographs submitted by the Veteran. The Veteran reported the scar at the base of his coccyx is painful, and requires him to frequently get up during the work day. The examiner noted that the condition was unchanged since the April 2014 examination, except that the Veteran no longer had an active fungal infection. It was also noted that the Veteran had subjective complaints of pain to palpation on physical examination. The rating for scar residuals of a pilonidal cyst is premised on findings that he has two scars, one superficial, rated 0 percent; the other (in the midline buttock fold) assigned staged ratings of 10 percent prior to April 5, 2014, and 20 percent from that date. Superficial scar The superficial scar has consistently been so described; by definition, it is not deep. The most recent medical evidence (the report of the December 2014 VA examination) describes it as nonlinear, with a total area of 8.4 sq. cm. It is described as well-healed, and not noted to be painful or unstable, or to cause any impairment of function. Therefore, that scar is not shown to warrant a compensable rating under Codes 7801-05 at any time during the period under considerations. See 38 C.F.R. § 4.118. Midline Buttock Fold Scar, Prior to April 5, 2014 What remains for consideration is the matter of the ratings assigned for the midline buttock fold scar (described as a 6 cm. long linear scar "open in a slit" and continuing from the superficial scar into the gluteal fold. Considering first the rating assigned prior to April 5, 2014, the Board notes that the current 10 percent rating is under Code 7804 (for a scar that is painful or unstable). On longitudinal review of the record the Board finds that the evidence reasonably shows that the scar was both painful and unstable prior to April 5, 2014 (as it has been found to be since that date) and that a 20 percent rating under Code 7804 (for a painful scar that is also unstable) is warranted throughout. In that regard the Board notes that on August 2011 examination, a history of skin breakdown associated with the scar was noted, and on physical examination, the scar was painful to palpation. At the August 2013 hearing, the Veteran testified he had pain with and without palpation, and episodes of [more] severe pain with mild skin breakdown. While the August 2011 examiner found no sign of skin breakdown, such finding does not preclude that there was recurrent skin breakdown at other times; the Veteran is competent to report the occurrence and frequency of lay-observable symptoms such as skin breakdown, and the Board finds no reason to question the veracity of his accounts of such occurrences. Resolving reasonable doubt in his favor as required (see 38 C.F.R. § 4.3), the Board finds that the evidence reasonably shows the Veteran's midline buttock fold scar was both unstable and painful throughout, and that a 20 percent rating is warranted for the scar throughout (i.e., both prior to, and from, April 5, 2014. See 38 C.F.R. § 4.118, Code 7804, Note (2). Rating in Excess of 20 percent for Buttock Fold Scar What remains for consideration is whether a rating in excess of 20 percent is warranted for the buttock fold scar for any period of time under consideration. Upon review of the record the Board finds it is not. The Veteran's buttock fold scar has been noted to be deep and linear. Therefore, it may be rated either under Code 7804 or under Code 7805. [Notably, the scar has also been described at times as superficial and nonlinear. As the total area of involvement has never been noted to be other than one far short of the requirements for the minimum compensable (10 percent) ratings under Codes 7801, 7802 (77 sq. cm. and 929 sq. cm., respectively) those Codes have no applicability.] As this is a single scar, it cannot warrant a rating in excess of 20 percent under Code 7804 (as the criteria for higher ratings require 3 or more scars). Under Code 7805, any disabling effects not contemplated by the criteria in Codes 7801-7804 may be rated under an appropriate code (for such disabling effects. Here, the disabling effects noted consist essentially of an inability to sit for prolonged periods (due to pain). As such pain is specifically contemplated under Code 7804, further rating under Code 7805 would not be appropriate. The Board has considered whether referral of this claim for consideration of an extraschedular rating is indicated. Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is, thus, found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto 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 the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. Here, the symptoms of the Veteran's scar residuals of a pilonidal cyst are entirely encompassed in the schedular criteria, and those criteria are not inadequate. The primary functional impairment alleged (inability to sit for prolonged periods due to pain) is specifically contemplated by the Code 7804 criteria, and those criteria are not inadequate. Notably, while the Veteran claims the disability affects his ability to work, he has also indicated it has not caused him to miss any days at work. Therefore, referral for extraschedular consideration is not warranted. As the Veteran is employed, the matter of entitlement to a total disability rating based on individual unemployability is not raised in the context of the instant claim. ORDER A 20 percent rating throughout (for the period prior to April 5, 2014) is granted for the Veteran's scar residuals of a pilonidal cyst, subject to the regulations governing payment of monetary awards. A rating in excess of 20 percent for scar residuals of a pilonidal cyst is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs