Citation Nr: 1612784 Decision Date: 03/30/16 Archive Date: 04/07/16 DOCKET NO. 13-17 252 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for recurrent cysts of the right leg, groin and face. 2. Entitlement to an initial rating in excess of 10 percent for pseudofolliculitis barbae. 3. Entitlement to an initial compensable rating for a scar on the left leg due to lipoma removal prior to December 2, 2014. 4. Entitlement to an initial rating in excess of 20 percent for scars status post right foot and left foot and a scar on the left leg due to lipoma removal post December 2, 2014. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD J. L. Burroughs, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1997 to August 2004. Per a July 2008 CA administrative decision, only the period of service from July 1997 to July 2003 is considered honorable for VA purposes. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran was scheduled for a Board video conference hearing in February 2016, but he failed to appear. Therefore, his request for a Board hearing is deemed withdrawn. 38 C.F.R. § 20.704(e) (2015). The issues on appeal have been recharacterized to better reflect the claims currently before the Board. The Board notes in this regard that the appeal originated from an April 2008 claim for service connection for a skin disorder, reported as recurrent cysts of the face, legs and groin. This original claim was denied by a January 2009 rating decision. The Veteran then filed a timely notice of disagreement (NOD) with that decision in August 2009. No statement of the case was issued regarding this NOD. Therefore the decision did not become final. Thereafter in January 2010, the Veteran submitted correspondence requesting reconsideration of his skin condition as it had become more severe. The RO considered this correspondence to be a request to reopen. In turn, in a March 2010 rating decision, the RO denied the Veteran's claim for service connection for recurrent cysts of the face, legs and groin on the basis that no new and material evidence had been submitted. In September 2010, the Veteran again contacted the RO requesting that his skin condition/cyst claim be reopened. In response to this claim, in April 2012, the Veteran was afforded a VA examination. As a result of this examination, in June 2012, service connection was established for a scar on the Veteran's left leg that was due to the removal of his lipoma. The RO considered this scar the only residual of his previously claimed recurrent cysts of the face, legs, and groin. The Veteran was awarded a noncompensable rating for the scar, with an effective date of April 8, 2008. This rating decision did not resolve the NOD as to service connection for the residuals of cyst removals for the right leg, face or groin. In August 2012, the Veteran submitted an NOD as to the rating assigned the left leg scar, reasserting that his skin condition affected multiple portions of his body with varying severity. In March 2013, the Veteran was afforded another VA examination. This examination determined that his recurrent "lumps" of the face, groin, right leg and left thigh were pseudofolliculitis barbae. As a result, a rating decision on May 1, 2013 granted service connection for pseudofolliculitis barbae and awarded the Veteran a 10 percent rating for the disorder, effective September 23, 2010. Notably, the RO made no finding that this grant of service connection subsumed the Veteran's original skin disorder claim for recurrent cysts. Rather, on May 30, 2013, the RO issued a statement of the case (SOC) confirming the original denial of service connection for his recurrent cysts of the right leg, face and groin. This SOC also formally denied a higher initial rating for his service connected scar of the left leg due to lipoma removal. In June 2013, the Veteran filed a timely VA Form 9. This VA Form 9 perfected his appeal of his claim for an initial compensable rating for his scar of the left leg due to lipoma removal. Importantly, this Form 9 included discussion as to the propriety of his original denial of service connection. As discussed above, the Veteran filed a timely NOD for the denial of his original claim for service connection for recurrent cysts of the right leg, face and groin. Thus this Form 9 also properly perfected his original claim. The Board finds that the initial rating assigned the Veteran's service connected pseudofolliculitis barbae is on appeal, given that the medical evidence on file suggests that the recurrent cysts that led at least to the scar on the left leg stem in actuality from pseudofolliculitis barbae. Therefore, the Board will take jurisdiction of this claim even though it was not certified by the agency of original jurisdiction. See 38 C.F.R. § 19.35. Finally, while pending consideration by the Board, the RO expanded the Veteran's scar claim on appeal to include an increased rating claim for scars status post bunionectomy, arthroplasty 5th MPJ of the right and left foot with callous formation. The RO then increased the Veteran's rating from non-compensable to 20 percent, effective December 2, 2014, by combining the three sets of scars. See August 2015 Rating Decision. Inasmuch as the scars are now rated in combination, the issues have been recharacterized accordingly. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Clarification is necessary as to the current disabilities seeking service connection and increased rating. As discussed above, service connection has recently been established for the Veteran's pseudofolliculitis barbae. See May 2013 Rating Decision. In pertinent part, service connection for this condition was partially predicated on a March 2013 VA examination which indicated that the Veteran's recurrent "lumps" of the face, groin, right leg and left thigh were in essence manifestations of his pseudofolliculitis barbae. Importantly, the above noted locations are identical to those reported by the Veteran as sites where his recurrent cyst disorder manifested. See April 4, 2008 Application for Compensation or Pension. As such, an opinion needs to be obtained as to the relationship between the Veteran's claimed recurrent cysts and his now service connected pseudofolliculitis barbae. In turn, the Board finds that a clarifying opinion is also required for the Veteran's service connected scar of the left leg due to lipoma removal. Currently, there are conflicting reports as to the number of scars caused by his service connected removal of a left leg lipoma. Specifically, VA examination in April 2012 revealed one superficial non-linear scar located on the posterior aspect of his left hamstring. Comparatively, VA examination in December 2015 revealed three superficial non-linear scars located on the Veteran's left thigh. Significantly, treatment medical records dated after the April 2012 VA examination are silent as to the reoccurrence or removal of lipoma on the left leg. Furthermore, as stated above, a March 2013 VA examiner has indicated that the presence of pseudofolliculitis barbae on the Veteran's left thigh. Therefore, in order to properly adjudicate the Veteran's claim a clarifying opinion is necessary as to the current severity and nature of his scar disability. Accordingly, the case is REMANDED for the following action: 1. The AOJ should issue a statement of the case to the Veteran and his representative addressing the issue of entitlement to service connection for recurrent cysts of the face, right leg and groin. The Veteran should be advised of the remaining time limit in which to perfect his appeal of the above issue. 2. Schedule the Veteran for a VA dermatology examination by a physician with appropriate expertise. The claims file must be made available to the examiner, and the examiner should include in the examination report discussion of the Veteran's medical history and assertions. All tests deemed necessary shall be conducted and the results reported in detail. On examination the examiner should: (a) Identify each anatomical region affected by the Veteran's service-connected pseudofolliculitis barbae. (b) Identify and fully describe any scars located on the Veteran's body including the upper and lower extremities. (c) Specifically describe the anatomical region affected for each identified scar. (d) Provide a measurement of the length and width of the scar, as well as the area of the scar, in terms of square inches. The examiner should indicate whether such scar is elevated or depressed on palpation; adherent to the underlying tissue; hyper- or hypo-pigmented; manifested by abnormal skin texture; indurated or inflexible; or result in loss of underlying soft tissue. The examiner should specify whether the scar is superficial, unstable, and painful on examination. The examiner should also indicate whether the scar causes limitation of motion, and if so, should specify the degree of limitation. (e) If the Veteran has a scar of the face or neck, the examiner should determine what percentage of the face or neck is affected. The examiner should also determine the extent the Veteran might be subject to disfigurement, including whether the Veteran displays visible or palpable tissue loss and/or gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or any characteristics of disfigurement. (f) Note any characteristics of disfigurement evident, caused by such scar, including any: (1) scars 5 or more inches (13 or more cm.) in length; (2) scars at least one-quarter inch (0.6 cm.) wide at widest part; (3) surface contour of scars elevated or depressed on palpation; (4) scars adherent to underlying tissue; (5) skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and (8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). (g) Comment on the impact of the claimed increase in severity of the Veteran's disabilities, if any, on his employment and activities of daily life. A complete rationale for any opinion expressed shall be provided. After concluding the examination, the examiner must then opine as to: (a) Whether each identified scar is the result of the service-connected pseudofolliculitis barbae or a residual of the removal of a "cyst"/lipoma. (b) Indicate whether the recurrent cysts, for which the Veteran has sought service connection, are in actuality his service-connected pseudofolliculitis barbae. Special attention is directed: The April 2012 VA examination which indicated the presence of one superficial and non-linear scar measuring 1 x 2.3cm. This scar was identified as a "small circular scar located on the posterior aspect of [the Veteran's] left hamstring, the area looks hyperpigmented." Total area of the scar was approximated as 2.3 square centimeters. December 2015 VA examination noting the presence of three lipoma removal scars. Scar (1) was 1.0 x 0.5 cm in size and located in the left lower extremity on the lateral thigh. Scar (2) was 1.5 x 1.0 cm in size and located on the lower extremity lateral thigh, superior-lateral to the patella. Scar (3) was 1.5 x 1.5 cm in length and located in the left lower extremity inferior-lateral to the patella. The approximate total area of the superficial non-linear scars was 4.25 square centimeters. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. 3. Following completion of the above requested remand directives the RO should make a specific determination as to whether the Veteran's claim for service connection for recurrent cysts of the right leg, groin and face is subsumed within his recent grant of service connection for pseudofolliculitis barbae. 4. Then readjudicate the Veteran's appeal. In regards, to the claim for service connection, if the RO is either unable to make a determination/or finds against a determination that this claim is subsumed within the Veteran's grant of service connection for pseudofolliculitis barbae issue a supplemental statement of the case on the matter. If any other benefit sought on appeal is not granted, the AOJ should also issue a supplemental statement of the case and provide the appropriate opportunity to respond, before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 2014). _________________________________________________ THOMAS H. O'SHAY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).