Citation Nr: 1752642 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 13-35 692 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for postoperative residuals of pilonidal cyst and perirectal abscess with scar. 2. Entitlement to a separate compensable disability rating for postoperative residuals of pilonidal cyst and perirectal abscess with minor incontinence. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1966 to December 1972. This matter comes to the Board of Veteran's Appeals (Board) on appeal from a July 2013 rating decision issued by Department of Veterans' Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. This case was previously before the Board in June 2015. At that time, the Board remanded the claim for further development. FINDINGS OF FACT 1. The Veteran has one service-connected scar that is both unstable and painful. 2. The Veteran has constant slight, or occasional moderate leakage, due to his service-connected pilonidal cyst and perirectal abscess. CONCLUSIONS OF LAW 1. The criteria for a 20 percent disability rating for service-connected residuals for postoperative residuals of pilonidal cyst with scar are met or approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A and 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, and 4.7, Diagnostic Code 7804 (2016). 2. The criteria for a 10 percent disability rating for service-connected residuals for postoperative residuals of pilonidal cyst with minor incontinence are met or approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A and 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, and 4.7, Diagnostic Code 7332 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). Initially, the Board notes that VA issued a legally conforming VCAA notice letter in September 2015. Additionally, VA's duty to assist contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (2016). VA has done everything reasonably possible to assist the Veteran with respect to the claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2014) and 38 C.F.R. § 3.159 (c) (2016). Relevant service treatment and other medical records have been associated with the claims file. Also, the Veteran was afforded VA examinations which are fully adequate for decision-making purposes. Hence, the duties to notify and to assist have been satisfied. II. Governing Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. A. Increased rating for scar The Veteran contends he is entitled to a rating in excess of 10 percent for service-connected residuals for postoperative residuals of pilonidal cyst with scar. For the reasons provided below, the Board finds that a rating of 20 percent for pilonidal cyst with scar is warranted. Under DC 7800, a 10 percent rating is warranted for burn scars of the head, face, or neck; or scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck - when the skin disability has one characteristic of disfigurement. See 38 C.F.R. § 4.118, DC 7800 (2016). Under DC 7801, a 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear, at least 39 sq. cm. in area but less than 77 sq. cm. Id. Higher ratings are available for deep and linear scars that affect a larger area. A deep scar is one associated with underlying soft tissue damage. See 38 C.F.R. § 4.118, DC 7801, Note (1). Under DC 7802, a maximum 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are superficial (not associated with soft tissue damage) and nonlinear, affecting an area or areas of 144 square inches (929 sq. cm.) or greater. Id. Under DC 7804, a 10 percent rating is warranted for one or two scars that are unstable (frequent loss of covering of the skin over the scar) or painful. A 20 percent rating is warranted for three or four scars that are unstable or painful, with a maximum 30 percent rating warranted 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 skin over the scar. See 38 C.F.R. § 4.118, DC 7804, Note (1). 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. See 38 C.F.R. § 4.118, DC 7804, Note (2). Scars can receive separate evaluations under DCs 7800, 7801, 7802, and 7805, despite also being rated under DC 7804. See 38 C.F.R. § 4.118, DC 7804, Note (3). Under DC 7805, other scars, including linear scars, can be assigned a separate rating for any disabling effects not considered under DCs 7800-7804. Id. In an August 2012 VA treatment record, the Veteran's scar was reported to have a "small amount of underlying tissue loss... which is normal," slight discoloration, and no disfigurement. At a July 2013 VA examination, the Veteran reported intermittent but consistent drainage from a skin opening anterior to his anus, minor incontinence since his surgery in 1969, with usually serous drainage, but occasionally becomes purulent. On physical examination, the examiner noted that there was a "small less than 1 mm skin opening anterior to the anus," and the scar measured 1.5 cm by 0.5 cm. The examiner further noted no tenderness, that the scar was not adhered to the underlying bone, and noted "ulceration or breakdown of the skin - small area of linear skin ulceration in the natal cleft." At a September 2015 VA examination, the Veteran reported pain due to his perianal scar. He denied any residuals secondary to his scar. The examiner noted pain with palpitation to the scar, no erythema or edema, and that the scar was well healed. The examiner noted one painful scar, but that the scar was not unstable. The scar was measured to be 7.0 cm by 1.0 cm by 0.5 cm, with a total approximate area of 3.5 cm squared, and noted to be deep non-linear. In October 2015, the Veteran reported that his scar "frequently swells and is very painful. It then breaks and drains constantly." See October 2015 Statement in Support of Claim. Further, the Veteran's wife submitted a statement in October 2015 stating that the Veteran suffers from pain due to his scar, and that he also suffers from incontinence that interferes with his daily activities. See October 2015 Statement. After review of the record in the light most favorable to the Veteran, the Board finds a rating in excess of 10 percent is warranted for the Veteran's pilonidal cyst under DC 7804. In making this determination, the Board notes the evidence reflects that the Veteran's pilonidal cyst is both unstable and painful. In only one instance the scar was noted to be not unstable. The Veteran is competent to report observable symptoms, such as pain and other discomfort, and he is competent to report whether the scar is unstable as that does not require expertise beyond the average ken of a layperson. See Jandreau, 492 F. 3d at 1376-77. Furthermore, the July 2013 VA examiner noted that the Veteran's scar was open at the time of examination, and that there was a small area of breakdown of the skin. Therefore, given the competent evidence showing the Veteran's scar is unstable and painful, the Board finds that his disability warrants a 20 percent rating under Diagnostic Code 7804. Indeed, as noted above, DC 7804 awards a 10 percent rating for one or two scars that are unstable or painful, with an additional 10 percent added to the rating if one or more scars are both unstable and painful. See 38 C.F.R. § 4.118, DC 7804, Note (2). Therefore, a 20 percent rating is warranted in this case. A rating higher than 20 percent is not warranted, however, because the Veteran's pilonidal cyst is not manifested by three or more scars that are unstable and/or painful. See 38 C.F.R. § 4.118, DC 7804. The Board has considered the Veteran's disability under the other diagnostic codes pertaining to scars. However, his disability is not located on his head, face, or neck to warrant consideration under DC 7800; nor is the cyst shown to be deep (associated with underlying soft tissue damage) or cover sufficient area to warrant consideration under DC 7801 or DC 7802. The Board also notes that the Veteran's pilonidal cyst with scar is not shown to have any disabling effects other than pain and the drainage caused by frequent loss of covering of the skin over the cyst, all of which is contemplated by the 20 percent rating assigned under DC 7804. Accordingly, DC 7805 is not for application in this case. Therefore, the other potentially applicable diagnostic codes do not assist the Veteran in obtaining a higher rating. B. Separate compensable rating for minor incontinence. The Veteran contends he is entitled to a separate compensable rating for service-connected residuals for postoperative residuals of pilonidal cyst with minor incontinence. The Board agrees. Under 38 C.F.R. § 4.114, Diagnostic Code 7332, constant slight or occasional moderate leakage warrants a 10 percent rating; occasional involuntary bowel movements, necessitating wearing of pad warrants a 30 percent rating; extensive leakage and fairly frequent involuntary movements warrants a 60 percent rating; and complete loss of sphincter control warrants a 100 percent rating. At a July 2013 VA examination, the Veteran reported that he had intermittent but consistent drainage, with some minor incontinence since his surgery in 1969. He reported that the drainage was usually serous, but occasionally purulent. He also reported using hot water soaks to alleviate the symptoms. On physical examination, the examiner noted that the Veteran has a perirectal abscess which was recurrent, noted minor incontinence, impairment of sphincter control, a well healed scar with some pain upon palpation, and no disfigurement. At a September 2015 VA examination, the Veteran reported constant anal fistula, constant rectal seepage, and that he constantly wears a 4x4 gauze pad due to the seepage and minimal fecal incontinence. He reported increased seepage with activity, painful flare-ups, pain on sitting, and pain when placing pressure on his rectum. He reported treating the disability by soaking in a bathtub. On physical examination, the examiner noted leakage that necessitates the wearing of pad, constant slight leakage, recurrent perirectal abscess, and no signs of secondary infection. The examiner noted that there were no findings consistent with perirectal abscess, but there was minimal serous drainage from a skin opening. In October 2015, the Veteran's wife submitted a statement stating that due to the Veteran's disability, he wears and frequently changes gauze dressings with soaks. She reports that he suffers from frequent incontinence. Thus, the Board finds that a separate 10 percent disability rating is warranted for the Veteran's minor incontinence. There is no showing of involuntary bowel movements, or complete loss of sphincter control to warrant higher disability ratings. C. Conclusion The Board has considered whether staged ratings should be assigned for the Veteran's pilonidal cyst with scar and with minor incontinence; however, a staged rating is not appropriate in this case, as the competent and credible lay and medical evidence of record shows that the manifestations of the Veteran's disabilities have remained stable throughout the appeal period. Therefore, the 20 percent rating for the scar and the 10 percent ratings assigned herein for minor incontinence contemplates the compensable functional impairment experienced by the Veteran with respect to his disabilities. The Board has considered the Veteran's claims and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In conclusion, and based on the foregoing reasons and bases, the Board concludes that the preponderance of the evidence supports the award of 20 percent for the Veteran's pilonidal cyst with scar and of a compensable rating for the Veteran's pilonidal cyst with minor incontinence. ORDER A disability rating of 20 percent, but no higher, for service-connected residuals for postoperative residuals of pilonidal cyst with scar is granted. A separate disability rating of no more than 10 percent for service-connected residuals for postoperative residuals of pilonidal cyst with minor incontinence is granted. ____________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs