Citation NR: 9629033 Decision Date: 10/15/96 Archive Date: 10/25/96 DOCKET NO. 95-12 721 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to restoration of a 10 percent evaluation for service-connected urticaria, currently rated at zero percent. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. L. Gann, Associate Counsel INTRODUCTION The veteran had active service from July 1963 to August 1967. This appeal arises before the Board of Veterans’ Appeals (Board) from a rating action of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that reduced the disability evaluation assigned for the veteran’s service-connected urticaria from 10 percent to zero percent. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO committed error when it reduced his rating for service-connected urticaria from 10 percent to zero percent. He contends that he suffers from chronic dermatologic symptoms over his lower back, consisting of scattered, itchy, small blister-like lesions that spread with scratching. He notes that he suffers from these manifestations on a daily basis, particularly after he sweats, becomes hot, or even takes a shower. Accordingly, he contends that his 10 percent rating for service-connected urticaria should be restored. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports the reduction from 10 percent to a noncompensable rating for service-connected urticaria, effective from April 1, 1995. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. In a January 1995 rating decision, the RO reduced the veteran’s evaluation for service-connected urticaria from 10 percent to zero percent, effective on April 1, 1995. 3. A March 1994 VA examination report found no manifestations associated with urticaria, and outpatient treatment records compiled from 1993 to 1995 note no treatment for, or findings associated with, urticaria. 4. The RO’s reduction of the disability rating from 10 percent to zero percent was based upon sufficient medical evidence demonstrating sustained material improvement in his urticaria under the ordinary conditions of life. CONCLUSION OF LAW The requirements for restoration of the veteran’s 10 percent evaluation for service-connected urticaria are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.105, Part 4, §§ 4.7, 4.31, Diagnostic Code 7118 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran has presented evidence to rebut the RO’s decision to reduce the evaluation assigned for his service-connected urticaria. Therefore, he has presented a well-grounded claim for restoration of a 10 percent rating for this disability within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). I also find that the evidence presented, including a March 1994 VA examination report, VA outpatient treatment reports, and the veteran’s own statements, are adequate for me to evaluate the issue on appeal. Therefore, all relevant facts have been properly developed, and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Service connection for urticaria was originally granted in a March 1987 rating decision. Urticaria was rated as one of a group of dermatologic disorders, to include tinea pedis and onychomycosis, for which the veteran was rated under Diagnostic Code 7899-7806. A zero percent rating was assigned for this group of disorders, effective from December 1, 1986. This rating was confirmed by the Board in a May 1990 decision. However, in an August 1992 rating decision, the RO determined that urticaria should be rated as a separate disability from tinea pedis and onychomycosis. The RO assigned a 10 percent rating for urticaria under Diagnostic Code 7811, effective from July 8, 1992. In September 1994, the RO proposed to reduce the veteran’s 10 percent rating to zero percent, in light of findings noted in a March 1994 VA examination report. This proposal was effectuated in a January 1995 rating action, and a zero percent rating for urticaria became effective on April 1, 1995. In reducing the veteran’s evaluation for his service- connected urticaria, the RO complied with the procedural requirements outlined at 38 C.F.R. § 3.105(e) (1995). As these reductions would ultimately result in the reduction of compensation payments being made to the veteran, the RO appropriately prepared a proposed rating reduction in September 1994 setting forth all material facts and reasons. The veteran was duly notified that same month, and given more than 60 days to present additional evidence to show that compensation payments should be continued, and not reduced. The veteran presented a written statement contesting the RO’s finding that his condition had improved, and submitted copies of VA outpatient treatment reports in support of his statement. Nevertheless, the RO concluded that a reduction from 10 percent to zero percent was warranted for the veteran’s urticaria, and effectuated the reduction in a January 1995 rating decision, effective from April 1, 1995. The veteran’s focus, however, is not upon the procedures undertaken by the RO, but the substantive reasoning underlying its decision to reduce the evaluation for his service-connected urticaria. He contends that the RO did not properly apply the procedures outlined at 38 C.F.R. § 3.344 (1995), which concern the stabilization of disability evaluations. I have initially determined that the provisions of 38 C.F.R. § 3.344 (1995), do not apply to the RO’s rating reduction in this case, even though the RO included this regulation in its February 1995 statement of the case. The 10 percent rating for urticaria that was reduced had been in effect from July 8, 1992, to April 1, 1995, which is less than five years. See 38 C.F.R. § 3.344(c). The United States Court of Veterans Appeals (Court) has indicated that a five-year time frame is merely a guideline, not a mandate. See Lehman v. Derwinski, 1 Vet.App. 339, 342 (1991). However, I also note that Section 3.344 does not apply to disabilities that have not become stabilized, and may improve. In this case, the RO assigned a 10 percent rating for urticaria based upon the results of a July 1992 VA examination report. In its August 1992 rating decision, the RO listed a future examination for January 1994. This VA examination was conducted in March 1994. This examination was arranged solely at the discretion of the RO, which indicates that the RO did not consider the veteran’s dermatologic disabilities to have stabilized when he was awarded a 10 percent rating for urticaria in the August 1992 rating decision. Cf. 38 C.F.R. § 3.327(b) (when periodic future examinations will not be requested). As the provisions of Section 3.344 are not for application in this case, reexaminations and other medical evidence showing sustained material improvement in the veteran’s service- connected disability will warrant a reduction in the applicable rating assigned to that disability. See 38 C.F.R. § 3.344(c). Service-connected disabilities are rated in accordance with a schedule of ratings which are based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1995). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1995). In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (1995). Urticaria is defined as “a vascular reaction, usually transient, involving the upper dermis, representing localized edema caused by dilatation and increased permeability of the capillaries, and marked by the development of wheals.” Dorland’s Illustrated Medical Dictionary 1796 (27th ed. 1988). Under the VA Schedule for Rating Disabilities, urticaria is evaluated analogous to the rating criteria for angioedema, which is “the same physiological response in the deep dermis or subcutaneous or submucosal tissues.” Id. A 10 percent disability picture is manifested by infrequent attacks of slight extent and duration. Where these attacks are more frequent, and of moderate extent and duration, a 20 percent rating shall be assigned. Severe attacks of frequent onset and long duration shall be assigned a 40 percent evaluation. 38 C.F.R. Part 4, Diagnostic Code 7118 (1995). The RO’s reduction in the veteran’s assigned rating from 10 percent to zero percent was based upon the findings noted in the March 1994 VA examination report. The veteran reported that he suffered from recurrent episodes of a skin disorder manifested by itching and formation of small “bumps” in various areas of his body. He also complained of occasional outbreaks of solitary, small, “blister-like” lesions on various parts of his body that became manifest spontaneously and required several weeks to heal. However, the VA examiner found no evidence of any lesions, and the skin was “completely clear.” He could only diagnose urticaria from the veteran’s subjective history. The veteran contends that this examination report should not have been the basis for the RO’s reduction in his disability evaluation for urticaria. He argues that this condition is chronic and frequent, but that it is not always present during examinations. He notes that heat, humidity, nerves, and any irritation or abrasion of the skin could trigger a flare-up, including showers. Therefore, he avers that the RO unjustly reduced his rating to zero percent for this condition, as “hardly a day goes by that I am not affected by it.” The veteran has submitted VA outpatient treatment records dated from 1993 to 1995 that he contends supports his claim that he suffers from recurrent skin problems. However, I note that none of these records refers to dermatologic manifestations associated with urticaria. Reports dated in October 1993, September 1994, and March 1995 note the veteran’s history of chronic onychomycosis and tinea pedis, white patchy areas associated with a mild “contact” eczema, and itchy pimples on the lower back and scalp diagnosed as folliculitis. “Folliculitis” is defined as “inflammation of a follicle or follicles; used ordinarily in reference to hair follicles.” Dorland’s Illustrated Medical Dictionary 647 (27th ed. 1988). Although the VA treatment records clearly show that the veteran has been treated on several occasions for manifestations of folliculitis, this condition is not, by definition, the same as “urticaria.” The veteran indicates that he has been prescribed Erythromycin by his VA treating physician to soothe the irritation and itching associated with his chronic urticaria. As he is able to use this medication on an “as needed” basis, he has not required repeated medical treatment for this condition. However, I note that Erythromycin is “an intermediate spectrum macrolide antibiotic . . . administered orally or topically” to combat infections. Id. at 580. Although the veteran indicates that this topical medication was prescribed by his VA physician to combat the effects of urticaria, my review of the VA outpatient treatment records shows that this drug was prescribed for use to control the mild folliculitis of the veteran’s scalp and lower back. These reports do not show that Erythromycin or “Erymax” was prescribed for any symptoms associated with urticaria. Both the veteran and his wife have provided statements contending that the veteran has suffered from chronic dermatologic problems that they associate with his service- connected urticaria. Although their statements are credible for the purposes of determining that the veteran has suffered from recurrent dermatologic symptomatology, these statements are neither credible nor probative with regard to the nature or etiology of the veteran’s current symptomatology. The record does not indicate that either the veteran or his wife are medical professionals, with the expertise to provide opinions or diagnoses of the veteran’s current skin problems, or the etiology and specific severity of each of the multiple dermatologic disorders noted in the record. Consequently, their lay statements may be accorded little probative value. See Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). The medical evidence does not show even infrequent attacks or slight symptoms associated with urticaria for several years. Thus, the veteran’s impairment from that disability does not even approximate the criteria for a 10 percent disability rating. Moreover, the absence of medical evidence showing findings associated with urticaria for more than two years indicates that this disorder has undergone sustained improvement. Accordingly, I conclude both that the procedural requirements for the rating reduction have been met, and that the evidence supports the assignment of a lower rating. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 3.105, Part 4, §§ 4.7, 4.31, Diagnostic Code 7118. ORDER Entitlement to restoration of the 10 percent disability rating for service-connected urticaria is denied. MARY GALLAGHER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1995), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -