Citation Nr: 0739077 Decision Date: 12/12/07 Archive Date: 12/19/07 DOCKET NO. 05-38 868A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to a disability evaluation greater than 10 percent for urticaria. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD D. Schechner, Associate Counsel INTRODUCTION The veteran had over twenty years of active service. He was discharged in August 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. FINDING OF FACT The veteran's urticaria is not shown to result in debilitating episodes and require intermittent systemic immunosuppressive therapy for control. CONCLUSION OF LAW The criteria for a rating greater than 10 percent for urticaria are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 4.118, Diagnostic Codes 7806, 7825 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski , 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Compensation for service-connected injury is limited to those claims which show present disability. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Since the veteran's initial rating for chronic urticaria in April 1999, skin disability rating criteria were amended, effective August 30, 2002. 67 Fed. Reg. 49,590-49,599 (July 31, 2002). As reflected in the April 2005 rating decision, from which this appeal arises, the veteran's urticaria has been evaluated under 38 C.F.R. § 4.118, Diagnostic Codes "7806- 7825". This hyphenated Code signifies the RO's application of a closely analogous Code due to the lack of a Code specific to the diagnosis at issue in the VA rating criteria at the time of the veteran's initial rating in April 1999. 38 C.F.R. § 4.27. VA is permitted to rate by analogy under such circumstances. 38 C.F.R. § 4.20. However, with the regulatory revision in 2002, the skin disability rating criteria now includes a Diagnostic Code specific to urticaria. See current Diagnostic Code 7825 (urticaria) in 38 C.F.R. § 4.118, which the RO has considered, as reflected in the Statement of the Case. The Board has also considered the more general Diagnostic Code 7806 (dermatitis or eczema) to determine whether a higher evaluation may be assigned here. Under Diagnostic Code 7825, a compensable rating will be assigned for urticaria if there are recurrent episodes occurring at least four times during the past 12-month period and takes into consideration the severity of the outbreak as well as the form of treatment for the condition. For a 10 percent rating, the urticaria must be responsive to treatment with antihistamines or sympathomimetics. For a 30 percent rating, the recurrent episodes must be debilitating, and the urticaria must require intermittent systemic immunosuppressive therapy for control. For a 60 percent rating, the recurrent episodes must again be debilitating, yet must also occur despite continuous immunosuppressive therapy. The veteran was evaluated by a VA examiner in November 2004. The evaluation was markedly positive for urticaria as a result of a scratch and wheel test, yet there was no active outbreak at that time. The physician diagnosed urticaria affecting the total body when present. The veteran's stated patient history indicated treatment of symptoms throughout the years with various kinds of antihistamines. At the time of the VA examination, the veteran was using Zyrtec, which he indicated was controlling the symptoms adequately despite occasional outbreaks of hives and total body itching. The veteran indicated that the occasional outbreaks, which occurred three to four times in the past year, did not cause any loss of work. This examination report is found to provide highly probative evidence against the claim, indicating the minimal nature of the disorder. VA clinical records from October 2003 to the present reflect his report of treatment for urticaria with "reasonable" or "satisfactory" control of his symptoms with daily use of Zyrtec. Examinations of the skin in August 2002, February 2004, September 2004, May 2005 and November 2005 showed no skin abnormalities. This is highly probative evidence against the claim, once again indicating the minimal nature of the disorder over time. The veteran stated in his Notice of Disagreement and VA Form 9 that itching and hives occur daily, controlled only by medication. He stated that when he does not take the Zyrtec, he experiences "very unpleasant" episodes of hives and itching. These statements were made in support of the veteran's claim for an increased rating to 30 percent. However, the regulatory requirement for a 30 percent rating for urticaria, as stated above, require that the recurrent episodes be debilitating and require systemic immunosuppressive therapy for control. See generally Camacho v. Nicholson, 21 Vet. App. 360, 363-34 (2007) (the use of the conjunctive "and" in a diagnostic code requires that all criteria be met to support the applicable rating). The regulation does not define "debilitating" specifically, however, there is sufficient evidence that the veteran's outbreaks do not rise to the level of "debilitating" (for reasons cited above). In addition to the medical evidence, the veteran's own statements and the fact that the episodes do not cause him to miss any work are noteworthy regarding the degree of severity. In addition, Zyrtec, an antihistamine, is adequately controlling the symptoms, with no use of systemic immunosuppressive therapy. The evidence supports a continued 10 percent evaluation but does not support an increase to 30 percent. The Board has also considered the requirements stated in Diagnostic Code 7806 (dermatitis or eczema) to allow for other possibilities in increasing the veteran's disability rating. However, a 30 percent rating under Diagnostic Code 7806 requires "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." As stated above, the veteran's outbreaks of itching and hives have been adequately controlled by antihistamines and not corticosteroids or other immunosuppressive drugs. This analysis also does not warrant an increased rating to 30 percent. The Board takes notice of the veteran's arguments regarding the connection of his skin condition to continuous exposure to jet fuel during service. The veteran's skin condition has already been granted as service-connected and it remains so, with the continued 10 percent disability rating. The origin of the veteran's chronic urticaria is well documented as service-connected, a fact which is not in dispute. With regard to the veteran's statements regarding the nature and extent of this disorder, the Board finds that his statements are outweighed by the post-service medical record which, overall, provides evidence against this claim. Finally, the Board finds no reason to refer the case to the Compensation and Pension Service for consideration of an extra-schedular evaluation under 38 C.F.R. § 3.321(b). That is, there is no evidence of exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, to suggest that the veteran is not adequately compensated by the regular rating schedule. VAOPGCPREC 6-96. Accordingly, the Board finds that the preponderance of the evidence is against entitlement to a rating greater than 10 percent for urticaria. 38 C.F.R. § 4.3. Duty to notify and assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, an October 2004 RO letter substantially complied with the VCAA notice requirements. The letter informed the veteran of what evidence was required to substantiate the claim and of the veteran's and VA's respective duties for obtaining evidence. The veteran was also asked to submit evidence and/or information in his possession to the AOJ. A post-adjudicatory RO letter in March 2006 first notified him of the criteria for establishing an effective date of award. As his claim for an increased rating is denied, and a uniform rating remains in effect, there is no potential for prejudice to the veteran regarding the timing aspects of this notice. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA treatment records from August 2000 through September 2006. The appellant was afforded a VA medical examination on November 3, 2004. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER An increased rating greater than 10 percent for chronic urticaria is denied. ____________________________________________ JOHN J. CROWLEY, Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs