Pernorio v. Derwinski

2 Vet. App. 625, 1992 U.S. Vet. App. LEXIS 198, 1992 WL 170887
CourtUnited States Court of Appeals for Veterans Claims
DecidedJuly 24, 1992
DocketNo. 90-779
StatusPublished
Cited by66 cases

This text of 2 Vet. App. 625 (Pernorio v. Derwinski) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pernorio v. Derwinski, 2 Vet. App. 625, 1992 U.S. Vet. App. LEXIS 198, 1992 WL 170887 (Cal. 1992).

Opinion

IVERS, Associate Judge:

Michael A. Pernorio, Jr., appeals from a June 20, 1990, Board of Veterans’ Appeals (BVA or Board) decision which denied him an increased evaluation for his service-connected cystic acne with scrotal nodule. The Court holds that the BVA applied a standard that exceeded that found in the relevant regulation in order to support its conclusion that the veteran’s condition did not warrant an increase; in so doing, the BVA committed legal error. We also find that the BVA did not adequately address evidence of facial scarring and that the Board did not provide adequate reasons or bases under 38 U.S.C. § 7104(d)(1) (formerly § 4004(d)(1)) for the use by the Department of Veterans Affairs (formerly Veterans’ Administration) (VA) of various diagnostic codes in evaluating the veteran’s skin condition. Accordingly, the Court vacates the decision of the BVA and remands the case for readjudication consistent with this opinion.

FACTUAL BACKGROUND

The veteran served in the United States Navy from 1965 to 1969. R. at 7. He has had a service-connected disability rating of ten percent for cystic acne with scrotal nodule since October 1983. R. at 17. In February 1987, the veteran had a twelve millimeter epidermal cyst removed from his face. R. at 29. A VA Regional Office (VARO) rating decision dated August 18, 1987, shows that in July 1987 Mr. Pernorio submitted a “claim for increase” and that he was considered by the rating board for “[e]val[uation] of cystic acne and [service connection] for [diagnostic codes] 7899, 7817, 6299, 6099.” R. at 17. The rating board listed the diagnostic code (DC) under which the veteran’s cystic acne with scrotal nodule was evaluated as DC 7819 but included a parenthetical note that the condition was “formerly evaluated under DC 7899-7806”. Id. Under the section of the rating decision listing the veteran’s various non-service-connected ailments, the rating board listed “dermatomycosis” next to DC 7899 (Id.); dermatomycosis is “a disease (as ringworm) of the skin caused by an infection with a fungus_” Webster’s [627]*627Medical Desk DICTIONARY 173 (1986). The other diagnostic codes with corresponding ailments, for which Mr. Pernorio was evaluated for service connection, were listed on the August 1987 rating decision sheet as follows: DC 7817 — dermatitis, ears; DC 6299 — hearing loss; and DC 6099 — refractive errors (developmental abnormality), eye disorder. R. at 17-18. Under 38 C.F.R. § 4.118, which provides the schedule of ratings for the skin, DC 7819 is for “[n]ew growths, benign, skin” and is followed by the following notation: “Rate as scars, disfigurement, etc. Unless otherwise provided, rate codes 7807 through 7819 as for eczema, dependent upon location, extent, and repugnant or otherwise disabling character of manifestations.” 38 C.F.R. § 4.118, DC 7819 (1991). The YARO denied the veteran’s request for an increase in his ten-percent evaluation for cystic acne and denied service connection for the other conditions, including DC 7899 — dermatomycosis.

In September 1988, the veteran made another claim for an increase in his disability rating from ten percent to thirty percent. R. at 12. Pursuant to this claim, a VA medical examination was administered on December 6, 1988, and the doctor’s impression was as follows: “Cystic acne with comedones and papules back and scarring as noted_ Past history of probable sebaceous cyst scrotum removed_ Piloni-dal cyst with low grade inflammation.” R. at 14. Pilonidal is defined as “containing hair nested in a cyst — used of congenitally anomalous cysts in the sacrococcygeal area [the region of the sacrum and coccyx] that often become infected and discharge through a channel near the anus.” WEBSTER’S Medical Desk DictionaRY 549, 629 (1986). In the examination report, the doctor noted the following:

At present he has been on Tetracycline for about a month. His back is under fair control with some acne lesions. However, he continually gets new acne lesions. Regarding his scrotum, apparently he had some sebaceous cysts removed from his scrotum while on active duty and these have not recurred. He has had intermittent problems with swelling and drainage in the intergluteal area compatible with pilonidal cyst formation. Presently, he has some tenderness on the right side of his intergluteal cleft....
... There is moderate scarring of the back. There are moderate numbers of papular acne lesions. There are multiple comedones. A few lesions of papular acne over the anterior shoulders. Chest is clear. Face is clear as is the rest of his body from acne lesions.... Exam of the buttocks shows chafing of the inter-gluteal area. There are two pilonidal cyst sinuses. There is minimal but definite inflammation and induration of the right intergluteal cleft area.

R. at 14. The doctor’s descriptive notes also state that the veteran “is on a 10% disability for cystic acne, scrotal nod-ule_” and that “[w]e are asked to do increase reopen category 7819” (Id.), the diagnostic code for “new growths, benign, skin.” 38 C.F.R. § 4.118, DC 7819. On January 12, 1989, the VARO denied the veteran’s claim for an increase in his rating and confirmed and continued his evaluation at ten percent. R. at 16.

In May 1989, a hearing was held at the VARO in Seattle where the veteran testified that he suffered, inter alia, from constant itching. R. at 25, 28, 31. In addition, the veteran’s representative pointed out at the hearing that removal of the twelve millimeter cyst in 1987 had left a scar on the veteran’s face. R. at 25. In addition, the representative described the following with regard to the veteran’s face:

... lesions and scars on his face down in this area[.] [A]gain on the nose [ — ] the side of the nose [ — ] he has the blackheads[,] and again the scars [are] underneath his eyes[,] down the sides of his face[, and] underneath his chin. These are all lesion scars.

R. at 27. The hearing officer affirmed the January 12, 1989, rating decision of the VARO. R. at 31-32. The veteran wrote a letter to the Seattle VARO dated June 4, 1989, in which he informed the VA of his desire to appeal his case to the BVA. R. at 34. The veteran’s letter was evidently [628]*628deemed a Notice of Disagreement because the record shows that shortly thereafter a Statement of the Case, dated June 30,1989, was prepared and furnished for Mr. Pernorio. R. at 35-37. Under its Pertinent Laws and Regulations section, the Statement of the Case refers only to DC 7806, the code for eczema. R. at 37. In a May 18, 1990, transcript of oral arguments for presentation to the Board, the veteran’s representative described the veteran’s disability status as “service connected for Diagnostic Code 7813” (R. at 41), which is for dermatophytosis, “a disease (as athlete’s foot) of the skin or skin derivatives (hair or nails) that is caused by a dermatophyte or fungus.” WEBSTER’S MEDICAL Desk DICTIONARY 173 (1986). The Board upheld the ten-percent rating evaluation, citing only DC 7806, the code for eczema. Michael A. Pemorio, BVA 90-20541, at 4 (June 20, 1990). The veteran perfected a timely appeal of the decision of the BVA to this Court.

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Cite This Page — Counsel Stack

Bluebook (online)
2 Vet. App. 625, 1992 U.S. Vet. App. LEXIS 198, 1992 WL 170887, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pernorio-v-derwinski-cavc-1992.