Citation Nr: 1038043 Decision Date: 10/07/10 Archive Date: 10/15/10 DOCKET NO. 91-36 697 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an effective date prior to April 3, 1996, for the grant of service connection for genital warts. 2. Entitlement to an initial compensable evaluation for genital warts. 3. Entitlement to an effective date earlier than January 12, 2005, for the award of a 100 percent disability evaluation for schizophrenia. REPRESENTATION Appellant represented by: Attorney Daniel G. Krasnegor; Goodman, Allen & Filetti, PPLC ATTORNEY FOR THE BOARD Scott Shoreman, Associate Counsel INTRODUCTION The Veteran had active service from June 1970 to June 1974. This matter comes before the Board of Veterans' Appeals (Board) from September 2004 and August 2005 rating decisions by the above Department of Veterans Affairs (VA) Regional Office (RO). In July 2006 the Board denied a compensable initial evaluation for genital warts and an earlier effective date for the grant of service connection for genital warts. The Veteran subsequently appealed these issues to the United States Court of Appeals for Veterans Claims (Court). While that case was pending at the Court, the Veteran's attorney and the VA Office of the General Counsel filed a joint motion to vacate the Board's decision and remand the Veteran's claims for readjudication. In a January 2008 Order, the Court granted the joint motion, vacated the Board's July 2006 decision, and remanded the case to the Board for readjudication. This claim was then before the Board in August 2008, at which time the Board remanded it for additional development. Further development is still needed on the issue of entitlement to an initial compensable evaluation for genital warts before the claim can be decided on the merits. The issue of entitlement to an initial compensable evaluation for genital warts is herein REMANDED to the RO. VA will notify the Veteran when further action is required. FINDINGS OF FACT 1. In March 2010, prior to the promulgation of a decision in the appeal, the Veteran's attorney submitted a written statement withdrawing the appeal for an effective date prior to April 3, 1996, for the grant of service connection for genital warts. 2. In an August 2005 rating decision, the Veteran's evaluation for schizophrenia was increased to 100 percent effective from January 12, 2005. 3. Prior to January 12, 2005, the Veteran's schizophrenia was characterized by paranoia, delusions, impaired judgment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. He did not manifest suicidal ideation; obsessional rituals interfering with routine activities; illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; or neglect of personal appearance or hygiene. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of an effective date prior to April 3, 1996, for the grant of service connection for genital warts have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2010); 38 C.F.R. §§ 20.202, 20.204 (2010). 2. The criteria for an effective date prior to January 12, 2005, for a 100 percent evaluation for schizophrenia have not been met. 38 U.S.C.A. §§ 1155, 5110(a) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9203 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Entitlement to an Effective Date Earlier than April 3, 1996, for the Grant of Service Connection for Genital Warts Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b) (2010). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204(c) (2010). In August 2008 the Board remanded the issue of an effective date earlier than March 23, 2004, for the grant of service connection for genital warts for additional development. In a January 2010 rating decision, the RO granted an effective date of April 13, 1996. The Veteran's attorney wrote in a March 2010 statement that the Veteran objected to the assignment of a 0 percent evaluation. The attorney did not indicate that the Veteran objected to the new April 13, 1996, effective date for the grant of service connection. Therefore, the issue is found to be withdrawn, and it is not appropriately before the Board. As the Veteran has withdrawn his appeal as to the above-mentioned issue, there remain no allegations of error of fact or law for appellate consideration. Therefore, the provisions of the Veterans Claims Assistance Act of 2000 (VCAA) are not applicable for this issue. Accordingly, the Board does not have jurisdiction to review the appeal. B. Entitlement to an Effective Date Earlier than January 12, 2005, for the Award of a 100 Percent Evaluation for Schizophrenia I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his attorney of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform 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 accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the appellant has not demonstrated any prejudicial or harmful error in VCAA notice, and, as discussed below, the Board has found none. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). In November 2005 VA sent the Veteran a letter informing him of the types of evidence needed to substantiate his claim and its duty to assist him in substantiating his claim under the VCAA. The letter informed the Veteran that VA would assist him in obtaining evidence necessary to support his claim, such as medical records, employment records, or records from other Federal agencies. He was advised that it is his responsibility to provide or identify, and furnish authorization where necessary for the RO to obtain, any supportive evidence pertinent to his claim. See 38 C.F.R. § 3.159(b)(1). Although no longer required, the appellant was also asked to submit evidence and/or information in his possession to the RO. The Board finds that the content of the letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. In addition, the August 2005 rating decision, March 2006 SOC, and January 2010 SSOC explained the basis for the RO's action, and the SOC and SSOC provided him with additional periods to submit more evidence. It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his attorney has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. In addition to the foregoing harmless-error analysis, we note that the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. This requirement was fulfilled in a March 2006 letter which VA sent to the Veteran. Accordingly, we find that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefits flowing to the Veteran. The Court of Appeals for Veteran Claims has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. II. Relevant Law, Factual Background, and Analysis The assignment of effective dates for awards of disability compensation is generally governed by 38 U.S.C.A. § 5110 (West 2002 & Supp. 2010) and 38 C.F.R. § 3.400 (2010). As pertinent here, where a claim has not been filed within one year after separation from service, the law provides that the effective date of an award of service connected disability compensation based on an original claim or a claim reopened after final adjudication "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2). In this context, it should be noted that the provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received. While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p); Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant or his duly authorized representative, may be considered an informal claim. Such claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. Under some circumstances, the date of outpatient or hospital treatment or date of admission to VA or uniformed services hospital will be accepted as the date of receipt of an informal claim. 38 C.F.R. § 3.157(b)(1). The Court has held that 38 U.S.C.A. § 5110(b)(2) specifically links any effective date earlier than the date of application to: (1) evidence that an increase in disability had occurred; and (2) to the receipt of an application within one year after that increase in disability. The application referred to must be an application on the basis of which the increased rating was awarded, because there would be no reason to adjudicate the question of the effective date prior to the award of a rating increase, just as there would be no reason to assign a disability rating on a disability compensation claim until service connection had been awarded. 38 U.S.C.A. § 5110(b)(2) allows a claimant to be awarded an effective date up to one year prior to the filing of an application for an increase, if an increase to the next disability level is ascertainable, and if a claim is received within one year thereafter. VA must review all the evidence of record, not just evidence not previously considered. The Court has noted that 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where the increase precedes the claim for increase, provided also that the claim for increase is received within one year after the increase. The Court further stated that the phrase "otherwise, the effective date shall be the date of receipt of the claim" provides the applicable effective date when a factually-ascertainable increase occurred more than one year prior to receipt of the claim for increase. Hazan v. Gober, 10 Vet. App. 511 (1997). When a claim is denied as a result of an RO decision, failure to timely initiate an appeal within the prescribed one-year period renders the decision final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. An appeal consists of a timely filed NOD in writing, and, after an SOC has been furnished, a timely filed substantive appeal. 38 U.S.C.A. § 7105(a) (2009); 38 C.F.R. § 20.200 (2009). The NOD must be submitted within one year of issuance of the rating action being appealed. 38 C.F.R. § 20.302 (2009). The law requires that a communication from a claimant contain certain information to constitute an NOD. Specifically, an NOD is defined as a written communication from a claimant or his representative expressing dissatisfaction or disagreement with an adjudicative determination of an agency of original jurisdiction and a desire to contest the result. While special wording is not required, the notice of disagreement must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. 38 C.F.R. § 20.201. Following the receipt of an NOD, the agency of original jurisdiction (the RO) is obligated to undertake any indicated development or review, and if that does not resolve the disagreement, by either a grant or a withdrawal of the disagreement, it "shall prepare a statement of the case." 38 U.S.C.A. § 7105(d). It then becomes the responsibility of the claimant to complete the steps necessary to perfect an appeal, if that is his or her desire, by timely filing a "substantive appeal." 38 U.S.C.A. § 7105(a). Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two evaluations shall be assigned, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, which requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2, which requires that medical reports be interpreted in light of the entire recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. These requirements for the evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based upon a single, incomplete, or inaccurate report, and to enable VA to make a more precise evaluation of the disability level and any changes in the condition. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships, a 50 percent rating. Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships, a 70 percent rating. Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name, a 100 percent rating. In the present case, the Veteran originally filed a claim for service connection for a mental disorder on April 13, 1989. The claim was continuously pursued by the Veteran with the RO, the Board, and the Court of Appeals for Veterans Claims. In an April 2004 rating decision, the RO granted service connection for schizophrenia, paranoid type, and assigned an evaluation of 50 percent, effective April 13, 1989. A 100 percent evaluation was assigned from July 7, 2000, through August 31, 2000, due to a hospitalization of over 21 days. On September 1, 2000, the 50 percent evaluation was resumed. The Veteran filed a timely NOD as to the 50 percent evaluation. The RO then increased the Veteran's evaluation for schizophrenia from 50 to 100 percent effective January 12, 2005, in an August 2005 rating decision. An SOC was issued on March 22, 2006, and the Veteran filed a timely Form 9 on May 17, 2006. Therefore, the Board will herein consider whether the Veteran is entitled to an evaluation in excess of 50 percent for schizophrenia prior to January 12, 2005, with the exception of the period from July 7, 2000, through August 31, 2000, for which the Veteran has already been granted an evaluation of 100 percent. Reviewing the evidence of record, we note the Veteran had a VA examination for posttraumatic stress disorder (PTSD) in August 1996. It was noted that in October 1992 he wrote that he had flashbacks and nightmares and that his treatment records showed steady, excessive alcohol use for approximately 15 years. The Veteran refused treatment for his alcohol use until November 1990, at which time he was diagnosed with alcohol abuse and rule out malingering due to frequently requesting medication for nerves. While the Veteran had been diagnosed in the past with PTSD and panic disorder, the VA examiner did not feel that the record indicated that he met the criteria for these disorders. The Veteran had taken Klonopin, which was discontinued because of alcohol use, as well as Prozac, Trazodone for difficulty sleeping and a depressed mood. At the time of the VA examination the Veteran was taking over-the-counter medications. During the examination the Veteran refused to answer several questions regarding his symptoms. His behavior was negative for psychomotor agitation or retardation, his eye contact was poor, and he was uncooperative. His affect was restricted, his form of thought linear, his speech quiet, and there was no evidence of psychotic processes. He was alert and oriented, his memory good, and his remote memory was fair. The examiner diagnosed the Veteran with alcohol abuse, "rule out" dependence; "rule out" PTSD; "rule out" mood disorder; "rule out" psychotic disorder; and "rule out" anxiety disorder. The Veteran underwent a VA mental health examination in October 1997 at which he presented paperwork indicating that he was to be involuntarily committed in October 1988 for alcohol use. He indicated he was receiving weekly outpatient treatment at the time of the examination, but he could not remember the name of the provider due to "amnesia" related to a traumatic head injury. He could not state why he was having psychiatric treatment and he denied being prescribed psychiatric medication at that time. The Veteran indicated having prior VA psychiatric treatment with a Dr. F, but he would not elaborate, and he was uncooperative in answering questions about his symptoms. The examiner noted that the Veteran was somewhat unkempt and he was "extremely guarded and hostile during the examination with poor eye contact." The Veteran's upper extremities were somewhat tremulous, and at times he tightly clutched an umbrella. His speech was normal in rate with decreased volume, his affect was dysphoric with restrictive range, and his thought process was coherent without any current suicidal ideation or homicidal ideation. There was no evidence of psychosis and cognition was grossly intact. Insight and judgment were extremely poor. The examiner could not make a diagnosis because of the Veteran's uncooperativeness. K.L., Ph.D., F.N.P., a VA psychologist, wrote in August 2000 that she had followed the Veteran for four to six months and that he was totally and permanently disabled. September 2000 VA treatment records indicate that the Veteran suffered from delusional thinking, paranoia, and auditory hallucinations. At treatment the day before he was casually dressed and adequately groomed. The Veteran's mood appeared within the normal range with congruent affect. He denied suicidal and homicidal intent and thought processes were linear and connected. "Delusional system" was described as intact, and he denied audio and visual hallucinations. Later in September 2000 the Veteran was described at treatment as alert and oriented times three. Later in September 2000 it was noted at VA treatment that the Veteran continued to have the fixed delusion that his neighbor is purposely shining lights in his mother's home and that the lights contain surveillance cameras. October 2000 treatment notes indicate that the Veteran had delusional thinking, paranoia and auditory hallucinations. Later in October 2000 VA treatment notes indicated that a treating provider considered committing the Veteran due to extreme paranoia and guarded affect. However, she did not do so because she could not elicit from the Veteran delusional thinking or thought of harm to himself or others. November 2000 VA treatment records indicate that the Veteran affect's was flat and mood withdrawn but that he was more interactive than at his prior appointment. The Veteran denied auditory hallucinations and paranoia was evident. He was noted to have schizophrenia, paranoid, chronic. February 2001 VA treatment records indicate that the Veteran continued to be paranoid and guarded in conversation but that he answered questions with prompting. In April 2001 the Veteran was described as guarded and evasive and his thought process was goal directed with a poverty of thought and paranoia. In December 2001 the Veteran continued to be described as paranoid and his speech was more spontaneous. VA treatment notes through January 2003 indicate that the Veteran continued to have delusions and that his insight and judgment were described as impaired or poor. At January 2003 VA treatment it was noted that the Veteran had a reduction in psychotic symptoms as evidenced by improved social interactions. At August 2003 VA mental health treatment the Veteran was described as having no complaints. He continued to have delusions regarding his neighbor but denied intent to harm him. The Veteran had been taking Seroquel without adverse side effects and he denied hallucinations and suicidal and homicidal ideation. He denied changes in his sleep and felt rested, and his appetite was normal. The Veteran's insight and judgment continued to be described as poor. February 2004 and May 2004 VA treatment notes indicate that the Veteran again had no complaints and continued to have delusions regarding his neighbor but denied intent to harm him. He was still taking Seroquel without adverse side effects and he denied hallucinations and suicidal and homicidal ideation. The Veteran's insight and judgment continued to be described as poor. In April 2004 the Veteran's sister reported that he threatened to kill her and would not allow her or their other siblings into his home. She reported that the Veteran had threatened his neighbor, and she did not think he was taking care of himself. Reviewing the evidence of record from prior to January 12, 2005, the Board finds that the Veteran's schizophrenia was characterized by delusions, paranoia, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. See 38 C.F.R. § 4.130, DC 9411. In finding that the Veteran did not have the symptoms associated with a 70 percent evaluation, the Board notes that the evidence does not show suicidal ideation, obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure or irrelevant, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control (such as unprovoked irritability with periods of violence), spatial disorientation, and neglect of personal appearance or hygiene. See 38 C.F.R. § 4.130, DC 9411. Although the August 1996 VA examination notes indicate that the Veteran had been diagnosed with panic disorder, the VA examiner noted that the records did not show that he met the criteria for this disorder. His treatment notes, discussed above, do not show that he had near continuous panic or depression that affected his ability to function independently, appropriately and effectively. The treatment notes indicate that he repeatedly displayed paranoia regarding his neighbor but, except for his sister's report in April 2004, the record does not show that he threatened his neighbor during this period. Furthermore, at treatment following his sister's report the Veteran denied intent to harm the neighbor. The record does not indicate that he had spatial disorientation, and he repeatedly denied suicidal ideation. The October 1997 VA examiner described the Veteran as being somewhat unkempt, and September 2000 treatment records indicate that he was adequately groomed. The Veteran's sister indicated in April 2004 that she did not believe he was taking care of himself. Therefore, although the record shows that the Veteran may have neglected aspects of his appearance, it does not appear that he had the neglect of personal appearance or hygiene that is contemplated in the criteria for a 70 percent evaluation. It is also noted that in August 2000 Dr. L opined that the Veteran was totally and permanently disabled. However, Dr. L did not discuss the Veteran's specific symptoms, and the letter was written during a period in which the Veteran was under a temporary 100 percent disability evaluation. The treatment records discussed above show that the record indicates the Veteran had some improvement after Dr. L's letter. For example, at February 2001 treatment he answered questions with prompting, and it was noted in January 2003 that he had a reduction in psychotic symptoms, as evidenced by improved social interactions. Furthermore, at multiple treatment sessions in 2003-2004 he was noted to not have any complaints. In summary, based upon these facts as supported by the weight of the entire record for the entire rating period in issue, the Veteran's schizophrenia more nearly approximates the rating criteria for a 50 percent evaluation than it does a 70 percent evaluation, the next higher, under DC 9411. The Board has duly considered staged ratings, pursuant to Fenderson, supra, but finds that the 50 percent rating currently assigned is appropriate for the entire rating period. Given the Veteran's complaints associated with employment, the Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). See Barringer v. Peake, 22 Vet. App. 242 (2008). The record reflects that the Veteran has not required frequent hospitalization for the disability, and that the manifestations of the condition are not in excess of those contemplated by the assigned rating. Further, although the Veteran experiences occupational impairment, there is no indication in the record that the average industrial impairment from the disability would be in excess of that contemplated by the assigned ratings. The Court has held that, "if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required." Thun v. Peake, 22 Vet. App. 111, 115 (2008). Therefore, the Board has concluded that referral of this case for extra-schedular consideration is not in order. Accordingly, the preponderance of the evidence is against the claim for an effective date earlier than January 12, 2005, for the assignment of a 100 percent evaluation for schizophrenia, and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER The appeal for an effective date prior to April 3, 1996, for the grant of service connection for genital warts is dismissed. An effective date earlier than January 12, 2005, for the award of a 100 percent disability evaluation for schizophrenia is denied. REMAND When the RO granted the Veteran service connection for genital warts, it noted that his service treatment records show he was hospitalized for a week for exacerbations from venereal warts. At his separation examination in December 1973, the clinical evaluation of the genitourinary system was normal, and the Veteran noted that he was still under treatment for the genital warts. He wrote in March 2004 that the removal of warts on his penis left it sensitive, and that sexual activity can cause cuts and bleeding. In August 2005 the Veteran had a VA skin examination for genital warts. He reported that since the surgery he underwent during service he had been having recurrence of the warts approximately once a month. He said he had been given a cream about a year earlier for the warts, which was helpful. The Veteran described the warts as painful, and said he had difficulty having sexual relations because of the irritation. On examination, the Veteran had some hypopigmented areas on the shaft of his penis but did not have any evidence of warts. The penis was not tender, and he did not have lymphadenopathy. Upon re-examination for genital warts in March 2009, he reported that the wart flare-ups come and go, and are worse in the summer. During the flare-ups, they are painful and the skin gets irritated during intercourse. He uses a wart remover and zinc oxide during the flare-ups, which are helpful. On examination there were hyperpigmented round scars on the shaft of the penis with a linear ulcerative area on the foreskin near the head of the penis, and a hyperpigmented scar that was linear around the foreskin near the head of the penis. The penis was nontender and there was no edema, warts, or lymphadenopathy. The Veteran was diagnosed with genital warts with no current flare-up, and nonspecific hyperpigmented areas on the shaft of the penis. With regard to the Veteran's genital warts claim, the Board is aware of the Court's decision in Ardison v. Brown, 6 Vet. App. 405, 408 (1994), a case which, like this one, involved the evaluation of a service-connected disorder which tended to fluctuate or to be cyclical in its manifestation of symptoms, i.e., a skin disorder which had "active and inactive stages" or was subject to remission and recurrence. See also Bowers v. Derwinski, 2 Vet. App. 675, 676 (1992) ("it is the frequency and duration of the outbreaks and the appearance and virulence of them during the outbreaks that must be addressed"). Thus, the frequency, duration, and outbreaks of skin disease exacerbations must be addressed and the skin disorder should be considered, whenever possible, at a time when it is most disabling. See, however, 38 C.F.R. § 4.1, directing that percentage ratings should represent, as far as can practicably be determined, the average impairment of earning capacity resulting from service- connected disability. Therefore, on remand the Veteran should be scheduled for a VA examination in the summer, since he has indicated that that is when he has flare-ups. Accordingly, the case is REMANDED for the following action: 1. With authorization provided by the Veteran, the RO should attempt to obtain any additional evidence not of record which pertains to the claim for entitlement to an initial compensable evaluation for genital warts. The RO should also invite the Veteran to submit all pertinent evidence in his possession, and explain the type of evidence that is his ultimate responsibility to submit. 2. The Veteran should be scheduled for a VA dermatological examination to determine the exact nature and disabling symptomatology of his genital warts. The claims file, to include a copy of this Remand, should be made available to the examiner. If possible, and with supplemental information from the Veteran for guidance in that regard, the examination should be scheduled in the summer or at another time when the skin problems are active. If this is not possible, the file should be so annotated. 3. Thereafter, the RO should readjudicate the Veteran's claim for an initial compensable evaluation for genital warts. If the benefits sought on appeal remain denied, the Veteran and his attorney should be provided with a supplemental statement of the case (SSOC). 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. 2009). ____________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs