Citation Nr: 0813107 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 99-03 337 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial compensable disability rating for psoriasis. REPRESENTATION Appellant represented by: Daniel G. Kransnegor, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Heneks, Associate Counsel INTRODUCTION The veteran served on active duty from June 1951 to May 1954. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted service connection for psoriasis and assigned a noncompensable rating. In February 2002, the veteran presented testimony at a travel board hearing conducted at the Cleveland RO before the undersigned Veterans Law Judge (VLJ). A transcript of this hearing is in the veteran's claims folder. As a preliminary matter, the Board finds that some clarification regarding the procedural history of the case is in order. The veteran was originally denied service connection for a skin disorder in December 1998. The veteran appealed that decision, and in July 2000, the Board remanded the claim for additional development. Following that development, the case returned for appellate review, and in June 2002, the Board denied the veteran's claim for service connection. Subsequently, the Secretary and the veteran's attorney filed a joint motion for remand of the veteran's claim for service connection, and in December 2002, the Court of Appeals for Veterans Claims (Court) vacated the Board's decision for compliance with the Veterans Claims Assistance Act (VCAA). In June 2004 and September 2005, the Board again remanded the veteran's claim for service connection for additional development. In April 2006, the RO granted the veteran's claim for service connection, now recharacterized as psoriasis, and assigned a noncompensable rating effective July 29, 1998. In June 2006, the veteran's attorney filed a notice of disagreement (NOD) as to the assigned noncompensable rating, specifically noting that the RO did not consider the criteria of Diagnostic Code 7816 that were in effect prior to August 30, 2002, and requesting an initial 10 percent rating under those criteria. With respect to VCAA, the Board finds that all notice requirements have been met. In June 2004, the Board remanded the veteran's claim to, among other things, ensure compliance with VCAA notice requirements. A review of the record shows that the RO subsequently provided the veteran with adequate notice of the VCAA with respect to his service connection claim in a June 2004 letter, and the claim was later adjudicated and granted in an April 2006 rating decision. During the pendency of the appeal, the Court issued a decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), which created an additional four-part test for satisfying section 5103(a) compliant notice requirements for increased compensation claims. However, as this appeal stems from an April 2006 RO decision which granted service connection for psoriasis, and the veteran is disagreeing with the initial noncompensable rating, the Board finds that all notice requirements have been met. In this regard, the United States Court of Appeals for the Federal Circuit and the United States Court of Appeals for Veterans Claims (Court) have held that once service connection is granted and an initial disability rating and effective date have been assigned, the claim is substantiated, and additional 5103(a) notice is not required. See Dingess v. Nicholson, 19 Vet. App. 473, 490-491 (2006); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In line with the above reasoning, the Board finds that Vazquez-Flores, supra, does not apply to initial rating claims because VA's VCAA notice obligation was satisfied when the RO granted the veteran's claim for service connection. Further, regarding the diagnostic criteria necessary to establish a higher initial rating for the veteran's service connected psoriasis, the Board notes that the June 2006 statement of the case (SOC) contained the current rating criteria in effect for psoriasis under 38 C.F.R. § 4.118, Diagnostic Code 7816 but did not contain the rating criteria in effect for psoriasis prior to the regulation change effective August 30, 2002. However, in the June 2006 NOD and July 2006 Form 9, the veteran's attorney has demonstrated by referencing 38 C.F.R. § 4.118, Diagnostic Code 7816 and quoting the criteria for a 10 percent rating that he had actual knowledge of the criteria in effect prior to August 30, 2002. See Sanders v. Nicholson, 487 F.3d 881 (2007). As such, any deficiencies with respect to 38 U.S.C.A. § 7105(d)(1)(B) were cured by the actual knowledge of the veteran's attorney. Unfortunately, as explained below, this case must once again be remanded for further development. 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 Board finds that the previous VA examination reports do not adequately assess the state of the veteran's disability under the applicable rating criteria for psoriasis both prior to and as of August 30, 2002, and the RO did not consider pre-August 30, 2002, rating criteria in rating the veteran's claim. The Board thus remands the claim for additional development, including a VA examination and RO consideration of all applicable criteria. Although the Board regrets the additional delay, it is necessary to ensure that due process is followed and that there is a complete record upon which to decide the veteran's claim for an initial compensable rating for psoriasis so that he is afforded every possible consideration. In this regard, as noted above, the schedular criteria for rating skin disabilities were revised during the pendency of the veteran's appeal. As mentioned above, the veteran originally filed a claim for service connection for a skin disorder in July 1998. The rating criteria under 38 C.F.R. § 4.118, Diagnostic Code 7816 in effect at the time of the veteran's original claim for service connection provided for a zero percent evaluation for psoriasis with slight, if any, exfoliation, exudation or itching, if on a nonexposed surface or small area; a 10 percent evaluation for psoriasis with exfoliation, exudation or itching, if involving an exposed surface or extensive area; a 30 percent evaluation for psoriasis with constant exudation or itching, extensive lesions, or with marked disfigurement; and a 50 percent evaluation for psoriasis with ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or exceptionally repugnant. Diagnostic Code 7816 was subsequently revised on August 30, 2002, to provide ratings based on the percentage of the body covered by psoriasis. See 67 Fed. Reg. 49590 (2002). Based on a January 2006 VA skin examination opinion, the RO granted the veteran's claim for service connection in April 2006 and assigned a noncompensable rating under the criteria of Diagnostic Code 7816 effective August 30, 2002. As mentioned above, in June 2006, the veteran's attorney filed a NOD as to the assigned noncompensable rating, specifically stating that the RO did not consider the criteria of Diagnostic Code 7816 that were in effect prior to August 30, 2002, and also requesting an initial 10 percent rating under those criteria, which specifically provided for a 10 percent rating where the skin condition displays "exfoliation, exudation or itching, if involving an exposed surface or extensive area." See 38 C.F.R. § 4.118, Diagnostic Code 7816. After a review of the record, the Board finds that, in evaluating the veteran's disability, the RO has not considered whether the veteran was entitled to a higher initial rating under old criteria, and the last VA examination to adequately assess the veteran's psoriasis under the pre-August 30, 2002, criteria was conducted in April 2005. In initial rating cases where the rating criteria are amended during the course of an appeal, VA must consider both the former and the current schedular criteria. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); see also VAOPGCPREC 7-03; VAOPGCPREC 3-00, 65 Fed. Reg. 33,422 (April 10, 2000); 38 U.S.C.A. § 5110(g) (West 2002); 38 C.F.R. § 3.114 (2007). In addition, where the rating criteria have changed since the inception of a claim, a new examination may be required to assess a disability rating under both sets of criteria. See Pennington v. Principi, 18 Vet. App. 301 (2003) (VA acted properly insofar as it remanded the veteran's claim for a new PTSD examination and for consideration of the claim under both old and new rating criteria). Moreover, where the most recent VA examination may not reflect the current state of a veteran's disability, a new VA examination should be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2007). Consequently, as the most recent VA examination to assess the veteran's disability according to the rating criteria in effect at the time he filed his original claim for service connection was conducted three years ago, and as the RO did not consider the old rating criteria, the Board concludes that a remand is required to afford the veteran a VA examination that assesses the current state of his psoriasis under all applicable rating criteria (i.e., the rating criteria in effect both prior to and as of August 30, 2002) and to allow RO consideration of the veteran's psoriasis under both versions of the applicable regulation. Additionally, the Board notes that during his February 2002 hearing, the veteran indicated that he was receiving treatment from Dr. Z for his psoriasis. The veteran testified that he had last seen Dr. Z three months prior to the hearing, and saw him at least every six months to renew his prescriptions. The Board notes that the last records from Dr. Z in the claims file are dated in 2000. At the time of the veteran's February 2002 hearing, the issue on appeal was entitlement to service connection for a skin condition, so additional evidence concerning the current state of the disability was not required. However, as the matter now before the Board is entitlement to an initial compensable rating dating back to the grant of service connection, effective July 29, 1998, the veteran's level of disability from that time to the present is now relevant and any additional evidence concerning his disability, if available, should be obtained. As such, records from Dr. Z pertaining to the veteran's service-connected psoriasis dating from 2000 to the present should be requested on remand. Additionally, the veteran should be asked to identify any other pertinent treatment records that address his psoriasis during the appeal period. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should ask the veteran to identify any treatment he received for his psoriasis from approximately 1998 to the present in addition to treatment from Dr. Z. After securing any necessary releases, attempts should be made to obtain and associate these records with the claims file. 2. The veteran should be scheduled for a VA skin examination to assess the current severity of his service-connected psoriasis under all applicable rating criteria. The claims file must be made available to the examiner, and the examiner should indicate in his report that the claims file was reviewed. Any necessary tests should be accomplished. In particular, the examiner should be provided with the rating criteria for skin disorders pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7816 in effect prior to August 30, 2002 and as of August 30, 2002. The examiner should report the veteran's current manifestations of his psoriasis in terms that address both versions of the rating schedule. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2007), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. Then, after ensuring the VA examination report is complete, the RO should readjudicate the veteran's claim for an initial compensable rating for psoriasis on the merits, applying all applicable laws and regulations, including consideration of the rating criteria pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7816 in effect both prior to and as of August 30, 2002. If the benefits sought are not granted, the veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ STEVEN L. COHN 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).