Citation Nr: 0429260 Decision Date: 10/26/04 Archive Date: 11/08/04 DOCKET NO. 01-00 337 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for hypersensitivity to insect bites, and history of contact dermatitis secondary to iodine and iodine derivatives. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The appellant had active military service from July 1967 to January 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2000 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Milwaukee, Wisconsin. FINDING OF FACT The appellant has a chronic condition of an adverse stinging insect reaction, with a history of generalized hives and anaphylactic type reaction secondary to insect bites; continuing to intermittently flare with exposure to insect bites. He also has a history of contact dermatitis secondary to iodine and iodine derivatives. The appellant does not experience disfigurement or other disabling problems. CONCLUSION OF LAW The schedular criteria for a rating in excess of 10 percent for hypersensitivity to insect bites, and history of contact dermatitis secondary to iodine and iodine derivatives, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7801, 7802, 7803, 7804, 7805, 7806, 7819 (2002); 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7801, 7802, 7803, 7804, 7805, 7806, 7819, 7825 (2004). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). Regulations implementing the VCAA are applicable to the appellant's claim. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2004). In the present case, given that this matter comes before the Board on appeal of a March 2000 rating action, and that the VCAA was not signed into law until November 2000, it was not until after the original rating action on appeal was promulgated did the RO provide notice to the appellant regarding the duty to notify him of the evidence he must provide, and the evidence that VA would obtain on his behalf. See Pelegrini v. Principi, 17 Vet. App. 412 (2004). Nevertheless, the Board observes that in regard to the issue on appeal, there is no indication that there is additional evidence that has not been obtained and that would be pertinent to the present claim. In addition, the appellant has been afforded the opportunity to present evidence and argument in support of the claim, including at a personal hearing. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Moreover, the appellant has also been notified of the applicable laws and regulations that set forth the criteria for entitlement to an initial evaluation in excess of 10 percent for hypersensitivity to insect bites, and history of contact dermatitis secondary to iodine and iodine derivatives. The discussions in the statement of the case and the supplemental statements of the case have further informed the appellant of the information and evidence necessary to warrant entitlement to the benefits sought. With respect to VA's duty to notify, the RO sent the appellant a letter in June 2004 in which he was notified of the VCAA, the types of evidence he needed to submit, and the development the VA would undertake. He was told what information and evidence was needed to substantiate a claim for an increased rating. The letter specifically informed the appellant what was needed from him and what VA would obtain on his behalf. For example, the letter told him that VA would help obtain medical records, employment records, or records from other Federal agencies. The appellant was informed that he was responsible for providing sufficient information to VA so records could be requested. Therefore, in light of the above, the Board finds that the VA's duty to notify has been fully satisfied, and that any defect with respect to the VCAA notice requirement in this case was harmless error. Simply put, in this case, the claimant was provided every opportunity to submit evidence. He was also provided with notice of the appropriate law and regulations pertinent to his increased rating claim. He was further provided notice of what evidence he needed to submit, and notice of what evidence VA would secure on his behalf. He was given ample time to respond. Hence, not withstanding Pelegrini, to allow the appeal to continue would not be prejudicial error to the claimant. Under the facts of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the veteran [appellant] regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, No. 03-7072 (Fed. Cir. Jan. 7, 2004). VA also has a duty to assist the appellant in obtaining evidence necessary to substantiate a claim. 38 C.F.R. § 3.159(c). The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. In this regard, the Board notes that in July 2000 and September 2001, the appellant underwent VA skin examinations which were pertinent to his increased rating claim. The Board further observes that in this case, there is no outstanding evidence to be obtained, either by VA or the appellant. In this regard, the Board notes that in a letter from the appellant to the RO, dated in August 2004, the appellant stated that he had no additional relevant medical evidence to submit and he requested that the RO take the next action in processing his claim. Consequently, given the standard of the new regulation, the Board finds that VA did not have a duty to assist that was unmet. The Board also finds, in light of the above, that the facts relevant to this appeal have been fully developed and there is no further action to be undertaken to comply with the provisions of the regulations implementing the VCAA. Therefore, the appellant will not be prejudiced as a result of the Board proceeding to the merits of the claim. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). II. Factual Background VA Medical Center (VAMC) outpatient treatment records, from February 1998 to June 1999, show that in August 1998, the appellant sought treatment for a bee sting. At that time, it was noted that after the appellant was stung by a bee, he went to a local clinic for a shot. It was reported that at present, the appellant had hives "all over" and that his leg was swollen. The records reflect that the appellant was given medication and that his symptoms were "gradually better." The diagnosis was "allergic to bees ? other insects [sic]." The records also reflect that in November 1998, the appellant stated that he was allergic to "insects, fire ants, and yellow jackets." It was further noted that the appellant was allergic to iodine. According to the records, in August 1999, the appellant underwent skin testing. At that time, he reported that after the skin testing, his hands, feet, wrists, and neck became itchy and red. In November 1999, the RO received private medical records, dated in August 1998, which reflect that at that time, the appellant was treated for a "cutaneous allergic to an insect bite [sic]." According to the records, the appellant had a history of multiple allergic sensitivities to stinging insects in the past, including fire ants and other insects. It was noted that while the appellant was in the military, he underwent allergy testing and desensitization therapy for up to five years. It was further reported that the appellant had a bee sting emergency kit at home. According to the records, the appellant was seeking treatment after being stung by a bee in the left popliteal fossa area and developing localized hives in that area. The appellant subsequently developed some flushing and slight edema of the hands, flushing of the face and some burning discomfort, hives, and itching in the groin area. He denied dizziness, tightness in the chest, shortness of breath, and chest pain. He had no nausea, vomiting, or abdominal pain. The assessment was mild to moderate acute allergic reaction to an insect sting characterized by cutaneous flushing and localized hives, with no other angioedema and no other systemic effects noted. The appellant was given Epinephrine and Benadryl, and his symptoms improved. Upon his discharge, he was instructed to continue taking Benadryl for three days. By a March 2000 rating action, the RO granted the appellant's claim of entitlement to service connection for hypersensitivity to bee stings, fire ants, other insect bites, and iodine. At that time, the RO assigned a noncompensable disability rating under Diagnostic Code 7899- 7819, effective from September 3, 1999, for the appellant's service-connected hypersensitivity to insect bites and iodine. 38 C.F.R. § 4.118. A VA medical statement from M.N.B., M.D., Staff Physician, Allergy Service at the Minneapolis VAMC, dated in May 2000, shows that at that time, Dr. B. indicated that he had been seeing the appellant for the care and treatment of adverse stinging insect reaction. Dr. B. noted that because of the severity of the appellant's reaction, it was decided that the appellant should start immunotherapy. However, Dr. B. reported that unfortunately, the appellant developed an adverse reaction to his allergy shots. Therefore, Dr. B. stated that it was decided to stop the shots and treat the appellant with (1) Epipen, and (2) Med Alert. It was Dr. B.'s opinion that the appellant had a chronic condition of an adverse stinging insect reaction. Dr. B. also recommended that the appellant limit his activity to avoid areas where he would be in contact with stinging insects. In July 2000, the appellant underwent a VA skin examination. At that time, he stated that he first noted a tendency towards an extreme reaction to insect bites in 1971, while he was in the military and was bitten by a fire ant on the foot. The appellant indicated that after he was bit by a fire ant, he was treated for a severe allergic reaction to the bite and was given Benadryl and Epinephrine. He reported that subsequently, he noted that he also had severe reactions to bee stings and deer fly bites. According to the appellant, his most recent reaction was approximately one year ago when he developed hives and chest tightness after a bee sting. The appellant stated that he had had approximately six emergency room visits due to severe reactions to insect bites, which had generally been treated with Benadryl and Epinephrine. He indicated that he carried an Epipen with him at all times for protection from an anaphylactic type reaction, and that he took Hydroxyzine. According to the appellant, he had persistent skin reactions at the sites of bites. The examining physician reported that the appellant pointed to an area on his right medial lower leg and to an area on his left anterior thigh as evidence of skin reactions to bites. The appellant noted that those areas were areas where he was bitten by a tick. According to the examiner, the appellant developed flaring pruritus and redness at the bite sites. The appellant indicated that generally, such areas took approximately nine to 12 months before they completely resolved. He reported that he had undergone Lyme vaccination earlier that year. The appellant stated that because of his sensitivity to insect bites, he had moved from his prior home of 40 acres in a wooded setting to a more open area. According to the appellant, he tended to avoid outdoor activity due to his hypersensitivity to insect bites. He stated that he also had a history of a red, inflamed, itching rash which developed at the sites of iodine and Betadine application. He reported that he first noted his iodine sensitivity in 1982, and that he had subsequently tended to avoid direct contact with iodine and Betadine. Upon physical examination, the examining physician noted that the appellant had a two by two millimeters (mm.), excoriated, slightly pink papule, with central pinpoint eschar on the right medial lower leg at the site where the appellant had reported a history of a previous tick bite. There were no signs of infection. According to the examiner, the appellant's left anterior thigh showed a slightly larger, four by four mm. pink papule, with central punctum at the site where the appellant had reported a history of a previous tick bite. There were no signs of infection. The diagnoses were the following: (1) history of hypersensitivity, with history of generalized hives and anaphylactic type reaction secondary to insect bites, potentially life-threatening; continuing to intermittently flare with exposure to insect bites, (2) persistent localized reaction at site of insect bites, noted upon current examination at the right medial lower leg and left anterior thigh, and (3) history of "consistent with contact dermatitis [sic]," secondary to iodine and Betadine, currently not flaring. In an October 2000 rating action, the RO increased the disability rating for the appellant's service-connected allergic skin reaction, from noncompensable to 10 percent disabling under Diagnostic Code 7899-7819, effective from September 3, 1999. 38 C.F.R. § 4.118. A VA skin examination was conducted in September 2001. At that time, it was noted that the appellant had served as a minister while he was in the military, and that he had retired from the ministry after a heart attack a few years ago. The examining physician reported that the appellant had a history of allergies to stinging insects, deer flies, bees, and fire ants, and a history of contact dermatitis to iodine. The examiner noted that according to the appellant, at present, he lived in a house with a screen porch and was afraid to go outside because of his fear of stinging insects. The examiner indicated that Dr. B. had tried to desensitize the appellant, but that because the appellant was so allergic, he could not tolerate the desensitization. According to the examiner, the appellant had laryngeal edema with his last bee sting, accompanied by severe, generalized urticaria. The diagnosis was allergy to insects. In February 2003, the RO received VAMC outpatient treatment records from January 1999 to January 2003. The records show that in May 2000, it was noted that allergy shots for the appellant were attempted, but that he was unable to tolerate the shots. In March 2003, the RO received a private medical report from M.E.C., M.D., dated in March 2003, which reflects that at that time, the appellant underwent an allergy consultation. In the report, Dr. C. noted that in 1999, the appellant was stung by a bee and experienced acute onset of rapidly progressive, raised, red, pruritic welts over his trunk, abdomen, and extremities. Dr. C. indicated that the appellant was treated with a Benadryl injection which caused his symptoms to improve and then disappear without residual. There was no associated shortness of breath, alteration of consciousness, vomiting, diarrhea, wheezing, or other symptoms to suggest anaphylaxis. Dr. C. stated that according to the appellant, although he subsequently underwent skin testing which confirmed his sensitivities, it was decided venom immunotherapy should not be administered. Since that time, the appellant had sustained no subsequent stings. Upon physical examination of the appellant's skin, there was no eczema, urticaria, or angioedma. Detailed allergy skin testing by serial prick and intradermal method using standard protocol to Hymenoptera venom showed strong positive reactivity to wasp, yellow jacket, white-faced hornet, and yellow hornet at a strength of 0.1 mcg/ml. No significant reaction was observed to honeybee venom. The diagnoses were the following: (1) stinging insect hypersensitivity, systemic type, confined to the skin, and (2) hypersensitivity to fire ants, by history. Dr. C. reported that he had discussed with the appellant the option of venom immunotherapy, but that his advice was to withhold that form of treatment in view of the appellant's cardioselective beta-blocking agent used in treatment of his coronary artery disease. In March 2003, the RO received a lay statement from the appellant's wife. In the statement, the appellant's wife indicated that in August 1998, the appellant developed hives after he was stung by a bee. The appellant's wife also noted that according to Dr. C., the appellant was unable to undergo the desensitization process because he took a beta-blocker for his heart condition which severely limited epinephrine's effectiveness. Thus, the appellant's wife reported that the appellant could not be desensitized to protect against future stings, and that that severely limited the amount of time he could be outside during the summer months without putting himself in danger. In March 2004, the RO received VAMC outpatient treatment records from June to December 2003. The records show that in June 2003, it was noted that the appellant had insect allergies and that he carried an Epipen, but that he had been able to avoid problems. It was also reported that the appellant was currently active and that he biked and jogged up to one mile. The assessment was of insect allergies, and that the appellant should continue avoidance. In March 2004, a hearing was conducted at the RO. At that time, the appellant testified that he had attempted immunotherapy, but that he had had an adverse reaction to his allergy shots. The appellant stated that another reason why he was unable to undergo the desensitization process was because he took beta-blockers for his heart condition which limited the effectiveness of immunotherapy. He noted that because of his insect sensitivity, he had to move from his house in a wooded area to a house in an open area. According to the appellant, he could not enjoy outdoor activities, such as fishing, due to his insect sensitivity. The appellant further stated that although he was retired, he was still interested in certain types of employment. In this regard, the appellant noted that he had a friend in the real estate business who was interested in hiring him, but that he had to refuse the offer because there was a risk that he would have to show houses which were inundated with bees. The appellant also indicated that he considered applying for a job at a veteran's cemetery where he would have to mow the cemetery lawn, but that he decided against applying because he was afraid of being outside where he could be stung by bees. At the time of the appellant's hearing, the appellant submitted articles pertaining to treatment for allergic reactions from insect stings. III. Analysis Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2004). Pertinent regulations do not require that all cases show all findings specified by the VA's Schedule for Rating Disabilities (Schedule), but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2004). As the appellant took issue with the initial rating assigned following the grant of service connection, separate ratings may be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). Thus, the Board must evaluate the relevant evidence since September 1999. The appellant's service-connected hypersensitivity to insect bites and history of contact dermatitis secondary to iodine and iodine derivatives, is not listed on the Schedule; the RO assigned Diagnostic Code 7899-7819. See 38 C.F.R. § 4.27 (2004) (unlisted disabilities requiring rating by analogy will be coded first the numbers of the most closely related body part and "99"). The disability is currently rated as 10 percent disabling. The most closely analogous Diagnostic Code is 38 C.F.R. § 4.118, Diagnostic Code 7819 which is under the schedule of ratings for the skin. In this regard, the Board notes that by regulatory amendment effective August 30, 2002, substantive changes were made to the schedular criteria for evaluating the skin. Compare 38 C.F.R. § 4.118 (2002), with 38 C.F.R. § 4.118 (2003). As the appellant's appeal was pending at the time the applicable regulations were amended, the appellant is entitled to consideration under the old criteria, and under the new regulations. However, as the amended regulations expressly provide an effective date and do not allow for retroactive application, the appellant is not entitled to consideration of the amended regulations prior to the established effective date. 38 U.S.C.A. § 5110(g)(West 2002) (where compensation is awarded pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the Act or administrative issue); see also Green v. Brown, 10 Vet. App. 111, 116-119 (1997). The appellant was provided with notice of the change in the rating criteria in a February 2003 Supplemental Statement of the Case, and was given the opportunity to provide additional evidence or argument on the issue on appeal. In a letter from the appellant to the RO, dated in August 2004, the appellant stated that he had no additional relevant medical evidence to submit and he requested that the RO take the next action in processing his claim. Therefore, in light of the above, the Board finds that there is no prejudice to the appellant in the Board's adjudication of the claim under both sets of criteria. See Bernard, 4 Vet. App. at 384, 392-94. Under the old criteria, ratings under Diagnostic Code 7819 for new, benign skin growths were rated as analogous to scars, disfigurement, etc. That diagnostic code further indicated that, unless otherwise provided, the disorder would be rated under Diagnostic Codes 7807 through 7819 as for eczema, dependent upon location, extent, and repugnant or otherwise disabling character of manifestations. 38 C.F.R. § 4.118, Diagnostic Code 7819 (2002). Under the former criteria of Diagnostic Code 7800, a 10 percent rating is warranted for moderately disfiguring scars of the head, face, or neck. A 30 percent rating is warranted for severely disfiguring scars of the head, face, or neck, especially if producing a marked and unsightly deformity of the eyelids, lips, or auricles. A 50 percent rating is warranted for complete or exceptionally repugnant deformity of one side of the face or marked or repugnant bilateral disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800 (2002). A note following the diagnostic code provides that, when in addition to tissue loss and cicatrization there is marked discoloration, color contrast, or the like, the 50 percent rating may be increased to 80 percent, the 30 percent rating to 50 percent, and the 10 percent rating to 30 percent. The most repugnant, disfiguring conditions, including scars and diseases of the skin, may be submitted for VA Central Office rating, with several unretouched photographs. Id. Under the former criteria of Diagnostic Code 7803, scars that are superficial, poorly nourished, with repeated ulceration warrant a 10 percent evaluation. 38 C.F.R. § 4.118, Diagnostic Code 7803 (2002). Scars that are superficial, and tender and painful on objective demonstration warrant a 10 percent evaluation under the former criteria of Diagnostic Code 7804. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2002). Other scars may be rated on limitation of function of the part affected. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2002). Under the former criteria for Diagnostic Code 7806 for eczema, a 10 percent evaluation is warranted for exfoliation, exudation or itching, if involving an exposed surface or extensive area. A 30 percent evaluation is warranted for constant exudation or itching, extensive lesions, or marked disfigurement. A 50 percent evaluation requires ulceration or extensive exfoliation or crusting and systemic or nervous manifestations or exceptionally repugnant disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2002). Under the revised rating criteria, Diagnostic Code 7819 provides that benign skin neoplasms should either be evaluated based on disfigurement of the head, face, or neck under Diagnostic Code 7800; as scars under Diagnostic Codes 7801 to 7805; or based on impairment of function. 38 C.F.R. § 4.118, Diagnostic Code 7819 (2004). Under the new Diagnostic Code 7800, for disfigurement of the head, face, or neck, a 10 percent rating is warranted for one characteristic of disfigurement. A 30 percent rating is warranted for a skin condition with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. A 50 percent rating is warranted for a skin condition with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. An 80 percent rating is warranted for a skin condition 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. 38 C.F.R. § 4.118, Diagnostic Code 7800 (2004). The Diagnostic Code also provides the following notes: Note (1): The 8 characteristics of disfigurement, for purposes of evaluation under 38 C.F.R. § 4.118, are: (1.) Scar 5 or more inches (13 or more centimeters (cm.)) in length. (2.) Scar at least one-quarter inch (0.6 cm.) wide at widest part. (3.) Surface contour of scar elevated or depressed on palpation. (4.) Scar adherent to underlying tissue. (5.) Skin hypo-or hyper-pigmented 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.). (8) Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Id. Note (2): Tissue loss of the auricle under Diagnostic Code 6207 (loss of auricle) and anatomical loss of the eye under Diagnostic Code 6061 (anatomical loss of both eyes) or Diagnostic Code 6063 (anatomical loss of one eye), are rated as appropriate. Id. Note (3): When evaluating under these criteria, unretouched color photographs are taken into consideration. Id. Effective August 30, 2002, scars, other than head, face, or neck scars, that are deep or cause limited motion are rated under Diagnostic Code 7801. Where there is evidence of such a scar area or areas exceeding 6 square inches (39 sq. cm.), a 10 percent evaluation will be assigned. A 20 percent evaluation is warranted where there is evidence of a scar area or areas exceeding 12 square inches (77 sq. cm.). A 30 percent evaluation is warranted where there is evidence of a scar area or areas exceeding 72 square inches (465 sq. cm.). A 40 percent evaluation for area or areas exceeding 144 square inches (929 sq. cm.) is assignable. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2004). Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25 (2004). 38 C.F.R. § 4.118, Diagnostic Code 7802, Note (1) (2004). A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801, Note (2) (2004). Superficial scars (not associated with underlying soft tissue damage) other than on the head, face, or neck, that do not cause limited motion may be assigned a 10 percent rating for area or areas of 144 square inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2004). Under the revised criteria for Diagnostic Code 7803, superficial, unstable scars warrant a 10 percent evaluation. An unstable scar is one where, for any reason, there is frequent loss of skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7803 (2004). Under the revised criteria for Diagnostic Code 7804, superficial scars, painful on examination, warrant a 10 percent disability rating. A superficial scar is not one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2004). Under the revised criteria for Diagnostic Code 7805, the criteria are essentially the same as the former criteria for Diagnostic Code 7805 as scars may be rated on the limitation of the affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2004). The revised criteria for Diagnostic Code 7806 provides that a noncompensable evaluation will be assigned if dermatitis or eczema involves less than 5 percent of the entire body or less than 5 percent of exposed areas affected and no more than topical therapy was required during the past 12-month period. A 10 percent evaluation will be assigned where 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 are affected or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past 12-month period. A 30 percent evaluation 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 dermatitis or eczema covering 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. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2004). In the instant case, the appellant maintains that his current rating is not high enough in light of the disability that his hypersensitivity to insect bites and iodine causes. He indicates that when he experiences an insect bite, he develops hives. In addition, the appellant notes that because of his insect sensitivity, he had to move from his house in a wooded area to a house in an open area. Moreover, according to the appellant, he cannot enjoy outdoor activities, such as fishing, due to his insect sensitivity and his fear of being bitten. The appellant submitted a lay statement from his wife in support of his contentions. In this regard, lay statements are considered to be competent evidence when describing symptoms of a disease. However, symptoms must be viewed in conjunction with the objective medical evidence of record. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). After careful consideration of all the evidence, and the old and revised criteria for rating skin disabilities, the Board finds that the appellant's service-connected hypersensitivity to insect bites and iodine is properly rated as being no more than 10 percent disabling. In considering the appellant's service-connected hypersensitivity to insect bites and iodine under the old rating criteria, it is noted that he is currently evaluated at the maximum rating allowable under Diagnostic Codes 7803 and 7804. In addition, there is no objective medical evidence showing that the appellant's hypersensitivity to insect bites and iodine is manifested by constant exudation or itching, extensive lesions, or marked disfigurement for a 30 percent rating under the former criteria for Diagnostic Code 7806. In this regard, the Board recognizes that private medical records show that in August 1998, the appellant was treated for an allergic reaction to an insect bite. At that time, the assessment was mild to moderate acute allergic reaction to an insect sting characterized by cutaneous flushing and localized hives, with no other angioedema and no other systemic effects noted. However, the Board notes that the appellant was given Epinephrine and Benadryl, and his symptoms improved. The Board further observes that although the appellant was diagnosed with persistent localized reaction at site of insect bites in his July 2000 VA examination, a March 2003 private medical report shows that at that time, upon physical examination of the appellant's skin, there was no eczema, urticaria, or angioedema. Therefore, the Board concludes that a rating in excess of 10 percent for hypersensitivity to insect bites and iodine is not warranted under the old criteria for Diagnostic Code 7806. Furthermore, the Board finds that the appellant does not meet the criteria for a 30 percent rating under the old Diagnostic Code 7800. In this regard, the Board observes that there is no evidence of record showing that the appellant's service-connected hypersensitivity to insect bites and iodine is productive of severely disfiguring scars of the head, face, or neck. It is also noted that there has been no medical evidence, nor any complaints, pertaining to scars related to the appellant's hypersensitivity to insect bites and iodine that are productive of functional limitation of the body parts affected, as contemplated in the rating criteria for old Diagnostic Code 7805. In considering the appellant's service-connected hypersensitivity to insect bites and iodine under the new rating criteria, it is noted that he is currently evaluated at the maximum rating allowable under new Diagnostic Codes 7802, 7803, and 7804. In addition, the Board finds that there is no basis for a higher evaluation under the new rating criteria for Diagnostic Code 7806. As previously stated, under the new rating criteria for Diagnostic Code 7806, a 30 percent evaluation 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. In this regard, the Board notes that there is no evidence of record showing that the appellant's hypersensitivity to insect bites and iodine involves 20 to 40 percent of either his entire body or exposed areas. The Board recognizes that VAMC outpatient treatment records show that in August 1998, the appellant was treated for a bee sting, and at that time, it was noted that the appellant had hives "all over." However, the records also reflect that the appellant was given medication and that his symptoms were "gradually better." In addition, in the appellant's July 2000 VA examination, it was noted that the appellant had a two by two mm. excoriated, slightly pink papule on the right medial lower leg at the site where the appellant had reported a history of a previous tick bite. It was further reported that the appellant's left anterior thigh showed a slightly larger, four by four mm. pink papule where the appellant had reported a history of a previous tick bite. Moreover, a March 2003 private medical report shows that at that time, upon physical examination of the appellant's skin, there was no eczema, urticaria, or angioedema. The Board also notes that there is no evidence of record showing that the appellant has undergone systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more in the past year or during any one-year period. The Board observes that the appellant has been treated with Benadryl and uses an Epipen when necessary. The Board further recognizes that although the appellant attempted to undergo immunotherapy, he was unable to complete the procedure because he developed an adverse reaction to his allergy shots and had to stop the immunotherapy. In addition, the evidence of record also reflects that the appellant is unable to undergo venom immunotherapy because he takes a beta-blocker for his heart condition. However, although the evidence of record reflects that the appellant has taken Benadryl and has attempted to undergo immunotherapy, the Board notes that there is no evidence of record showing that the appellant has undergone systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more in the past year or during any one year period. Moreover, the appellant does not meet the criteria for a 30 percent rating under the new Diagnostic Code 7800. There is no medical evidence showing that the appellant's service- connected hypersensitivity of insect bites and iodine is productive of visible or palpable tissue loss, gross distortion or asymmetry of one feature or paired sets of features, or at least two of the characteristics of disfigurement listed under that code. The Board further notes that there is no medical evidence pertaining to scars related to the appellant's service- connected hypersensitivity to insect bites and iodine that are deep, cause limited motion, and that involve an area or areas exceeding 12 square inches, located other than on the head, face, or neck, for a 20 percent rating under new rating criteria for Diagnostic Code 7801. Furthermore, there is no medical evidence of record pertaining to scars related to the appellant's hypersensitivity to insect bites and iodine that are productive of functional limitation of the body parts affected, as contemplated in the rating criteria for new Diagnostic Code 7805. The Board also recognizes that in a statement from the appellant's representative, the Wisconsin Department of Veterans Affairs, dated in February 2003, the appellant's representative indicated that the appellant's service- connected hypersensitivity to insects should be evaluated under a different diagnostic code such as Diagnostic Code 7825 for urticaria. In this regard, the Board notes that, as previously stated, 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. Under the new Diagnostic Code 7825 for rating cases of urticaria, a 10 percent rating is warranted where there are recurrent episodes of urticaria occurring at least four times during the past 12-month period, and; responding to treatment with antihistamines or sympathomimetics. A 30 percent evaluation is available where there is evidence of recurrent debilitating episodes occurring at least four times during the past 12-month period, and requiring intermittent systemic immunosuppressive therapy for control. A maximum 60 percent evaluation is available where there is evidence of recurrent debilitating episodes occurring at least four times during the past 12-month period despite continuous immunosuppressive therapy. 38 C.F.R. § 4.118, Diagnostic Code 7825 (2004). In this case, the Board finds that a higher evaluation under Diagnostic Code 7825 is not warranted. The Board notes that there is no evidence of record showing that the appellant's service-connected hypersensitivity to insect bites and iodine is productive of recurrent debilitating episodes occurring at least four times during the past 12-month period, and requiring intermittent systemic immunosuppressive therapy for control. Although there is evidence of record showing that the appellant has attempted immunotherapy for his hypersensitivity to insects and iodine, nevertheless, there is no evidence of record showing that he has undergone immunosuppressive therapy for control of his hypersensitivity to insects and iodine. Therefore, in light of the above, the Board concludes that there is no basis for a higher rating under Diagnostic Code 7825. Accordingly, in light of the above, the Board finds that a rating higher than 10 percent is not warranted at any point during the pendency of this claim for the appellant's service-connected hypersensitivity to insect bites and iodine. In reaching this decision, the Board has considered the appellant's contentions that he has had to move from a wooded area to an open area due to his hypersensitivity to insect bites, and that his hypersensitivity to insect bites severely limited the amount of time he could spend outside without putting himself in danger. However, the Board must apply the old and revised criteria for rating skin disabilities, and it is the Board's determination that these criteria have not been met. Thus, the Board concludes that the preponderance of the evidence is against the appellant's claim for an evaluation in excess of 10 percent. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply; therefore, the claim for a higher evaluation must be denied. Finally, an extraschedular rating could apply if the case presented an exceptional or unusual disability picture, with such factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular criteria. 38 C.F.R. § 3.321(b)(1) (2004). In this regard, the Board recognizes the appellant's contention that his service-connected hypersensitivity to insect bites and iodine has interfered with his ability to seek certain types of employment, such as a real estate agent and lawn maintenance. However, the evidence does not show that the appellant's hypersensitivity to insect bites and iodine has resulted in any hospitalizations, or that it has caused any marked interference with employment not already contemplated by the current rating criteria. In short, there has been no showing that the application of the regular schedular criteria is impractical. The Board finds, therefore, that the RO's decision not to refer the case to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of an extra-schedular rating was appropriate. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). ORDER An initial evaluation in excess of 10 percent for hypersensitivity to insect bites, and history of contact dermatitis secondary to iodine and iodine derivatives, is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2