Citation Nr: 1336006 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 09-31 203 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to increases in the "staged" ratings (of 30 percent prior to August 10, 2009, 60 percent from August 10, 2009 to September 1, 2011, and 30 percent thereafter) assigned for psoriasis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1998 to December 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Phoenix, Arizona, Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. At present there are no additional documents pertinent to this appeal in Virtual VA. FINDINGS OF FACT 1. Prior to August 10, 2009, the Veteran's psoriasis was shown to be productive of symptoms affecting no more than 20 to 40 percent of the entire body, or 20 to 40 percent of exposed areas affected; the use of systemic therapy such as corticosteroids or other immunosuppressive drugs is not shown. 2. From August 10, 2009, the Veteran's psoriasis was shown to be productive of symptoms affecting more than 40 percent of the entire body or more than 40 percent of exposed areas or requiring constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12 month period; symptoms resulting in exfoliative dermatitis is not shown. CONCLUSION OF LAW The Veteran's psoriasis warrants "staged" ratings of 30 percent prior to August 10, 2009, and 60 percent from that date. 38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7816 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With respect to an increased rating claim, the VCAA requirement is generic notice, that is, notice of 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 (Fed. Cir. 2009). The appellant was advised of VA's duties to notify and assist in the development of this claim prior to the initial, February 2008, adjudication. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). A December 2007 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. This letter also provided notice regarding ratings and effective dates of awards. Letters in March 2009 and May 2009 notified him of the schedular criteria for rating psoriasis. He has received the general-type notice described in Vazquez-Flores and has had ample opportunity to respond/supplement the record. It is not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) and pertinent post-service treatment records are associated with the claims files. His Virtual VA file has also been reviewed. He has not identified any pertinent evidence that is outstanding. VA examinations were provided in May 2009 and December 2012. The Board finds these examinations, taken together, are adequate for rating purposes, as the examiners expressed familiarity with pertinent medical history, and conducted thorough medical examinations, noting all findings necessary for consideration of the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007). VA's duty to assist is met. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. 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 the instant increased rating claim was received in December 2007, the period for consideration begins one year prior, in December 2006. The Veteran's psoriasis is rated under Code 7816 pertaining specifically to psoriasis. Under this diagnostic code, psoriasis is rated under the specific criteria provided in Code 7816 or is rated as disfigurement of the head, face, or neck (Code 7800) or scars (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, the December 2012 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 Code 7816. Code 7816 provides that 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. A 60 percent rating is the maximum rating under Code 7816. On May 2009 VA skin examination, the Veteran reported most of his psoriasis cleared after being placed on Enbrel twice per week in February 2008; however, most of the psoriasis plaques returned when he was reduced to weekly injections. The examiner noted that Enbrel is a systemic treatment but is neither a corticosteroid nor an immunosuppressive. Psoriasis was noted to affect less than 5 percent of the Veteran's exposed areas and between 20 and 40 percent of his total body area. The examination findings were confirmed by photographs which accompanied the examination report. Private dermatology treatment records show that, on examination in February 2008, 25 percent of the Veteran's body surface area was affected and extensive treatment options were discussed, including Enbrel. However, the initial clinical evidence of the Veteran using Enbrel is an August 10, 2009 treatment report which notes that, compared to the previous visit on February 28, 2008, there was a clinical decrease in the size and number of lesions. It is also noted that the Veteran "ran out of enbrel;" however, the treatment report does not show when Enbrel was initially prescribed. The August 10, 2009 examination report notes that 53 percent of the body surface was affected and the recommended treatment for psoriasis was Enbrel injections. On his August 2009 substantive appeal (VA Form 9, Appeal to Board of Veterans' Appeals) the Veteran claimed that Enbrel is a corticosteroid or immunosuppressive medication and indicated that he is requesting a 60 percent rating. The claims file includes a November 2012 internet research result from MedicineNet.com which show that the generic name for Enbrel is etanercept, which "works by blocking the immune system." Further, a print out of "important safety information" from the manufacturer warns that Enbrel is a medicine that affects the immune system. On December 2012 VA examination, the Veteran reported that when he "began Enbrel therapy twice weekly, most of his psoriasis cleared, except for elbows and knees. But when he was reduc[]ed to weekly injections, most of his psoriatic plaques returned." The Veteran further reported that he "stopped taking Enbrel in 2008 and began taking Humira in February 2009. He moved to the Caribbean in August 2011 and has not taken any medication since. He is currently not using any medication for psoriasis." On examination, greater than 40 percent of the Veteran's total body area was affected by psoriasis, there was no scarring or disfigurement, there were no benign or malignant skin neoplasms, and the Veteran had no systemic manifestations due to skin disease (such as fever, weight loss or hypoproteinemia). Accordingly, a January 2013 rating decision granted an increased 60 percent rating for psoriasis effective August 10, 2009, the date of the private treatment report showing use of Enbrel and assigned a 30 percent rating effective September 1, 2011, the first day of the month after the Veteran stopped using immunosuppresive drugs (as he reported during the December 2012 VA examiantion). Based on a full review of the evidence of record, the Board finds that the evidence supports the grant of an increased (to 60 percent, but no higher) rating for the Veteran's psoriasis for the evaluation period from August 10, 2009, and that the preponderance of the evidence is against a rating in excess of 30 percent prior to such date. Prior to August 10, 2009, the Veteran's psoriasis was shown to be productive of symptoms affecting less than 5 percent of his exposed areas and between 20 and 40 percent of his total body area. Further, the use of systemic therapy such as corticosteroids or other immunosuppressive drugs was not shown to be constant or near-constant prior to August 10, 2009. The 2009 VA examiner noted that the frequency of the use of Enbrel was greater than 6 weeks, but did not indicate that it was constant or near-constant. Hence, the criteria for the next higher 60 percent rating under Code 7816 were not met prior to August 10, 2009. From August 10, 2009, the Veteran's psoriasis was shown to be productive of symptoms requiring the use of systemic therapy such as corticosteroids or other immunosuppressive drugs (Enbrel). Further, although on December 2012 VA examination the Veteran reported that he stopped using medication for psoriasis in August 2011 when he moved to the Caribbean; the examiner noted that greater than 40 percent of the Veteran's total body area was affected by psoriasis. Thus, the criteria for the next higher 60 percent rating under Code 7816 have been met for the evaluation period throughout from August 10, 2009. A 60 percent rating under Code 7816 for psoriasis is the highest available rating. While a higher rating may be assigned for exfoliative dermatitis under Code 7817 where there is a generalized skin disorder with systemic manifestations such as fever, weight loss, or hypoproteinemia. There is no credible evidence of any such symptoms and the December 2012 VA examiner specifically noted that the Veteran's psoriasis is not pruductive of such symptoms. The Veteran has not been diagnosed with other forms of skin disease including diseases of keratinization, urticaria, vasculitis, erythema multiforme, or toxic epidermal necrosis. Notably, in his August 2009 substantive appeal, the Veteran requested a 60 percent rating. The Board has also considered whether referral of this matter for extraschedular consideration is warranted. The symptoms of, and functional impairment due to, the Veteran's psoriasis shown by the record, namely pink, scaled plaques, are entirely encompassed by the schedular criteria, and therefore those criteria are not inadequate. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). The United States Court of Appeals for Veterans Claims (CAVC or Court) recently held that entitlement to a total compensation rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU has been granted in this case by way of an October 2009 rating decision, effective May 18, 2009. Consideration of TDIU due to psoriasis for an earlier period is not warranted as the December 2012 examiner specifically concluded that the Veteran's service-connected psoriasis did not impact his ability to work. ORDER A "staged" increased rating, to 60 percent, is granted for the Veteran's psoriasis for the period from September 1, 2011, subject to the regulations governing the payment of monetary awards; ratings in excess of 30 percent prior to August 10, 2009 and in excess of 60 percent from that date to September 1, 2011 are denied. _________________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs