Citation Nr: 0002255 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 98-07 287 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased disability evaluation for the residuals of a left knee injury, to include scar and Pellegrini-Stieda myositis ossificans and prepatellar bursitis, currently evaluated as 10 percent disabling. 2. Determination of initial rating for postoperative residuals of recurrent pilonidal cyst. REPRESENTATION Appellant represented by: Military Order of the Purple Heart ATTORNEY FOR THE BOARD C. Trueba-Sessing, Associate Counsel INTRODUCTION The case comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The veteran's verified periods of active service are from April 1984 to August 1984 and from January 1986 to December 1988. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's left knee disability is neither characterized by limitation of leg flexion to 30 degrees, nor limitation of leg extension to 15 degrees. 3. Since May 1996, the veteran's skin disability has been characterized by numerous small punctate hyperpigmented and slightly tender scars on the left and right gluteal folds of the coccyx from previously drained pilonidal cysts; and recurrent infected sebaceous and pilonidal cysts and abscesses in the her right axilla, buttocks, and breasts, requiring surgical pus draining. However, her disability has not been characterized by ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or exceptionally repugnant. CONCLUSIONS OF LAW 1. The schedular criteria for an evaluation in excess of 10 percent for the residuals of a left knee injury, to include scar and Pellegrini-Stieda myositis ossificans and prepatellar bursitis, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.40-4.46, 4.59, 4.71a, Diagnostic Codes 5003, 5023, 5260, 5261 (1999); DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995); Butts v. Brown, 5 Vet. App. 532 (1993) 2. The criteria for a 30 percent initial disability evaluation for postoperative residuals of recurrent pilonidal cyst have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.118, Diagnostic Codes 7806, 7819 (1999); Fenderson v. West, 12 Vet. App. 119 (1999); Butts v. Brown, 5 Vet. App. 532 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Applicable Law. The veteran's claims for an increased disability evaluation and an increased initial rating are "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). That is, she has presented claims which are not implausible when her contentions and the evidence of record are viewed in the light most favorable to the claims. The Board is also satisfied that all relevant facts have been properly and sufficiently developed. 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) (West 1991). Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, the Board observes that the U.S. Court of Appeals for Veterans Claims (Court) has held that, when a veteran appeals the initial rating assigned after a grant of service connection, separate ratings may be assigned for separate periods of time, based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). If two evaluations are potentially applicable, 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 (1999). With respect to the veteran's left knee disability, in a February 1992 rating decision, the veteran was awarded service connection and a 10 percent disability evaluation for laceration of the left knee with tender scar, under Diagnostic Code 7804, effective September 1991. Subsequently, in a September 1998 rating decision, the veteran's disability was recharacterized as the residuals of a left knee injury, to include scar and Pellegrini-Stieda myositis ossificans and prepatellar bursitis, and was evaluated under Diagnostic Codes 5023, 5260. As present, she is seeking an increased evaluation in excess of 10 percent. As to the skin disability, in a May 1997 rating decision, the veteran was awarded service connection and a 0 percent evaluation for postoperative residuals of recurrent pilonidal cyst, under diagnostic Codes 7804 and 7819, effective May 1996. And, in a September 1999 rating decision, such award was increased to a 10 percent initial evaluation. At present, as the veteran has expressed disagreement with he initial rating, she is seeking an award in excess of 10 percent. II. Increased Disability Evaluation for the Residuals of a Left Knee Injury, to Include Scar and Pellegrini-Stieda Myositis Ossificans and Prepatellar Bursitis. The relevant medical evidence includes a March 1994 VA scars examination report indicating the veteran's diagnosis was status post laceration of the left knee with a 3 centimeter well healed, normally pigmented, scar. The veteran's complaints of left knee pain when walking up and down flights of stairs, bending or kneeling were deemed secondary to chondromalacia of the patella. In addition, a February 1995 VA scars examination report shows she was diagnosed with a superficial tender scar over the left patella with hyperesthesia below the scar secondary to laceration, and patellofemoral syndrome of the left knee; upon x-ray examination, she was found to present evidence of mild degenerative changes of the left knee. April 1995 VA joints and scar examination reports note she complained of soreness, pain, and tenderness of the left knee with use, and that she was not able to do sports, including running or jumping, due to her soreness and tenderness. She also reported she wore a knee brace at times. Upon examination, she was able to ambulate independently without aids or assistance. She had a well healed tender scar over the inferior aspect of the left patella and a non-tender scar on the left leg, but did not have true joint line pain, effusion, or crepitus with motion. Her left knee range of motion was from 0 to 125 degrees, and her knee was stable to varus, valgus, and rotary testing. Upon x-ray examination, she presented evidence of mild degenerative changes of the left knee. Medical records from the Cleveland VA Medical Center (VAMC), Brecksville and Wade Park division, dated from May 1989 to July 1999 describe the treatment the veteran has received over time for various health problems, including her left knee disability. Specifically, September 1992 notations show she complained of pain in her left knee, which upon x-ray examination presented evidence of calcification of the soft tissue at the medial aspect of the femoral condyle believed to be due to calcification of the lateral ligament. In addition, September 1994 notations reveal she was diagnosed with left knee osteoarthritis, and March 1998 notations show she complained of chronic knee joint pain. August 1998 VA joints and x-ray examination reports show the veteran continued to complain of tenderness and stiffness, and that she was unable to do regular activities like walking or climbing steps. She also reported increased swelling and pain in inclement weather, as well as that she wore a knee brace for prolonged weight bearing. Upon examination, she had 0 degrees of left knee extension and 90 degrees of knee flexion, was positive for patellar soft tissue swelling, and was negative for Apley, McMurray, drawer, and Lachman's sign. She also presented evidence of an 8 to 9 millimeter calcification in the medial femoral condyle consistent with Pellegrini-Stieda type myositis ossificans deemed to be related to her previous left knee trauma. Lastly, an August 1998 VA scars examination report notes she had a 2.5 centimeter well healed left knee laceration. With respect to the applicable law, myositis ossificans is evaluated under Diagnostic Code 5023. In this regard, disabilities of the musculoskeletal system are rated in accordance with 38 C.F.R. § 4.71a, which indicates that diseases under Diagnostic Codes 5013 through 5024 are to be rated on limitation of motion of the affected parts, as degenerative arthritis, with the exception of gout which is to be rated under Diagnostic Code 5002. See 38 C.F.R. § 4.71a, Diagnostic Code 5023 (1999). Degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (Diagnostic Code 5200, etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In addition, under Diagnostic Code 5260, a noncompensable (zero percent) disability evaluation is assigned where there is limitation of leg flexion to 60 degrees. A 10 percent disability evaluation is awarded where there is limitation of leg flexion to 45 degrees. A 20 percent disability evaluation is in order with limitation of leg flexion to 30 degrees. And, a 30 percent disability evaluation is appropriate with limitation of leg flexion to 15 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260 (1999). Furthermore, in addition to the rating criteria used by the RO to determine the level of severity of the veteran's left knee disability, the Board deems appropriate consideration of the criteria established under Diagnostic Code 5261. See Butts v. Brown, 5 Vet. App. 532 (1993). Under Diagnostic Code 5261, a noncompensable (zero percent) disability evaluation is assigned where there is limitation of leg extension to 5 degrees. A 10 percent disability evaluation requires limitation of leg extension to 10 degrees. A 20 percent disability evaluation is appropriate with limitation of leg extension to 15 degrees. And, a 30 percent disability evaluation is in order where there is limitation of leg extension to 20 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5261 (1999). Moreover, when assigning a disability rating involving the musculoskeletal system, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, pain on movements, and weakness. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). See also 38 C.F.R. §§ 4.45, 4.59 (1999). The Board notes that under 38 C.F.R. § 4.40, disability ratings involving the musculoskeletal system should reflect functional loss, which may be due to pain and which must be supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is also as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. See 38 C.F.R. § 4.40 (1999). After a review of the evidence, the Board finds that the veteran's left knee disability is presently characterized by degenerative changes, calcification in the medial femoral condyle consistent with Pellegrini-Stieda type myositis ossificans, superficial tender scarring over the left patella with hyperesthesia below the scar, patellar soft tissue swelling, and chronic knee joint pain productive of limitation of motion, including inability to climb steps, bend or kneel, and/or run or jump. Her left knee range of motion is from 0 to 90-125 degrees, and her knee is stable to varus, valgus, and rotary testing. However, the veteran neither presents evidence of limitation of leg flexion to 30 degrees, nor limitation of leg extension to 15 degrees. As such, the preponderance of the evidence is against an award of a disability evaluation in excess of 10 percent for the veteran's residuals of a left knee injury, to include scar and Pellegrini-Stieda myositis ossificans and prepatellar bursitis, under Diagnostic Codes 5260 and 5261. See 38 C.F.R. § 4.71a, Diagnostic Codes 5220, 5261 (1999). In denying the veteran's claim for an increased evaluation, the Board considered the history of the veteran's disability, as well as the current clinical manifestations and the effect this disability may have on the earning capacity of the veteran. See 38 C.F.R. §§ 4.1, 4.2, 4.41 (1999). The nature of the original disability has been reviewed, as well as the functional impairment that can be attributed to pain and weakness. See 38 C.F.R. § 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 204-7. III. Determination of Initial Rating for Postoperative Residuals of Recurrent Pilonidal Cyst. The evidence includes an April 1995 VA scars examination report including a diagnosis of tender scarring in the intergluteal cleft and left gluteal, deemed to be the residuals of a pilonidal cystectomy. In addition, an August 1998 VA scars examination report notes the veteran had numerous small punctate, less than 1 centimeter, hyperpigmented scars on the left and right gluteal folds of the coccyx from previously drained pilonidal cysts. The scars were of normal texture and, although slightly tender, did not present evidence of adherence, ulceration, depression, loss of underlying tissue or keloid formation. Furthermore, an August 1998 VA rectum and anus examination report notes she had a pilonidal cyst on the left gluteal fold of the coccyx. The evidence also includes medical records from the Cleveland VAMC, Brecksville and Wade Park division, dated from May 1989 to July 1999 describing the treatment the veteran has received over time for various health problems, including her skin disability. Specifically, a December 1991 hospitalization summary notes she was hospitalized for elective surgery for drainage of abscesses. At that time she had an infected sebaceous cyst in the her right axilla and an infected pilonidal cyst, which was recurrent. It was also noted she had had similar infections in her buttocks and right axilla over the prior four to five years. Moreover, June 1998, and March 1999 notations from the Cleveland VAMC further describe the treatment the veteran received for recurrent pilonidal cysts and boils, including in the coccyx area and breast. As well, the March 1999 notes indicate the veteran had erythematous nodules in both axilla, chest, groin and left buttock, and that some of these nodules were draining pus with sinus tract and scarring. Lastly, June 1999 notations indicate the veteran was being followed up for hidradenitis suppurative and pilonidal cyst with abscess, and that at that time she had open/draining cysts on the buttocks and numerous inflamed cystic lesions over the breasts and axilla, some of them with drainage in the intertriginous area. The law is clear that skin disorders are rated in accordance with 38 C.F.R. § 4.118, which indicates that, unless otherwise provided, codes 7807 through 7819 are to be rated under the criteria for eczema set out under Diagnostic Code 7806, depending upon location, extent, repugnant characteristics, or otherwise disabling character or manifestations. Under Diagnostic Code 7806, a 10 percent evaluation is warranted for eczema with exfoliation, exudation or itching, if involving an exposed surface or extensive area. A 30 percent disability evaluation is for assignment for eczema with constant exudation or itching, extensive lesions, or marked disfigurement. And, a 50 percent disability evaluation is warranted for eczema with ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or exceptionally repugnant. See 38 C.F.R. § 4.118, Diagnostic Code 7819 (1999). In addition, in accordance with 38 C.F.R. § 4.118, a 10 percent evaluation is warranted for scars (other than burn scars or disfiguring scars of the head, face or neck), if poorly nourished with repeated ulceration, tender and painful on objective demonstration, or productive of limitation of function of the affected body part. 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804 and 7805 (1999). After a review of the evidence, since May 1996, the veteran's skin disability has been characterized by numerous small punctate hyperpigmented and slightly tender scars on the left and right gluteal folds of the coccyx from previously drained pilonidal cysts; and recurrent infected sebaceous and pilonidal cysts and abscesses in the her right axilla, buttocks, and breasts, requiring surgical pus draining. As such, the Board finds that the veteran's postoperative residuals of recurrent pilonidal cyst more nearly approximate a disability characterized by eczema with constant exudation or itching, extensive lesions, or marked disfigurement. Thus, the initial rating assigned for the veteran's postoperative residuals of recurrent pilonidal cyst is not appropriate, and the criteria for a 30 percent initial rating under Diagnostic Code 7806 have been met. See 38 C.F.R. § 4.71a, Diagnostic Codes 7806 (1999); Fenderson v. West, 12 Vet. App. 119 (1999). However, as the Board finds the veteran's disability is not characterized by eczema with ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or exceptionally repugnant, an initial rating in excess of 30 percent is not warranted in this case. See 38 C.F.R. § 4.71a, Diagnostic Codes 7806 (1999); Butts v. Brown, 5 Vet. App. 532 (1993) (implicitly holding that the BVA's selection of a Diagnostic Code may not be set aside as "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," if relevant data is examined and a reasonable basis exists for its selection) (Citations omitted). IV. Conclusion. Finally, the potential application of various provisions of Title 38 of the Code of Federal Regulations have been considered whether or not they were raised by the veteran as required by the holding of the United States Court of Veterans Appeals in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991), including the provisions of 38 C.F.R. § 3.321(b)(1), which provides procedures for assignment of an extra-schedular evaluation. In the instant case, however, there has been no showing that the disabilities under consideration have caused marked interference with employment or the need for frequent periods of hospitalization, or otherwise have rendered impracticable the application of the regular schedular standards. Accordingly, a remand to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) for an extra-schedular rating does not appear to be warranted. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An evaluation in excess of 10 percent for the residuals of a left knee injury, to include scar and Pellegrini-Stieda myositis ossificans and prepatellar bursitis, is denied. The initial rating assigned for postoperative residuals of recurrent pilonidal cyst is not appropriate, and a 30 percent initial evaluation is granted, subject to the provisions governing the payment of monetary benefits. WARREN W. RICE, JR. Member, Board of Veterans' Appeals