Citation Nr: 0504784 Decision Date: 02/22/05 Archive Date: 03/04/05 DOCKET NO. 03-12 453 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to a compensable rating for lichen planus. REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD Sonia Shah, Associate Counsel INTRODUCTION The veteran served on active duty from October 1961 to August 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2001 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In that decision the RO denied entitlement to a compensable rating for lichen planus. The veteran perfected an appeal for this issue. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO and the duty to notify has been satisfied. 2. The rating criteria for lichen planus effective prior to, and the rating criteria effective from September 23, 2002, are equally favorable to the veteran. 3. The veteran's lichen planus is manifested by white striae of the bilateral buccal mucosa, and purple papules of wrists, forearms, and natal cleft. CONCLUSION OF LAW The criteria for a rating of 10 percent, but no higher, for lichen planus are met. 38 U.S.C.A. § 1155, 5107 (2004); 38 C.F.R. § 4.1, 4.2, 4.118, Diagnostic Code 7822 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION Development of the Claim The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2003). The notice requirements of the VCAA require VA to notify the veteran of any evidence that is necessary to substantiate his claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004), the United States Court of Appeals for Veterans Claims (hereinafter, "the Court") held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). The Court also held, however, that providing the VCAA notice to the claimant after the initial decision could satisfy the requirements of the VCAA if the timing of the notice was not prejudicial to the claimant. Pelegrini, 18 Vet. App. at 121. Here, although pre-adjudication was not provided, the RO notified the veteran of the information and evidence needed to substantiate his claim for an increased rating for his skin condition in a June 2003 letter. That letter also informed him of the information and evidence that he was required to submit, the evidence that the RO would obtain on his behalf, and the need for the veteran to advise VA of or submit any additional relevant information or evidence. The veteran and his representative were also provided with a copy of the appealed rating decision, a statement of the case, and a supplemental statement of the case. These documents provided them with notice of the law and governing regulations, as well as the reasons for the determinations made regarding his claim. In these documents the RO also informed them of the cumulative evidence previously provided to VA or obtained by VA on the veteran's behalf. The Board finds that all of these documents informed the veteran of the evidence he was responsible for submitting, and what evidence VA would obtain in order to substantiate his claim. Quartuccio v. Principi, 16 Vet. App. at 187. Moreover, the notice provided to the veteran in July 2003 was provided by the AOJ prior to the transfer and certification of the appellant's case to the Board, and the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Thereafter, the claim was readjudicated in the April 2004 supplemental statement of the case. Under the facts of this case, the claimant has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. Accordingly, to decide the appeal would not be prejudicial to the claimant. The statute and regulation also provide that VA will also make reasonable efforts to help the veteran obtain evidence necessary to substantiate the claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the veteran. Specifically, the information and evidence that have been associated with the claims file consists of the veteran's service medical records and post-service medical records and examination reports. The veteran has not alluded to the existence of any other evidence that is relevant to his claim. The Board concludes that all relevant data has been obtained for determining the merits of his claim and that no reasonable possibility exists that any further assistance would aid him in substantiating his claim. See 38 U.S.C.A. § 5103A (West 2002); Wensch v. Principi, 15 Vet. App. 362, 368 (2001); 38 C.F.R. §3.159(c) (2003). Under the circumstances in this case, the veteran has received the notice and assistance contemplated by law and adjudication of the claim poses no risk of prejudice to the veteran. See Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (VCAA does not require remand where VA thoroughly discussed factual determinations leading to conclusion and evidence of record provides plausible basis for factual conclusions, and where development of the evidence was as complete as was necessary for a fair adjudication of the claims, because the VCAA had not changed the benefit-of-the-doubt doctrine); and Bernard v. Brown, 4 Vet. App. 384 (1993). Factual Background A May 1963 rating decision established service connection for dermatitis, at a noncompensable rate. The veteran filed a claim for an increased rating in April 2001, which was denied by a July 2001 rating decision. Additional evidence was subsequently submitted, and the RO again denied the claim for an increased rating in the December 2001 rating decision currently on appeal. During a June 2001 VA medical examination the veteran reported using Dexamethasone swishes for oral lichen planus and Clobetasol for lichen planus on his tailbone. He stated that if he does not use his Temovate after several days he gets itching on his tailbone. Physical examination revealed lacy white reticular streaks on the buccal mucosa consistent with oral lichen planus. There was no stigmata or prior lichen planus, such as post inflammatory hyperpigmentation, noted on exam. There was a five centimeter squared violaceous area (purple discoloration) over the gluteal cleft and lower sacrum. There was also some hyperpigmentation and atrophy which might have been related to his prolonged topical steroid use. There were no scalp lesions or nail changes. The examiner diagnosed the veteran's symptoms as lichen planus including oral changes and a violaceous patch on the sacrum and gluteal cleft. The veteran's dental records from Dr. B. from October 1984 to March 1996 reveal a diagnosis of lichen planus. In a May 2002 statement the veteran's dentist indicated that his lichen planus condition is affecting his periodontal status in an adverse way. In a May 2002 statement Dr. C. indicated in his opinion the veteran's lichen planus was a major contributing factor in his tooth loss. The veteran's private medical records reveal he was treated by Dr. C. for lichen planus from July 1996 to November 2003. The records reveal that the veteran complained of flaring of his skin, itching, problems eating due to the symptoms flaring up in his mouth, and extreme pain on occasion due to the skin disorder. During this time period Dr. C. prescribed the veteran many medications for his symptoms, including Temovate gel, Decadron, Elocon, Prednisone (July 1996, July 1997, July 2003), Celestone, Griseofulvin, and Depo-medrol (August 2003). More specifically, in September 2000 his lichen planus was stable, with a few lacy white striae of the buccal mucosa, and a few violaceous papules on the arms and wrists. No ulceration in the mouth was noted. In February 2001 the veteran reportedly was doing extremely well, with no problems in his mouth but some problem with his tailbone. Physical examination revealed no ulcers in the mouth. The physician noted that the veteran did have erythema of the natal cleft but not active lichen planus. From August 2001 to March 2002, the lacy white striae of the mouth were noted, and intermittently, only mild gingival involvement and sacral involvement. In May 2003 erythema and scaling of the elbows and natal cleft were noted, in addition to the buccal mucosa involvement. Protopic ointment was provided. In August 2003 marked erythema and scaling of the natal cleft was noted. He complained of severe itching Impression was lichen planus, continuing to flare. He was given intramuscular Depo-Medrol, and a tapering course of Prednisone for 12 days. During a May 2003 VA examination the veteran complained of having a small rash on the sacral area, but no other lichen planus lesions. He reported that he was using Dexamethasone suspension, and topical Temovate. He stated that his mouth flares intermittently. Physical examination revealed a papulosquamous violaceous plaque on the sacrum, and two small scaly areas on each elbow. Examination of the mouth revealed white reticular streaks as well as some focal erosions and fissures. A considerable portion of both buccal areas were involved with the lichen planus as well as many of the gingival areas. The examiner diagnosed the veteran's mouth disability as consistent with severe oral lichen planus. He went further to state that he condition causes considerable morbidity for the patient, which includes intermittent discomfort and difficulty eating. The condition also causes other dental problems including gingivitis and bone loss. The examiner diagnosed the veteran's external skin condition as more suggestive of psoriasis. The most recent report by this physician was dated in November 2003. During this visit, the veteran reported that his tailbone was not nearly as sore as it had been. He also reported that his mouth is sore only from time to time, but that the lichen planus was spreading onto his arms. Physical examination revealed lacy white striae of the bilateral aspects of the buccal mucosa of the lateral aspect of the tongue, and a bit onto the gutters of the mouth. He also had polygonal purple papules of the bilateral wrists and forearm areas, as well as the natal cleft. The impression was lichen planus, which continues to flare. As treatment, he was to continue with Decadron solution (swish and spit), Elocon cream, and Bactrim. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2003). Separate diagnostic codes identify the various disabilities. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2003). Where there is a question as to which of two evaluations apply, the higher evaluation will be assigned where the disability picture more nearly approximates the criteria for the next higher rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. While the Board will consider the veteran's medical history as required by various provisions of 38 C.F.R. Part 4, including § 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the regulations do not give past medical reports precedence over current findings. Where entitlement to compensation has already been established, and increase in disability rating is the issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board notes that subsequent to the initiation of the veteran's claim, the regulations pertaining to the evaluation of skin disorders were revised effective August 30, 2002. Schedule for Rating Disabilities; The Skin, 67 Fed. Reg. 49,590 (July 31, 2002) (codified at 38 C.F.R. § 4.118 (2004)). VA's General Counsel has held that where a law or regulation changes during the pendency of an appeal, the Board should first determine which version of the law or regulation is more favorable to the veteran. If application of the revised regulation results in a higher rating, the effective date for the higher disability rating can be no earlier than the effective date of the change in the regulation. 38 U.S.C.A. § 5110(g). Prior to the effective date of the change in the regulation, the Board can apply only the original version of the regulation. VAOPGCPREC 3- 00. Effective prior to August 30, 2002, 38 C.F.R. § 4.118, lichen planus as was rated analogous to dermatitis exfoliativa pursuant to Diagnostic Code 7817. 38 C.F.R. § 4.118, Diagnostic Code 7817 (1998). Dermatitis exfoliativa was rated as for eczema pursuant to Diagnostic Code 7806. 38 C.F.R. § 4.118, Note following Diagnostic Code 7819 (1998). Diagnostic Code 7806 provided that slight, if any, exfoliation, exudation or itching, if on a nonexposed surface or small area will be assigned a zero percent rating. A 10 percent rating was assigned for eczema with exfoliation, exudation or itching, if involving an exposed surface or extensive area. A 30 percent evaluation requires exudation or constant itching, extensive lesions or marked disfigurement. A 50 percent evaluation required ulceration or extensive exfoliation or crusting and systemic or nervous manifestations or exceptionally repugnant disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7806 (1998). Under the criteria effective from August 30, 2002, lichen planus is evaluated under 38 C.F.R. § 4.118, Diagnostic Code 7822. Papulosquamous disorders with more than 40 percent of the entire body or more than 40 percent of exposed areas affected, and; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period warrants a 60 percent rating. With 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period a 30 percent evaluation will be assigned. With at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immuno-suppressive drugs required for a total duration of less than six weeks during the past 12-month period a 10 percent rating will be assigned. With less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12-month period a zero percent rating will be assigned. effective as of August 30, 2002. After consideration of the evidence, the Board finds that an increased rating of 10 percent is warranted. Although the evidence reveals the condition was mild from the date of claim until the flare beginning in August 2003, the veteran continuously had lichen planus findings in the buccal mucosa, and was continuously treated with Decedron oral suspension. Resolving all doubt in favor of the veteran, the Board finds that this symptomatology more nearly approximates the criteria for a 10 percent rating under the old rating criteria. See 38 C.F.R. § 4.7. Additionally, under the revised criteria, the Board finds that the veteran required systemic steroid use for 12 days in August 2003, a criteria for a 10 percent rating. Thus, the Board finds that a 10 percent rating is warranted under both the old and new criteria. The evidence does not warrant a rating in excess of 10 percent, however. Specifically, the evidence does not reveal exudation or constant itching, extensive lesions, or marked disfigurement to warrant the next higher rating of 30 percent under the old criteria. Although severe itching was noted in August 2003, it had improved by November 2003. See Francisco, supra. Likewise, under the revised criteria the veteran is not entitled to an evaluation in excess of 10 percent because the evidence does not show 20 to 40 percent of the entire body or 20 to 40 percent of the exposed areas are affected, or that systemic therapy or intensive light therapy has been required for a total duration of six weeks or more, but not constantly, during the past 12-month period. In this regard, the most recent evidence reveals that his tailbone had improved and that his mouth was only intermittently sore, but that he had some papules on his wrists and forearms. In summary, the Board finds that the a 10 rating is warranted, and that the preponderance of the evidence is against a rating in excess of 10 for lichen planus. ORDER Entitlement to a 10 percent disability rating, but no more, for lichen planus is granted, subject to the laws and regulations governing the disbursement of VA benefits. ____________________________________________ KATHY A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs