Citation Nr: 20004710 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 17-08 588 DATE: January 21, 2020 ORDER A 10 percent rating for pilonidal cyst is granted under Diagnostic Code 7804. A separate 10 percent rating for pilonidal cyst is granted under Diagnostic Code 7801. Entitlement to a temporary total evaluation under the provisions of 38 C.F.R. § 4.30 based on the need for convalescence following surgery is denied. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that the scar associated with the Veteran’s service-connected pilonidal cyst is painful. 2. The March 2015 VA examiner described the scar associated with the service-connected pilonidal cyst as nonlinear (L shaped) and the November 2019 VA examiner reported underlying soft tissue damage in a total area of approximately 42 sq. cm. 3. The surgeries that form the basis of the Veteran’s claim for a temporary total evaluation under the provisions of 38 C.F.R. § 4.30 were performed prior to when service connection for pilonidal cyst was in effect. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating, and no higher, for pilonidal cyst have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7804. 2. The criteria for a separate 10 percent rating for pilonidal cyst have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7801. 3. The criteria for a temporary total rating based on the need for convalescence following surgery have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 2005 to June 2009. These matters come before the Board of Veterans Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in May 2016. The Veteran presented testimony at a videoconference hearing before the undersigned Veterans Law Judge in October 2019. A transcript is of record. Since the Agency of Original Jurisdiction (AOJ) last considered the appeal, additional medical evidence has been associated with the record. This evidence consists of VA treatment records and VA examination reports. Given that the VA treatment records are not pertinent to the claims on appeal and the claim for increased rating, to include a separate rating for the service-connected disability, is being granted in this decision, there is no prejudice in proceeding with adjudication of the claims. 1. Entitlement to a compensable rating for pilonidal cyst Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Service connection was originally established for pilonidal cyst in a March 2015 rating decision, which assigned a noncompensable rating pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7805, effective May 22, 2014. The May 2016 rating decision that is the subject of this appeal essentially continued the noncompensable rating pursuant to Diagnostic Code 7806, although the issue was styled as a grant of service connection for pilonidal cyst effective February 26, 2016. The Veteran seeks a compensable rating for pilonidal cyst. He testified that the cyst removed had not reformed and that he had a scar that caused pain while sitting for long periods of time; tenderness and soreness in the area from the site where the cyst was removed; worsening pain when sitting for long periods of time and from any pressure applied to the area; problems laying down; and drainage for a couple of days three to four times a year. The rating criteria used to evaluate the skin were amended effective August 13, 2018. Since the amended criteria can only be applied for the period from the effective date of the regulatory change, the Board will consider the rating criteria in effect prior to the August 2018 amendments in addition to the amended criteria. Prior to August 13, 2018, Diagnostic Code 7805 provided the rating criteria for scars, other (including linear scars) and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804. The criteria indicated that any disabling effects not considered in a rating provided under diagnostic codes 7800-7804 should be evaluated under an appropriate diagnostic code. Also prior to August 13, 2018, Diagnostic Code 7806 provided the rating criteria for dermatitis or eczema. A 10 percent evaluation was provided for dermatitis or eczema that affects at least five percent, but less than 20 percent, of the entire body, or at least five percent, but less than 20 percent, of exposed areas, or; required intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period. A note under the diagnostic criteria indicated that the disability could be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. Prior to August 13, 2018, 10 percent ratings were assigned for scars not of the head, face, or neck that were deep and nonlinear, in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) (Diagnostic Code 7801); scars not of the head, face, or neck that were superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater (Diagnostic Code 7802); and for one or two scars that were unstable or painful (Diagnostic Code 7804). Note (1) under Diagnostic Code 7801 stipulated that a deep scar was one associated with underlying soft tissue damage. Effective August 13, 2018, Diagnostic Code 7805 contains language essentially identical to that used in the prior version, except that it does not specifically reference linear scars. Diagnostic Code 7806 continues to provide the criteria for dermatitis or eczema, but stipulates those conditions are to be evaluated under the General Rating Formula for the Skin (General Rating Formula). Under the General Rating Formula, a 10 percent rating is assigned for characteristic lesions affecting at least 5 percent, but less than 20 percent, of the entire body or exposed areas; or when intermittent systemic therapy (including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immuno-suppressive drugs) is required for a total duration of less than 6 weeks over the past 12-month period. 38 C.F.R. § 4.118, General Rating Formula. Ratings of 10 percent are also provided under the criteria effective August 13, 2018, for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage in an area of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) (Diagnostic Code 7801); for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage in an area of 144 square inches (929 sq. cm.) or greater (Diagnostic Code 7802); and for one or two scars that are unstable or painful (Diagnostic Code 7804). An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Diagnostic Code 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. Id. at Note 2. The Board notes that the assignment of a particular diagnostic code is dependent on the facts of the case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which code or codes are most appropriate for application in the Veteran’s case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995); Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The preponderance of the evidence of record supports the assignment of a 10 percent rating for the service-connected pilonidal cyst pursuant to Diagnostic Code 7804 in effect both prior to, and since, August 13, 2018. The Veteran has competently and credibly reported pain caused by the site where the pilonidal cyst was removed; the April 2016 VA examiner indicated that there was pain at the top of the glutted fold; and the November 2019 VA examiner reported that the Veteran’s scar was painful. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that a 10 percent rating is warranted for the painful scar associated with the service-connected pilonidal cyst under Diagnostic Code 7804. See id. The Board acknowledges that the Veteran’s reported symptoms of the scar included intermittent draining a few times a year. However, the Board does not find such intermittent drainage equates to frequent loss of covering of the skin over the scar so as to equate to an unstable scar. Accordingly, an additional 10 percent under Diagnostic Code 7804 based on having a scar that is both painful and unstable is not warranted. The Board does find the evidence of record supports the assignment of a separate 10 percent rating for the scar associated with the pilonidal cyst pursuant to Diagnostic Code 7801 in effect both prior to, and since, August 13, 2018. This determination is based on the March 2015 VA examiner’s description of the scar as nonlinear (L-shaped) and the November 2019 VA examiner’s report of underlying soft tissue damage in a total area of approximately 42 sq. cm. Ratings higher than 10 percent are not warranted for the service-connected pilonidal cyst at any time during the appellate period under any of the other rating criteria discussed above. The Board has considered whether to apply Diagnostic Code 7806 to the Veteran’s service-connected disability since the RO used this diagnostic code in continuing the noncompensable rating assigned for pilonidal cyst; however, the Veteran’s predominant disability is a scar, not dermatitis or eczema. Moreover, the area involved is less than 5 percent of total body area as noted on VA examination, so rating the disability as a scar is more favorable. The only other diagnostic code in effect prior to, and since, August 13, 2018, that provides a rating higher than 10 percent is Diagnostic Code 7801. The next highest (20 percent) rating under this code is not warranted in this case because although the scar associated with the service-connected pilonidal cyst is nonlinear and associated with underlying soft tissue damage, the approximate area is less than 77 sq. cm. Finally, Diagnostic Code 7805 is not for application because there is no evidence the scar associated with the pilonidal cyst results in limitation of function (to include limitation of motion). In sum, after resolving all doubt in the Veteran’s favor, the Board finds that a 10 percent rating is warranted for the Veteran’s pilonidal cyst under Diagnostic Code 7801 and a separate 10 percent rating is warranted under Diagnostic Code 7804. 2. Entitlement to a temporary total evaluation under the provisions of 38 C.F.R. § 4.30 based on the need for convalescence following surgery The Veteran seeks entitlement to a temporary total rating under the provisions of 38 C.F.R. § 4.30 for surgery performed for pilonidal cyst. The applicable laws and regulations provide that a temporary total rating may be assigned for a period of one, two or three months if at least one month of convalescence is necessitated by surgery for a service-connected disability, with such benefits payable from the date of entrance into the hospital or the date of outpatient treatment for the period in question. 38 C.F.R. § 3.401(h)(2), 4.30. An extension of the total convalescence rating is available up to one year from the initial date of hospitalization. 38 C.F.R. § 4.30(b). The Veteran underwent several procedures related to his pilonidal cyst, one during service in April 2009, one shortly after service in December 2009, and the most recent in January 2012, when he underwent excision of the pilonidal cyst and flap advancement. Service connection for pilonidal cyst was granted in a March 2015 rating decision with an effective date of May 22, 2014, the date on which the Veteran’s claim to reopen to establish service connection was received. The surgeries that form the basis of the Veteran’s claim for a temporary total evaluation under the provisions of 38 C.F.R. § 4.30 were performed prior to when service connection for pilonidal cyst was in effect. Given that the regulations pertaining to the assignment of a temporary total rating for convalescence must   be for surgery related to a service-connected disability, and service connection for pilonidal cyst was not in effect when the surgeries were performed, this claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Van Wambeke, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.