Citation Nr: 0307711 Decision Date: 04/23/03 Archive Date: 04/30/03 DOCKET NO. 98-16 020A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to increased ratings for recurrent urticaria as follows: in excess of 20 percent disabling prior to January 12, 1998 and in excess of 40 percent disabling from January 12, 1998. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K . L. Wallin, Associate Counsel INTRODUCTION The veteran served on active duty from April 1968 to April 1971. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which assigned an increased 20 percent disabling rating for recurrent urticaria from August 1997. In a statement received in February 1999, the veteran revoked the power of attorney previously granted to Disabled American Veterans. There is no current representative of record. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable resolution of the issue on appeal has been obtained. 2. Prior to January 12, 1998, the veteran's recurrent urticaria was manifested as severe angioneurotic edema. 3. From January 12, 1998, the veteran's recurrent urticaria was manifested as no more disabling than angioneurotic edema attacks without laryngeal involvement. 4. From August 30, 2002, the veteran's recurrent urticaria has not been productive of recurrent debilitating episodes occurring at least four times during the past 12 month period. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 40 percent disabling rating for recurrent urticaria prior to January 12, 1998, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, Part 4, including § 4.104, Diagnostic Code 7118 (2002); 38 C.F.R. § 4.104, Diagnostic Code 7118 (1997). 2. The criteria for entitlement to an evaluation in excess of 40 percent disabling for recurrent urticaria from January 12, 1998, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, Part 4, including § 4.104, Diagnostic Code 7118 (2002). 3. The criteria for entitlement to an evaluation in excess of 40 percent disabling for recurrent urticaria from August 30, 2002, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, Part 4, including § 4.104, Diagnostic Code 7118 (2002); 67 Fed. Reg. 147, 49590-45599 (July 31, 2002)(to be codified as 38 C.F.R. § 4.118, Diagnostic Code 7825). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 Initially the Board notes that consideration has been given to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) [codified as amended at 38 U.S.C.A. § 5100 et seq. (West Supp. 2002)]. Regulations implementing the VCAA have been enacted. See 66 Fed. Reg. 45, 620 (August 29, 2001) [codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)]. The VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. Except for provisions pertaining to claims to reopen based upon the submission of new and material evidence, which are not applicable in the instant case, the implementing regulations are also effective November 9, 2000. In this case, the regulations are accordingly applicable. See Holliday v. Principi, 14 Vet. App. 280 (2000) [the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim]. The current standard of review for all claims is as follows. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West Supp. 2002); 38 C.F.R. § 3.102 (2001). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." In rating decisions dated in June 1998, September 1998, and May 1999, in the September 1998 statement of the case (SOC), and supplemental statements of the case (SSOC) dated in May 1999 and December 2001, the RO denied the increased rating claim on the substantive merits, based on the standard of review articulated in this decision. The Board finds, therefore, that the RO has adjudicated the veteran's claims under the correct standard. The Board will apply the current standard in adjudicating the veteran's claim. VA has a duty to notify the claimant and his or her representative of any information and evidence needed to substantiate and complete a claim. VCAA § 3(a), 114 Stat. 2096, 2096-97 [now codified as amended at 38 U.S.C.A. §§ 5102, 5103 (West Supp. 2002)]. After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of the VCAA have been satisfied. Review of the record shows that the veteran was provided the diagnostic criteria necessary to warrant an increased rating in the September 1998 SOC, the May 1999 SSOC and December 2001 SSOC. In a letter dated December 2002, the Board notified the veteran of the enactment of the VCAA, to include VA's duty to notify, VA's duty to assist, what efforts VA would make, and what the veteran would need to do to substantiate his claim. In December 2002, the Board also notified the veteran of the recent changes in the law pertaining to the diagnostic criteria for recurrent urticaria. VA has a duty to assist the claimant in obtaining evidence necessary to substantiate the claim. VCAA § 3(a), 114 Stat. 2096, 2097-98 [now codified at 38 U.S.C.A. § 5103A]. The veteran's service medical records, service personnel records, and VA outpatient treatment records, have been associated with the claims folder. The veteran was also afforded VA examinations in connection with his claims. In various statements the veteran indicated that he received all his medical treatment from VA. In a statement received in January 1999, the veteran indicated that there were no additional medical records from Bullhead Community Hospital and those that were available, were all ready of record. Finally, the veteran presented testimony before the undersigned Veterans Law Judge in June 2002. The veteran has been accorded ample opportunity to present evidence and argument in support of his claim. The veteran has not identified, and the Board is not aware of, any additional outstanding evidence. In sum, the facts relevant to the veteran's claim have been properly developed, and there is no further action to be undertaken to comply with the provisions of the VCAA and the implementing regulations. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) ("Both the statute, 38 U.S.C. § 5103(a), and the regulation, 38 C.F.R. § 3.159, clearly require the Secretary to notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the Secretary."). Therefore, there is no reasonable possibility that any further development could substantiate the claim. Accordingly, the Board will address the merits of the veteran's claim. Laws and Regulations Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities, 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. Otherwise, the lower rating will be assigned. 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. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Background Historically, in a December 1971 rating decision, service connection was granted for giant urticaria and assigned a 10 percent rating from April 1971. Over a period of 20 years the veteran's disability was rated as noncompensable and as 20 percent disabling. In a January 1988 rating decision, the veteran's disability was assigned a 20 percent evaluation from September 1987. In January 1992, the RO decreased his evaluation to 10 percent disabling from May 1992. In September 1997, the veteran filed a claim for an increased rating. In a June 1998 rating decision, the RO increased the veteran's evaluation to 20 percent disabling from August 1997. The veteran disagreed with the 20 percent rating and initiated this appeal. In a September 1998 rating decision, the RO found clear and unmistakable error in the June 1998 rating decision and made the 20 percent rating effective September 1997. In the same decision, the RO increased the veteran's disability rating to 40 percent disabling from January 12, 1998, the date of the change in regulations. Applicable law mandates that when a veteran seeks an increased rating, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). The veteran has not withdrawn his appeal and as such, it remains in appellate status. Analysis The veteran contends that he is entitled to a higher evaluation for his service-connected recurrent urticaria. Specifically, the veteran contends that his condition has worsened, to include frequent flare-ups causing itching, swelling, turgidity, difficulty breathing, and occasional bleeding. Prior to January 12, 1998, the veteran's recurrent urticaria was rated under diagnostic code 7118 as 20 percent disabling. See 38 C.F.R. § 4.104 (1997). Under the then diagnostic code 7118, a 40 percent rating was assigned for severe angioneurotic edema classified as frequent attacks with severe manifestations and prolonged duration. Id. Considering the evidence of record, and in light of the applicable laws and regulations, the Board finds that the veteran's recurrent urticaria symptomatology more closely approximates the criteria for the next higher 40 percent rating. See 38 C.F.R. §§ 4.3, 4.7. In this regard, private medical records from Bullhead City Hospital reveal that the veteran was treated in the emergency room for a rash over his face that has lasted for approximately a four-week duration. VA outpatient treatment records indicate the veteran made numerous complaints and sought multiple treatments for chronic urticaria. In September 1997, the veteran had multiple outbreaks of hives on his elbow, scalp, abdomen, coccyx, palm, forearm, trunk, and head. In October 1997, the veteran had daily hives from the 1st through the 12th, the 13th thru the 15th, and again from October 30th thru November 1st. During this time the veteran took various medications to include Hismanal, Benadryl, and Ephedrine. The veteran was diagnosed with chronic urticaria. While the next higher 40 percent disabling evaluation is appropriate, the Board finds that this is the maximum allowable under diagnostic code 7118. See 38 C.F.R. § 4.104 (1997). The Board has looked to other applicable rating criteria to assign a higher rating, however, in looking at the schedule of ratings for the skin, there has been no evidence of eczema with ulceration or extensive exfoliation or crusting, and systemic or nervous manifestation, or exceptionally repugnant, to warrant a 50 percent rating under diagnostic code 7806. Id. As of January 12, 1998, the provisions of 38 C.F.R. § 4.104, pertaining to the Cardiovascular System portion of the VA Schedule for Rating Disabilities were amended. These amendments included changes to Diagnostic Code 7118, pertaining to angioneurotic edema. 62 Fed. Reg. 65207. The Court has held that if the applicable laws or regulations change while a case is pending, the version most favorable to the claimant applies absent congressional intent to the contrary. Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). However, in a precedent opinion, the VA Office of General Counsel determined that when a provision of the VA rating schedule is amended while a claim for an increased rating under that provision is pending, the Board should first determine whether the intervening change is more favorable to the veteran. If the amendment is more favorable, the Board should apply that provision to rate the disability for periods from and after the effective date of the regulatory change, and apply the prior regulation to rate the veteran's disability for periods preceding the effective date of the regulatory change. In the event that it is determined that the prior version is more favorable, then the Board should apply the former provision to periods both before and after the effective date of the regulatory change. Also, as a factual matter, it is certainly possible that a claimant may be entitled to an increased rating prior to and independent of an intervening change to the rating schedule under then- existing rating criteria. See VAOPGCPREC 3-2000 (April 10, 1999). From January 12, 1998, the veteran's recurrent urticaria has been rated as 40 percent disabling. Under diagnostic code 7118, a 40 percent rating is assigned for angioneurotic edema attacks without laryngeal involvement lasting one to seven days or longer and occurring more than eight times a year, or attacks with laryngeal involvement of any duration occurring more than twice a year. 38 C.F.R. § 4.104 (1998). The Board finds the criteria in effect as of January 1998 more favorable to the veteran. Considering the evidence of record, the veteran's recurrent urticaria from January 12, 1998, more closely approximates the criteria for the currently assigned 40 percent rating. See 38 C.F.R. §§ 4.3, 4.7. In this regard, upon VA examination in March 1998, there was no current urticaria. While VA outpatient treatment records dated between February 1998 and September 2001 show treatment for chronic urticaria, it is repeatedly noted that the veteran's urticaria was moderately controlled with medications. Upon VA examination in December 1999, the veteran complained of asthma like episodes with his outbreaks of urticaria. The veteran was diagnosed with an immunologic disorder manifested by angioneurotic edema, giant urticaria, chronic and on going. The Board notes that 40 percent is the maximum allowable under diagnostic code 7118. See 38 C.F.R. § 4.104. Thus, the Board has looked to other applicable rating criteria to assign a higher rating. However, there has been no evidence of erythromelalgia with characteristic attacks that occurs more than once a day, last an average of more than two hours each, and responds poorly to treatment, but that do not restrict most routine daily activities to warrant a 60 percent rating under diagnostic code 7119. Id. In addition, in looking at the schedule of ratings for the skin, there has been no evidence of eczema with ulceration or extensive exfoliation or crusting, and systemic or nervous manifestation, or exceptionally repugnant to warrant a 50 percent rating under diagnostic code 7806. 38 C.F.R. § 4.118. Therefore, the veteran's claim of entitlement to a rating in excess of 40 percent disabling from January 12, 1998, is denied. As noted at the outset of the instant decision, the criteria for evaluating skin disorders was amended, effective from August 30, 2002, during the pendency of this claim. See 67 Fed. Reg. 147, 49590-49599 (July 31, 2002). The new schedule of ratings for skin created diagnostic code 7825, which provides rating criteria for urticaria. The Board finds that the version effective from August 2002 is most favorable to the veteran. See Karnas, supra. Under diagnostic code 7825, a 60 percent rating is assigned for recurrent debilitating episodes of urticaria occurring at least four times during the past 12 month period despite continuous immunosuppressive therapy. See 67 Fed. Reg. 147, 49598. However, from August 30, 2002, considering the evidence of record, the veteran's recurrent urticaria more closely approximates the criteria for the currently assigned 40 percent rating. See 38 C.F.R. §§ 4.3, 4.7. VA outpatient treatment records contained within the claims folder dated between September 1998 and September 2001, simply note chronic urticaria in September 2001. Finally, the veteran himself testified in June 2002 that if he remains medicated his attacks only occur one to two times a year. Therefore, the veteran's claim of entitlement to a rating in excess of 40 percent disabling from August 30, 2002, is denied. In reaching the foregoing determinations, the clinical manifestations of the veteran's recurrent urticaria and their effects on the veteran's earning capacity and ordinary activity have been considered. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.41. Should the veteran's disability picture change in the future, he may be assigned a higher rating. See 38 C.F.R. § 4.1. At present, however, there is no basis for assignment of evaluations other than those noted above. Finally, the evidence does not reflect that the application of the regular schedular standards is rendered impracticable. The VA Schedule for Rating Disabilities is premised on the average impairment in earning capacity. Hence, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) for assignment of an extra-schedular evaluation. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to a 40 percent rating from September 2, 1997, for recurrent urticaria is granted subject to controlling regulations affecting the payment of monetary awards. Entitlement to a rating in excess of 40 percent disabling from January 12, 1998, for recurrent urticaria is denied. John E. Ormond, Jr. Veterans Law Judge, 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.