Citation Nr: 0811675 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 05-34 206 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to an initial rating in excess of 30 percent for service-connected psoriasis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Catherine Cykowski, Associate Counsel INTRODUCTION The veteran had active duty service from June 1977 to June 1980 and from February 2003 to November 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA will make reasonable efforts to notify a claimant of the relevant evidence necessary to substantiate a claim for benefits under laws administered by the VA. The VCAA also requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The duty to notify under the VCAA requires VA to notify the claimant and the claimant's representative, if any, of the information and medical or lay evidence that is necessary to substantiate the claim. In Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004), the Court specifically held that the VCAA requires VA to provide notice that informs the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that the claimant is expected to provide. In what can be considered a fourth element of the requisite notice, the Court further held that, under 38 C.F.R. § 3.159(b), VA must request the claimant to provide any evidence in his possession that pertains to the claim. Id. at 120-21. The Court recently held, that in increased compensation claims, section § 5103(a) requires the Secretary to notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The Court also held that, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. The Court held that a claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. This notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation - e.g. competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores at 43. The 30 percent rating currently in effect is based on a July 2004 VA examination and VA dermatology outpatient treatment notes dated from 2004 to 2006. The veteran was scheduled for a VA examination in December 2006 but did not report for that examination. In a March 2008 brief, the veteran's representative contended that a new VA examination is warranted based on the time that has elapsed since the most recent VA examination. The Court has held that the fulfillment of the VA's statutory duty to assist the veteran includes providing VA examination when warranted, and conducting a thorough and contemporaneous medical examination which takes into account the records of prior medical treatment, so that the disability evaluation will be a fully informed one. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In this case, the July 2004 VA examination was not adequate because the examination report did not address all of the rating criteria pertaining to psoriasis. Therefore, on remand, the veteran should be afforded another VA examination In the March 2008 brief, the veteran's representative also contended that the notice of the December 2006 VA examination may have been sent to an incorrect address. The file does not contain any record of mail being returned as undeliverable. A November 2006 written statement provided a post office box in Chamberino, New Mexico as the veteran's mailing address. A March 2007 statement listed the same post office box number and a street address in Chamberino, but a different zip code. The AMC/ RO should contact the veteran or the veteran's representative to verify the veteran's correct mailing address. The Board notes that the veteran informed VA in March 2007 that he was being deployed to Iraq with the National Guard in support of Operation Iraqi Freedom. Therefore, on remand, the AMC/ RO should make reasonable efforts to contact the veteran to ascertain when he will be available for a VA examination. Accordingly, the case is REMANDED for the following action: 1. Take appropriate action to clarify the veteran's correct mailing address. 2. Send the veteran a corrective VCAA notice letter that advises him of the criteria necessary to establish a 60 percent rating for psoriasis under Diagnostic Code 7816. 3. Schedule the veteran for a VA skin examination to determine the current severity of his service connected psoriasis. The claims file should be made available to the examiner for review prior to the examination, and the examiner should indicate in the claims file that a review was conducted. Following a thorough examination, the examiner should: a) identify the areas of the body affected by psoriasis; b) indicate what percentage of the body is affected by psoriasis and what percentage of exposed areas are affected by psoriasis; and c) state whether topical or systemic therapies are required for treatment. If systemic therapies are required, the examiner should determine the frequency and duration of the use of systemic therapies during the 12 months preceding the examination. 4. Thereafter, the RO should readjudicate the claim on appeal based on all of the evidence of record. If the disposition of the claim remains unfavorable, the veteran and his representative should be provided with a supplemental statement of the case and afforded an applicable opportunity to respond. The case should then be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).