Citation Nr: 0002464 Decision Date: 01/08/00 Archive Date: 02/02/00 DOCKET NO. 95-07 290 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE What evaluation is warranted for the period from March 24, 1993, for post-surgical residuals of a pilonidal cyst of the lower back. ATTORNEY FOR THE BOARD Christopher J. Gearin, Associate Counsel INTRODUCTION The veteran served on active duty from May 1958 to November 1958 and from January 1963 to December 1964. This matter comes before the Board of Veterans' Appeals (Board) from a January 1994 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which granted service connection for postoperative residuals of a pilonidal cyst at a noncompensable evaluation. The Board remanded this case previously in August 1996 for further development. During the course of the appeal the veteran raised the issue of entitlement to service connection for a peripheral neuropathy as secondary to a service-connected pilonidal cyst, and entitlement to the reimbursement of medical expenses incurred in association with treatment for his pilonidal cyst. These issues are not currently developed or certified for appellate review. Accordingly, they are referred to the regional office for appropriate development and adjudication. FINDINGS OF FACT Since March 24, 1993, there has been no objective evidence of an identifiable scar, loss of motion, or other functional impairment of the lower back due to post-operative residuals of a pilonidal cyst. CONCLUSION OF LAW The criteria for a compensable rating for post-operative residuals of a pilonidal cyst since March 24, 1993, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.118, Diagnostic Code 7805 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual background The service medical records show that a pilonidal cyst was removed from the veteran's lower back. VA outpatient treatment records from 1990 to 1993 are negative for treatment of a pilonidal cyst of the lower back. In January 1994, the RO granted the veteran's claim for entitlement to service connection for post-operative residuals of a pilonidal cyst of the lower back and assigned a noncompensable rating effective from March 24, 1993. The veteran timely appealed this issue. As noted in the introduction, the Board remanded this case in August 1996 for further development, to include scheduling an examination of the post-operative residuals of a pilonidal cyst of the lower back. In October 1996, the RO requested medical records from James Mercer, M.D., and Barry Galbrath, M.D. The RO sent the medical requests to the addresses provided by the veteran. The RO did not receive responses from Dr. Mercer or Dr. Galbrath. In October 1996, the veteran informed the RO that he was incarcerated and unable to attend an examination at the VA Medical Center. Furthermore, he refused to be examined by the prison medical staff. In July 1998, the RO contacted the Federal Correctional Institution where the veteran was incarcerated and attempted to arrange a physical examination for the post-operative residuals of the pilonidal cyst. In July 1998, the Federal Correctional Institution denied the RO's request. The prison representative explained that the Bureau of Prisons medical staff was not available for conducting physical examinations on inmates for matters unrelated to their care while incarcerated. The prison representative offered to provide the facilities necessary for an outside physician to enter the prison and perform an examination. According to the August 1998 supplemental statement of the case, the RO contacted the VA Medical Center for assistance in scheduling a fee basis physician to conduct an examination at the prison. The VA Medical Center spokesperson, however, indicated that it did not have the physicians or the resources to conduct an examination at the prison. In October 1998, the veteran informed the RO that he no longer experienced post-operative residuals of a pilonidal cyst, and that it was cured many years ago. As for the "[pilonidal] cyst", I no longer have one, it was cured by Dr. R.R. Mesina many years ago. My claim is not for that, it is for the damage and pain and suffering [p]hysical and [m]ental destruction it caused me by going uncured and virtually untreated while in service and being discharged with a chronic condition still existing. (P. 5). As noted in the Introduction, he further explained that he developed peripheral neuropathy, and a number of other problems, secondarily to his pilonidal cyst, and that he was entitled to reimbursement since discharge to the time that the pilonidal cyst was cured. Analysis The veteran is appealing the original disability evaluation assigned following an award of service connection, and, as such, the claim for a compensable evaluation for post- surgical residuals of a pilonidal cyst of the lower back is well grounded. 38 U.S.C.A. § 5107(a); Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). Moreover, in such a case as this it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). After reviewing the evidence, the Board is satisfied that all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained and that no further assistance is required to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a). This duty requires VA to undertake reasonable efforts to provide him with a compensation examination to rate his service-connected disability, though such an examination would be subject to the limitations imposed by his incarcerated status pursuant to 38 U.S.C.A. § 5107(a) and Bolton v. Brown, 8 Vet. App. 185 (1995). Where there is a well-grounded claim for disability compensation but medical evidence accompanying the claim is not adequate for rating purposes, a Department of Veterans Affairs examination will be authorized. 38 C.F.R. § 3.326 (1999). When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without good cause, fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655 (1999). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. Supra. To this end, the case was remanded to the RO in August 1996 so that it could arrange a medical examination. In this regard, the veteran refused to be examined by a prison staff physician. Furthermore, the Federal Correctional Institution, where the veteran was incarcerated, informed the RO that it would not examine the veteran for VA purposes, although it would allow an outside private physician on its premises to examine him. In response to the RO's subsequent request to send a fee basis examiner to the prison, the VA Medical Center refused to do so because it did not have the staff or the resources. The Board finds that the RO made a reasonable effort in good faith to schedule an examination of the veteran. Therefore, the VA's duty to assist in developing his well-grounded claim has been discharged. Furthermore, based on the relevant evidence that has been properly developed, the Board finds that an examination is not necessary to reach a decision in this case. Accordingly, no further assistance is required to comply with VA's duty to assist. Id. The case is thus ready for appellate review, and the veteran's service-connected disability will be rated based on the picture presented by medical reports of record. See Bolton. Where there is a question as to which 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. 38 C.F.R. § 4.7 (1999). The veteran currently is assigned a noncompensable evaluation for his post-surgical residuals of a pilonidal cyst of the lower back under the provisions of 38 C.F.R. § 4.118, Diagnostic Code 7805. Under that diagnostic code, scars may be evaluated on the basis of any related limitation of function of the body part they affect; in this case the lower back. Here, the VA outpatient records are negative for treatment of a post-surgical scar of the lower back. Thus, there is no medical evidence that the post-surgical scar is adherent, poorly nourished, ulcerated, painful, or tender. Moreover, there is no evidence of weakness, pain, limitation of motion or other impairment of the lower back resulting from the surgery to remove the pilonidal cyst. Significantly, the veteran conceded in his October 1998 statement that his pilonidal cyst was cured many years ago and it no longer bothered him. Accordingly, the Board finds that there is no basis for the assignment of a compensable evaluation since March 24, 1993. The Board has also considered other rating criteria with respect to this issue. A 10 percent evaluation is warranted under Diagnostic Code 7804 for superficial scars that are tender and painful on objective demonstration, and under Diagnostic Code 7803 if the laceration is poorly nourished or ulcerated. 38 C.F.R. § 4.118. The Board finds, however, that a compensable evaluation for post-operative residuals of a pilonidal cyst of the lower back are not warranted because the scarring is not shown to be painful or tender on objective demonstration, and there is no objective evidence of a poorly nourished or ulcerated scar. 38 C.F.R. § 4.118, Diagnostic Codes 7803 and 7804. Therefore, the Board concludes that a compensable rating for the residual scarring is not warranted under Diagnostic Codes 7803 and 7804. The veteran contends that VA has not developed his claim pursuant to the duty to assist because he was not afforded an examination. As discussed above, the RO attempted to schedule an examination at the prison, however, the veteran refused to be examined by prison physicians. Furthermore, the prison officials and the VAMC refused to examine him essentially because they did not have the staff or the resources to do so. Therefore, given that the RO made a reasonable, good faith effort to examine the veteran, the VA's duty to assist the veteran in developing his well- grounded claim has been discharged. Relevant evidence has been properly developed, and no further assistance is required to comply with VA's duty to assist. Moreover, the veteran declared in his October 1998 statement to the RO that the post-operative residuals of the pilonidal cyst no longer bothered him. Instead, he essentially felt that he developed problems secondarily to the pilonidal cyst, and that he was entitled to compensation since his discharge from service and the time that his pilonidal cyst was cured. These secondary issues, however, are not before the Board. In any event, given that the veteran effectively concedes that the pilonidal cyst is cured, an examination is not necessary. The Board notes that the relevance of any records sought must be demonstrated. See Counts v. Brown, 6 Vet. App. 473, 476 (1994); Godwin v. Derwinski, 1 Vet. App. 419, 425 (1991) (noting that the "duty to assist is not unlimited" and that "the duty to develop pertinent facts applies to 'all relevant facts'" (citation omitted) (emphasis added)). Therefore, the Board finds that, since the veteran concedes that the pilonidal cyst is cured, an examination is not relevant. The veteran maintains that the RO should have taken further steps to obtain his private medical records from Doctors Mercer and Galbrath. As noted, the RO sent requests for records to the addresses supplied by the veteran. Furthermore, he indicated in his statements that he was not sure of the location of the doctors. Where a veteran acknowledges the unavailability of private medical records, the Board is not obligated under the duty to assist to seek them out. See Counts at 477; Cf. Porter v. Brown, 5 Vet. App. 233, 237 (1993) ("VA had no duty to seek to obtain that which did not exist"). The RO met its duty by requesting the records from the physicians at the addresses supplied by the veteran, unfortunately, the doctors did not respond. Simply put, the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). To this end, the Board must deny the veteran's request, received by the RO in April 1999, that it delay a decision until after he is released from prison because he has not provided good cause. For example, he has provided no additional evidence to warrant a delay. The veteran indicated in his request that he would be released from incarceration in September 1999, and that upon release he would be able to assist his appeal. Nevertheless, at the time of this decision, although he has presumably been released he has not submitted any additional evidence. Therefore, given that he has not provided good cause, the Board must deny his request to postpone a decision in this case. In reaching its decision, the Board has considered the complete history of the disability in question as well as any current clinical manifestations and the effect the disability may have on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (1999). Finally, the Board also has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to a compensable rating from March 24, 1993 for post-surgical residuals of a pilonidal cyst of the lower back is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals