Citation Nr: 0000394 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 96-48 712A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to a disability evaluation in excess of 40 percent, to include a separate evaluation under Diagnostic Code 7804, for residuals of a pilonidal sinus excision in the posterior sacral area, to include coccydynia and radicular pain in the base of the neck. REPRESENTATION Appellant represented by: Hawaii Office of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. McCain Parson, Associate Counsel INTRODUCTION The veteran had verified active military service from September 1966 to September 1970. This matter comes before the Board of Veteran's Appeals (Board) on appeal from an August 1996 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. In August 1996, the RO granted service connection for residuals of excision of a pilonidal sinus posterior sacral area scar and assigned a 10 percent disability evaluation effective from January 1996, the date of the claim. This was a full grant of benefits (i.e. service connection). In September 1996, the veteran filed a notice of disagreement. The RO issued a statement of the case in September 1996. The veteran perfected his appeal in July 1997. By a July 1998 hearing officer's decision, a 20 percent disability evaluation was assigned effective January 1996. In September 1999, the RO granted a 40 percent disability evaluation for residuals of excision of a pilonidal sinus, posterior sacral area effective January 1996. Based on the fact that the 40 percent disability rating is the result of the original claim filed in January 1996, the Board must consider all evidence considered in the initial rating following the award of service connection in August 1996. See Fenderson v. West, 12 Vet. App. 119 (1999). The RO granted service connection for PTSD in March 1999 and assigned a 30 percent disability evaluation effective February 1996, the date of the claim. This rating action constituted a full grant of benefits with respect to the award of service connection. Consequently, the Board observes that while the record indicates that the veteran has been issued a supplemental statement of the case in March 1999, which included the context of the RO's determination as regards the PTSD claim, the record does not reflect that the veteran has been provided adequate written notice of the remaining adjudicative actions (i.e., the assignment of the compensation level for the now service-connected PTSD and the effective date assigned), or of his appellate rights with respect thereto. In view of this procedural deficiency with respect to the remaining adjudicative actions effectuated by the March 1999 rating action, these issues are referred to the RO for appropriate action consistent with the August 26, 1997 letter from the Director of Compensation and Pension Service, Veterans Benefits Administration, following the decision of the United States Court of Appeals for the Federal Circuit in Grantham v. Brown, 114 F.3d 1156, 1156-57 (Fed.Cir. 1997). In the same rating decision, the RO denied service connection for degenerative disc disease, lumbar (L)5-sacral (S)1. A statement of the case was issued to the veteran in March 1999. In July 1999, the RO denied service connection for a neurological disorder due to the service-connected pilonidal sinus excision. By a November 1999 rating decision, the RO denied entitlement to individual unemployability. The veteran has not filed a notice of disagreement to either of these adverse decisions. In re Fee Agreement of Cox, 10 Vet. App. 361, 374 (1997) (Absent a Notice of Disagreement, a Statement of the Case, and a Substantive Appeal, the Board has no authority to proceed to a decision). Accordingly, these issues are not before the Board for appellate consideration. As will be discussed below, the Board believes that the issue of a separate rating under Diagnostic Code 7804 for the scar overlying the pilonidal sinus excision, posterior sacral area, is reasonably inferred from the evidence of record. Therefore, the Board will construe the issue, for purposes of this appeal, as listed on the cover page of this decision. Effective March 1, 1999, the United States Court of Veterans Appeals changed its name to the United States Court of Appeals for Veterans Claims (hereinafter, "the Court"). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this claim has been obtained by the RO. 2. Residuals of the pilonidal sinus excision, posterior sacral area, are manifest by chronic coccydynia, normal tone and strength, and pain radiating up and down the back to the base of his neck. 3. The veteran's service-connected residuals of the pilonidal sinus excision, posterior sacral area is characterized by a painful and tender surgical scar overlying the sacral area. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 40 percent for residuals of a pilonidal sinus excision, posterior sacral area, to include coccydynia and radicular pain into the base of the neck, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.7, 4.14, 4.20, 4.25, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5292 (1999). 2. The criteria for a separate 10 percent evaluation for a surgical scar over the posterior sacral area, as a residual of the pilonidal sinus excision, are met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.25, 4.118, DC 7804 (1999); Estaban v. Brown, 6 Vet. App. 259 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Higher Rating As a preliminary matter, the Board finds that the veteran's claim is plausible and capable of substantiation and is thus well-grounded within the meaning of 38 U.S.C.A. § 5107(a). See Drosky v. Brown, 10 Vet. App. 251, 245 (1997) (citing Proscelle v. Derwinski, 2 Vet. App. 629, 631- 32 (1992)). The Board is satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a). In accordance with Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the medical records and all other evidence of record pertaining to the history of the veteran's residuals of pilonidal sinus excision, posterior sacral area. Accordingly, the Board has found nothing in the historical record that would lead to a conclusion that the current evidence on file is inadequate for rating purposes. See 38 C.F.R. §§ 4.1, 4.2 (1999). In this case, a review of all the evidence considered in the initial rating for the disability following the award of service connection for the residuals of pilonidal sinus excision, posterior sacral area, is required. See Fenderson v. West, 12 Vet. App. 119 (1999). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities which is based on the average impairment of earning capacity. Separate diagnostic codes (DC) identify the various disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA regulations require that a disability evaluation be based upon the most complete evaluation of the condition that can be feasibly constructed with interpretation of examination reports, in light of the whole history, so as to reflect all elements of disability. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. See 38 C.F.R. §§ 4.1, 4.2, 4.10 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. See 38 C.F.R. § 4.3 (1999). [38 C.F.R. s]ection 4.20 . . . provides that "when an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous." This regulation allows the VA to rate an unlisted ailment under the criteria provided for "a closely related disease or injury" that is listed. In deciding whether a listed disease or injury is "closely related" to the veteran's ailment, the VA may take into consideration three factors: (1) whether the "functions affected" by the ailments are analogous; (2) whether the "anatomical localization" of the ailments is analogous; and (3) whether the "symptomatology" of the ailments is analogous. See Lendenmann v. Principi, 3 Vet. App. 345, 350- 51 (1992). Moreover, pursuant to DC 7804, a 10 percent evaluation is warranted for superficial scars that are tender and painful on objective demonstration. See 38 C.F.R. § 4.118. In this regard, the veteran's service-connected residuals of a pilonidal sinus excision, posterior sacral area, are currently rated under 38 C.F.R. § 4.71a, DC 5299-5292, for limitation of motion of the lumbar spine. Service connection for the residuals of pilonidal sinus excision, posterior sacral area, was granted based on service medical records and the April 1996 VA examination. In relevant part, service medical records for the period from September 1966 to August 1970 reflect that in August 1968 a pilonidal sinus was evaluated and treated by packing. The pilonidal sinus developed cellulitis. Incision and drainage was performed. The pilonidal sinus was later excised in September 1968. The veteran separated from service in September 1970. The April 1996 VA examination for scars reflects that the pilonidal sinus was excised and drained in 1968 with persistent pain and numbness to the same area. The veteran cannot sit on his tailbone without discomfort. On examination, there was a well-healed scar, midline, which extended from the sacrum to the anal opening. There was some adherence of the scar to muscle tissue. There was decreased sensation to light touch approximately 5 centimeters surrounding the scar. The scar was tender to palpation over the coccygeal area. The diagnosis was scar, residual status post excision pilonidal sinus tract with persistent pain secondary to scar tissue formation, paresthesia to approximately 5 centimeters surrounding the scar. An April 1996 radiological report from Kahului Radiology reflects metal suture material from previous surgery. The sacrum was intact. The coccygeal segments were unremarkable. No fractures, dislocations, or subluxations were identified. The sacroiliac joints were unremarkable. Testimony from the November 1997 personal hearing reflects that the pilonidal sinus is still making the veteran suffer inordinate pain and forces him to have all sorts of medical problems. He has a pain in his "butt." He has been evaluated at the VA for almost two years. He does not receive regular medical treatment from the VA. He hurts constantly; the pain never goes away. A demonstration was performed with the representative lying on the floor and placing a small object on the location near his back. The representative reported that it felt as if he was sitting on a rock, it was very painful, and that the pain started radiating down the small of his back. The veteran testified that the pain radiated down toward his anus. The pain affects his ability to drive because he has to lean one way or the other. The pain gets so intense that he just has to move from cheek to cheek. There is nothing that relieves the pain - not even sitting on something soft. He does not believe that using a donut cushion would alleviate his discomfort. He feels as though he has a rock inside of him. He repositions himself for comfort, which was noted by the hearing officer. Pain radiates through his whole body and affects the lower end of his tailbone. He has metal sutures. He says the pain is the same as that in service following the excision. He has tried doctors and pills. The pain is still present. He has been told that the surgeon may have cut some nerves. He was told to see an osteopath, but not a neurologist. A VA brain and spinal cord examination conducted in May 1998 reflects constant pain. The veteran denied loss of sensation or weakness. The pain has been the same since the surgery [in 1968]. There was no motor or sensory impairment. The examiner noted that this examination was identical to the April 1996 examination. There was marked tenderness over the scar. Sensation to touch and pin was intact including and around scar and perianal region. The diagnosis was status post operative excision pilonidal sinus with chronic pain exacerbated by pressure. The pain was myofascial with no nerve injury. The examiner recommended a general surgery consult to assess whether or not removal of the wire sutures might help the pain. A VA outpatient neurological evaluation dated in June 1998 reflects that the veteran complained of persistent pain and numbness to the surgical area. On examination, the entire length of the incisional scar was moderately tender with a surrounding area of numbness reported by the veteran. No masses were noted. There were no discrete points of localized tenderness. The impression was chronic postoperative pain syndrome -- doubt further surgery would be helpful. An October 1998 fee basis orthopedic examination, completed by an orthopedic surgeon, reflects that after excision of the pilonidal sinus in-service, the veteran continued to have pain in his tailbone area that would radiate up his back to the base of his neck. The veteran rated the pain as a 9/10. He has pain in all motions, which was worse when sitting on a hard surface and lying on a flat surface. On examination, there was a wide scar over the coccygeal area. It was specifically tender to palpation. There was an area of numbness of the sacral area. There was tenderness to palpation over the lumbar area, around L4-5 bilaterally. Forward flexion was 90 degrees. Extension was 25 degrees. Lateral bending was 25 degrees bilaterally. Rotation was 25 degrees bilaterally. The neck showed a negative axial compression test and a negative Spurling's. Sacrococcygeal films showed multiple thin wires in the sacrococcygeal area. There was minor displacement of the coccyx anteriorly. The impression inter alia was status post pilonidal sinus excision with residuals, including coccydynia. The examiner noted that the veteran does indeed have residuals from his pilonidal sinus excision with what is diagnosed as coccydynia or pain in the sacrococcygeal area. The examiner opined that the complaints of pain radiating up and down the veteran's back, to the base of his neck, are probably coming from the coccyx area, at the area of his surgical excision. This does interfere with the veteran's activities of daily living. An injection into this area, either with a local anesthetic or a local anesthetic with cortisone, may be both diagnostic and therapeutic. The May 1999 VA neurological disorders examination reflects that the veteran is unable to sit normally, ride a bike, or have sexual relations without precipitating severe pain over the area of the surgery for the pilonidal sinus. Flexion of the back was limited to 40 degrees with pain. Extension of the back was limited to 15 degrees with pain. Left rotation was limited to 15 degrees with pain. Right rotation was 35 degrees with pain. There was tenderness over the surgical scar overlying the sacral area. The motor examination showed normal tone and strength. Sacral x-rays showed metal sutures. The diagnosis was chronic postoperative pain -- doubt further surgery would be helpful. The examiner also noted chronic, excruciating, unremitting coccydynia related to infected pilonidal sinus and subsequent surgical excision. The pain interfered with normal everyday activities and affected his ability to hold a job. The neurologist concurred completely with the medical conclusions of the orthopedic surgeon from October 1998. As the record reflects the residuals of the pilonidal sinus excision, posterior sacral area, is demonstrative of more than a tender scar over the surgical site and is productive of limitation of motion of the lumbar spine, the Board will review the evidence to determine whether the symptoms warrant a disability evaluation higher than 40 percent. Notably, in rating a disorder it must be kept in mind that "[t]he evaluation of the same disability under various diagnoses is to be avoided . . . . Both the use of the manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided." See 38 C.F.R. § 4.14 (1999). The assignment of more than one rating for the same disability constitutes impermissible "pyramiding" of benefits. See Brady v. Brown, 4 Vet. App. 203, 206 (1993). It is possible, though, "for a veteran to have separate and distinct manifestations" from the same injury, permitting the assignment of two different ratings. See Fanning v. Brown, 4 Vet. App. 225, 230 (1993). The "critical element" in determining whether a separate disability rating may be assigned for manifestations of the same injury is whether there is overlapping or duplication of symptomatology between or among the disorders. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). With these considerations in mind, the Board will also address whether a separate evaluation is warranted pursuant to Diagnostic Code 7804 for a scar over the posterior sacral area. See 38 C.F.R. § 4.25(b) (1999). At this juncture in the analysis, the Board notes that service connection for degenerative disc disease of the lumbar spine and a separate neurological condition secondary to the service-connected residuals of the pilonidal sinus excision have been denied based on the examinations of record. Clinical evaluations, specifically those dated in October 1998 and May 1999 reflect that the veteran has pain in his tailbone area that radiates up his back to the base of his neck and that there is a wide scar over the coccygeal area from the excision of the pilonidal sinus that is both tender to palpation and numb in a 5 centimeter circumference around the scar. These examinations reflect that sensation to touch and pain was intact around the scar and the perianal region. Both a neurologist and an orthopedist noted that the sacrococcygeal area on x-ray contains metal sutures, which were suspected to cause pain. X-rays also reflect that those segments were intact and unremarkable. There were no discrete points of localized tenderness on examination. The impression was chronic postoperative pain syndrome and it was doubtful that further surgery would be helpful. In pertinent part and limiting the discussion to the residuals of the pilonidal sinus excision, posterior sacral area, the examiners' impressions were status post pilonidal sinus excision with residuals, including coccydynia (pain in the sacrococcygeal area). The pain was described as chronic, excruciating, unremitting coccydynia related to the infected pilonidal sinus and subsequent surgical incision that interferes with normal everyday activities. The October 1998 and May 1999 examination reports reflect limitation of motion of the lumbar spine. The orthopedist in October 1998 opined that the complaints of pain radiating up and down the veteran's back to the base of his neck were probably coming from the coccyx area, at the area of the incision. The neurologist concurred in the earlier report by the orthopedist and opined that it was doubtful if further surgery would be helpful. As indicated above, the evidence also shows that the chronic pain (coccydynia) in the sacrococcygeal area has resulted in limitation of motion of the lumbar spine and caused radiating pain up into the base of the neck. See 38 C.F.R. § 4.71a. Functional impairment is based on lack of usefulness and may be due to pain, supported by adequate pathology and evidenced by visible behavior during motion. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59 (1999). A part that becomes painful on use must be regarded as seriously disabled. Id. Considering the most recent VA examinations which specifically focused on the "residuals" attributed to the pilonidal sinus excision, posterior sacral area, the Board observes that the veteran occasions radiating pain up and down his back, to the base of his neck, and chronic pain which results in moderate to severe limitation of motion of extension, lateral bending, and rotation of the lumbar spine with pain on all movements. See 38 C.F.R. § 4.20. Taking into consideration additional functional impairment caused by pain on use of the lumbar spine, the residuals of the pilonidal sinus excision, posterior sacral area, more nearly approximates severe limitation of motion of the lumbar spine to warrant a 40 percent disability evaluation under DC 5292. See 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a. The Board notes that this is the maximum available disability rating under DC 5292. Accordingly, an evaluation in excess of 40 percent is not warranted. Since no examiner, orthopedist or neurologist, has established by examination that the veteran's service- connected residuals of the pilonidal sinus excision, posterior sacral area, are reflective of intervertebral disc syndrome manifest by persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of a diseased disc with little intermittent relief, a 60 percent disability evaluation for pronounced intervertebral disc disease under DC 5293 is not warranted. As the foregoing medical data show no evidence of a fractured vertebra, with cord involvement, or complete bony fixation (ankylosis) of the spine in an unfavorable angle, as required under DCs 5285 and 5286, the Board determines that a disability evaluation in excess of 40 percent for residuals of the pilonidal sinus excision, posterior sacral area, pursuant to DCs 5285-5286, and 5293 is not warranted, and that the residuals are appropriately evaluated as 40 percent disabling under DC 5292. See 38 C.F.R. §§ 4.40, 4.45, 4.71a; DeLuca v. Brown, 8 Vet. App. 202 (1995) (the disability rating accounts for functional loss due to pain and limitation on motion); VAOGCPREC 36-97 (December 12, 1997). Next, the Board finds that the evidence of record reasonably infers a claim for a separate evaluation for a tender and painful scar of the posterior sacral area under DC 7804, in light of Esteban. See Robinette v. Brown, 8 Vet. App. 69 (1995); Akles v, Derwinski, 1 Vet. App. 118 (1991). VA is obligated to consider all issues reasonably inferred by the evidence of record, even if the veteran does not directly raise such issues. See Douglas v. Derwinski, 2 Vet. App. 435, 438-40 (1992) (citations omitted). On complete review of the evidence, the record clearly establishes that there is a wide moderately tender scar over the coccygeal area. It is apparent that the veteran is entitled to a separate 10 percent disability evaluation for the scar overlying the sacral area under DC 7804. See 38 C.F.R. § 4.118. Thus, in view of the foregoing, the Board finds that the symptomatology of the veteran's posterior sacral scar is separate and distinct and would not result in the evaluation of the same manifestations twice under various diagnoses. See Esteban, supra. Accordingly, a separate evaluation is in order. In this regard, the Board notes that a separate 10 percent disability evaluation for the surgical scar overlying the posterior sacral area under DC 7804 and a separate 40 percent disability evaluation for severe limitation of motion of the lumbar spine with radicular pain to the base of the neck under DC 5292, establishes a combined total disability evaluation of 50 percent. See 38 C.F.R. § 4.25. In the unusual case where the schedular evaluations are found to be inadequate, an extraschedular evaluation may be assigned commensurate with the impairment in the average earning capacity due exclusively to the service-connected disability or disabilities. See 38 C.F.R. § 3.321(b)(1). In reviewing this case, the Board also must consider whether additional benefits are warranted under any of the provisions of Parts 3 and 4. As to the disability picture presented in this case, the Board cannot conclude that the disability picture is so unusual or exceptional, with such related factors as frequent hospitalization or marked interference with employment solely attributed to the service-connected residuals, as to prevent the use of the regular rating criteria. Generally, the symptoms associated with the residuals of the pilonidal sinus excision, posterior sacral area, is chronic pain (coccydynia) with severe limitation of motion and a tender surgical scar. It is accepted that the pain attributed to the residuals of the pilonidal sinus excision to include the scar affects certain activities of daily living, such as sitting. The Board acknowledges that the veteran has difficulty riding a bicycle, having sex, and driving an automobile due to the coccydynia. It is important to note, however, that the evidence of record also shows that the veteran has degenerative disc disease of L5-S1, which according to examinations is not a residual of the pilonidal sinus excision. In that regard, it is important to note not only that the residuals of the pilonidal sinus excision, posterior sacral area, have a combined total disability rating of 50 percent, but that the veteran has not asserted or presented any exceptional or unusual factors related to the service-connected residuals to preclude the use of the regular rating criteria. See Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability evaluation itself is recognition that industrial capabilities are impaired). In sum, the Schedule for Rating Disabilities is shown to provide a fair and adequate basis for rendering a decision in this case. In the absence of an exceptional or unusual disability picture marked by frequent hospitalizations for the disability or marked interference with employment caused exclusively by the service-connected disability, the Board finds that the criteria for submission for assignment of an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In reaching the determination in this case, the Board recognizes that the RO has not addressed the question of whether a separate rating under DC 7804 is warranted. Thus, the Board must consider whether the veteran has been given full notice and an opportunity to be heard, and if not, whether the veteran has been prejudiced thereby. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). As the evidence previously presented adequately spoke to the diagnostic criteria of 5292, and 7804 and the Board's decision to assign a separate 10 percent rating for the overlying posterior sacral scar in addition to the 40 percent rating already in effect for severe limitation of motion of the lumbar spine, as well as to increase the combined disability evaluation to 50 percent, has not altered the ultimate outcome of the veteran's claim, the Board concludes that the veteran has not been prejudiced by its action. Id. at 394. ORDER An evaluation in excess of 40 percent for residuals of a pilonidal sinus excision, posterior sacral area, to include coccydynia and radicular pain into the base of the neck, is denied. A separate 10 percent evaluation for a surgical scar over the posterior sacral area, as a residual of the pilonidal sinus excision, is granted, subject to the provisions governing the award of monetary benefits. Deborah W. Singleton Member, Board of Veterans' Appeals