Citation Nr: 1223920 Decision Date: 07/11/12 Archive Date: 07/18/12 DOCKET NO. 08-24 156 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a compensable rating for chronic allergic urticaria. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from September 1974 to September 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which continued the noncompensable evaluation assigned for chronic allergic urticaria. The Veteran presented testimony at a personal hearing before a Decision Review Officer (DRO) in October 2008. A transcript of the hearing is of record. FINDING OF FACT The Veteran has competently and credibly reported recurrent episodes of chronic allergic urticaria occurring at least four times during the past 12-month period and the medical evidence indicates that the condition responds to treatment with antihistamines. CONCLUSION OF LAW The criteria for a rating of 10 percent, and no higher, for chronic allergic urticaria have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7825 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Increased rating Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2011). Separate rating codes identify various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. See generally 38 C.F.R. §§ 4.1, 4.2 (2011). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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 (2011). When service connection has been in effect for many years, the primary concern for the Board is the current level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Yet, the relevant temporal focus for adjudicating an increased rating claim is on the evidence establishing the state of the disability from the time period one year before the claim was filed until a final decision is issued. Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, staged ratings may be assigned if the severity of the disability changes during the relevant rating period. Service connection for chronic allergic urticaria was originally granted pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7825, with a noncompensable rating effective October 1, 2004. See February 2005 rating decision. Diagnostic Code 7825 provides the rating criteria for 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 rating is warranted where there are recurrent debilitating episodes occurring at least four times during the past 12-month period, requiring intermittent systemic immunosuppressive therapy for control. A maximum 60 percent evaluation is warranted where there are recurrent debilitating episodes occurring at least four times during the past 12-month period despite continuous immunosuppressive therapy. 38 C.F.R. § 4.118. The Veteran contends that he is entitled to a compensable rating for chronic allergic urticaria because he has had recurrent episodes at least four times during the past 12 month period. See August 2008 VA Form 9. During his DRO hearing, the Veteran testified as to the medications he had been prescribed to control his condition and to prevent a "full blown episode" such as what occurred in July 2007 when he sought emergency room treatment at a private facility with follow up by VA. He reported that his medications wear off towards the end of the day and that his symptoms return, such that he has had recurring episodes of his chronic allergic urticaria. See October 2008 hearing transcript. The Board finds the Veteran's contentions to be both competent and credible. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran was admitted to the emergency room at Mississippi Baptist Health Systems (Baptist) on July 5, 2007 with chief complaint of allergic reaction. He reported that four to five days prior he started having swelling on both hands, for which he took Benadryl. The problem had resolved some by the next day, but on Wednesday of that week, the Veteran had some stressful news delivered to him and began having increased swelling and difficulty swallowing and talking because of swelling in his throat. Following physical examination, which revealed multiple two to three inch, indurated, erythematous areas along his bilateral buttocks, his lower back, and several similar areas on the back of his neck, the Veteran was assessed with allergic reaction to unknown substance. He was admitted for 23 hour observation and started on Solu-Medrol, Pepcid and Benadryl, which were all administered intravenously. The Veteran presented to the emergency department of the Jackson VAMC on July 8, 2007 with complaint of angioedema. He reported prior problems with swelling and redness of his hands and indicated that he had been admitted to Baptist. The Veteran indicated that he had noticed welts on his forearms that morning and redness of his palms, swelling of his jaw, and a closing up of his throat. See emergency department triage note. Multiple addendums followed this note. In one, it was noted that the Veteran was seen with complaint of swelling around the chin and jaw and also with a wheal on the lower arm. It was noted that he had had an urticarial outbreak a few days prior and was placed on Prednisone. He was also taking Benadryl on an as needed basis at home. Physical examination revealed an urticarial rash on the chin and about left mandible, as well as a two centimeter wheal on the left volar forearm. The impression was chronic urticaria. He was given Solu-Medrol, Pepcid and Benadryl intravenously in the emergency room and his response was assessed. It was noted that the Veteran needed to be on H2 and H1 blockers chronically, which was discussed with him and his wife, who was noted to be a nurse. It was also noted that the Veteran needed to be on a higher dose of Prednisone. In another addendum, authored following administration of the drugs that same day, it was noted that the Veteran was feeling better and that the wheals were visibly diminished in size. He was discharged on Prednisone taper, H1 and H2 blockers, and was to follow up with his primary care physician. No additional problems were noted on follow up visit in October 2007. See primary care nurse practitioner outpatient note. An August 2007 letter from Dr. S.F.K. at The University of Mississippi Medical Center noted, in pertinent part, that the Veteran had experienced some occasional reddening and tightening of his fingers for several years, but the clinical pattern changed in July 2007 when his hands became swollen. He later experienced transient swelling of his nose and angioedema of the lips, face and penis. When he observed a sensation of throat swelling and voice change, he went to Baptist. The urticaria later returned and he was seen at VA. The Veteran denied receiving any injections or antibiotics for the preceding six weeks and was unaware of any insect bites or stings or any unusual diet changes during the affected period. The cutaneous symptoms reportedly were the first he had experienced in several months and he provided photographs of the urticaria. Past and current medications were discussed. Dr. K. noted that the Veteran was asymptomatic but had a few resolving urticaria on his trunk. The Veteran underwent a VA skin diseases examination in November 2007. In pertinent part, he reported the admission to Baptist and being seen at the Jackson VAMC followed by resolution of his symptoms with the treatment prescribed over the next two weeks. He denied any additional treatment. Examination revealed that his skin was smooth and dry without signs of infection, excoriation or disfigurement. There was no inflammation, edema or keloid formation and no hyper or hypo pigmentation. The impression was normal skin exam. A November 2007 letter from Dr. K. reports, in pertinent part, that the Veteran was seen for follow up of chronic, likely idiopathic, urticaria. Evaluation from his August 2007 visit revealed the presence of IgE receptor antibody. The Veteran reported that his symptoms were controlled as long as he took Allegra and Zantac. When he has missed a dosage of either one, symptoms occur. Physical examination revealed no active urticaria, rash or subcutaneous nodules. Dr. K. recommended that the Veteran continue his present medications with no changes. The Veteran was seen for an allergy and immunology consult at the Jackson VAMC in November 2008. In pertinent part, he reported that he had been controlling his symptoms with as-needed use of Fexofenadine and Ranitide and that his symptoms since his last episode in July 2007 had been limited to hand swelling. When the hand swelling occurs, the Veteran reported taking the H1 and H2 blockers, which were noted to resolve the angioedema and prevent occurrence of the urticaria. On physical examination, the Veteran's skin was noted to have urticaria but otherwise no rashes, ulcers or nodules. The impression was chronic idiopathic urticaria and angioedema, controlled on current H1 and H2 antagonists on an as-needed basis; and history of airway compromise with angioedema. A November 2008 addendum to the VA consult by Dr. K., who was working in the capacity of an allergy consultant, indicates that he had seen and discussed the Veteran with the doctor who performed the consult and that he concurred with his recommendations since the Veteran had had no recurrence of severe symptoms and targeted use of antihistamines for intermittent hand swelling reportedly has been consistently efficacious. The Veteran underwent another VA examination in November 2009, at which time he reported that over the past two years since the 2007 exacerbation, he had had four to five episodes in which he noticed some swelling and itching to the tips of his fingers. This is the usually early onset of his symptoms and now he had been told to immediately start using Fexofenadine and Ranitidine. The Veteran indicated that he had done this and that over the next two to three hours, the symptoms of swelling and itching to the fingertips would subside. On the date of the examination, the Veteran was asymptomatic and there was no evidence of any body rash and no residuals from previous rashes. The Veteran indicated that between episodes, he is totally asymptomatic from any kind of skin disease. The examiner noted that the medications described were oral medications and antihistaminic in effect. The Veteran had not had to use any steroids since his emergency room visit in 2007. He had had one episode in August 2009 and had to treat it with the above-stated medications with resolution over the next two to three hours. He denied any side effects from the treatment. The impression was idiopathic urticaria with angioedema. The examiner noted that the episodes reviewed in the Veteran's claims folder, particularly the ones noted in the emergency room visits of 2007 and subsequent emergency room visits, as well as subsequent visits to Dr. K, the last one being in November 2008, are all a continuum of the service-connected urticaria. The examiner explained that idiopathic means that there was no known identifiable causative agent and that this is an ongoing process and has the potential of being life threatening. The Veteran has competently and credibly reported recurrent episodes of chronic allergic urticaria occurring at least four times during the past 12-month period, and the medical evidence indicates that the condition responds to treatment with antihistamines. More specifically, Dr. K. noted in November 2008 that targeted use of antihistamines for intermittent hand swelling reportedly has been consistently efficacious. Given the foregoing, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence of record supports the assignment of a 10 percent rating for chronic allergic urticaria under Diagnostic Code 7825. The evidence of record does not support the assignment of a rating in excess of 10 percent for chronic allergic urticaria as there is no evidence that the condition has required intermittent systemic immunosuppressive therapy for control. Rather, the Veteran denied receiving any injections or antibiotics in August 2007 and the November 2009 VA examiner noted that the medications prescribed to the Veteran, to include Fexofenadine and Ranitidine, were oral medications and antihistaminic in effect. The Board also notes that other medications administered and prescribed to the Veteran throughout the appellate period, to include Prednisone, Benadryl, Epi Pen, Solu-Medrol, Pepcid, Loratadine, and Atarax, are not noted to be immunosuppressive drugs. The Board acknowledges the colored photographs of the Veteran's condition, which allegedly were taken in July 2007. The diagnostic criteria pertaining to urticaria, however, do not take visible symptomatology into consideration. The Board also acknowledges the Veteran's representative's argument that the Veteran's urticaria is only a small part of the Veteran's disability; that he has anaphylactic reactions and that his attacks have increased in severity from simple rashes in service to throat swelling; that rating the Veteran strictly on rashes, and not on the rest of the problem, is obviously wrong; and that using either the schedules for lupus (as the most generic of immune disorder ratings) or sinusitis (for the inpatient, throat obstruction and steroids in lieu of antibiotics), the Veteran is entitled to at least a 10 percent rating. See April 2012 written brief presentation. The Board acknowledges that the assignment of a particular diagnostic code is dependent on the facts of a particular case, see Butts v. Brown, 5 Vet. App. 532, 538 (1993); see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991), and that one diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Lupus and sinusitis, however, are very specific and distinct disabilities from urticaria, and the Veteran has never been diagnosed with either. As such, the diagnostic criteria pertaining to lupus and sinusitis are not for application. The Board also acknowledges that the Veteran's service-connected chronic allergic urticaria did result in throat swelling in November 2007. However, this is the only documented occurrence and the Veteran has never contended that it occurred on any other occasion. As such, the representative's assertion that anaphylactic reactions result in the Veteran going into varying levels of anaphylactic shock is not supported by the record. The representative's assertion that the Veteran's attacks have increased in severity is also not supported by the record since the medical evidence, which includes the Veteran's lay statements, reveals that the Veteran's symptoms are well-controlled by the prescribed medication. Extraschedular consideration The rating schedule represents, as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2011). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms exhibited by the Veteran's chronic allergic urticaria, to include recurrent episodes that respond to treatment with antihistamines, are contemplated by the rating criteria (i.e., 38 C.F.R. §4.118, Diagnostic Code 7825), which reasonably describe the Veteran's disability. Therefore, referral for consideration of an extraschedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). Inferred claim for TDIU The Board has considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. The Board acknowledges that the Veteran is unemployed and has been since his discharge from service. The Veteran has never asserted, however, that he is unemployable. Given the foregoing, and in the absence of any evidence suggestive of unemployability due to any of the Veteran's service-connected disabilities, the Board finds Rice is inapplicable. See also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Duties to notify and assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DC's]," and that the range of disability applied may be between 0% and 100%" based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The RO provided the appellant pre-adjudication notice by a letter dated in October 2007, and additional notice by a May 2008 letter. The claim was readjudicated in a July 2008 statement of the case. Mayfield, 444 F.3d at 1333. VA has obtained service treatment records; assisted the appellant in obtaining evidence; afforded the appellant physical examinations; obtained medical opinions as to the severity of his disability; and afforded the appellant the opportunity to give testimony. All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. Moreover, the record shows that the appellant was represented by a Veteran's Service Organization throughout the adjudication of the claim. Overton v. Nicholson, 20 Vet. App. 427 (2006). VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. ORDER A 10 percent rating under Diagnostic Code 7825 for chronic allergic urticaria is granted, subject to the regulations governing the payment of monetary benefits. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs