Citation Nr: 18106569 Decision Date: 05/31/18 Archive Date: 05/31/18 DOCKET NO. 15-02 403 DATE: May 31, 2018 ORDER Entitlement to a disability rating in excess of 20 percent for recurrent cyst, left buttock is denied. FINDING OF FACT The Veteran’s recurrent cyst, left buttock is analogous to one painful and unstable scar. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for recurrent cyst, left buttock have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.21, 4.27, 4.118, Diagnostic Code 7804 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). Where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Within that context, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a “staged rating.” See Fenderson v. West, 12 Vet. App 119 (1999). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The Veteran contends that his recurrent cyst warrants a higher rating. The Veteran is assigned a 20 percent rating under Diagnostic Code (DC) 7804, effective December 28, 2010 through July 19, 2015, and from October 1, 2015, based upon one unstable and painful scar. Under DC 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful; a 20 percent rating is warranted for three or four scars that are unstable or painful; and a 30 percent rating is 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. If one or more scars are both unstable and painful, an additional 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. In December 2010, the Veteran reported a flare-up of his cyst that resulted in treatment with antibiotics for six days. A February 2011 VA examination report reflects that the Veteran reported that his condition may flare four or five times over two months, or may remain dormant for years. Upon examination, there was a mildly tender 3.0 cm by 1.5 cm area of hyperpigmentation and induration on the left superior mid buttock just lateral to the gluteal crease. Within this area, there was a slightly tender linear scar measuring 2.0 cm by 0.25 cm. The scar was not adherent, disfiguring, or depressed, was well nourished, and there was no breakdown. Total affected area was less than 1 percent of the total body area. The examiner indicated that the Veteran reported having lost 35 days in the prior year due to the cyst, but began a new job the month before and had not yet lost any work time. In August and November 2011, June and September 2012, February 2013, and August 2014, the Veteran sought treatment for flare-ups of his cyst, with reports of pain and drainage. The Veteran was treated with antibiotics in November 2011 and August 2014. In July 2015, there was a recurrence of the cyst, which required excision. The post-surgical wound measured 4.0 cm by 2.0 cm and appeared to be healing nicely, although the Veteran continued to report pain at the surgical site. The Veteran was most recently afforded a VA examination in January 2016. The Veteran reported a recent excision with no complications. He reported watching and washing the area and avoiding prolonged sitting, but there was no limitation to his work. Upon examination, there was a curvilinear scar to midline lower buttock measuring 3.5 cm by 1.0 cm. The examiner indicated that the scar was not painful or unstable. In March 2018, the Veteran testified that he had one scar that had been cut three times, resulting in two or three smaller scars in the same spot. The Veteran reported that he was in constant pain which made it unable for him to sit for long periods and that he would have to soak in a hot tub to relieve the stiffness and soreness. He reported that he took pain medication and he would experience flare-ups where his cyst would drain and soak his clothing. He stated that the cyst was painful during certain duties of his employment, but that he would go to work and use a hot compress or towel to relieve the pain. After a review of the evidence of record, the Board finds that the preponderance of evidence weighs against the Veteran’s claim of entitlement to a disability rating in excess of 20 percent for recurrent cyst, left buttock for the entire period on appeal. In order to warrant an increased 30 percent rating pursuant to DC 7804, the evidence must show five or more unstable or painful scars, or three or four scars that are unstable or painful, with at least one being unstable and painful. However, as discussed above, the evidence of record demonstrates that the Veteran’s condition has not resulted in the required level of severity. The evidence reflects that there is one area of scarring, that is unstable and painful. The Veteran contends that because he has had multiple incision and drainage procedures, that he is entitled to a higher 30 percent rating. However, the evidence does not reflect that the incisions have resulted in multiple areas of scarring; rather, the cyst and incisions have been contained to one area, as described in the VA examination reports. The Board has also considered a rating for scars under Diagnostic Codes 7801 and 7802. The Veteran’s cyst measures, at most, from 4.0 cm by 2.0 cm, or 8 cm squared, during the appeal period. Thus, it only covers a very small percentage of the body and a rating based on the criterion under these codes would not be warranted. The Board has also considered a rating under DC 7820, which evaluates infections of the skin not listed elsewhere, because the type of symptoms the Veteran experiences during his flare-ups are consistent with a skin disease. Diagnostic Code 7820 rates infections of the skin not listed elsewhere in the rating schedule as disfigurement of the head, face or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801 through 7805), or dermatitis (Diagnostic Code 7806), depending upon the predominant disability. The Board notes that DC 7800 is inapplicable in this case, as the Veteran’s cyst is not located on his head, face or neck. As discussed above, a higher rating is not available under Diagnostic Codes 7801 through 7805 for scars. Under Diagnostic Code 7806, a 10 percent rating is warranted where at least 5 percent, but less than 20 percent of the entire body is covered, or at least 5 percent but less than 20 percent of exposed areas affected are covered, or there is intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted where the condition affects 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period. More than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period warrants a 60 percent maximum rating. 38 C.F.R. § 4.118, Diagnostic Code 7806. As discussed above, the Veteran’s cyst measures, at most, 8 cm squared, during the appeal period; thus, it only covers a very small percentage of the body. Furthermore, while the evidence reflects that the Veteran has been prescribed antibiotics, the evidence does not reflect that the Veteran’s recurrent cyst has required antibiotics for a total duration of 6 weeks or more, but not constantly, during a 12 month period. Therefore, the Board finds that a higher 30 percent disability rating is not warranted for the Veteran’s recurrent infections of his service-connected recurrent cyst, left buttock under DC 7806.   After considering all the evidence of record and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the preponderance of the evidence is against a finding that a disability rating in excess of 20 percent is warranted for the Veteran’s recurrent cyst, left buttock. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Owen, Associate Counsel