Citation Nr: 21003851 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 14-14 012 DATE: January 25, 2021 ORDER Entitlement to an initial compensable rating for psoriasis prior to November 10, 2020, and in excess of 60 percent thereafter, is denied. FINDINGS OF FACT 1. Prior to November 10, 2020, the competent evidence of record does not demonstrate that the Veteran’s psoriasis had 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, or has required intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than 6 weeks during the past 12 months. 2. The Veteran is currently in receipt of the highest schedular rating for psoriasis. There are no symptoms identified that are not contemplated by the schedular criteria. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating, prior to November 10, 2020 for psoriasis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.118, Diagnostic Code 7816 (2008 & 2019). 2. The criteria for a current rating in excess of 60 percent for psoriasis are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.118, Diagnostic Code 7816 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from January 1969 to August 1970. In January 2018, the Board of Veterans’ Appeals (Board) denied the Veteran’s claim of entitlement to an initial compensable rating for psoriasis. The Veteran appealed to the United States Court for Veterans Claims (CAVC), which vacated and remanded that decision in an October 2018 Order, based upon a Joint Motion for Remand (JMR). In accordance with the JMR, the Board remanded the matter to the Agency of Original Jurisdiction (AOJ) in April 2019. The matter has now returned to the Board for further appellate review. In November 2020, the AOJ issued a rating decision and supplemental statement of the case (SSOC) granting an increase of the evaluation of psoriasis from noncompensable to 60 percent disabling from November 10, 2020. The issue remains in appellate status as the maximum schedular rating has not been assigned from the date of claim. See AB v. Brown, 6 Vet. App. 35 (1993). Entitlement to an initial compensable rating for psoriasis prior to November 10, 2020, and in excess of 60 percent thereafter The Veteran contends that he is entitled to an initial compensable rating for his service-connected psoriasis prior to November 10, 2020, and in excess of 60 percent thereafter. The Veteran’s psoriasis is rated under Diagnostic Code 7816. VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to August 13, 2018, under Diagnostic Code 7816 a noncompensable rating is assigned for less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12 months. A 10 percent rating is assigned for 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. A 30 percent rating is assigned for 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. A 60 percent rating is assigned 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. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7816. For claims filed prior to August 13, 2018, the Court held that a systematic therapy is one that that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body as a whole in treating a veteran’s skin condition; and (2) whether the given treatment is “like” a corticosteroid or other immunosuppressive drug.” Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Id. Effective August 13, 2018, VA regulations explicitly state that systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118(a). Additionally, effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118. Under this formula, a noncompensable rating is assigned for no more than topical therapy required over the past 12-month period and at least one of the following: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is assigned for at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12- month period. A 30 percent rating is assigned at least one of the following: characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is assigned for at least one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, General Rating for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824. Turning to the record, the Veteran was afforded a VA examination in October 2015 with respect to his psoriasis. At the time of the examination, the Veteran reported that he was using ointments along with coal tar shampoo, to which he noted having moderate control. Physical examination revealed a small patch of scaling over the crown on the Veteran’s scalp. On the Veteran’s lower back and flanks, the examiner noted that there were several well demarcated hyperpigmented mildly scaly plaques. Also, the Veteran’s legs at the anterior thighs were hyperpigmented to violaceous well demarcated non-scaly plaques. His left lateral upper thigh with silver scaling plaque was noted. His fingernails were clear. At each elbow, scaly hyperpigmented small (1-2cm) plaque was noted. The Veteran reported that the onset and course of his psoriasis was intermittent and non-worsening. He reported that his current treatment was used as needed. Moreover, the Veteran denied using corticosteroid, immunosuppressive drugs, UVB, PUVA, or electron beam therapy. The Veteran did not report side effects of treatment. Finally, the examiner noted that the percent of the entire body affected was less than 5 percent and the percentage of exposed areas affected was less than 1 percent. Likewise, VA treatment records prior to November 10, 2020, indicate that the Veteran had a diagnosis of psoriasis. Further, VA treatment records from this period reveal that the Veteran reported the use of topical medication in the treatment of his psoriasis. The Board finds that the preponderance of the evidence is against the assignment of a compensable evaluation under the pre-August 13, 2018, regulations because the Veteran’s psoriasis does not more nearly approximate 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. Notably, the October 2015 VA examination highlighted that the Veteran’s psoriasis affected less than 5 percent of his body and less than 1 percent of exposed areas affected. Moreover, at no time during this period is the Veteran shown to have used anything other than topical medications to treat his psoriasis. In fact, at the October 2015 VA examination, the Veteran denied using corticosteroid or immunosuppressive drugs. Additionally, the Board finds that the preponderance of the evidence is against the assignment of a compensable evaluation under the August 13, 2018, regulations because the Veteran’s psoriasis does not more nearly approximate characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy required for a total duration of less than 6 weeks over the past 12- month period. Again, the October 2015 VA examiner highlighted that the Veteran’s psoriasis involved less than 5 percent of his total body and less than 1 percent of the exposed areas affected. Moreover, as noted above, systemic treatment is any treatment other than through the skin. At the time of the October 2015 VA examination, and as noted in VA treatment records from this period, the Veteran specifically denied using any treatment other than topical medications. Moreover, the area of the Veteran’s body affected by his psoriasis is noted to be less than 5 percent of his entire body and less than 1 percent of exposed areas of his body. As noted above, from November 10, 2020, the Veteran’s psoriasis has been assigned a 60 percent evaluation pursuant to Diagnostic Code 7816, which is the highest rating available under this diagnostic code. The highest rating of 60 percent is assigned when more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs is required during a twelve-month period. 38 C.F.R. § 4.118, Diagnostic Code 7816 (2019). In this case, the only available rating greater than the 60 percent currently assigned is to consider rating the Veteran’s psoriasis as disfigurement of the head, face, or neck under Diagnostic Code 7800. See 38 C.F.R. § 4.118, Diagnostic Code 7816 (2019). For scars (including burn scars) that are located on the head, face, or neck, an 80 percent rating is provided when there is visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features, or; with six or more characteristics of disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800 (2019). In November 2020, another VA examination was conducted. The examination revealed that the total body area affected by psoriasis was greater than 40 percent. Significantly, the examiner determined that the Veteran’s psoriasis did not cause scarring. As such, application of Diagnostic Code 7800, the only diagnostic code for skin disabilities that would afford the Veteran a rating in excess of his currently assigned 60 percent rating, is not warranted. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include flaky skin, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he does not assert, and medical treatment records do not show, that the Veteran’s disability more nearly approximates the criteria in the next higher rating. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a compensable rating for psoriasis prior to November 10, 2020, and in excess of 60 percent thereafter. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Scanlan, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.