Citation Nr: 1815201 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 08-06 579A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to a non-initial evaluation in excess of 10 percent for residuals of a cyst excision in the perianal area. 2. Entitlement to a finding of total disability based on individual unemployability (TDIU) due to service connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M.E. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1986 to February 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2007 and May 2008 rating decisions by the Indianapolis, Indiana, Regional Office (RO) of the United States Department of Veterans Affairs (VA). The March 2007 decision denied entitlement to service connection for a TDIU, while the May 2008 decision denied an increased evaluation for postoperative residuals of a perianal cyst. The issues were remanded by the Board in July 2012 and March 2017 for additional development. The case has now returned to the Board for adjudication. As discussed in the body of this decision, the issue of service connection for recurrent boils of the buttocks area, to include secondary to the Veteran's cyst excision in the perianal area, is referred back to the agency of original jurisdiction (AOJ) for initial consideration and development. The Veteran initially requested a hearing before a Veterans Law Judge, to be held at the RO, but withdrew this request in January 2012 correspondence. The matter was last considered by the AOJ in a November 2017 supplement statement of the case. A statement from the Veteran's treating VA care provider was added to the record in December 2017. There is no indication that the AOJ reviewed this evidence. However, in a statement dated in November 2017, titled Expedited Processing, the Veteran, through his representative, indicated that he would waive AOJ consideration of any additional evidence that was located and submitted a later time. (CONTINUED ON NEXT PAGE) FINDINGS OF FACT 1. For the entire appeal period, the Veteran's residuals of a cyst excision in the perianal area have affected less than 5 percent of his body and have not manifested more than two painful scars, less than 12 square inches. 2. The Veteran's service-connected disabilities, independent of his age and non-service-connected disabilities, do not render him unemployable. CONCLUSIONS OF LAW 1. For the entire appeal period, the criteria for a rating higher than 10 percent for residuals of a cyst excision in the perianal area have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 4.118, Diagnostic Codes 7800-7806, 7819 (2017). 2. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Since the March 2017 remand, neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). As an initial matter, the Board notes that the Veteran's service-connected residuals of cyst excision in perianal area has been continuously rated under Diagnostic Code (DC) 7819 since February 28, 1989. The disability was rated noncompensable from February 28, 1989, and 10 percent from July 11, 2000, when he was granted an additional separate compensable rating for skin lesions on chest and back (diagnosed as steatocystoma multiplex) under DC 7899-7806. His claim for increase was received in December 2007. The Veteran underwent a VA examination in February 2008. At that time, he reported that he was unable to leave his home during a flare-up of his service-connected steatocystoma multiplex because of systemic illness including fever. He reported experiencing flare-ups approximately three times monthly, and stated that between flares, boils persisted but were less inflamed. The examiner noted that 20 to 40 percent of the Veteran's body was affected by his service-connected skin conditions, but the area and symptoms were not specified or separated from the chest and back and perianal areas. In June 2008, the Veteran submitted a lay statement in support of his claim in which he stated he had several outbreaks in the previous six months. The Veteran submitted a July 2008 letter from the Office of Personnel Management (OPM) regarding his disability retirement from the U.S. Postal Service. The OPM letter clarified that he was found to be disabled from his position as a Laborer/Custodian due to his steatocystoma multiplex only. The Veteran testified at a DRO hearing in December 2008. At the hearing, the Veteran testified that, in connection with residuals of cyst excision in the perianal area, he experienced cysts between once and three times per month. He indicated that he took a couple of oral medications and used several topical creams to treat the condition, with little relief. The Veteran testified that a bad breakout, with fever, occurred about once a month, tended to be on his buttocks area and would last about a week. He stated the condition was worse in the summer time due to heat and resulting sweat, increasing the frequency of flare-ups. On VA examination in December 2011, the Veteran stated the he believed his recurrent boils were due to the cyst removal. The examiner noted diagnoses of steatocystoma multiplex, dermatitis of the right hand, and residuals of cyst excision in perianal area. The Veteran had numerous lesions over the lower chest, a few on the back and one on each side of the face. He reported that the lesions became enflamed and painful, sometimes rupturing, particularly if he sweats a lot or is in a cold or unclean environment. The examiner opined that none of the Veteran's skin conditions impact his ability to work. The examiner explained that steatocystoma multiplex would have moderate to severe effects on physical labor due to the sweating, dirty environment and sometimes cold weather the Veteran would have to work in which would cause inflammation and pain of the multiple lesions he has on his chest and back. There would be mild to no effects on sedentary work in a clean environment due to no sweating or cold weather. Dermatitis of right hand would cause mild effects on physical labor as the physical labor could cause an exacerbation of the dermatitis and would cause no effects on sedentary work. Due to increased sweating the residuals of boils in the perianal area could cause moderate effects on physical labor, but mild to no effects on sedentary work. Social Security Administration (SSA) documents from February 2013 indicate that the Veteran was established to be disabled and unable to work since December 2010 due to late effects of musculoskeletal and connective tissue injuries (amputation) and anxiety disorders. Neither of these conditions is service-connected. The Veteran underwent an additional VA examination in April 2016. At that examination, the Veteran reported that he experienced flare-ups of the perianal abscess 2 to 3 times per month. The current symptoms were listed to include flare-ups of the condition 1 -2 times per month. The examiner measured two linear scars from the cyst excision that were 7 x .25 cm and 5 x .25 cm in size. The scars were linear and slightly hyper pigmented. The examiner further remarked that the Veteran's scars were not painful or unstable. The examiner noted the Veteran's reported boils in the buttocks area as consistent with his perianal abscess but attributed 0 percent exposed body area to the perianal abscess removal. The examiner opined that the Veteran's service-connected scars do not impact his ability to work. The April 2016 examiner also commented on the Veteran's service-connected steatocystoma multiplex and dermatitis. Steatocystoma multiplex was approximated to cover 0 to 20 percent of the Veteran's body area. There were multiple visible flesh colored nodules scattered over the Veteran's trunk, but none were inflamed or open. The examiner opined that these conditions would not have any impairment on any type of employment. In a statement dated December 2017, the Veteran's treatment physician indicated that he had been seeing him for over two decades. He described the Veteran's as having numerous cysts, primarily, on his chest due to steatocystoma multiplex. He noted that the cysts were prone to become infected. The modalities of treatment were discussed. When infected, he said the cysts limited the Veteran's ability to work for two to four days at a time. The physician observed that there was no strict correlation between outside temperatures and infections, but that the disease was better controlled when the temperature could regulated, i.e., being indoors with a thermostat. The Veteran's brief, submitted in January 2018, indicates that the Veteran worked from 1998 to 2007 as a custodian and holds a high school diploma. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate Diagnostic Codes (DC) identify the various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4. Although a disability must be considered in the context of the whole recorded history, including service medical records, the present level of disability is of primary concern in determining the current rating to be assigned. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If a disability has undergone varying and distinct levels of severity throughout the claims period, staged ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. A critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. As noted, the Veteran filed his claim for increase in December 2007. The rating criteria pertaining to the skin were amended effective October 23, 2008. The revised provisions are applicable only to claims received on or after October 23, 2008; however, a Veteran who VA rated under diagnostic codes 7800, 7801, 7802, 7803, 7804, or 7805 before October 23, 2008, can request review irrespective of whether the disability has increased since the last review. In no case will any such award be effective before October 23, 2008. There is no indication that the Veteran requested a review under the "new" regulations, however, the AOJ appears to have considered the Veteran's increased rating claim under the "old" and "new" rating criteria. See November 2009 Statement of the Case. The Veteran's service-connected residuals of cyst excision has been evaluated under DC 7819. Under the criteria effective prior to October 23, 2008, DC 7819 provides that benign skin neoplasms are rated as disfigurement of the head, face, or neck (DC 7800), scars (DCs 7801, 7802, 7803, 7804, or 7805), or rated on impairment of function. 38 C.F.R. § 4.118. DC 7800 is not applicable as the disability involves the perianal area. DC 7801 is also inapplicable as the scar is less than 6 square inches and, for that matter, has not been found to be deep or cause limitation of motion. Similarly, as the Veteran's scar, while superficial, measures far less than 144 square inches, the assignment of a compensable rating under DC 7802 would also be inapplicable. DC 7803 provides a 10 percent rating for superficial unstable scars. Note (1) to DC 7803 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. When he was examined in October 2010, the Veteran indicated that he had experienced drainage from the cyst/scar area three months earlier. He described instances where the wound would open and drain pus and blood. The examiner indicated that there was an opening in the perianal area but that it was not draining at that time. However, he noted that it was likely that the area periodically drained. This finding served as the basis for assigning the Veteran his 10 percent rating. See Rating Decision dated January 2001. DC 7804 provides a 10 percent rating for superficial scars that are painful on examination. Note (1) to DC 7804 provides that a superficial scar is one not associated with underlying soft tissue damage. Note (2) provides that a 10-percent rating will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable rating. 38 C.F.R. § 4.118 . DC 7804 also directs the rater to see 38 C.F.R. § 4.68 (amputation rule). 38 C.F.R. § 4.118. Here, while there are some references to the Veteran providing a history of pain, the examinations of record disclose no findings related to the cyst/scar of the perianal area to being painful. DC 7805 provides that other scars are to be rated on limitation of function of affected part. 38 C.F.R. § 4.118. There is no evidence that the residuals of the cyst cause any limitation of function. Under the revised criteria, effective from October 23, 2008, DC 7802 contemplates burn scars or scars due to other causes, not of the head, face, or neck, that are superficial and nonlinear. A 10 percent rating is provided when the area or areas of the scarring encompass 144 square inches or greater. As indicated above, the scar(s) in question measure far less than 144 square inches. They are also linear as opposed to non-linear. DC 7804 contemplates superficial scars that are unstable or painful. 38 C.F.R. § 4.118 . A superficial scar is one not associated with underlying soft tissue damage. One or two scars that are unstable or painful are rated at 10 percent. Three or four scars that are unstable or painful are rated as 20 percent disabling; and, five or more scars that are unstable or painful are rated as 30 percent disabling. Id. Note (1) to DC 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin. Note (2) provides that if one or more scars are both unstable and painful, then 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under DC 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code when applicable. The revised DC 7805 provides that scars, other (including linear scars) and other effects of scars evaluated under DCs 7800, 7801, 7802 and 7804 are to be evaluated based on any disabling effects not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code. The evidence reflects the Veteran has two superficial linear scars in his perianal area. As diagnostic codes 7801 and 7802 apply to non-linear scars and therefore do not apply. See 38 C.F.R. § 4.118, DC 7801, 7802 (effective October 23, 2008). It is again noted that the serviced connected residuals of the cyst are located in the perianal area, which makes application of the "new" DC 7800 unwarranted. For a rating in excess of 10 percent for scars, DC 7801 requires and area or areas of scarring of at least 12 square inches. In this case, the Veteran's scars were measured to be 7 x .25cm and 5 x .25cm and do not warrant a higher rating under DC 7801. Diagnostic Code 7802 does not offer a rating higher than 10 percent. Therefore, a rating under DCs 7801 or 7802 is not appropriate. Diagnostic Code 7804 requires three or more scars that are unable or painful in order to warrant a rating in excess of 10 percent. Here, the Veteran had two scars that were noted to not be painful by the 2016 examiner. A rating in excess of 10 percent is not warranted under this code. Diagnostic Code 7805 entitles a scar to be evaluated by any disabling effect(s) not considered in a rating provided under DCs 7800-7804 under an appropriate diagnostic code. There is no evidence to suggest that the Veteran's scars cause any functional loss, so a rating under 7805 is inappropriate. See 38 C.F.R. § 4.118, DC 7805. The April 2016 VA examiner attributed the Veteran's boils in the buttocks area to his service-connected residuals of a cyst excision, or perianal abscess. Because the nature of the boils, versus the residual scars of a cyst excision, they are not contemplated as symptoms in the language of the diagnostic codes related to scars. As such, the Board finds it appropriate to refer this condition back to the AOJ for consideration as a separately rated disability, including as secondary to the Veteran's residuals of cyst excision in the perianal area. TDIU A total rating for compensation may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a). A Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating alone is a recognition that the impairment makes it difficult to obtain/keep employment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran contends, in essence, that he is unemployable due to his service connected disabilities. He is service connected for skin lesions of the chest and back rated at 60 percent, residuals of cyst excision of the perianal area at 10 percent, dermatitis of the right hand at 10 percent, bilateral tinnitus at 10 percent, and a scar of the right fourth finger at a noncompensable rating. His combined disability rating is 70 percent. The record shows the Veteran worked as a custodian for the U.S. Postal Service until 2008, when he was found to be disabled for his position due to his service-connected steatocystoma multiplex only. His brief indicated the Veteran has a high school education. It is notable that, although not determinative for VA purposes, SSA did not consider the Veteran's skin condition to be a factor in their decision to grant benefits. The SSA documents show that the Veteran was found to be disabled as of December 2010 by reason of non-service connected conditions (musculoskeletal and connective tissue injuries (amputation)), and that the Veteran's skin conditions were not even considered a secondary contributing factor in his disability. As noted above, the Veteran experiences flare - ups of his skin conditions up to three times per month, and that those flare-ups can include fever, skin boils, and sometimes pus-filled nodules that burst. His service-connected skin disabilities are aggravated by both cold weather and warm weather that can cause sweat, in addition to environmental factors such as dirt and chemicals. Despite this, each VA examiner explained that the Veteran's service-connected skin conditions did not affect his ability to work, nor did it affect his ability to complete tasks for daily living or participate in recreational activities. At the very worst, the examiner in December 2011 felt that the conditions could cause moderate effects on physical labor and would only have mild or no effect on sedentary work. The April 2016 examiner determined the Veteran's condition posed no effect on his ability to work any type of employment. Indeed, even his treating physician noted that the Veteran's ability to work was only impacted when his cysts became infected, and that being temperature-controlled environments, i.e., being indoors rather than outdoors, provided a means to stabilize his skin disease. Overall, the Board finds the evidence does not demonstrate that the Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation. As such, the Veteran is found to have been capable during the applicable period on appeal of substantially gainful employment with reasonable accommodations consistent with his service-connected disabilities. The degree of occupational impairment due to his service-connected disabilities is found to be adequately demonstrated by the evidence and schedular ratings of record. Entitlement to a TDIU is not warranted. ORDER Entitlement to a non-initial evaluation in excess of 10 percent for residuals of a cyst excision in the perianal area is denied. Entitlement to a TDIU is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs