Citation Nr: 1410190	
Decision Date: 03/12/14    Archive Date: 03/20/14

DOCKET NO.  12-04 563	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to an initial rating in excess of 60 percent for psoriasis and eczema.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

Amanda Christensen, Associate Counsel


INTRODUCTION

The Veteran had active military service from June 1988 to August 2009.

This appeal comes to the Board of Veterans' Appeals (Board) from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah.

In a January 2013 rating decision, the Veteran was awarded a rating of 60 percent effective September 1, 2009 for her service-connected psoriasis and eczema.  The increased rating constitutes a partial grant of benefits, such that the issue remains on appeal and is for consideration by the Board.  See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded).

The Veteran was scheduled for a Board hearing in January 2014 but did not appear and has not requested that the hearing be rescheduled.

This appeal was processed using the Virtual VA paperless claims processing system.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.


FINDING OF FACT

The Veteran's skin condition is manifested by near-constant systemic therapy over the past 12-month period, but not by disfigurement of the head, face, or neck, or exfoliative dermatitis with generalized involvement of the skin with systemic manifestations.


CONCLUSION OF LAW

The criteria for a disability rating in excess of 60 percent for a psoriasis and eczema have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.41, 4.118, Diagnostic Codes 7800, 7816, 7817 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.   

The VA's duty to notify was satisfied by notice given to the Veteran in conjunction with her pre-discharge application for VA benefits, which complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  	

VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1).  VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim.  38 C.F.R. § 3.159(c)(4).

The Board finds that all necessary development has been accomplished.  The RO has obtained the Veteran's service treatment records and VA treatment records.  Neither the Veteran nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  

The Veteran was afforded a VA medical examination in December 2012.  The examiner, a medical professional, obtained an accurate history and listened to the Veteran's assertions.  The examiner provided the Board with sufficient information to rate the Veteran's disability.  Therefore, the Board finds that the examination is adequate and contains sufficient information to decide the issues on appeal.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. 183 (2002).

Analysis

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations.  Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013).  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  

If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2013).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2013).  However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided.  38 C.F.R. § 4.14 (2013).

If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  

The Veteran contends her skin condition is more severe than the current 60 percent evaluation awarded by the RO under Diagnostic Code 7816 for psoriasis.  The 60 percent rating is the maximum rating under Diagnostic Code 7618, therefore, the Board will consider the appropriateness of alternate diagnostic codes applicable to skin disabilities that would result in a rating greater than 60 percent.

Under Diagnostic Code 7800, disfigurement of the head, face, or neck warrants an 80 percent rating with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement.  See 38 C.F.R. § 4.118, Diagnostic Code 7800 (2013). 

The eight characteristics of disfigurement include: (1) Scar 5 or more inches (13 or more cm) in length; (2) Scar at least one-quarter inch (0.6 cm) wide at its widest part; (3) Surface contour of scar elevated or depressed on palpation; (4) Scar adherent to underlying tissue; (5) Skin hypo- or hyperpigmented in an area exceeding six square inches (39 sq. cm); (6) Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm); (7) Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm); and (8) Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm).

In addition, a 100 percent rating is available under the diagnostic code applicable to exfoliative dermatitis.  See 38 C.F.R. § 4.118, Diagnostic Code 7817 (2013).  A 100 percent rating is warranted for exfoliative dermatitis with generalized involvement of the skin, plus systemic manifestations (such as fever, weight loss, and hypoproteinemia) that requires constant or near-constant systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA or UVB treatments, or electron beam therapy during the past 12-month period.  See 38 C.F.R. § 4.118, Diagnostic Code 7817 (2013).

The December 2012 VA examiner indicated that the Veteran's skin conditions have not caused scarring or disfigurement of the head, face, or neck.  The examiner also stated that the Veteran does not have any systemic manifestations such as fever, weight loss, or hypoproteinemia associated with her skin conditions.

The Veteran's medical records also do not indicate that the Veteran's skin conditions have caused any scarring or disfigurement of the head, face, or neck or have manifested with fever, weight loss, or hypoproteinemia.  Further, the Veteran has made no such claims.

Finally, the December 2012 examiner also noted that the Veteran has not been treated with oral or topical medications in the past 12 months or had any other treatments or procedures other than an adalimumab injection every two weeks, which is consistent with statements made by the Veteran and her treatment records.

Therefore, the Board finds that the Veteran does not meet the criteria for a higher rating under Diagnostic Code 7800 or 7817.  As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply, and the claim for a higher rating must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

In addition, the Board has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis.  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors that would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

In Thun v. Peake, the Court set forth a three-step inquiry to determine a veteran's entitlement to an extra-schedular rating. 22 Vet. App. 111 (2008).  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found to be inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating.

In this case, it is not necessary to go any further than the first step of the Thun analysis.  The medical evidence fails to show anything unique or unusual about the Veteran's service connected psoriasis and eczema that would render the schedular criteria inadequate.  The Veteran's symptoms, including chronic plaque and scaly lesions, are contemplated in the rating assigned.  As such, it would not be found that her disability met the "governing norms" of an extraschedular rating.  Accordingly, referral for consideration of an extraschedular rating is not warranted.  Moreover, even if it were argued that the schedular rating criteria were inadequate, the Board finds no reason to refer the case to the Compensation and Pension Service to consider whether an extra-schedular rating is warranted.  In this case, there is no evidence of any hospitalization associated with the Veteran's skin condition.  In addition, the Board finds the record does not reflect that the Veteran's skin condition markedly interferes with her ability to work.  See 38 C.F.R. § 4.1

The manifestations of the Veteran's disability are considered by the schedular rating.  Based on the foregoing, the Board finds the schedular evaluation is adequate, and referral is not required.  38 C.F.R. § 3.321; Thun, 22 Vet. App. 111.


ORDER

A rating in excess of 60 percent for a psoriasis and eczema is denied.



____________________________________________
M. TENNER
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs