Citation Nr: 21001750 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 16-19 970 DATE: January 11, 2021 ORDER Entitlement to an initial compensable rating for residuals of epidermal cysts is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for a right knee disability is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s skin disability does not affect more than 5 percent of the total body area, or total exposed area; has not resulted in painful or unstable scars; and does not cause other impairment of function. CONCLUSION OF LAW The criteria for an initial compensable rating for residuals of epidermal cysts have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.20, 4.118, Diagnostic Code 7819 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1982 to April 1985, from November 1990 to May 1991, and from November 2001 to June 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a hearing before the undersigned Veterans Law Judge in September 2019. A transcript of the hearing has been associated with the claims file. This case was previously before the Board in January 2020, at which time the issues currently before the Board were remanded for additional development. The case has now been returned to the Board for appellate review. Increased Rating – Residuals of Epidermal Cysts The Veteran asserts that he should have a higher rating for his skin disability as his symptoms are worse than those contemplated by the currently assigned rating. At an August 2012 VA examination, the Veteran reported that he had several cysts removed from his arm and thigh while in active service, he reported that since that time, has had a few recurrences on both arms. There was no scarring or disfigurement on the Veteran’s head, face, or neck. He did not treat his disability with oral or topical treatments. The Veteran had not had any treatments or procedures in the prior 12-month period for treatment of his skin disability. his skin disability was diagnosed as epidural cysts, and was noted to affect less than 5 percent of the total body area, and less than 5 percent of the exposed area. The Veteran was noted to have two current cysts on the right arm, and three on the left arm. At a March 2019 VA examination, the Veteran reported that he had continue to experience reoccurrences of his cysts, and that the disability was getting worse. He reported that his disability was not treated with any medication or other procedures in the last 12-month period. The examiner noted that less than 5 percent of the total body area was affected, and less than 5 percent of the exposed area was affected. Upon physical examination, the examiner noted that the Veteran had scattered epidermal cysts in the left and right forearms, and the left and right thigh area. At his September 2019 Board hearing, the Veteran stated that he had over 10 cysts removed during service and that the resulting scars caused pain and were sensitive to touch. At an August 2020 VA scar examination, the Veteran had three scars on the right upper extremity. He had two surgical incision scars, anteriorly on the right forearm measuring 1 centimeter (cm) by 0.2 cm and 1 cm by 0.2 cm respectively; and one surgical incision scar, medially on the right elbow, measuring 1.5 cm by 0.2 cm. The Veteran had one left upper extremity surgical incision scar that was anteriorly on the left forearm, measuring 1 cm by 0.2 cm. The Veteran had two scars on the right lower extremity, one being a surgical incision scar medially on the right femoral area, measuring 5 cm by 0.3 cm; the other was a surgical incision scar, anteriorly 2 cm proximal to the right knee, measuring 2 cm by 0.3 cm. The Veteran had one left lower extremity scar that was a surgical incision scar, medially on the left femoral area, measuring 3 cm by 0.3 cm. The scars were not painful or unstable. At an August 2020 VA skin examination, the Veteran reported that he continued to have multiple epidermal cysts with occasional pain and itching. The Veteran reported that he used topical over-the-counter creams on an as-needed basis to treat the itchiness, but he had not had any other treatment for his disability. The examiner noted that less than 5 percent of the total body area was affected, and less than 5 percent of the exposed area was affected. The Veteran was noted to have seven current epidermal cysts that were not visible on examination, but located by palpation during examination. Those cysts were located and measured as follows: one located posteriorly on the distal right arm, 2 cm in diameter; one located medially on the right proximal forearm, 1 cm in diameter; one located posteriorly and medically on the distal left arm, 1 cm in diameter; one located anteriorly on the right proximal forearm, 1 cm in diameter; one located anteriorly on the right knee, 1 cm in diameter; and two located laterally on the right thigh area, 1.5 cm in diameter each. The Board finds that the Veteran is not entitled to an initial compensable rating for his skin disability. In this regard, there is no indication from the record that the Veteran’s skin disability has manifested either disfigurement, limitation of motion due to scarring, pain on examination of scars, frequent loss of covering of skin over scars, or impairment of function. Notably, the September 2020 VA examination showed that the Veteran’s scars are stable, non-painful, and do not cause limitation of function, disfigurement, or frequent loss of covering of skin over scar. While the Veteran has current cysts, they affect less than 5 percent of the total body area, and less than 5 percent of the exposed areas. Further, there is no indication from the record that the Veteran receives treatment for his epidermal cysts, and certainly does not receive intermittent systemic therapy. As such, the Board finds that a compensable rating is not warranted. 38 C.F.R. § 4.118, Diagnostic Codes 7804, 7819. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to an initial compensable rating for epidermal cysts is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND In the January 2020 remand, the Board directed that additional development be conducted and then, the claim be readjudicated. A review of the record shows that the directed development was conducted and in September 2020, the Veteran was issued a rating decision increased his right knee disability rating to 10 percent for the entire period on appeal. It was noted that the decision resolved the appeal of that issue. The Board notes that there is no indication from the record that the Veteran limited his appeal of the rating assigned for his right knee to 10 percent. Unless specifically limited, an appeal of an assigned rating is presumed to be a request for the maximum allowable rating. As such, the Veteran should have been issued a supplemental statement of the case addressing why a rating in excess of 10 percent for his right knee disability was not warranted. Therefore, the Board finds that the development conducted does not adequately comply with the January 2020 Board remand directives. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the issue must be remanded for issuance of a supplemental statement of the case before the Board proceeds with further appellate action. Regarding the TDIU issue, the Board notes that the issue of entitlement to a TDIU is inextricably intertwined with the claim remanded herein. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Therefore, the TDIU claim is not ripe for adjudication at this time and is remanded pending the outcome of the increased rating claim. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Conduct the appropriate development for adjudication of the issue of entitlement to a TDIU, to specifically include obtaining a VA Form 21-8940. 3. Conduct any other development determined to be warranted. 4. Then, readjudicate the remaining issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Umez-Eronini, Associate 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.