Citation Nr: 1308320 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 10-18 633 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUE Entitlement to an increased rating for psoriasis, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran had active military service from January 1963 to January 1966 and from October 1967 to March 1968. He also had a period of active duty for training from June to December 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In June 2011 the Board remanded the claim for further development. FINDING OF FACT The Veteran's psoriasis manifests over at least 5 percent, but less than 20 percent, of the entire body; it does not manifest over 20 to 40 percent of the entire body or of exposed areas affected, and systemic therapy was not required for a total duration of six weeks or more over a course of a year. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for psoriasis have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.118, Diagnostic Code 7816 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in a pre-adjudication letter sent in June 2009. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). This letter sent also provided notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disability under consideration, pursuant to the recent holding in Dingess v. Nicholson, 19 Vet App 473 (2006). The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. The Veteran's private treatment records have been obtained. In addition, he has been provided with adequate VA examinations that assessed the severity of his psoriasis. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Also, the requested examination conducted in March 2012 was in accordance with the remand request. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). In May 2011, the Board also remanded the Veteran's claim to obtain "progress notes" referred to by the Veteran on his April 2010 Form 9. In June 2011 correspondence, VA asked the Veteran to identify any VA medical facility and any private physicians or hospitals where he received treatment for his psoriasis. He was asked to complete the authorization forms to allow VA to obtain the treatment records or to submit the records himself. In response, the Veteran submitted treatment records from Gallender Clinic. Therefore, the Board concludes that all reasonable efforts were made by VA, and the remand directives were substantially complied with to obtain evidence necessary to substantiate the Veteran's claim. No further assistance to develop evidence is required. (The Board notes that the Veteran's Virtual VA eFolder must be reviewed as the eFolder is an extension of the paper file. Review of the Veteran's eFolder revealed no further relevant evidence that has not already been associated with the claims folder.) For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. II. Analysis Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, 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. See 38 C.F.R. § 4.7 (2012). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is service connected for psoriasis. Psoriasis is evaluated under 38 C.F.R. § 4.118, Diagnostic Code 7816. He contends that his disability has worsened and that at least a 30 percent rating is warranted. During the pendency of this appeal, the criteria for rating skin disabilities were revised, effective October 23, 2008. 38 C.F.R. § 4.118, (2012); 73 Fed. Reg. 54,710 (Oct. 23, 2008). However, those amendments only apply to applications received by VA on or after October 23, 2008, or where the Veteran expressly requests consideration under the new criteria, which he has not done here. Therefore, the Board has no authority to consider these revisions in deciding this claim. Moreover, the changes pertain to the rating of scars and do not alter the provisions of Diagnostic Code 7816. As explained below, consideration of other applicable diagnostic codes in this claim for an increased rating is not necessary. Under Diagnostic Code 7816, a 10 percent rating is warranted if 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 are affected, or; if intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is available when the skin disability affects 20 to 40 percent of the entire body or exposed areas of the body or requires intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration for a total duration of 6 weeks or more, but not constantly, during the past 12-month period. A maximum 60 percent rating is available for psoriasis affecting more than 40 percent of the entire body or exposed areas of the body or requiring constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. See 38 C.F.R. § 4.118, Diagnostic Code 7816. The 60 percent evaluation is the maximum schedular evaluation under Diagnostic Code 7816. The disability may also be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. On October 2009 VA examination, the Veteran reported a progressive worsening in the psoriasis since its onset. He reported that in the previous 12 months, he had a rash in the areas of his lips, back, legs, and groin. The examiner noted that the Veteran had scabs on his low back, buttocks, legs, lips and groin area. He did not have any systemic symptoms. He used topical cream mixed with OTC lamisil on a daily basis until he ran out about a week earlier. He reported that the condition was near constant. The physical exam showed that the condition did not affect any exposed areas (head, face, neck, hands) at the time of examination and less than 5 percent of the total body area. The diagnosis remained psoriasis. No photographs were taken. Private treatment records from Gallender Clinic dated January 2010 and April 2011 showed that the Veteran's psoriasis affected 5 percent of his body for which he was prescribed a topical cream. On March 2012 VA examination, the examiner noted that the Veteran had a long history of psoriasis. The Veteran reported that he would get lesions on his back, legs, and abdomen. He believed that he had patches on his lip. He stated that used both prescription and over-the-counter creams when the lesions occurred and that he had to use the cream every couple of weeks. He did not take any systemic drugs for psoriasis. He did not have any active lesions at the present time other than a lesion on his nose that he thought might be psoriasis. When asked if any of the Veteran's skin conditions caused scarring and /or disfigurement of the head, face, or neck, the examiner checked "no." There were no systemic manifestations due to any skin disease. He currently uses topical corticosteroids for treatment of psoriasis. He did not have any debilitating episodes in the past 12 months due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. The examiner reported that the skin condition affects less than 5 percent of the total body area and less than 5 percent of the exposed area. The Veteran did not have any other pertinent physical findings, complications, conditions, signs and/or symptoms related to this condition. The examiner found that the Veteran had a 0.25 cm nodular lesion on the left side of the Veteran's nose that was not psoriatic in nature. He had scattered hyperpigmented papules on the low back and legs that would total less than 5 percent of the body area and not exceed 6 square inches in total. Photographs were taken. There are no active psoriatic lesions; no scars, and no disfigurement of the head, face or neck. The examiner indicated that at the time of the examination there were a few small hyperkeratotic areas on the left shin which may represent patches of psoriasis, but definitely would cover less than 5 percent of body surface. The total area of hyperpigmentation as presumed residual of psoriasis was less than 5 percent and less than 6 square inches. There was no visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ear (auricles), cheeks or lips). Based on these findings, the Veteran's disability picture more closely approximates a 10 percent disability rating for his service-connected skin disability under Diagnostic Code 7816. Indeed, the evidence of record shows that the Veteran's disability is primarily manifested by rash/scabs/lesions in the areas of his back, buttocks, legs, abdomen, and groin as well as some small hyperkeratotic areas on the left shin which may represent patches of psoriasis. A January 2010 treatment record from Gallender Clinic showed that the Veteran's psoriasis affected 5 percent of his body. Here, the percentages of areas affected by the Veteran's skin condition reflect the criteria for a 10 percent evaluation. However, the evidence from the October 2009 and March 2012 VA examinations revealed that the Veteran's disability does not warrant a compensable evaluation (based on the percentages of areas affected by the skin disability), much less an evaluation in excess of 10 percent. Furthermore, the evidence during the period on appeal does not indicate that 20 to 40 percent of the entire body or of exposed areas is affected or that systemic therapy was required for a total duration of six weeks or more to warrant the next higher 30 percent rating. Although the Veteran was prescribed the use of a corticosteroid cream during the course of the appeal, this medication is topical and it was not used in a systemic fashion. Accordingly, the Board finds that there is no basis to grant a disability rating higher than 10 percent in this instance. The Board has also considered whether a higher disability rating is warranted under the alternative diagnostic codes enumerated in Diagnostic Code 7816, under Diagnostic Codes 7800 for disfigurement of the head face or neck or Diagnostic Codes 7801 to 7805 for scars. However, as detailed above, the Veteran's psoriasis primarily affects his back, buttocks, legs, abdomen, and groin as well as possibly his left shin. There is no objective evidence that the disability affects his head, face, or neck. On March 2012 VA examination, the examiner acknowledged the Veteran's belief that he had psoriasis on his lip and nose, however, the examiner stated that there was no disfigurement of the head, face or neck. The examiner also reported that the Veteran has a 0.25 cm nodular lesion on the left side of the Veteran's nose was in fact not psoriatic in nature. Furthermore, the examiner found that there was is no visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ear (auricles), cheeks or lips). Thus Diagnostic Codes 7800 does not apply. Additionally, there is no evidence of any scarring, underlying soft tissue damage, limited motion, instability, pain, or limitation of function due to scarring that would afford the Veteran a rating higher than what is currently assigned. Accordingly Diagnostic Codes 7801 to 7805 are not for application under the circumstances of this case. The objective evidence of record does not show that any other diagnostic codes are applicable in this case. A complete review of the Veteran's record, to include VA examinations and private medical records, do not provide any additional evidence in favor of the Veteran's claim for a higher evaluation of his skin disability, and for reasons noted above, provides evidence against such a claim. With respect to claims for an increased rating, the Board has also considered the Veteran's statements that his disability is worse than currently rated. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470. He is not, however, competent to identify a specific level of disability of the disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the medical personnel who have examined him during the current appeal and who have provided pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. In short, the Board does not find evidence that the rating assigned for the Veteran's skin disability should be increased for any other separate period based on the facts found during the appeal period. The evidence of record supports the conclusion that the Veteran is not entitled to increased compensation during any time period. As such, an evaluation in excess of 10 percent is not warranted. See Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, 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. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1)(related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate the disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step--a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. As noted above, the Veteran's psoriasis has been manifested by rash/scabs/lesions in the areas of his back, buttocks, legs, abdomen, and groin as well as some small hyperkeratotic areas on the left shin that involve 5 percent of the total body, less than 5 percent of the exposed area, and require only topical treatment without systemic treatment. These manifestations are specifically contemplated in the rating criteria. The Veteran has not reported, and the evidence does not otherwise disclose manifestations not contemplated by the rating schedule. For these reasons, referral for extraschedular consideration is not warranted. ORDER Entitlement to an increased rating for psoriasis is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs