Citation Nr: 1313448 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 09-11 307A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased rating for psoriasis, rated as noncompensably disabling prior to June 14, 2010 and 10 percent disabling thereafter. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from June 1951 to March 1953. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which, in pertinent part, continued a noncompensable evaluation for service-connected psoriasis. In October 2012, the Veteran testified before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is of record. In January 2013, the Board remanded the case for further action by the originating agency. The case has now returned to the Board for further appellate action. In its January 2013 decision, the Board referred claims for entitlement to service connection for psoriatic arthritis and entitlement to an increased rating for posttraumatic stress disorder (PTSD) to the Agency of Original Jurisdiction (AOJ) for the appropriate action. The record before the Board does not indicate that these claims have been developed or adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them, and they are again referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Throughout the claims period, the Veteran's psoriasis has affected 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; the psoriasis has required constant treatment with topical corticosteroids and intermittent systemic therapy for a total duration of less than six weeks in a 12-month period. CONCLUSION OF LAW The criteria for a 10 percent rating, but not higher, for psoriasis throughout the claims period are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.118, Diagnostic Code 7816 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection for psoriasis was granted in a June 2005 rating decision with an initial noncompensable evaluation assigned effective April 9, 1998. The December 2007 rating decision on appeal continued the noncompensable evaluation. An increased 10 percent evaluation was granted in an October 2010 rating decision effective June 14, 2010. The Veteran's psoriasis is therefore rated as noncompensably disabling prior to June 14, 2010 and 10 percent disabling thereafter. The Veteran contends that an increased rating is warranted for psoriasis as it has affected a majority of his body and requires the use of daily topical steroids. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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). As a preliminary matter, the Board notes that the Veteran has undergone treatment during the claims period for a nonservice-connected skin condition, seborrheic dermatitis. The October 2007 VA examiner found that this skin disorder, affecting the Veteran's face and scalp, was unrelated to psoriasis and was a separate disability. However, the record also contains evidence indicating that the scalp and facial manifestations of the Veteran's skin disease are associated with service-connected psoriasis. An April 2011 record of dermatological treatment from the Augusta VA Medical Center (VAMC) shows a diagnosis of sebopsoriasis and notes that the Veteran's service-connected skin disorder exists on a spectrum and encompasses both diagnoses. A private physician also found in August 2009 that the scaling on the Veteran's face and scalp could be seborrheic dermatitis, but it was difficult to evaluate the precise nature of the condition. The Board will resolve all doubt in the Veteran's favor, and finds that psoriasis is the cause of the symptoms affecting his scalp and face. The Board will therefore consider the manifestations of skin disease on the scalp and face as part of the current claim for an increased rating for psoriasis. The Veteran's psoriasis is rated under Diagnostic Code 7816 pertaining specifically to psoriasis. Under this diagnostic code, psoriasis is rated under the specific criteria provided in Diagnostic Code 7816 or is 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. The Board finds that rating the Veteran's psoriasis as scars or disfigurement of the head, face, or neck is not appropriate. The record is entirely negative for medical evidence of scarring related to the Veteran's psoriasis, and the Veteran has never reported scarring due to the service-connected condition. Similarly, there is no medical or lay evidence of disfigurement related to the service-connected skin condition. In fact, both the July 2012 VA contract examiner and February 2013 VA examiner found that the Veteran had no scarring or disfigurement of the head, face, or neck. Thus, it is clear that disfigurement or scarring is not the predominant disability resulting from the Veteran's psoriasis and the Board will rate the condition under the specific provisions of Diagnostic Code 7816. Diagnostic Code 7816 provides that psoriasis affecting less than 5 percent of the entire body or exposed areas affected, and; no more than topical therapy required during the past 12-month period, is rated noncompensably (0 percent) disabling. Psoriasis affecting 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 affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period, is rated 10 percent disabling. Psoriasis affecting 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period, is rated 30 percent disabling. Psoriasis affecting more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period, is rated 60 percent disabling. 38 C.F.R. § 4.118. After review of the evidence, the Board finds that a 10 percent evaluation is warranted for the Veteran's psoriasis throughout the entire claims period. The service-connected condition is currently rated as noncompensably disabling for the period prior to June 14, 2010. Upon VA examination in October 2007, the Veteran's psoriasis was found to affect 0 percent of the Veteran's exposed areas and less than 2 percent of the entire body. However, this conclusion was predicated on the VA examiner's finding that the skin problems affecting the Veteran's scalp and face were not associated with psoriasis and were instead due to seborrheic dermatitis. As discussed above, the record demonstrates that the Veteran's service-connected psoriasis encompasses the symptomatology stemming from seborrheic dermatitis. Thus, the Board finds that the scaling affecting the Veteran's nasolabial folds, glabella, and upper eyelids at the VA examination in October 2007 is a manifestation of psoriasis. VA treatment records dated prior to June 2010 also show treatment for psoriasis and dermatitis affecting the head, face, posterior trunk, and hands. The Board therefore finds that the Veteran's psoriasis most nearly approximates 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 affected during this period. A 10 percent rating is warranted for the period prior to June 14, 2010. The Veteran's psoriasis is also rated as 10 percent disabling during the period beginning June 14, 2010. The Board has considered whether a rating in excess of 10 percent is warranted at anytime during the course of this appeal, but finds that the Veteran's psoriasis has not most nearly approximated the criteria associated with an increased evaluation under Diagnostic Code 7816. The Veteran was provided VA examinations in October 2007, June 2010, July 2012, and February 2013 and none of the examiners found that psoriasis affected 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected. While VA and private clinical records note intermittent treatment for psoriasis affecting multiple portions of the body, it is clear that the Veteran's disability has not affected 20 to 40 percent of the body at any time. Furthermore, the Veteran has not required systemic therapy (such as corticosteroids or immunosuppressive drugs) for a period of six weeks or more during any 12-month period. The July 2012 VA examiner noted that the Veteran underwent a course of prednisone (a corticosteroid) for less than six weeks, but Diagnostic Code 7816 requires treatment for over six weeks with systemic therapy. 38 C.F.R. § 4.118, Diagnostic Code 7816. Treatment records and the Veteran's lay testimony also establish constant treatment with topical corticosteroids, but such treatment is associated with a noncompensable evaluation. In sum, the Veteran's psoriasis warrants a 10 percent evaluation throughout the entire claims period. The Board has considered whether there is any other schedular basis for granting a higher rating, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable as the preponderance of the evidence is against the claim for a rating in excess of 10 percent. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court of Appeals for Veterans Claims (Court) has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disability. The Veteran's psoriasis is manifested by symptoms such as scaling and plaques on the head, face, arms, trunk, and legs and is treated with daily topical corticosteroids. These manifestations are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is not warranted. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in a September 2007 letter. The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in the September 2007 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, and private medical records. Additionally, the Veteran was provided proper VA examinations in response to his claim for an increased rating for psoriasis. The Board also finds that VA has complied with the January 2013 remand orders of the Board. In response to the Board's remand, the Veteran was provided an additional VA examination in February 2013 to determine the severity of his service-connected psoriasis. The case was then readjudicated in a March 2013 supplemental statement of the case (SSOC). Therefore, VA has complied with the remand orders of the Board. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a rating of 10 percent, but not higher, for psoriasis throughout the claims period is granted. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs