Citation Nr: 1023439 Decision Date: 06/23/10 Archive Date: 07/01/10 DOCKET NO. 05-20 218 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an increased evaluation for parapsoriasis, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Katz, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1970 to October 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois (RO) and several Board remands. FINDING OF FACT The Veteran's skin disorder is manifested by lesions on the back, chest, abdomen, arms, buttocks, thighs, and right hand, which cover no more than 40 percent of his entire body and no more than 1 percent of exposed areas and which require only topical treatment and do not require constant or near- constant systemic medications or intensive light therapy. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for a skin disorder have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7822 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION VA has certain notice and assistance requirements. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). Upon receipt of a substantially complete application for benefits, VA must notify the Veteran of what information or evidence is needed in order to substantiate the claim, and it must assist the Veteran by making reasonable efforts to obtain the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Prior to a February 2010 readjudication of the Veteran's claim, letters dated in March 2004, June 2007, and December 2008 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 491 (2006); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded, Vazquez-Flores v. Shinseki, No. 2008-7150 (Fed. Cir. Sept. 4, 2009); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a VCAA defect may be cured by the issuance of a fully compliant notification letter followed by a re-adjudication of the claim). Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, to include the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d. 881, 887 (Fed. Circ. 2007), rev'd on other grounds, Sanders v. Shinseki, 556 U.S. - (2009). The duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records, VA medical treatment records, and identified private medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In addition, the Veteran was provided with two VA examinations with regard to his skin disorder, one in May 2004, and one in July 2008. The Veteran has not indicated that he found either examination to be inadequate. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations are adequate, as they provide sufficient detail to rate the Veteran's service-connected skin disorder during the time period on appeal. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion regarding the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Finally, there is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2009). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2009). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21 (2009); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2009). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). With regard to the Veteran's claim for entitlement to an increased rating for a skin disorder, the present level of disability is of primary concern. Staged ratings are, however, appropriate when the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In July 1973, service connection for a skin disorder was granted, and awarded a 10 percent evaluation under 38 C.F.R. § 4.118, Diagnostic Code 7899-7806, effective October 5, 1972. October 1975 and June 1978 rating decisions confirmed the 10 percent evaluation. In November 2002, the Veteran filed a claim for an increased evaluation for his service- connected skin disorder. By a February 2003 rating decision, the RO granted an increased evaluation of 30 percent for the Veteran's skin disorder under 38 C.F.R. § 4.118, Diagnostic Code 7822, effective October 29, 2002. An August 2003 rating decision continued the 30 percent evaluation. In February 2004, the Veteran filed the current claim for entitlement to an increased evaluation for his skin disorder. In a June 2004 rating decision, the RO continued the 30 percent evaluation. In August 2004, the Veteran filed a notice of disagreement to the June 2004 rating decision, and in April 2005, he perfected his appeal. The Veteran's service-connected skin disorder is currently assigned a 30 percent rating pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7822. The Veteran contends that his symptomatology is worse than is contemplated under such a rating, and that a higher rating should be assigned. In an August 2004 notice of disagreement, the Veteran argued that his skin disorder covered more than 40 percent of his body. In his April 2005 substantive appeal, the Veteran reported that his skin disorder covered at least 60 percent of his body and that it was located on his shoulders, legs, arms, back, and hands. Diagnostic Code 7822 provides that papulosquamous disorders not listed elsewhere (including lichen planus, large or small plaque parapsoriasis, pityriasis lichenoides et varioliformis acuta, lymphomatoid papulosus, and pityriasis rubra pilaris) are evaluated as 30 percent disabling when there is 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; when systemic therapy or intensive light therapy is required for a total duration of six weeks or more, but not constantly, during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7822. A maximum 60 percent evaluation is warranted when more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, and; constant or near-constant systemic medications or intensive light therapy is required during the past 12- month period. Id. Diagnostic Code 7822 also provides that parapsoriasis can be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. Id. The Board observes that the rating criteria for disfigurement and scars were revised effective October 23, 2008. See 73 Fed. Reg. 54708-12 (Sept. 23, 2008). The effective date of the revisions is October 23, 2008, and the revised criteria apply to all applications for benefits received by VA on or after that date. As the Veteran's claim was received prior to October 23, 2008, the revised criteria are not for application in his case. The amendment allows for a Veteran to request a review of a disfigurement or scar disability under the revised criteria irrespective of whether the Veteran's disability has increased since the last review. Id. However, no such request has been made. VA treatment records from February 2003 through May 2004 reveal complaints of and treatment for a skin disorder. A July 2003 treatment record notes the Veteran's complaints of hypopigmented patches on his back, chest, and abdomen. He noted that he was using hydrocortisone ointment and Absorbase with no change, and that his skin was occasionally dry, but not pruritic. The report reflects that an October 2002 biopsy showed findings most consistent with pityriasis rosea and possibly guttate parapsoriasis. Physical examination revealed no active lesions on the head, neck, hands, or feet. On the trunk and extremities, there were multiple hypopigmented patches and some reticular patches on the abdomen, near the axilla, arms, buttocks, and thighs. There was no cervical, axillary, or inguinal lymphadenopathy. The diagnosis was "[l]ikely [p]arapsoriasis" and the Veteran was instructed to continue moisturization with Absorbase and to discontinue the hydrocortisone ointment and begin using triamcinolone ointment. In February 2004, the Veteran reported a history of hypopigmented patches on the back, chest, and abdomen. He stated that he was compliant with his regimen of hydrocortisone ointment and triamcinolone ointment. The Veteran noted that he felt that some of the patches were slightly larger and that there were a few additional spots. He reported occasional pruritus on the patchy areas. Physical examination of the head and neck showed no active lesions. On the trunk and extremities, there were several hypopigmented areas and some reticular patches on the abdomen, near the axilla, the arms, the buttocks, and the thighs. There were no active lesions on the hands or feet, and there was no axillary, cervical, or supraclavicular lymphadenopathy. The diagnosis was parapsoriasis, and the Veteran was instructed to continue moisturization with Absorbase and using triamcinolone ointment. In May 2004, the Veteran underwent a VA skin examination. The report notes the Veteran's complaints of light spots on his skin over the chest, abdomen, and back. The examiner indicated that treatment for the skin disorder included topical steroid treatment including triamcinolone ointment and moisturizer with some improvement in dryness and itching. The Veteran reported that his skin disorder was intermittent and was not progressive or worsening. He also indicated that there were no side effects of treatment and there was no functional impairment. Physical examination revealed several hypopigmented patches over the chest greater than the abdomen and back. There was one hypopigmented patch on the buttock and a few on the thighs. No axillary, cervical, supraclavicular, or inguinal lymphadenopathy was noted. There were no systemic symptoms, and the skin disorder was not malignant. There were no benign neoplasms or urticaria. There was no primary cutaneous vasculitis, no erythema multiforme, no scarring or disfigurement, no chloracne, no acne, no scarring alopecia, no alopecia areata, and no hyperhidrosis. The percent of the entire body affected was less than 1 percent. The diagnosis was mild parapsoriasis. VA treatment records from June 2004 through July 2008 reveal continued complaints of and treatment for parapsoriasis. In August 2004, the Veteran again complained of hypopigmented patches on his back, chest, arms, legs, and abdomen. He also noted that he was getting new spots. He indicated that he was compliant with his regimen of triamcinolone ointment, but felt that some of his hypopigmented patches were slightly larger. He reported occasional pruritus on the patchy areas. Physical examination of the head and neck revealed no active lesions. On the trunk and extremities, there were several hypopigmented and some reticular patches on the chest, abdomen, arms, buttocks, thighs, and near the axilla. On the right dorsal hand there was a hyperpigmented lichenified plaque. There was no axillary, cervical, or supraclavicular lymphadenopathy. The diagnosis was parapsoriasis versus hypopigmented mycosis fungoides. The Veteran underwent a punch biopsy, and was instructed to continue moisturization with Absorbase and to increase his dosage of triamcinolone ointment to the affected areas and the dorsal hand. He was also started on Cleocin solution for a follicular papule on the lower abdomen. Another August 2004 record reflects that the Veteran had a history of pityriasis rosea and reported for evaluation of some new lesions and some persistent old lesions. The lesions were not particularly pruritic. On examination, the Veteran had a few hypopigmented areas on his body, on the extremities, torso, and buttocks. On the left arm there was one area of mild inflammatory patch within a hypopigmented area. There was a similar lesion in the left antecubital area. A third August 2004 treatment record notes that physical examination showed no active lesions on the head or neck. On the trunk and extremities, there were several hypopigmented and some reticular patches on the chest, abdomen, arms, buttocks, thighs, and near the axilla. On the right dorsal hand there was a hyperpigmented lichenified plaque. There was no axillary, cervical, or supraclavicular lymphadenopathy, and the biopsy sites were well-healed. The diagnosis was parapsoriasis versus hypopigmented mycosis fungoides, and the Veteran was instructed to continue moisturization with Absorbase, triamcinolone ointment, and Cleocin solution. A September 2004 VA treatment record reflects that the Veteran had several biopsies which showed changes consistent with parapsoriasis but no frank atypical lyphocytic infiltrate. Physical examination showed reticulate, poorly demarcated areas of hypopigmentation over the trunk, buttocks, and legs. There was a keloid on the right arm. There was a 12 centimeter (cm.) hyperpigmented macule on the right buttock, which the Veteran reported was a birthmark. The diagnosis was "[c]linical and histological features [consistent with] large plaque psoriasis." The VA physician increased the Veteran's dose of Diprosone ointment to use on the lesions on the trunk. The Veteran was instructed to return in three months for a rebiopsy. A May 2005 treatment record reflects that the Veteran underwent several biopsies to rule out mycosis fungoides, and that the last biopsy showed chronic dermal inflammatory infiltrate with no evidence of cutaneous T-cell lymphoma or atypical lymphs. There were no changes in skin lesions, and the Veteran was using the Diprosone ointment as treatment for possible parapsoriasis. Physical examination revealed reticulate, poorly demarcated areas of hyperpigmentation over the trunk, buttocks, and legs. There was also a keloid on the right arm and a 12 cm. hyperpigmented macule on the right buttock which the Veteran reported was a birthmark. There was no axillary, cervical, or inguinal lymphadenopathy. The diagnosis was hypopigmentation. The Veteran underwent another biopsy, and he was instructed to continue using the Diprose ointment. Another May 2005 record notes the Veteran's complaints of "blatches" which were all over his trunk, arms, and legs with occasional itching. The diagnosis was alteration in skin integrity related to skin plaques. A third May 2005 record reflects diagnoses of mild superficial subacute dermatitis with some focal exocytosis of the small lymphocytes into the epidermis on the skin of the buttock and "[h]ypopigmentation/dermatitis." The Veteran was instructed to continue using the Diprose ointment. A June 2005 record indicates that the biopsy showed one small focus of few lymphocutes lining up but not diagnostic of mycosis fungoides. In July 2008, the Veteran underwent a VA skin examination. The report notes the Veteran's complaints that his skin lesions had grown much larger with occasional increased scale and pruritus. He noted that the skin had never cleared, and that the scale and pruritus came and went, but the light discoloration remained. The Veteran was treated off and on with topical medications including hydrocortisone ointment, triamcinolone ointment, betamethasone ointment, and moisturizers. No oral medication and no light therapy had ever been used. The Veteran reported no treatment for his skin disorder since 2005. Physical examination revealed the face, neck, and chest to be clear. On the abdomen, there were multiple large poorly demarcated hypopigmented patches extending around to the bilateral flanks. On the lower back, there were a few poorly demarcated scaly hypopigmented patches. On the left buttocks, there was a large hypopigmented patch. On the bilateral medial upper arms, there were large hypopigmented patches extending up into the axilla. A few of the patches had dry scale. On the bilateral upper thighs, there were a few smaller hypopigmented patches. A right arm skin biopsy revealed hyperkeratosis; a left arm skin biopsy showed chronic dermal inflammatory infiltrate; and a buttock skin biopsy revealed mild superficial subacute dermatitis with some focal exocytosis of small lymphocytes into the epidermis. The diagnosis was parapsoriasis. The VA examiner reported that onset and course of treatment was intermittent and non- worsening. Current treatment was used as needed, and there were no immunosuppressive drugs, ultraviolet B-light treatment, psoralen-ultraviolet-light treatment, or electron beam therapy used. There were no side effects of treatment, and there was no functional impairment, systemic symptoms, malignancy or neoplasm, urticaria, vasculitis, erythema multiforme, acne, alopecia, scarring, or disfigurement. The percent of the entire body affected was less than 30 percent and the percent of exposed areas affected was less than 1 percent. The examiner explained that the Veteran had around 30 percent involvement of the skin with areas of discoloration and some scales located on the trunk, arms, and upper thighs. There was no prior systemic treatment, and it did not appear that any was warranted at that time. In an October 2009 statement, C.S., M.D. reported that the Veteran was evaluated that month and that he had multiple patches on his back, abdominal wall, chest, lower, and upper extremities, and that his patches covered 40 percent of his body. After a thorough review of the evidence of record, the Board concludes that an evaluation in excess of 30 percent is not warranted for the Veteran's service-connected skin disorder. 38 C.F.R. § 4.118, Diagnostic Code 7822. As discussed above, a rating higher than 30 percent is not supported unless more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, and constant or near-constant systemic medications or intensive light therapy was required during the past 12-month period. Id. The medical evidence of record does not establish that these criteria are met. Specifically, the May 2004 VA examiner found that less than 1 percent of the entire body was affected by the Veteran's skin disorder. The July 2008 VA examiner concluded that approximately 30 percent of the Veteran's entire body was affected by his skin disorder and that less than 1 percent of exposed areas were affected. The October 2009 private treatment record from C.S., M.D. indicated that the Veteran's skin disorder covered 40 percent of his body. Thus, the medical evidence does not show that more than 40 percent of his entire body or more than 40 percent of exposed areas were affected by his skin disorder. Moreover, the record does not indicate that the Veteran required systemic medications or intensive light therapy for his skin disorder. The records indicate only that the Veteran required topical treatment, including hydrocortisone ointment, triamcinolone ointment, Diprosone ointment, and Absorbase. Accordingly, the medical evidence of record does not support a rating higher than 30 percent. Id. The Board acknowledges the Veteran's assertions that more than 40 percent and at least 60 percent of his skin was affected by his skin disorder. The Veteran can attest to factual matters of which he had first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Veteran's lay assessment of how much of his skin is affected is not competent evidence as it does not reflect actual measurements of affected skin. Moreover, the objective evidence does not indicate that such a large area of skin was affected at any given time. Only those with specialized medical knowledge, training, or experience are competent to provide evidence on the question of the severity of a disability. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In addition, the medical evidence of record reflects that the Veteran's skin disorder predominantly affects his back, chest, abdomen, arms, buttocks, thighs, and right hand. The record does not reflect that the Veteran's skin disorder was ever present on his face. Therefore, an increased rating under Diagnostic Code 7800 is not warranted. 38 C.F.R. § 4.118, Diagnostic Code 7800 (2008). Further, a 10 percent evaluation is the maximum available under Diagnostic Codes 7802-7804. Therefore, a rating in excess of 30 percent pursuant to the rating criteria for scars is only attainable if there is the equivalent of a deep scar covering areas exceeding 12 square inches (77 square cm.) (Diagnostic Code 7801) or if there is limitation of motion of the affected part (Diagnostic Code 7805). A deep scar is one associated with underlying soft tissue damage. Diagnostic Code 7801, Note (2). However, there is no evidence that the Veteran's skin disorder causes scars, and both the May 2004 VA examiner and the July 2008 VA examiner specifically found that the skin disorder caused no scarring or disfigurement. Accordingly, an increased rating under Diagnostic Code 7801 is not for application. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2008). Consideration has been given to whether an increased evaluation is warranted under other potentially applicable diagnostic codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). However, there is no evidence of American (New World) leishmaniasis, old world leishmaniasis, discoid lupus erythematosus or subacute cutaneous lupus erythematosus, tuberculosis luposa, dermatophytosis, bullous disorders, psoriasis, exfoliative dermatitis, malignant skin neoplasms, benign skin neoplasms, other infections, other cutaneous manifestations of collagen-vascular diseases, vitiligo, diseases of keratinization, urticaria, vasculitis, erythema multiforme, acne, chloracne, alopecia, hyperhidrosis, or malignant melanoma. 38 C.F.R. § 4.118, Diagnostic Codes 7807-7821, 7823-7833 (2008). Although there was a finding of dermatitis, the evidence does not show that it covered more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; required constant or near- constant systemic therapy. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2008). Accordingly, an increased evaluation is not warranted under the Diagnostic Code for dermatitis. Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2009). However, because ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2009). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical"). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's skin disorder disability picture is not so unusual or exceptional in nature as to render the rating for this disorder inadequate. The criteria by which the Veteran's skin disorder is evaluated specifically contemplate the level of impairment caused by that disability. Id. As demonstrated by the evidence of record, the Veteran's skin disorder is manifested by lesions on the back, chest, abdomen, arms, buttocks, thighs, and right hand which cover no more than 40 percent of his entire body and no more than 1 percent of exposed areas and which require only topical treatment and do not require constant or near-constant systemic medications or intensive light therapy. When comparing these with the symptoms contemplated by the Rating Schedule, the Board finds that the schedular evaluation regarding the Veteran's skin disability is not inadequate. A rating in excess of 30 percent is provided for certain manifestations of the Veteran's skin disorder, but the medical evidence reflects that those manifestations are not present in this case. Therefore, the schedular evaluation is adequate and no referral is required. After review of the evidence, the preponderance of the evidence of record does not warrant a rating in excess of 30 percent at any time during any distinct time period pertinent to this appeal. See 38 U.S.C.A. §§ 5107, 5110 (West 2002); see also Hart, 21 Vet. App. at 509-10. ORDER A rating in excess of 30 percent for a service-connected skin disorder is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs