Citation Nr: 0203830 Decision Date: 04/25/02 Archive Date: 05/02/02 DOCKET NO. 99-18 941 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased rating for angioneurotic edema, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and her husband ATTORNEY FOR THE BOARD T. Mainelli, Associate Counsel INTRODUCTION The veteran had active service from August 1977 to August 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 1999 rating decision by the Montgomery, Alabama Regional Office (RO) of the Department of Veterans Affairs (VA). In that decision, the RO increased the evaluation for angioneurotic edema from 20 percent to 40 percent effective to November 6, 1998, but denied any further increase. FINDING OF FACT The veteran is in receipt of a 40 percent rating for angioneurotic edema and there is no evidence of an unusual or exceptional disability picture. CONCLUSION OF LAW An evaluation in excess of 40 percent for angioneurotic edema is not warranted. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.104, Diagnostic Code 7118 (2001); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, the Board notes that there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act (VCAA) of 2000. In pertinent part, this law redefines VA's notice and duty to assist requirements. See 38 U.S.C. §§ 5102, 5103, 5103A, and 5107 (West Supp. 2001). The RO has enacted regulations to implement the provisions of the VCAA. 66 Fed. Reg. 45620- 45632 (Aug. 29, 2001). These changes in law are potentially applicable to the claim on appeal. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). Upon review of the record, the Board finds that VA has met the duty to assist and notice requirements under the VCAA. By virtue of a Statement of the Case (SOC) and a Supplemental Statement of the Case (SSOC), the RO has advised the veteran (and her representative) of the Reasons and Bases in denying her claim. In this case, the veteran, her husband and her co-workers have presented statements in support of her claim. The veteran has also submitted treatment records from her private physicians. The RO has obtained her VA outpatient clinical records, and provided her VA examinations in January 1999 and June 2001. As the veteran is in receipt of the maximum schedular evaluation for her angioneurotic edema, the Board finds that no reasonable possibility exists that any further assistance would aid in substantiating her claim. The veteran claims entitlement to a rating in excess of 40 percent for her angioneurotic edema. According to her statements and testimony of record, her disability primarily involves recurrent episodes of swelling which begin in her hands and migrate to most parts of her body. She describes her swelled areas as hot, red and painful to touch. She occasionally has episodes of syncope as well as tongue swelling which obstructs her airway passage. She has difficulty of use of affected parts, and requires bed rest during exacerbations. She feels embarrassment to be seen in public, and has submitted photographic evidence showing involvement of her face and upper back areas. She testified that, on average, her exacerbations occur every two weeks and last up to several days in duration. These episodes are unpredictable, but could be triggered by some amount of minor physical trauma. She is unable to work during these episodes, but has been able to maintain employment as a bus monitor. The veteran's husband testimony corroborates the veteran's descriptions of her angioneurotic edema symptomatology. He describes her swelling as involving large areas of her body. He monitors her health status during exacerbations, and indicates that she is unable to perform household chores during these time periods. He does not take his wife to social events as her physical disfigurement causes her embarrassment. Statements from the veteran's co-workers also corroborate her symptoms of body part swelling which look painful and disfiguring. The veteran's service medical records reflect treatment for episodic swelling involving the neck, eyes, arms and face. She was diagnosed with allergic dermatitis which was treated with Benadryl and Prednisone. On VA Compensation and Pension (C&P) examination in December 1993, the veteran reported multiple episodes of migratory swelling that had been treated with Benadryl and Prednisone. At that time, she was given a diagnosis of chronic urticaria. A VA clinical record dated that same month noted her history of intermittent episodes of body swelling, sometimes triggered by light trauma, which occurred approximately every 2 weeks. There was no evidence of vascular problems at that time. In a rating decision dated in March 1994, the RO granted service connection for angioneurotic edema, and assigned an initial 20 percent evaluation. Thereafter, the veteran's private and VA clinical records reflect her treatment for recurrent body swelling, diagnosed as angioedema and urticaria, that reportedly lasted several days in duration. Testing revealed that she was allergic to dust, mite, horse, dog, wool and certain types of foods. Her treatment regimen included allergy shots, Hismanal, Prednisone, Ibuprofen and Benadryl. A November 1995 VA anaphylactoid illness consultation indicated an assessment of probable, idiopathic chronic angioedema with a recommendation of non-sedative anti-histamine treatment. By means of a VA Form 21-4138 filing received in November 1998, the veteran filed her current claim for an increased rating for service connected angioneurotic edema. At that time, she submitted medical records from Stringfellow Memorial Hospital evidencing her inpatient treatment for urticaria in August 1996. Her complaint included swelling and hotness of the right hand, face, tongue and back with an episode of syncope. Her areas of swelling were medically described as "whelps." Her treatment included cold compress and Benadryl. On VA C&P examination in January 1999, the veteran reported at least one episode of pruritis, swelling and urticaria every one to two weeks. She had two emergency room visits in the past year. She noted that past treatment was without benefit, but that her frequent use of Atarax helped to abort her angioneurotic attacks. However, she stated that her Atarax use made her drowsy and interfered with her activities as a bus monitor. Her physical examination was unremarkable. However, the examiner provided the following impression: Angioneurotic edema diagnosed while in service, in 1978. [The veteran] had severe flare-up post-operatively in 1988. Since that time she has had fairly regular exacerbations, numbering at least two per month with two emergency room visits for severe exacerbations. She is on regular medication which she takes for frequent flare-ups. The medication does interfere with her employment and she has to moderate the use of this while on the job. This has become more debilitating and frequent with regard to the attacks and she is asking for further evaluation. In a decision dated in April 1999, the RO increased the evaluation for angioneurotic edema to a 40 percent rating effective to November 6, 1998. Thereafter, the veteran's private clinical records document 7 specific visits to treat angioneurotic edema between the time period from August 1999 to December 2000. On VA C&P examination in June 2001, she described progressively worsening attacks of angioneurotic edema manifested by red, warm, tender and painful areas of swelling which affected different parts of her body, including her face, body, hands and feet. Her episodes occurred once a week, and lasted as long as three to four days in duration. During these exacerbations, she stayed in bed as she felt weak and faint. Generally, the symptoms began in her palms and lips and spread rapidly to the areas of her tongue, face, hands and other areas of her body. There were no particular provoking conditions. Her current treatment with Benadryl was somewhat effective. Her condition interfered with her ability to work and perform household chores. She had missed five days of work for the calendar year. Her physical examination was unremarkable, but she submitted to the examiner photographs of her condition during an exacerbation. She was given a diagnosis of "Chronic recurrent angioneurotic edema, chronic urticaria, etiology unestablished, incapacitating." Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (2001). Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2001). A rating specialist must interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture to accurately represent the elements of disability present. 38 C.F.R. § 4.2 (2001). As such, the determination of whether an increased evaluation is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In its evaluation, the Board shall consider all information and lay and medical evidence of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (West Supp. 2001). The Board considers all the evidence of record, but only reports the most probative evidence regarding the current degree of impairment which consists of records generated in proximity to and since the claims on appeal. See Francisco v. Brown, 7 Vet. App. 55 (1994). The new regulatory provisions promulgated by VA includes the following definitions of the competency of evidence: "(1) Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. (2) Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person." 66 Fed. Reg. 45620-45632 (Aug. 29, 2001) (to be codified at 38 C.F.R. §3.159)). The severity of a disability is ascertained, for VA rating purposes, by application of the criteria set forth in VA's Schedule for Rating Disabilities at 38 C.F.R. Part 4 (Schedule). The currently assigned 40 percent rating contemplates angioneurotic edema attacks without laryngeal involvement lasting one to seven days or longer and occurring more than eight times per year, or; attacks with laryngeal involvement of any duration occurring more than twice a year. 38 C.F.R. § 4.104, Diagnostic Code 7118 (2001). This is the maximum allowable schedular rating for this disability. As such, any claim for a higher schedular evaluation must be denied as lacking legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Nonetheless, the Board is still required to consider whether to refer the veteran's claim to the Director of Compensation and Pension Service for extra-schedular consideration under the provisions of 38 C.F.R. § 3.321(b). See Moyer v. Derwinski, 2 Vet. App. 289 (1992) (VA must consider the provisions of 38 C.F.R. § 3.321(b) when a claimant is in receipt of the maximum schedular evaluation). The provisions of 38 C.F.R. § 3.321(b) states as follows: Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. 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. The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. However, the Board is not precluded from raising this question, see Floyd v. Brown, 9 Vet. App. 88 (1996), and addressing referral where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The evidence in this case clearly establishes that the veteran experiences frequent, severe attacks of angioneurotic edema which migrates to different parts of her body. Her condition has been characterized as painful and physically disfiguring at times. The Board accepts as credible her report of frequency of episodes between once a week or once every two weeks, and lasting as long as three to four days in duration. Her records show 7 clinic visits during the time period from August 1999 to December 2000 with additional report of two emergency room visits. She missed five days of work over a 6 month period for the year 2001. Based upon a review of the evidence, the Board fails to ascertain any interference with the veteran's employment which is not contemplated by the regular schedular criteria. Under VA's Schedule, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2001). From the veteran's testimony and statements of record, the Board presumes that the veteran misses work at least 2 business weeks per year as a result of her angioneurotic edema. She also requires some use of leave for clinical visits. The Board finds that her level of loss of working time is proportionate to the loss of working time reflected by her 40 percent disability rating under Diagnostic Code 7118. In fact, the criteria for a 40 percent disability rating under Diagnostic Code 7118 contemplates angioneurotic attacks which last longer in duration. Thus, the Board does not find any "marked" interference with the veteran's employment not contemplated by the regular schedular criteria. As such, there is no basis for further action on this question. VAOPGCPREC 6-96 (1996). ORDER An evaluation in excess of 40 percent for angioneurotic edema is denied. C.W. Symanski Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.