Citation Nr: 21031977 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 12-02 740A DATE: May 25, 2021 ORDER Entitlement to a disability rating higher than 10 percent for service-connected residuals of a pilonidal cyst on an extraschedular basis is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's pilonidal cyst residuals do not present such an exceptional disability picture that they render the rating schedule inadequate. 2. The Veteran's single service-connected disability does not preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an extraschedular rating for residuals of a pilonidal cyst are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 3.321(b)(1). 2. The criteria for entitlement to TDIU are not met. 38 U.S.C. §§ 1155, 5107(b), 5110; 38 C.F.R. §§ 3.321 (b)(1), 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from June 1971 to January 1975. In January 2017, he testified via video conference before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. In March 2019, the Board remanded the claims for additional development. Increased Rating Claim on an Extraschedular Basis The Veteran is seeking an increased evaluation for his pilonidal cyst residuals on an extraschedular basis. Generally, disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in VA's Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Ordinarily, the VA Rating Schedule will apply unless the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The Court has set out a sequential three-step analysis, based on the language of 38 C.F.R. § 3.321 (b)(1), to determine whether to refer a case for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111 (2008). If (1) the schedular criteria do not contemplate the claimant's level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether an extraschedular rating is warranted. Id. When the Board finds that an extraschedular rating may be warranted based on the above factors, it cannot grant an extraschedular rating in the first instance. Anderson v. Shinseki, 23 Vet. App. 423, 428-429 (2009). Rather, it must remand the claim to the RO for referral to the Director of Compensation Service. The Board did so in this case in March 2019. In October 2019, the AOJ referred the matter to the Director for extraschedular evaluation. In a December 2020 Advisory Opinion, the Director denied entitlement to an extraschedular rating for pilonidal cyst residuals under provision 38 C.F.R. § 3.321(b)(1) on the basis that no unusual or exceptional disability pattern has been demonstrated that would render application of the regular rating criteria as impractical. The Director's decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). See also Kuppamala v. McDonald, 27 Vet. App. 443, 458 (2015) (the Board reviews the entirety of the Director's decision de novo and is thus authorized to assign an extraschedular rating when appropriate). In Long v. Wilkie, 33 Vet. App. 167 (2020), the Court clarified the criteria for referral of a claim for extraschedular consideration. The Court stressed that the first step in Thun is not a "mechanical test;" it is not automatically satisfied just because a certain symptom or functional effect is not expressly listed in a diagnostic code. The Court also emphasized that "exceptionality remains the touchstone in determining whether extraschedular consideration is warranted under § 3.321(b)(1)" and whether Thun step one is satisfied. This "broad" analysis is "fact-bound and highly contextual" based on "a totality of the factors inquiry" into whether the veteran's disability picture as a whole (i.e., full symptomatology) presents an impairment that is so exceptional that the rating schedule is not capable of assessing it in the first instance. The Court in Long also explained that extraschedular consideration is not applicable to claims that are evaluated properly but ultimately denied under the schedular ratings; rather, it applies only after conventional rating tools prove inadequate to evaluate a veteran's symptomatology in the first place due to its exceptional nature. Thus, the rating schedule must be deemed inadequate before extraschedular consideration is warranted. Extraschedular consideration is appropriate only after the agency has exhausted all other tools for a disability rating, whether direct, secondary, or analogous ratings. The Court additionally held that functional effects are not the focus of the first Thun step; rather, they are relevant to Thun step two, which examines whether the veteran's exceptional symptomatology causes "marked interference with employment," "frequent periods of hospitalization," or other related factors. The Veteran is currently in receipt of a 10 percent schedular rating under Diagnostic Code (DC) 5298 for partial or completed removal of the coccyx with painful residuals, which is the highest evaluation assigned. See 38 C.F.R. § 4.71(a). The propriety of this schedular rating is a separate analysis that was addressed in a prior Board decision and will not be discussed here. See generally King v. Shulkin, 29 Vet. App. 174, 181 (2017) (holding that "the availability of higher schedular ratings plays no role in an extraschedular analysis and it is inappropriate for the Board to deny extraschedular referral on this basis"). This analysis will therefore focus solely on the issue of entitlement to an extraschedular evaluation. The Veteran asserts that he is entitled to a higher evaluation despite being rated at the maximum evaluation available for his service-connected pilonidal cyst residuals. At his January 2017 hearing, he testified that he has had 18 surgeries for recurring pilonidal cysts, most recently in December 2016. He described a history of lower back pain, following a pilonidal cyst operation in 1973, that has progressively worsened since service. The Board has reviewed the medical evidence of record and finds that the Veteran's chronic back pain is unrelated to his pilonidal cyst, but rather is associated with non service-connected disabilities. Medical treatment records confirm the Veteran's testimony of multiple surgeries and/or medical procedures for recurrent pilonidal cysts, hemorrhoids and perianal/perirectal abscesses. However, the most recent episodes occurred in 2009 and 2010 and were treated conservatively with antibiotic ointment, Epsom soaks, and a doughnut cushion. These records also show that in December 2016, the Veteran underwent a procedure for a left groin abcess and not his service-connected pilonidal cyst. See VA treatment records from Aiken Community Based Outpatient Clinic and Augusta Uptown VA Medical Center. Following VA examination in 2017, the examiner concluded there was no evidence to support that any increased pain or disability was related to excision of the pilonidal cyst. Referring to a VA examination from 1980, the examiner noted X-rays of the lumbar spine showed spina bifida occulta and that more recent imaging studies showed multilevel degenerative changes. The examiner concluded that the Veteran's chronic back pain was related to his degenerative arthritis and intervertebral disc syndrome of the lumbar spine. See VA Addendum Medical Opinion dated April 16, 2018. As noted above, in the December 2020, Advisory Opinion, the Director determined that available medical evidence did not support an extra-schedular evaluation for pilonidal cyst since there was no unusual or exceptional disability pattern that would render application of the regular rating criteria as impractical. It was explained that while records indicated tenderness in the area of the pilonidal cyst removal, the coccyx itself was stable. Instead the records showed an additional lumbosacral spine condition unrelated to the pilonidal cyst that results in back pain. The records also show that a higher evaluation was not warranted for the benign skin condition based on the scarring from the excision of the pilonidal cyst. The evidence of record showed a well healed surgical scar at the excision site that was neither unstable nor painful. The Director also noted recent treatment showed that excision of a thyroglossal duct cyst at the right neck, also referred to in treatment records as an epidermal inclusion cyst, was unrelated to the pilonidal cyst. Based on the foregoing, the Board finds that the Veteran does not warrant an extraschedular evaluation. He is currently rated at the maximum allowable schedular rating and there is no evidence that his pilonidal cyst residuals have produced symptoms not contemplated by his schedular rating under DC 5298. Moreover, the Veteran's back pain has been attributed to his nonservice-connected lumbar spine disabilities. To the extent the Veteran may have pain at the base of his spine that cannot be distinguished from lumbar spine pain, such symptomatology is compensated under DC 5298 with the assignment of a 10 percent rating for painful residuals. The Board therefore finds that this is not an exceptional case where the criteria in VA's Rating Schedule are inadequate. 38 C.F.R. § 3.321(b)(1). The preponderance of the evidence is against entitlement to an extraschedular rating, for pilonidal cyst residuals and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). TDIU The Veteran is seeking a TDIU. In this regard, the Board notes that, generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where a veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). However, the Board has no authority to assign a TDIU rating under 4.16(b) in the first instance and may only refer the claim to the Director of Compensation Services for extra-schedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). In his January 2017 testimony, the Veteran asserted that his chronic back pain from his service-connected pilonidal cyst disability prevents him from seeking and/or maintaining employment, but also because of his two heart attacks. He also testified that he had stopped working because business was slow and that he might only work two or three days as week as there wasn't much work. The Veteran is currently service connected for pilonidal cyst disability, rated as 10 percent disabling. This is his only service-connected disability. Since the schedular rating for a single service-connected disability must be at least 60 percent, the Veteran does not meet the minimum percentage rating required for consideration of assignment of TDIU. 38 C.F.R. § 4.16(a). As such, the Board will consider whether referral for extraschedular consideration under 38 C.F.R. § 4.16(b) is warranted. The record reflects that the Veteran was previously employed as a diesel mechanic. See December 2016 VA Primary Care Physician Note. There are no specific details about his duties and no indication that the employment was considered marginal. However, of some significance is the April 2018 VA opinion in which the examiner concludes that the Veteran's chronic back pain is related to non-service-connected lumbar spine disabilities and not his service-connected pilonidal cyst disability. In this case the evidence of record does not support the claim that the Veteran's service-connected pilonidal cyst disability is sufficient to produce unemployability so as to warrant referral for extraschedular consideration. The Veteran's service-connected pilonidal cyst disability is not significantly disabling from an industrial standpoint and the associated symptomatology is appropriately compensated for by the assigned 10 percent schedular rating. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the claimant is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the sole fact that a claimant is unemployed or has difficulty obtaining employment is insufficient to establish entitlement to TDIU. Although the compensable schedular rating implies some degree of interference with employment, the evidence does not show that the pilonidal cyst disability prevents employment. Moreover, the Veteran specifically indicated that his pilonidal cyst disability was not the sole reason that employment ended but that non service-connected heart problems played a large part in his functional impairment. There is also no indication that his service-connected disability prevents the mental acts required to obtain or maintain a substantially gainful occupation. The schedular disability rating criteria are intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. §§ 3.321(a), 3.340, 4.1; Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992). Therefore, to the extent that the pilonidal cyst disability causes some impairment to the Veteran's earning capacity he has been compensated by VA for such impairment with the 10 percent rating. Because a preponderance of the evidence is against a finding that the Veteran was unemployable due solely to his service-connected pilonidal cyst disability referral for an extraschedular evaluation is not warranted under 38 C.F.R. § 4.16(b) and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bryant, Jeana R 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.