Citation Nr: 0001131 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 98-20 204 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a compensable disability rating for scar from pilonidectomy, on appeal from the initial grant of service connection. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD M. L. Kane, Associate Counsel INTRODUCTION The veteran had more than 24 years of active military service, and he separated from service in November 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which, in pertinent part, granted service connection for a scar from removal of a pilonidal cyst, with assignment of a zero percent disability rating. The March 1998 rating decision also denied service connection for arthritis of the left foot, and the veteran perfected his appeal to the Board as to this issue. See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.302 (1999). During the pendency of this appeal, a rating decision of July 1999 indicated that arthritis of the left foot was included in the evaluation for the veteran's service-connected residuals of the left foot bunionectomy. He was informed that this satisfied his claim for service connection for left foot arthritis. The veteran has not indicated disagreement with that decision, and this issue is not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (The issue of the amount of compensation for a service-connected disability is a different issue than entitlement to service connection for that disability, and a second Notice of Disagreement must be filed by the veteran in order to initiate appellate review concerning the issue of compensation.) With his original claims in December 1997, the veteran requested service connection for a disability manifested by frequent urination. This issue has not been adjudicated by the RO, and it is not inextricably intertwined with the other issue before the Board. See Parker v. Brown, 7 Vet. App. 116 (1994) (a claim is intertwined only if the RO would have to reexamine the merits of any denied claim which is pending on appeal before the Board under the pertinent law and regulations specifically applicable thereto). Therefore, this issue is referred to the RO for appropriate action. FINDINGS OF FACT 1. The veteran's claim for a higher rating for the pilonidectomy scar is plausible, and sufficient evidence has been obtained for correct disposition of this claim. 2. There is no objective evidence showing that the veteran's scar from the pilonidal cyst surgery is adherent, ulcerated, tender, depressed, inflamed, or disfiguring, or that it in any way interferes with functioning of the tailbone. CONCLUSIONS OF LAW 1. The veteran has stated a well-grounded claim for a higher rating for scar from pilonidectomy, and VA has satisfied its duty to assist him in development of this claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103 (1999). 2. The criteria for a compensable disability rating for the service-connected scar from pilonidectomy have not been met since the initial grant of service connection. 38 U.S.C.A. §§ 1155 and 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, and 4.71a, Diagnostic Code 7805 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background In December 1997, the veteran filed a claim for service connection for residuals of pilonidectomy. His service medical records showed that he complained of tailbone pain in March 1981, and examination showed a pilonidal cyst. In January 1982, it was noted that he had a cyst or a rectal abscess. In April 1982, he underwent excision of the pilonidal cyst. In May 1982, it was indicated that the wound was healing with good closure. In October 1982, the veteran complained that the area where the cyst was removed had reopened. Examination showed a superficial fissure about one centimeter long at the intergluteal area where the prior surgery was done. There was no swelling, tenderness, redness, or discharge. He was advised to keep the area dry. In November 1984, he complained of rectal discomfort and pain at the old fissure site. Examination showed slight warmth along the pilonidal site, and the diagnoses included re- infection of pilonidal area. He underwent surgery for repair of an anal fissure. During the veteran's remaining 13 years of service, he raised no complaints concerning the prior pilonidal cyst or the post-operative scar. On every routine physical examination conducted between 1984 and 1997, although the veteran reported the prior surgery for the pilonidal cyst, he denied any sequelae. Although each examination report noted the presence of other scars, the scar from the excision of the pilonidal cyst was not mentioned. Upon VA examination in February 1998, the veteran reported undergoing a pilonidectomy in 1982, but he raised no complaints concerning residuals of that surgery. Examination showed a scar on the back from the surgery for the pilonidal cyst. A March 1998 rating decision, inter alia, granted service connection for a scar from removal of a pilonidal cyst, with assignment of a zero percent disability rating. The veteran disagreed, stating that from time to time the scar has broken open, with bleeding and discomfort. He stated that he had to put creams and ointments on the scar to prevent it from reopening. He stated that he had tenderness with prolonged sitting. In December 1998, the RO sent a letter to the veteran requesting information on any medical providers that had treated him for the pilonidectomy scar since his separation from service. He did not respond. II. Legal Analysis The first responsibility of a claimant is to present a well- grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). The veteran perfected his appeal as to the initial grant of service connection and original assignment of a disability rating for the pilonidectomy scar. Therefore, his claim continues to be well grounded as long as the rating schedule provides a higher rating for the service-connected condition. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103 (1999). The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a well-grounded claim for an increase, but the medical evidence is not adequate for rating purposes, an examination will be authorized. 38 C.F.R. § 3.326(a) (1999). Reexamination will be requested whenever VA determines that there is a need to verify either the continued existence or the current severity of a disability. 38 C.F.R. § 3.327(a) (1999). Generally, reexaminations are required if it is likely that a disability has improved, if the evidence indicates that there has been a material change in a disability, or if the current rating may be incorrect. Id. In this case, the RO provided the veteran an appropriate VA examination. There is no indication of additional treatment records that the RO failed to obtain, and sufficient evidence is of record to rate the veteran's service-connected disability properly. There is no evidence indicating that there has been a material change in the severity of the veteran's pilonidectomy scar since he was examined in 1998. Accordingly, no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet. App. 78 (1990); Littke v. Derwinski, 1 Vet. App. 90 (1990). The veteran has disagreed with the original disability rating assigned for his pilonidectomy scar. There is a distinction between a claim based on disagreement with the original rating awarded and a claim for an increased rating. Fenderson v. West, 12 Vet. App. 119 (1999). The distinction may be important in determining the evidence that can be used to decide whether the original rating on appeal was erroneous and in determining whether the veteran has been provided an appropriate Statement of the Case (SOC). Id. at 126 and 132. With an initial rating, the RO can assign separate disability ratings for separate periods of time based on the facts found. Id. at 126. With an increased rating claim, "the present level of disability is of primary importance." Francisco v. Brown, 7 Vet. App. 55, 58 (1994). This distinction between disagreement with the original rating awarded and a claim for an increased rating is important in terms of VA adjudicative actions. Fenderson, 12 Vet. App. at 132. The SOC and Supplemental Statement of the Case (SSOC) provided to the veteran identified the issue on appeal as evaluation of the service-connected pilonidectomy scar. Throughout the course of this appeal, the RO has evaluated all the evidence of record in determining the proper evaluation for the veteran's service-connected disability. The March 1998 rating decision that granted service connection considered all the evidence of record in assigning the original disability rating for the veteran's pilonidectomy scar. The RO did not limit its consideration to only the recent medical evidence of record, and did not therefore violate the principle of Fenderson. The veteran has been provided appropriate notice of the pertinent laws and regulations and has had his claim of disagreement with the original rating properly considered based on all the evidence of record. The RO complied with the substantive tenets of Fenderson in its adjudication of the veteran's claim. Disability ratings are intended to compensate reductions in earning capacity as a result of the specific disorder. The ratings are intended, as far as practicably can be determined, to compensate the average impairment of earning capacity resulting from such disorder in civilian occupations. 38 U.S.C.A. § 1155 (West 1991). Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1 and 4.2 (1999). This appeal being from the initial rating assigned to a disability upon awarding service connection, the entire body of evidence is for equal consideration. Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999); cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (where an increased rating is at issue, the present level of the disability is the primary concern). Such staged ratings are not subject to the provisions of 38 C.F.R. § 3.105(e), which generally requires notice and a delay in implementation when there is proposed a reduction in evaluation that would result in reduction of compensation benefits being paid. Fenderson, 12 Vet. App. at 126. The Board will consider all evidence in determining the appropriate evaluation for the veteran's service-connected disability. It is also necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2 (1999), and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.3 (1999). If there is a question as to which evaluation to apply to the veteran's disability, 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 (1999). The veteran is currently evaluated for the pilonidectomy scar as zero percent disabled under 38 C.F.R. § 4.71a, Diagnostic Code 7805. The most obvious residual from the in-service surgery for the pilonidal cyst is the resulting scar. Under Diagnostic Codes 7800 through 7805, scars are rated according to the location, type, characteristics, or, if none of the specific criteria apply, according to limitation of function of the affected part. Diagnostic Code 7805 evaluates scars based on limitation of function of the affected part. 38 C.F.R. § 4.118 (1999). There is no medical evidence indicating that the veteran has any limitation of function of the tailbone area as a result of the surgery for the pilonidal cyst and/or the post- operative scar. Moreover, there are no diagnostic codes in the Schedule concerning limitation of function of the tailbone. Therefore, there is no basis for assignment of a compensable disability rating under Diagnostic Code 7805. Under Diagnostic Code 7804, a 10 percent disability rating is assigned for superficial scars that are tender and painful on objective demonstration. The veteran has complained that his pilonidectomy scar is tender with prolonged sitting. He also complains that the scar periodically breaks open. However, despite the veteran's complaints, there is no objective medical evidence showing that his pilonidectomy scar is tender or painful. The VA examiner in 1998 merely noted the presence of a pilonidectomy scar, without indicating any abnormalities. Surely if the scar were in any way abnormal (i.e., tender, inflamed, adherent, ulcerated, etc.), the examiner would have noted such. Diagnostic Code 7800 pertains to scars located on the head, face, or neck. A 10 percent disability rating under Diagnostic Code 7800 requires a moderate, disfiguring scar in one of these locations. Since the veteran's service- connected scar is located on the tailbone, assignment of a compensable disability rating under Diagnostic Code 7800 is not warranted. Diagnostic Codes 7801 and 7802 pertain to scars that result from burns; the veteran's scar resulted from surgery. Diagnostic Code 7803 provides a 10 percent disability rating for superficial scars that are poorly nourished with repeated ulceration. There is no medical evidence showing ulceration of the veteran's scar. Therefore, assignment of a compensable disability rating under Diagnostic Code 7803 is not warranted. The evidence simply does not show that the criteria for a compensable disability rating have been met. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (1999). Despite the veteran's contentions of pain, the objective medical evidence does not show any findings that would warrant a compensable disability rating. There is no reasonable doubt regarding the level of the veteran's disability that could be resolved in his favor. The medical evidence shows that he had some difficulty with the scar resulting from the pilonidal cyst surgery within the first two years after the surgery. However, there is no medical evidence since 1984 showing any abnormalities of the pilonidectomy scar. The current medical evidence does not indicate that the scar is ulcerated, inflamed, depressed, tender, or adherent. The medical evidence also does not show that he has any limitation of tailbone function as a result of the in-service surgery or the post-operative scar. He complains that the scar is tender, but there is no objective evidence supporting that contention. His complaint alone is not enough to warrant a compensable disability rating according to the schedule. Despite his complaints, there is absolutely no evidence of impairment in earning capacity because of the scar. Accordingly, the preponderance of the evidence is against assignment of a compensable disability rating for the veteran's service-connected pilonidectomy scar. The Board has considered all other potentially applicable diagnostic codes, as discussed above, and the medical evidence does not show that any of the criteria for a compensable disability rating have been met. ORDER Entitlement to a compensable disability rating for scar from pilonidectomy is denied. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals