Citation Nr: 21031058 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 14-40 026 DATE: May 20, 2021 ORDER Entitlement to a 10 percent rating, but no higher, for pilonidal cyst and sinuses is granted from February 10, 2009 to August 13, 2018. Entitlement to a 20 percent rating, but no higher, for pilonidal cyst and sinuses is granted from August 13, 2018. FINDING OF FACT 1. From February 10, 2009 to August 13, 2018, the Veteran's pilonidal cyst and sinuses were analogous to deep acne (deep inflamed nodules and pus-filled cysts) affecting areas other than his face and neck. 2. Since August 13, 2018, the Veteran's pilonidal cyst and sinuses are analogous deep acne (deep inflamed nodules and pus-filled cysts) affecting intertriginous areas of his body. CONCLUSION OF LAW 1. The criteria for entitlement to a 10 percent rating, but no higher, for pilonidal cyst and sinuses are met from February 10, 2009 to August 13, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7829. 2. The criteria for entitlement to a 20 percent rating, but no higher, for pilonidal cyst and sinuses are met from August 13, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, DC 7829. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who had active service with the United States Marine Corps from October 1969 to March 1971, including service in Vietnam, died in January 2016. The appellant is his surviving spouse and has been substituted as the claimant for the purposes of processing the claim to completion. See July 2018 correspondence; 38 U.S.C. § 5121A; see also 38 C.F.R. § 3.1010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the appellant testified before the undersigned Veterans Law Judge. The Board remanded the claim for further development in February 2021. 1. Entitlement to a 10 percent rating, but no higher, for pilonidal cyst and sinuses is granted from February 10, 2009 to August 13, 2018. 2. Entitlement to a 20 percent rating, but no higher, for pilonidal cyst and sinuses is granted from August 13, 2018. 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 represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. If two disability ratings 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. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. By way of background, a May 1971 rating decision awarded service connection for pilonidal cyst and sinuses and assigned a noncompensable rating, effective March 10, 1971. The current appeal period before the Board begins on February 10, 2009, the date VA received the Veteran's claim for an increased rating, plus the one-year "look back" period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Veteran's pilonidal cyst and sinuses are rated pursuant to DCs 7899-7806, which is rated by analogy to dermatitis or eczema. See 38 C.F.R. § 4.27 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). During the pendency of this appeal, on August 13, 2018, VA revised the rating criteria for skin conditions. Prior to August 13, 2018, under DC 7806, pertaining to dermatitis or eczema, a noncompensable rating was assigned for less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12 months. A 10 percent rating was assigned for at least 5 percent, but less than 20 percent, of the entire body, or; at least 5 percent, but less than 20 percent, of exposed areas affected, or; 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 was assigned for 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. A maximum 60 percent rating was assigned for 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. 38 C.F.R. § 4.118, DC 7806. In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the United States Court of Appeals for the Federal Circuit held that a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, and the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. In Burton v. Wilkie, 30 Vet. App. 286 (2018), the United States Court of Appeals for Veterans Claims held that there are at least two other potential ways of showing that a topical corticosteroid is systemic: the method by which the treatment works and its side effects. As of August 13, 2018, DC 7806 is rated under the General Rating Formula for the Skin. The formula provides a noncompensable rating for no more than topical therapy required over the past 12-month period and at least one of the following: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is assigned for characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12 month period. A 30 percent rating is assigned for characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12 month period. A maximum 60 percent rating is warranted for characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12 month period. Under this new criteria, a note preceding 38 C.F.R. § 4.118 provides that, for the purposes of this section, "systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin." Furthermore, prior to August 13, 2018, DC 7829 provided a noncompensable rating for superficial acne (comedones, papules, pustules, superficial cysts) of any extent. A 10 percent rating was assigned for deep acne (deep inflamed nodules and pus-filled cysts) affecting less than 40 percent of the face and neck, or; deep acne other than on the face and neck. A maximum 30 percent rating was assigned for deep acne (deep inflamed nodules and pus-filled cysts) affecting 40 percent or more of the face and neck. 38 C.F.R. § 4.118, DC 7829. Effective August 13, 2018, DC 7829 for chloracne, provides a noncompensable rating for superficial acne (comedones, papules, pustules) of any extent. A 10 percent rating is assigned for deep acne (deep inflamed nodules and pus-filled cysts) affecting less than 40 percent of the face and neck, or; deep acne affecting non-intertriginous areas of the body (other than the face and neck). A 20 percent rating is assigned for deep acne (deep inflamed nodules and pus-filled cysts) affecting the intertriginous areas (the axilla of the arm, the anogenital region, skin folds of the breasts or between digits). A maximum 30 percent rating is assigned for deep acne (deep inflamed nodules and pus-filled cysts) affecting 40 percent or more of the face and neck. Alternatively, chloracne may be rated as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7804, or 7805), depending upon the predominant disability. 38 C.F.R. § 4.118, DC 7829. With regard to the effective date of the new criteria, VA indicated in the Supplementary Information to the Final Rule that its "intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied." The Veteran's claim in this case was pending prior to August 13, 2018, the effective date of the new criteria. The Board will therefore evaluate the Veteran's skin disorder under both the old and new criteria, keeping in mind that the revised criteria may not be applied to any time period before the effective date of the change. See 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000 (Apr. 10, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The Board finds that a compensable rating is not warranted for the Veteran's pilonidal cyst and sinuses pursuant to DC 7806 under either the new or the old rating criteria. In this regard, a September 2008 VA examiner noted sinus tracts in the mid gluteal cleft and indicated that the Veteran's skin condition affected less than 5 percent of the total body surface area. In December 2010, a VA examiner determined that the Veteran's pilonidal cyst was located on his gluteal cleft and noted that it affected about 2 percent of the entire body. There is no indication that any exposed areas were affected. Additionally, medication used to treat the Veteran's pilonidal cyst and sinuses were all topical and the evidence does not indicate that such topical treatment was administered on a large scale, but instead only on affected areas, specifically the gluteal and scrotal regions. Therefore, this limited use would not meet the definition of systemic therapy under Johnson v. Shulkin. Moreover, there is no evidence showing that such topical treatment otherwise affected the Veteran's body as a whole and he has not used intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than 6 weeks during a 12-month period required by the regulatory change. Burton v. Wilkie, 30 Vet. App. 286 (2018). The 2010 VA examiner specifically indicated that the Veteran's topical medication was neither a corticosteroid nor an immunosuppressive drug. However, the Board finds that the Veteran's pilonidal cyst and sinuses more closely approximate the characterizations of deep acne (deep inflamed nodules and pus-filled cysts) and therefore determines that his skin condition is more analogous to chloracne under DC 7829. In this regard, at the October 2010 VA examination, the Veteran reported pus and blood draining from his pilonidal cyst and sinuses. Upon physical examination, the examiner noted a draining abscess on the posterior scrotum with purulent exudate. The March 2021 VA examiner attributed pilonidal cyst to the friction between the opposing skin surfaces causing ingrown hairs solely in the intragluteal cleft. He explained that it may manifest as a chronically draining sinus or fistula at the base of the spine in the intergluteal crease, that may become infected and lead to extensive presacral abscess formation that may spontaneously drain, and further stated that the abscess may be palpable as a firm or fluctuant mass and can include hair shafts within the cyst. Since these findings demonstrate symptoms more akin to chloracne, the Board will rate the Veteran's pilonidal cyst and sinuses under DC 7829, as that more accurately captures the manifestations of his skin disorder. Accordingly, the Board finds that a 10 percent rating is warranted under former DC 7829 from the beginning of the appeal period, effective February 10, 2009. Under the old rating criteria, DC 7829 provided a 10 percent rating for deep acne (deep inflamed nodules and pus-filled cysts) affecting less than 40 percent of the face and neck, or; deep acne other than on the face and neck. As noted above, the record supports that the Veteran's skin disorder was manifested by pus-filled cysts other than his face and neck so as to warrant a 10 percent rating under DC 7829 from February 10, 2009. In this regard, there is no pertinent evidence demonstrating an ascertainable increase in disability to allow for assignment of the 10 percent rating within the one-year look-back period. Under the new regulations, effective August 13, 2018, a 20 percent rating is warranted under DC 7829. Throughout the appeal period the Veteran's skin condition has been noted to affect his intertriginous areas mainly his gluteal/scrotal area, as shown in the noted medical evidence above. As the new amendments were not granted retroactively, the Board is precluded from granting the 20 percent rating prior to August 13, 2018 under the revised rating criteria for DC 7829. Thus, a rating of 20 percent, but no higher, is warranted from August 13, 2018. A rating in excess of 10 percent is not warranted prior to August 13, 2018 nor is a rating in excess of 20 percent thereafter, as the evidence does not show that the Veteran's skin disorder affected 40 percent or more of the face and neck. The Board has also considered whether a higher rating is warranted for the Veteran's pilonidal cyst and sinuses under alternate diagnostic codes. However, as there are no findings of disfigurement of the head, face, or neck, a rating under DC 7800 is not for application. Ratings under DC 7801-7805 are also not warranted. In this regard, while the October 2010 VA examiner noted the presence of scars in the gluteal area, there was no indication that the scars were associated with any pain, instability, or loss of function, which does not allow for a separate compensable rating under the rating criteria for scars. See 38 C.F.R. § 4.118, DCs 7800-7805. The Board notes that an April 2002 rating decision awarded service-connection for scars, including those located in the groin and scrotal area. Furthermore, the Board acknowledges that the Veteran was diagnosed with hidradenitis suppurativa and a decubitus ulcer during the appeal period. However, the competent evidence of record indicates that his decubitus ulcer was not proximately due to or aggravated by his service-connected pilonidal cyst and sinuses. See March 2021 VA examination report. Moreover, the record reflects that the Veteran is already been separately service-connected for hidradenitis suppurativa, as a May 1971 rating decision awarded a 10 percent rating effective March 10, 1971. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.S. Mahoney 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.