Citation Nr: 1323040 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 96-41 248A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an increased disability rating for psoriasis, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty for training from October 1979 to April 1980, and on active duty from October 1982 to October 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois (RO). FINDING OF FACT The service-connected psoriasis is manifested, at worst, by involvement of 10 percent of the total body area affected, with 5 percent of the exposed skin area affected, and the need for tanning treatment or used of over-the-counter hydrocortisone cream. The service-connected psoriasis has never required the need for intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required at any point for treatment. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for psoriasis have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7816 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). The Veteran has been provided the requisite notice with respect to his claim for an increased disability rating for his service-connected psoriasis in a November 2004, which was prior to the May 2005 rating decision which initially denied an increased disability rating. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). A March 2006 letter complied with the requirements of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), and the claim was subsequently readjudicated by the RO. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has obtained available service treatment records; private treatment records; multiple VA examination reports, assisted the Veteran in obtaining evidence; and, afforded him the opportunity to present written statements and evidence. All known, identified, and available records relevant to the issue on appeal have been obtained and associated with the evidence of record and he has not contended otherwise. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran was afforded multiple VA examinations in an effort to examine him during a flare-up of his service-connected psoriasis. The most recent examination was in January 2013 and is adequate as it includes physical findings and medical opinions supported by rationale. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 486; Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Veteran contends that his is entitled to a increased disability rating for his service-connected psoriasis, which is presently rated at a 10 percent disability rating. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2012). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Service connection has been in effect for psoriasis at a 10 percent disability rating effective from the original date of service connection in June 1993. In October 2004, the Veteran filed a claim for an increased rating for this disability. He asserted that he warranted a 50 percent disability rating for this disability. A December 2003 VA general medical outpatient treatment record noted "no suspicious lesions" on skin examination. Psoriasis was not indicated as an active problem. At a May 2005 VA skin examination, the diagnosis was psoriasis. The Veteran indicated that the psoriasis was intermittent, mostly described as flares which lasted approximately 12 months, with interruption and cessation of symptoms for approximately nine months. The Veteran reported an increase in symptoms recently with flares lasting approximately 16 months, and symptom free periods being only five months. He reported that he had never received any oral immunosuppressant therapy. He indicated that he used 1% hydrocortisone cream because his rash is itchy. The Veteran described his rash as pruritic causing him to scratch every two minutes. Physical examination revealed an erythematous region of skin on the right calf extending from the knee to the ankle consisting of large macules, with minimal scaling. He had a fine erythematous macules, with minimal scaling around the waistline, the buttocks, and shoulders. There was no rash on the head, face, neck, or hand. The examiner indicated that the total body area affected was 10 percent, with 5 percent of the exposed skin area affected. VA treatment records dated January 2006 do not show psoriasis as an active problem on the primary medical history. VA outpatient treatment records dated in February 2006 indicated the presence of an "abdominal rash." VA scheduled the Veteran for another skin examination to ascertain the current level of severity of his service-connected psoriasis in March 2007, but the Veteran canceled. At an April 2009 VA examination, the physical examination revealed no presence of psoriasis. The Veteran reported that his right lower leg was a chronic site, but there was no evidence of eruption on examination. He reported that he treated his skin disorder with weekly sessions in a tanning booth and that he had not seen a physician for treatment for many years for the condition. The examiner specifically indicated that systemic therapy had never been required for the service-connected psoriasis and the diagnosis was presently "psoriasis in remission at the present time." VA again attempted to examine the Veteran for his service-connected psoriasis during a flare-up in July 2010, but he canceled the examination, indicating that a flare-up had just ended, and that it would be several months before another flare, which lasted five to six months. An August 2011 private medical treatment record reveals a diagnosis of psoriasis, which was treated with a prescription for topical cream. However, treatment records from the same physician dated December 2011 and January 2012 indicate treatment for "shingles," but not for psoriasis. VA medical records dated from October 2011 through July 2012 reveal the VA Medical Center's attempts to schedule the Veteran for a VA skin examination of his psoriasis during a flare up. In each instance the Veteran indicated that he was not having a flare-up, and that he would call to schedule when he had one. At a January 2013VA skin examination, the diagnosis of psoriasis. The Veteran reported that his symptoms had been controlled by ultraviolet light therapy, tanning; tar; and topical steroids. He reported his last flare was about one year earlier and cleared with two to three months of tanning. He reported never having been on oral medication. The Veteran indicated occasional psoriasis on his elbows, knees, and scalp. The physical examination revealed two psoriasis plaques: one on the left abdomen, and one on the left calf. The examiner noted that the Veteran used topical corticosteroids, 1% hydrocortisone cream, for 6 weeks or more, but not constantly, in the past year. Physical examination revealed that less than 5 percent of the total body area, and none of the exposed body area, was affected by psoriasis. The examiner indicated that there was no scarring or disfigurement. Pursuant to the multiple Board remands, the RO attempted to obtain a VA skin examination of the Veteran to ascertain the current severity of the Veteran's psoriasis during a flare-up. The record reflects that the Veteran was scheduled for a VA examination in March 2007, but did not appear for that examination, and requested that the examination be rescheduled. Thereafter, Veteran underwent a VA skin examination in April 2009, but that the examination was not conducted during a flare-up of his psoriasis, and found no evidence of psoriasis. See Ardison v. Brown, 2 Vet. App. 405 (1994) (holding that in evaluating disabilities that are subject to periodic exacerbations or outbreaks, an examination should be scheduled during such an exacerbation). Accordingly, in July 2010, the Board again remanded the Veteran's claim for a VA skin examination, to be conducted during a flare-up of his psoriasis. The Veteran was scheduled for another examination in July 2010, but he called to cancel the examination, reporting that his flare-up had just ended, and that it would take several months for it to flare up again. He noted that when it did flare up, it lasted for five to six months. The Board remanded the Veteran's claim again in October 2011 for another attempt to provide the Veteran with a VA skin examination addressing the severity of his psoriasis during a flare-up. An examination was scheduled for October 2011, but the Veteran called prior to the examination to request that the examination be performed at a different, more convenient, VA Medical Center. A November 2011 notation in the Veteran's claims file reflects that the Veteran was to contact that office when he experienced a flare-up. A private medical treatment record dated August 2011 reveals that the Veteran was being treated for a diagnosis of psoriasis, with prescribed topical medication. Subsequent private medical dated December 2011 and January 2012 also show treatment for a skin disorder, although it is identified as shingles, not psoriasis, on the treatment records. In an October 2012 statement, the Veteran asserted that he had a "very severe outbreak that has scarred [his] body." Subsequently, the January 2013 VA examination indicated that there was no residual scarring from the service-connected psoriasis. VA has been unsuccessfully attempting to conduct an examination of the Veteran's service-connected psoriasis during a period of exacerbation since he initiated his current claim for an increased disability rating in 2004. Review of the complete evidence of record dating back over three decades fails to show any medical evidence in VA treatment records or examination reports where the Veteran has been contemporaneously observed by VA medical personnel with any active flare-up of psoriasis. Although the Veteran alleges that he has flare-ups of psoriasis which last several months, and he has been provided numerous opportunities, he has not presented himself to any VA medical facility, for treatment or examination, in the last three decades to document any of the severe symptoms that he claims he experiences. A large volume of VA treatment records exist showing treatment for various nonservice-connected medical disorders. Interestingly, the Veteran's service-connected psoriasis is not noted on the medical history or problem lists related to any of this treatment. The duty to assist is not a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). During the pendency of this appeal, VA revised the criteria for diagnosing and evaluating the skin, effective October 23, 2008. See 73 Fed. Reg. 54708 -12 (Sept. 23, 2008). With regard to the revision made to the skin regulations effective October 23, 2008, the revised criteria apply to all applications for benefits received by VA on or after that date. As the Veteran's claim was received prior to October 23, 2008, the revised criteria are not for application in this case. The amendment allows for a Veteran to request a review of a skin disability under the revised criteria irrespective of whether the Veteran's disability has increased since the last review. Id. However, no such request has been made. Accordingly, the Veteran's skin disorder will not be considered under the revised criteria effective October 23, 2008. The rating criteria for psoriasis provides for a 60 percent rating for 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. 38 C.F.R. § 4.118, Diagnostic Code 7816. A 30 percent rating contemplates 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. Id. A 10 percent rating contemplates 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. The physical findings from the May 2005 VA skin examination reveal the most severe manifestations of the Veteran's psoriasis with the total body area affected being 10 percent, with 5 percent of the exposed skin area affected. This meets the criteria for the presently assigned 10 percent rating. There is no probative evidence of record which reveals that the Veteran's service-connected psoriasis manifests to a degree contemplated by any of the rating criteria which would warrant the assignment of a disability rating in excess of 10 percent. The Veteran's service-connected psoriasis does not involve 20 percent or more of either the entire body or exposed body areas. Treatment for the Veteran's service-connected psoriasis has never required any systemic therapy such as corticosteroids or other immunosuppressive drugs to treat his psoriasis. The diagnostic code for psoriasis also instructs that the disability can be rated for disfigurement of the head, face, or neck, or scars, depending upon the predominant disability. Id.; see also 38 C.F.R. § 4.118, Diagnostic Codes 7800 - 7805 (2008). The evidence of record indicates that the Veteran's service-connected psoriasis does not result in disfigurement or residual scarring so that rating under these diagnostic codes is warranted. The Board has considered the lay evidence provided by the Veteran in the form of his correspondence to VA and his comments to the examiners, in which he generally contends his psoriasis flares and should be rated higher than the currently assigned disability ratings. For the most part, the Veteran's statements are in conflict with what the medical evidence demonstrates. The objective medical evidence reveals a much lower level of disability than that asserted by the Veteran. The Board finds the Veteran's statements are less probative than the objective medical evidence of record. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (finding that in weighing the credibility, VA may consider inconsistent statements, internal inconsistency, and consistency with other evidence of record). Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2012). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (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, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's disability picture from psoriasis is not so unusual or exceptional in nature as to render the assigned rating inadequate. The Veteran's service-connected psoriasis is evaluated as a disease of the skin pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7816, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability. The service-connected psoriasis is manifested, at worst, by involvement of 10 percent of the total body area affected, with 5 percent of the exposed skin area affected, and the need for tanning treatment or used of over-the-counter hydrocortisone cream. The service-connected psoriasis has never required the need for intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required at any point for treatment. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented by a 10 percent disability rating. Evaluations in excess of 10 percent are provided for certain manifestations of psoriasis, but the medical evidence demonstrates that those manifestations are not present in this case. The criteria for a 10 percent rating reasonably describe the Veteran's disability level and symptomatology. Consequently, the Board concludes that a schedular evaluation is adequate and that referral of the Veteran's case for extraschedular consideration is not required. See 38 C.F.R. § 4.118, Diagnostic Code 7816; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to a disability rating in excess of 10 percent for psoriasis at any time during the appeal period, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). . ORDER A disability rating in excess of 10 percent for psoriasis is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs