Citation Nr: 1648280 Decision Date: 12/28/16 Archive Date: 01/06/17 DOCKET NO. 08-37 817 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a left wrist disability. 2. Entitlement to a temporary (100 percent) total evaluation based on surgical procedure requiring a period of convalescence. 3. Entitlement to a rating in excess of 10 percent for residual scars secondary to removal of cysts of the axilla, abdomen and perineum. 4. Entitlement to an initial compensable evaluation for deformity of the left breast. 5. Entitlement to an initial compensable evaluation for residuals of excision of ingrown great right toenail. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran had active service from August 1995 to February 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal of July 2008 and February 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, as well as an April 2016 rating decision of the Appeals Management Center (AMC) that granted service connection for deformity of the left breast and for residuals of excision of ingrown great right toenail. In January 2016 the issues of entitlement to a rating in excess of 10 percent for residual scars secondary to removal of cysts of the axilla, abdomen and perineum, entitlement to service connection for a left wrist disability and entitlement to a temporary (100 percent) total evaluation based on surgical procedure requiring a period of convalescence were before the Board and were remanded. In January 2016, the Board also remanded claims of entitlement to service connection for deformity of the left breast and a right toe disability. In the aforementioned April 2016 rating decision, the AMC granted these claims. The Veteran, by way of a May 2016 VA Form 21-0958 Notice of Disagreement expressed her disagreement with the assigned initial evaluations. Effective March 24, 2015, VA will only accept issues listed on a timely VA Form 21-0958, Notice of Disagreement (NOD), in cases where the agency of original jurisdiction (AOJ) provides the form for the purpose of initiating an appeal. 38 C.F.R. § 20.201 (2015). Herein below, the claims are remanded. See Manlincon v. West, 12 Vet. App. 238 (1999). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Following the Board's latest remand, the Veteran was afforded a VA examination of the skin to address the residual scars cysts of the axilla, abdomen and perineum. VA examination in March 2016 identified numerous scars, including a scar of the left axilla, 2 scars of the trunk anterior trunk, a scar of the perineal area, a scar of the left labia, and a scar of the right labia, all related to a history of cysts. Each scar is described in detail. The examiner diagnosed fibrocystic breast disease, noting that the disorder resulted in varying degrees of symptoms from one month to the next. The examiner particularly noted that this was the first assessment of this condition, despite its longstanding history. The Veteran's residual scars of the axilla, abdomen and perineum have been evaluated by the AOJ under 38 C.F.R. § 4.118, Diagnostic Code 7899-7820. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. In this case, Diagnostic Code 7899 is used to evaluate unlisted miscellaneous skin disorders that are not specifically listed in the schedule, but are rated by analogy to similar disabilities under the schedule. Here, the AOJ has chosen Diagnostic Code 7820, which provides for evaluation of infections of the skin, not listed elsewhere. However, the Veteran's disability results from apparent polycystic disease. It seems to the Board that Diagnostic Code 7819 is more appropriate, and that the Veteran's disability is analogous to benign neoplasms of the skin. These conditions are to be evaluated under disfigurement of the head, face or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801-7804) or impairment of function. See 38 C.F.R. § 4.118, Diagnostic Code 7819; see also Butts v. Brown, 5 Vet. App. 532, 538 (1993). In this case, a review of the Veteran's medical records also discloses a history of a pilonidal cyst, cysts on the buttocks, fibrocytic pain, and her lay assertions of having recurring and varying cysts on her body. VA examination in March 2016 addresses scars; however, it does not address the presence of any cysts related to any polycystic disease, which is indicated by the record. As such, in order to determine the severity of the disability, the Board concludes that further examination is necessary to determine the extent of the Veteran's cysts, and particularly during a period of flare-up, to the extent possible. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where record does not adequately reveal current state of claimant's disability, fulfillment of duty to assist requires contemporaneous medical examination, particularly if there is no additional medical evidence which adequately addresses level of impairment since previous examination); Ardison v. Brown, 6 Vet. App. 405, 408 (1994) (indicating that, to the extent possible, VA should schedule an examination for a condition that has cyclical manifestations during an active stage of the disease to best determine its severity); Bowers v. Derwinski, 2 Vet. App. 675, 676 (1992) (VA examination ordered during active stage of the Veteran's skin disorder); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Following the Board's remand, an opinion was also obtained on the Veteran's left wrist disability. The examiner assessed both ganglion cyst and de Quervain's synovitis. In a related opinion, the examiner addressed the etiology of the ganglion cyst, explaining that it was not related to service. In a footnote to the opinion, the examiner also stated that a left wrist scar noted at entrance, "[c]ertainly ... alludes to a pre-existing condition of the left wrist which presents an alternative explanation for her disability. " The examiner indicated that de Quervain's synovitis had resolved, but it is unclear from a read of the examination report as to whether this is the case. Once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). Moreover, an examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Secretary has an affirmative duty to gather the evidence necessary to render an informed decision on a claim. Douglas v. Shinseki, 23 Vet. App. 19 (2009). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). A Veteran is afforded a presumption of sound condition upon entry into service, except for any defects noted at the time of entry examination. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). That presumption can be rebutted by clear and unmistakable evidence that a disability existed prior to service and was not aggravated by service. See Monroe v. Brown, 4 Vet. App. 513, 515 (1993); Green v. Derwinski, 1 Vet. App. 320, 322 (1991); 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). The Board finds that an opinion is necessary to clarify the March 2016 VA examination report. The examiner did not address whether the left wrist scar represented, clearly and unmistakably, that a left wrist disability pre-existed service, and if so, whether any such disability underwent an increase beyond the natural progression thereof in service. Douglas, supra. The issue of entitlement to a temporary total disability evaluation due to surgical convalescence is inextricably intertwined with the Veteran's claim for service connection of a left wrist disability, particularly a ganglion cyst. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (holding that claims are inextricably intertwined when one claim could have a significant impact on a denied claim that is being appealed); see also 38 C.F.R. § 4.30. Hence, adjudication of the issue of entitlement to a temporary total disability evaluation due to surgical convalescence is deferred. The Veteran filed a timely VA Form 21-0958 (NOD) with respect to the issues of entitlement to an initial compensable evaluation for deformity of the left breast and entitlement to an initial compensable evaluation for residuals of excision of ingrown great right toenail. To date no apparent Statement of the Case (SOC) has been issued. The Veterans Appeals Control and Locator System (VACOLS) does not indicate that action has been taken on the appeal. Accordingly, the issues are remanded for the issuance of a SOC. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a new VA dermatologic examination to determine the current severity of her service-connected residual scars secondary to removal of cysts of the axilla, abdomen and perineum. The claims file should be made available to the examiner, and the examiner should note that it has been reviewed. Any tests or studies deemed necessary should be conducted. An attempt should be made to schedule the examination during a flare-up of the skin disability. In addition to addressing any scars secondary to removal of cysts of the axilla, abdomen and perineum, the examiner should comment specifically on the number and area of any cysts identified on examination. The examiner should specifically comment on whether any cysts are painful, to include during flare-ups. All opinions must be accompanied by an explanation of the underlying reasons for the conclusion. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 2. Return the opinion regarding the left wrist disability to the March 2016 VA examiner, if available. If the examiner is unavailable, contact another appropriately qualified examiner for an opinion regarding the left wrist disability. The examiner is asked to address if there is clear and unmistakable evidence that there was a preexisting disability of the left wrist, as evidenced by the left wrist scar noted at entrance, and if so, the examiner must state whether there is clear and unmistakable evidence that such disability was not aggravated (underwent a permanent increase in disability) during active service beyond the normal progression of the disorder. If any disability did not clearly and unmistakably pre-exist service, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current left wrist disability had its onset in service, is related to service, or is otherwise the result of a disease or injury in service. In terms of assessed disabilities, the examiner's attention is directed to the assessments of left ganglion cyst and de Quervain's synovitis of the left wrist. In rendering any opinion, the examiner must address these disabilities. If de Quervain's syndrome has resolved, the examiner is asked to identify, as far as practicable, the date of resolution. The examiner must provide a rationale for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 3. Ensure the above development is complete, that the examination reports are adequate and then undertake any additional development deemed warranted and readjudicate the claims on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto before this case is returned to the Board. 4. Issue a statement of the case as to the issues of entitlement to an initial compensable evaluation for deformity of the left breast and entitlement to an initial compensable evaluation for residuals of excision of ingrown great right toenail. Advise the Veteran and his representative of the procedural requirements to perfect an appeal as to these issues. 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 2014). _________________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals 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).