BVA9401107 DOCKET NO. 89-54 535 ) DATE ) ) ) THE ISSUES 1. Entitlement to an increased disability rating for psoriasis. 2. Entitlement to a total rating based on individual unemployability due to service-connected psoriasis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Barry F. Bohan, Counsel INTRODUCTION The appellant served on active duty from October 1953 to October 1955. The appellant was granted service connection for a skin disorder in a decision of the Board of Veterans' Appeals (the Board) in August 1986. The VA Regional Office in Buffalo, New York (VARO) assigned the appellant a 30 percent disability rating. The appellant duly appealed that decision to the Board. In a January 1988 decision, the Board granted the appellant a 50 percent disability rating for psoriasis. Entitlement to an extraschedular disability rating was denied. In January 1989, the appellant filed a claim for an increased disability rating for psoriasis on an extraschedular basis. In March 1989, VARO determined that a February 1988 rating decision constituted clear and unmistakable error by not awarding the mandated 50 percent evaluation for psoriasis from the date of the grant of service connection. He filed a notice of disagreement in April 1989. VARO issued a statement of the case on July 18, 1989. The appellant filed an appeal to the Board on July 28, 1989. In a decision in July 1990, the Board denied the appellant's claim for an increased disability rating for psoriasis. The appellant duly appealed that decision to the United States Court of Veterans Appeals (the Court). In May 1992, the Court granted a motion of the Secretary of Veterans Affairs (the Secretary) which requested that this case be remanded to the Board for further development. The Board's July 1990 decision was vacated, and the case was remanded for compliance with instructions contained in the Secretary's motion. In October 1992, the Board remanded this case to VARO in order that the appellant could be accorded a thorough VA dermatological examination. In addition, VARO was to consider the assignment of a higher disability rating for psoriasis based on an extraschedular rating; a higher disability rating based on criteria in the VA Schedule for Rating Disabilities; and a total rating based on individual unemployability. 38 C.F.R. §§ 3.321, 4.118 and 4.16 (1993). VA examinations of the appellant were completed in November 1992 and February 1993. In a March 1993 rating decision, VARO discussed in detail various issues. VARO concluded, in essence, that the previously assigned 50 percent disability rating was consistent with the medical evidence and with the law and VA regulations. VARO further found that an extraschedular rating was not called for and that a total rating was not in order. A supplemental statement of the case to that effect was issued by VARO in April 1993. The case was returned to the Board by VARO in September 1993. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that although his face is minimally deformed by psoriasis, the remainder of his body is almost completely covered by his disfiguring skin condition. He therefore believes that an increased or extraschedular rating is mandated by the extent and severity of the disorder. Further, he contends that he is marginally employable because of his service-connected skin disorder and that a total rating based on individual unemployability should therefore be granted. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims folder. The Board has determined that only those items listed in the "Certified List" attached to this decision and incorporated by reference herein are relevant evidence in the consideration of the veteran's claim. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that an 80 percent disability rating is warranted for the appellant's service-connected skin disorder. Further, it is the decision of the Board that a total disability rating based on individual unemployability due to service-connected psoriasis is denied. FINDINGS OF FACT 1. The appellant served on active duty from October 1953 to October 1955. 2. A 50 percent disability rating is currently in effect for psoriasis, which is the appellant's only service-connected disability. 3. The appellant's service-connected psoriasis is currently manifested by disfiguring plaques which cover 80 to 90 percent of his body. 4. The appellant is currently employed as a taxi driver. CONCLUSIONS OF LAW 1. The appellant's service-connected psoriasis is no more than 80 percent disabling according to the schedular criteria. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 4.118, Diagnostic Codes 7816, 7806 (1993). 2. The appellant's service-connected psoriasis does not preclude him from securing or following a substantially gainful occupation. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(a), and Part 4 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is seeking a rating in excess of the currently assigned 50 percent for his severe skin disorder. The 50 percent disability rating is the maximum ordinarily allowed for skin disorders under the provisions of the VA Schedule for Rating Disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.118 (1993). However, as described in the Introduction, we are being asked to consider VA regulations which may entitle the appellant to increased VA compensation. In the interest of clarity, the Board will first review the pertinent law and regulations. We will then describe the appellant's medical history, with particular emphasis on the current manifestations of his service-connected skin disorder. We will then consider evidence with respect to the effect the skin disorder has on the appellant's ability to function, particularly with respect to employment. Next, we will briefly review VARO's most recent decision. Finally, we will analyze the issues presented in this case. The law and regulations In evaluating the appellant's request for an increased rating, the Board considers medical and other pertinent evidence of record. The medical findings are compared to the criteria in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1993). In so doing, it is our responsibility to weigh the evidence before us. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Psoriasis with ulceration or extensive exfoliation, with systemic or nervous manifestations, or which is "exceptionally repugnant" is rated as 50 percent disabling. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 4.118, Diagnostic Codes 7816, 7806 (1993). However, a Note at the end of 38 C.F.R. § 4.118 (1993) provides that the "most repugnant" conditions "may be submitted for central office rating". The terms "exceptionally repugnant" and "most repugnant" are not defined in the VA Schedule for Rating Disabilities. The dictionary definition of "repugnant" is "offensive". Webster's New World Dictionary, 1140 (Third College Edition, 1988). The Board must evaluate all of the evidence to the end that its decisions are "equitable and just". 38 C.F.R. § 4.6 (1993). It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (1993). VA regulations also allow for an extraschedular disability rating in exceptional cases. "The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b) (1993). In addition to the above provisions, a veteran may be granted a total disability rating based upon individual unemployability if, in general, he is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (1993). The appellant's only service-connected disability is his skin disorder. The appellant's medical history The Board has carefully reviewed the pertinent medical evidence, including the appellant's entire medical history. 38 C.F.R. § 4.1 (1993); Peyton v. Derwinski, 1 Vet.App. 282 (1991). The appellant's service medical records are missing and are presumed to have been destroyed in a 1973 fire at the National Personnel Records Center. Service connection was granted by the Board in August 1986 based on lay statements and on reports of the appellant's physician, which indicated that the appellant experienced psoriasis during and after military service. During a VA physical examination in September 1986, the examiner identified psoriasis over almost all of the appellant's body, involving 80-90% of the body. The diagnosis was severe psoriasis. Another VA physical examination of the appellant was completed in March 1987, with similar results. The appellant described himself as being self employed selling fruits and vegetables. Accompanying photographs were consistent with the examiner's evaluation of the appellant's skin disorder as being "very severe". Another VA dermatological examination of the appellant was completed in June 1989, with similar findings. The examiner's impression was "very severe" psoriasis. The appellant reported working as a taxi driver. In response to the Court's remand, a VA examination of the appellant was completed in November 1992. The orthopedic examiner stated that the appellant had severe dermatitis of the hands and feet, which interfered with their use, but that there was no evidence of psoriatic arthritis. X-rays of the appellant's hands, feet, shoulders and spine were normal. Dermatological examination revealed erythematous scaling over 90 percent of the appellant's body. The dermatology examiner's impression was severe psoriasis. Another VA dermatological examination of the appellant was completed in February 1993. The appellant complained of itching. Physical examination revealed scaling and plaques over 80-90% of the appellant's body. The examiner stated that, although the appellant required continuous treatment with medication and ointments, the condition "will not prove easy to treat as it has not proven easy to treat in the past." Slides were taken, which reveal extensive involvement of the appellant's hands, feet and torso. Employment In evaluating service-connected disabilities, the Board looks to functional impairment. We attempt to determine the extent to which a service-connected disability adversely affects the ability of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. §§ 4.2, 4.10 (1993). It appears from the evidence of record that the appellant was employed for a number of years selling fruits and vegetables. In approximately 1986, he became a cab driver. In a report dated September 1984, Howard O. Volan, M.D., a dermatologist, stated that he had treated the appellant for many years. Dr. Volan continued: As to disability, simple inspection will reveal the distribution and severity of this dermatosis. Especially noteworthy is the condition of the hands and forearms, which has remained practically unchanged for many years. The disadvantage of such a handicap seems obvious, especially in one whose occupation involves the handling and sale of produce with its necessary exchange of cash. In his appeal to the Board in July 1989, the appellant described his skin disorder as "painful, itchy, scaling and extremely repugnant." He stated that he used to sell fruit, but that due to his skin disease he could not do that anymore. He further informed the Board that he could not wear shorts or go to the beach because "I repulse people with my skin." In November 1992, the appellant stated that he was employed as a cab driver and that he had lost three months of work during the preceding year due to his skin disorder. In response to the Court's remand, the appellant furnished his tax records for the years 1987 to 1991. His net income as a self- employed produce merchant was $6303 in 1987 and $7593 in 1988. His income as a self-employed cab driver was as follows: 1989 - $7741; 1990 - $7735; 1991 - $4,988. Additionally, he earned $4,490 in wages in 1991. VARO's decision In continuing to deny the appellant's claim for an increased rating, VARO based its decision on its interpretation of photographs which demonstrated that the appellant's head and face were the body parts least involved, as well as no evidence of systemic or nervous involvement and no evidence of significant impairment of body functions. A total rating was denied because the required schedular percentage of 60 percent for one service-connected disorder had not been met. 38 C.F.R. § 4.16(a) (1993). The issues 1. Entitlement to an increased disability rating for psoriasis. As described above, there are two possible bases for assigning the appellant a disability rating in excess of 50 percent for his skin disorder: under 38 C.F.R. § 4.118 (1993) if the skin condition is "most repugnant" and under 38 C.F.R. § 3.321(b) (1993) if the case is deemed to be "exceptional". The appellant's service-connected skin disorder is characterized by itchy, scaly disfiguring patches which cover approximately 90 percent of his body. His face and head are not extensively involved, however. Photographs which are part of the record in this case demonstrate that the appellant's skin disorder is indeed most repugnant. The Board notes that although a "most repugnant" skin condition may warrant a schedular rating in excess of the ordinary maximum of 50 percent, no specific ratings are suggested in the Note at the end of 38 C.F.R. § 4.118 (1993). We have therefore looked for guidance in a similar Note pertaining to rating scars and skin diseases of the head, face and neck which appears earlier in that section. That Note calls for a 50 percent rating to be increased to 80 percent if such condition is deemed to be "most repugnant", "when in addition to tissue loss and cicatrization there is marked discoloration, color contract, or the like." Accordingly, we will rate the appellant's skin disorder of the torso and extremities by analogy to skin disease of the head and assign an 80 percent disability rating for his service-connected psoriasis. The Board does not believe that a schedular disability rating in excess of 80 percent is warranted for the appellant's skin disorder. We note that there are no systemic or nervous manifestations of the disease, including arthritis. We further note that the disorder, although widespread over his body, has not spread to his face to the same extent. Finally, we note that the appellant is able to function at home and as a cab driver. 38 C.F.R. § 4.10 (1993). As ordered, we have also considered the appellant for an extraschedular rating under 38 C.F.R. § 3.321(b) (1993), but find that that section is inapplicable in this case. As described above, that section allows for a disability rating in excess of that allowed in the Schedule for Rating Disabilities. The intent of the section is "[t]o accord justice...to the exceptional case where the schedular evaluations are found to be inadequate." In this case, however, the pertinent provision in the Schedule for Rating Disabilities, 38 C.F.R. § 4.118 (1993), contains within it a mechanism for accomplishing the same result. That mechanism is the Note we have discussed immediately above. The Board has, in fact, used that mechanism to increase the appellant's disability rating under the Schedule for Rating Disabilities from 50 percent to 80 percent. We believe that the purpose for which 38 C.F.R. § 3.321(b) (1993) was established has therefore been satisfied in this case without having to resort to consideration of an extraschedular rating. 2. Entitlement to a total rating based on individual unemployability due to service-connected psoriasis. The Board has also been ordered to determine whether a total rating based on individual unemployability due to psoriasis is in order. A total disability compensation rating may be assigned in a case in which the schedular rating is less than 100 percent, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 and Part 4 (1993). The regulations provide that if there is only one service-connected disability, the disability shall be rated at 60 percent or more. The Board has rated the appellant's only service- connected disorder, psoriasis, as 80 percent disabling. The evidence of record indicates that the appellant is 61 years of age. He has been self-employed for many years, first as a produce dealer and most recently as a cab driver. He contends that such employment is "marginal". His income, as reported on his tax forms, was $9,478 in 1991. Under the pertinent regulation, [m]arginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a) (1993). The poverty thresholds so established are as follows: $6,311 for the year 1989; $6,652 for the year 1990; and $6,932 for the year 1991. M21-1, Part VI, Addendum C. As pointed out by VARO, the appellant's income has consistently exceeded the poverty threshold, although not by a great amount. The Board believes that the appellant's skin disorder, although very severe, does not prevent him from working. As the Court has pointed out, "[a] high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment..." Van Hoose v. Brown, 4 Vet.App. 361, 363(1993) [emphasis added by the Court]. In this case, the evidence unequivocally demonstrates that the appellant is capable of performing the physical and mental acts required by employment. He has, in fact, been performing such acts for many years. In arriving at our decision, the Board has taken into consideration the unusual nature of the appellant's service-connected disability. 38 C.F.R. § 4.15 (1993). We have also considered whether the appellant's current employment is "marginal" and have concluded that it is not. 38 C.F.R. § 4.16(a) (1993). In short, we believe that the appellant is capable of working as a cab driver and is adequately compensated at the 80 percent disability level. Van Hoose, 4 Vet.App. at 363. Accordingly, a total rating based on individual unemployability is denied. ORDER An increased disability rating for psoriasis is granted. A total rating based on individual unemployability due to service- connected psoriasis is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 BETTINA S. CALLAWAY MATTHEW J. GORMLEY, III KENNETH R. ANDREWS, JR. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.