Citation Nr: 0413961 Decision Date: 05/28/04 Archive Date: 06/02/04 DOCKET NO. 97-07 621 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to an increased rating for hiatal hernia with esophagitis, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for urticaria, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The veteran served on active duty from September 1963 to August 1966, and from November 1966 to November 1984. This matter is before the Board of Veterans' Appeals (Board) from a December 1996 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, which confirmed and continued the assigned 10 percent ratings for the veteran's service-connected hiatal hernia and urticaria. The RO subsequently increased the assigned rating for the urticaria to 30 percent by an April 2002 rating decision, effective December 4, 1996. The veteran provided testimony at a personal hearing conducted before personnel at the RO in October 1997, and at a videoconference hearing before the undersigned Veterans Law Judge in September 1999. Transcripts of both hearings are of record. This case was previously before the Board in January 2000 and September 2002, at which time it was remanded for additional development. As a preliminary matter, the Board finds that the RO has substantially complied with the remand directives. In fact, the veteran's representative acknowledged in an April 2004 statement the representative noted that it appeared the RO had made a concerted effort to comport with the Board's remand directives. Accordingly, a new remand is not required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. All notification and development necessary for an equitable disposition of the instant case has been completed. 2. The competent medical evidence tends to show that the veteran's service-connected hiatal hernia with esophagitis is manifest by recurrent epigastric distress with difficulty swallowing, pyrosis heartburn, and regurgitation accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. 3. The veteran's service-connected hiatal hernia with esophagitis is not manifest by vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 4. The veteran's service-connected urticaria is not manifest by eczema with ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or exceptionally repugnant. 5. The veteran's service-connected urticaria is not manifest by generalized involvement of the skin without systemic manifestations, and; constant or near-constant systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA (psoralen with long-wave ultraviolet-A light) or UVB (ultraviolet-B light) treatments, or electron beam therapy required during the past 12-month period. 6. The veteran's service-connected urticaria does not affect more than 40 percent of the entire body or more than 40 percent of exposed areas, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. 7. The veteran's service-connected urticaria is not manifest by evidence of recurrent debilitating episodes occurring at least four times during the past 12-month period despite continuous immunosuppressive therapy. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating for the veteran's service-connected hiatal hernia are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.114, Diagnostic Code 7346 (2003). 2. The criteria for a rating in excess of 30 percent for the veteran's service-connected urticaria are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.118 (Diagnostic Codes 7806 and 7817 (2002); 38 C.F.R. §§ 3.159, 4.1. 4.2, 4.10, 4.118 and Codes 7806 and 7817 (2003); 67 Fed. Reg. 49,590 (July 31, 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes at the outset that VA has a duty to assist a claimant in developing the facts pertinent to his or her claim, and to notify him or her of the evidence necessary to complete an application for benefits. Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), codified at 38 U.S.C.A. § 5100 et seq.; 38 C.F.R. § 3.159. The VCAA, which became law on November 9, 2000, redefined the obligations of VA with respect to the duty to assist and included an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This law also eliminated the concept of a well-grounded claim and superseded the decision of the United States Court of Appeals for Veterans Claims (Court) in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, 14 Vet. App. 174 (2000) (per curiam order), which had held that VA could not assist in the development of a claim that was not well grounded. First, VA has a duty to notify the appellant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103; 38 C.F.R. § 3.159(b). Information means non-evidentiary facts, such as the claimant's address and Social Security number or the name and address of a medical care provider who may have evidence pertinent to the claim. See 66 Fed. Reg. 45,620, 45,630 (August 29, 2001); 38 C.F.R. § 3.159(a)(5). Second, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In Quartuccio v. Principi, 16 Vet. App. 183 (2002), the Court emphasized that adequate notice requires a claimant to be informed of what he or she must show to prevail in a claim, what information and evidence he or she is responsible for, and what evidence VA must secure. More recently, in Pelegrini v. Principi, 17 Vet. App. 412 (2004), the Court held that a VCAA notice must be provided to a claimant before the " initial unfavorable [agency of original jurisdiction (AOJ)] decision on a service-connection claim." Here, the underlying December 1996 rating decision was clearly promulgated prior to the enactment of the VCAA. As such, VA believes that Pelegrini is incorrect as it applies to cases where the initial AOJ decision was made prior to the enactment of the VCAA and is pursuing further judicial review on this matter. However, assuming solely for the sake of argument and without conceding the correctness of Pelegrini, the Board finds that any defect with respect to the VCAA notice requirement in this case was harmless error for the reasons specified below. While the Court did not address whether, and, if so, how, the Secretary can properly cure a defect in the timing of the notice, it did leave open the possibility that a notice error of this kind may be non-prejudicial to a claimant. To find otherwise would require the Board to remand every case for the purpose of having the RO provide a pre-initial adjudication notice. The only way the RO could provide such a notice, however, would be to vacate all prior adjudications, as well as to nullify the notice of disagreement and substantive appeal that were filed by the appellant to perfect the appeal to the Board. This would be an absurd result, and as such it is not a reasonable construction of section 5103(a). There is no basis for concluding that harmful error occurs simply because a claimant receives VCAA notice after an initial adverse adjudication. Moreover, while strictly following the express holding in Pelegrini would require the entire rating process to be reinitiated when notice was not provided prior to the first agency adjudication, this could not have been the intention of the Court, otherwise it would not have taken "due account of the rule of prejudicial error" in reviewing the Board's decision. See 38 U.S.C. § 7261(b)(2); see also Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004) (There is no implicit exemption for the notice requirements contained in 38 U.S.C. § 5103(a) from the general statutory command set forth in section 7261(b)(2) that the Veterans Claims Court shall "take due account of the rule of prejudicial error.") All the VCAA requires is that the duty to notify is satisfied, and that claimants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). As will be discussed below, the VCAA provisions have been considered and complied with. There is no indication that there is additional evidence to obtain, there is no additional notice that should be provided, and there has been a complete review of all the evidence without prejudice to the appellant. As such, there is no indication that there is any prejudice to the appellant by the order of the events in this case. See Bernard, supra. Any error in the sequence of events is not shown to have any effect on the case or to cause injury to the claimant, to include the lack of a VA Form 646 or its equivalent by the local representative. Consequently, the Board concludes that any such error is harmless and does not prohibit consideration of this matter on the merits. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Miles v. Mississippi Queen, 753 F.2d 1349, 1352 (5th Cir. 1985). Here, the record reflects that the RO sent the veteran correspondence in March 2000, September 2002, April 2003, and August 2003 which, collectively, informed him that he had to show that his service-connected disabilities had become worse in order to establish entitlement to an increased evaluation, that he should identify any relevant evidence, that VA would request any such evidence he identified, that he should submit any such evidence in his possession, and apprised him of VA's efforts to develop his claim. As such, the content of this correspondence fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b); this correspondence apprised the veteran of what he must show to prevail in his claim, what information and evidence he was responsible for, and what evidence VA must secure. The RO also provided a summary of the schedular criteria for higher disability ratings by the January 1997 Statement of the Case (SOC), as well as the most recent Supplemental Statement of the Case (SSOC) in October 2003. Further, the October 2003 SSOC included the relevant VCAA regulatory provisions of 38 C.F.R. § 3.159. Therefore, the Board finds that the veteran was notified and aware of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, the Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error, and that there is no further duty to notify. Regarding VA's duty to assist a claimant in obtaining evidence necessary to substantiate the claim, it does not appear that the veteran has indicated the existence of any pertinent evidence that has not been obtained or requested by the RO. Moreover, he has been accorded multiple examinations in conjunction with this case, and has not indicated that either of the disabilities which are the subject of this appeal have increased in severity since the last examinations. In addition, both he and his representative have had the opportunity to present evidence and argument in support of this case, to include at the hearings conducted in October 1997 and September 1999. Thus, the duty to assist has been satisfied. Based on the foregoing, the Board finds that, in the circumstances of this case, any additional development or notification would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided); Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (when there is extensive factual development in a case, reflected both in the record on appeal and the Board's decision, which indicates no reasonable possibility that any further assistance would aid the appellant in substantiating his claim, this Court has concluded that the VCAA does not apply). Thus, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled, to include the revised regulatory provisions of 38 C.F.R. § 3.159. No additional assistance or notification to the appellant is required based on the facts of the instant case. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). With regard to the veteran's request for an increased schedular evaluation, the Board will only consider the factors as enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). I. Hiatal Hernia Background. Service connection was established for peptic esophagitis by a July 1985 rating decision. Thereafter, a June 1987 rating decision recognized the veteran's hiatal hernia as part of this service-connected disability. In September 1996, the veteran underwent a VA esophagus (digestive) examination, as well as a stomach (digestive) examination which evaluated the severity of his service- connected hiatal hernia. At the September 1996 esophagus examination, the veteran reported that he began having problems with severe heartburn accompanied at times by dysphagia in the 1970s. His current subjective complaints included heartburn, mild dyshpagia, and dyspepsia. On examination, his abdomen was found to be rounded, mildly obese. There was also tenderness noted in the epigastric region, as well as mild tenderness in the right upper quadrant. However, no rebound tenderness was found. Further, no slinting or guarding was noted. The liver was not enlarged, and the spleen was found to be palpable and of normal size. Bowel sounds were active. No bruits were noted. In addition, it was noted that his current weight was 225, with his maximum weight in the past year being 235. There was no anemia. Regarding disturbance of motility, it was noted that he had dysphagia, 1 to 2 times per month. There was no actual partial obstruction. Reflex disturbances occurred 1 to 2 times weekly. Moreover, it was noted that he experienced epigastric and anterior chest pain. Based on the foregoing, the examiner diagnosed hiatal hernia with gastroesophageal reflux (GERD). At the VA stomach examination, the examiner noted the report of the esophagus examination, and that the veteran complained of burning with mild pain in the epigastric region. Further, the examiner noted that the veteran was not anemic, that there was no periodic vomiting, and no recurrent hematemesis or melena. However, the veteran was found to have epigastric and right upper quadrant tenderness. Regarding the frequency of pain, it was noted that it lasted minutes only, 2 to 3, but that they occurred frequently and on a daily basis. Diagnosis was again hiatal hernia with GERD. The veteran also underwent an upper GI series and barium swallow in conjunction with these examinations. Upper GI series revealed no significant intra-abdominal pathology. The stomach was outlined showing normal mucosal pattern. Additionally, there was no evidence of ulcer or filling defects. The gastric emptying was within normal limits, the duodenal bulb showed no deformity, and the duodenal loop and visualized proximal small bowel appeared normal. There was no further evidence of ulcer or filing defects. Overall impression was negative upper GI series, with small hiatal hernia as previously described. The barium swallow revealed that the veteran had no difficulty in swallowing the barium mixture. Further, the visualized esophagus appeared intrinsically normal. However, there was a small sliding hiatal hernia. Nevertheless, no significant GERD was noted. Overall impression was normal esophagus; small hiatal hernia. At the October 1997 personal hearing, the veteran, in part, criticized the adequacy of the September 1996 examination. He also testified that his symptoms included shoulder and mid-back pain. Further, he testified that he always had problems with the esophagitis or reflux. For example, he described slight cases of belching which occurred about 2 to 4 times an hour. In addition, he testified that he took a VA prescribed equivalent of Tagemet for his symptoms. The veteran underwent a new VA examination of his esophagus and hiatal hernia in January 1998. At this examination, he reported that solid food felt like it got "stuck in my throat sometimes," but that the food "works it way down eventually." He also reported that this occurred about once every couple of weeks. Further, he complained of epigastric/substernal pain which occurred about once a week. He described the pain as burning, and rated it as a 7-8 of 10 on the pain scale. In addition, he complained of a back "pressure, similar to a muscle pull" which usually occurred after eating, which he rated as an 8-9 of 10 on the pain scale, and which occurred 2 to 3 times per week. He denied hematemesis or melena. However, he reported reflux of stomach acid into his throat a couple of times a week. Moreover, he denied vomiting, although he did complain of nausea a couple of times a month. No associated factors were noted. Also, he reported that he was currently treated with Tagamet with fair relief of his symptoms. On examination, the veteran was found to be well-developed and well-nourished, in no acute distress. Still, he reported that he had gained about 40 pounds over the past 18 months. No signs of anemia were present. His abdomen was found to be symmetrical and flat, without erythema, ecchymosis, striae, scars, or prominent vessels. No abnormal movements were noted. Normoactive bowel sounds were noted over all 4 quadrants. Further, no bruits were noted over the aorta, renal arteries, iliac arteries, or femoral arteries. No abnormalities were noted to percussion of the abdomen. Moreover, the abdomen was nontender, nondistended, and no masses were palpated. Also, no CVA tenderness was noted bilaterally; no hepatospelnomegaly was noted; and no guarding, rigidity, or rebound tenderness was noted. Murphy's sign and Obturator/Psoas tests were negative. McBurney's point was nontender to palpation. Moreover, it was noted that upper GI series showed evidence of hiatal hernia and gastroesophageal reflux. Diagnoses were GERD and hiatal hernia. At the September 1999 videoconference hearing, the veteran testified, in part, that his symptoms included heartburn and acid reflux. He described the acid reflux as a burning sensation in his chest area that went all the way up to his throat area. In addition, he reported that approximately 60 to 70 percent of the time he experienced these symptoms he also experienced pain in his back and shoulders. He testified that he experienced these problems in varying degrees of severity on a daily basis. The severity ranged from zero (nonproblematic) to an 8 or 9. Further, he testified that he experienced a feeling of something stuck in his throat, but that this was not as frequent as the acid. Regarding treatment, he indicated that he did not seek treatment on a regular basis, but that he was prescribed medications from the VA. He would also use over-the-counter medications such as Rolaids and Alka-Seltzer. Nevertheless, no surgeries were planned for his condition. The veteran subsequently underwent a VA arranged gastroenterology examination in November 2000, at which he reported having lots of heartburn and reflux symptoms with occasional difficulty swallowing for the last 12 to 13 years. He also reported that he had gained about 40 pounds of weight. Nevertheless, he denied hematemesis, no melanotic stool. He also denied H2 blocker therapy, except that he took antacids on a per needed basis. On review of systems, the veteran's constitutional system was positive for weight gain, while his genitourinary system was positive for frequent urination but no hematuria. Examination of the abdomen found it to be soft, non-tender. No masses or organomegaly was appreciated. Further, bowel sounds were active. Overall, he was found to be fairly developed and nourished, in no acute respiratory distress. His weight was noted as being 267 pounds. Impressions following examination of the veteran was grade 1 reflux esophagitis with small sliding hiatal hernia. Moreover, the examiner stated that the veteran definitely needed to be on a proton pump inhibitor live prevacid 30 mg p.o. q.d. The veteran was also advised to lose weight. On VA arranged dermatology examinations conducted in November 2000 and May 2003, it was noted that a review of systems was negative for nausea, vomiting, diarrhea, blurred vision/visual changes, or unexplained weight loss. The veteran underwent a new VA arranged gastroenterology examination in June 2003, at which it was noted that his claims file had been reviewed. He reported chronic heartburn and reflux symptoms for the past 12 years, with nocturnal episode of acid reflux. In addition, he reported that he had been noticing some difficulty swallowing for the last few years, and that it had been getting worse. He denied hematemesis, no melanotic stool. Further, he had no diarrhea and no constipation. He also denied weight loss or loss of appetite. On gastrointestinal examination, the veteran's abdomen was found to be soft and non-tender. No hernias were noted; no masses were present; there was no hepatomegaly, splenomegaly; and no ascites or collateral circulation. Bowel sounds were present. Further, it was noted that an upper endoscopy with biopsy revealed grade 2 to 3 reflux esophagitis with hiatal hernia and gastric erosion and ulcerations. Impression following examination of the veteran was chronic GERD with reflux esophagitis and hiatal hernia. The upper endoscopy report, itself, noted that the findings included Savary-Miller Grade II (confluent erosions) esophagitis with non-bleeding; small hiatus hernia; diffuse erythematous mucosa with no bleeding in the gastric antrum; and diffuse erythematous mucosa without active bleeding and with no stigmata of bleeding in the duodenal bulb. Overall impressions were Savary-Miller Grade II reflux esophagitis; hiatus hernia; erythematous gastropathy; and erythematous duodenpathy. Legal Criteria. The veteran's hiatal hernia is evaluated pursuant to the criteria found at 38 C.F.R. § 4.114, Diagnostic Code 7346. Under this Code, a 10 percent rating is warranted for hiatal hernia, which is manifested by two or more of the symptoms necessary for a 30 percent rating, though of less severity. A 30 percent evaluation requires persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (heartburn), and regurgitation accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A maximum 60 percent rating is assigned for hiatal hernia with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Analysis. In the instant case, the Board finds that the competent medical evidence tends to show that the veteran's service-connected hiatal hernia with esophagitis more nearly approximates the criteria for a schedular rating of 30 percent. In this, and in other cases, only independent medical evidence may be considered to support Board findings. The Board is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Here, the veteran has consistently reported, at his various VA medical examinations and hearings, that his service- connected hiatal hernia is manifest by difficulty swallowing, heartburn, reflux/regurgitation, as well as pain in the mid- back and shoulder area. Thus, he satisfies the specific criteria necessary for either a 10 or 30 percent rating under Diagnostic Code 7346. Consequently, the determination as to whether an increased rating is warranted depends upon whether these symptoms are productive of considerable impairment of health. The Board notes that the veteran has reported that while his symptoms occur on a daily basis, they are of varying degrees of severity, to include occasions when they are nonproblematic. He has also testified that he does not seek regular treatment for this disability, and that no surgeries were planned. Moreover, the medical examinations have consistently described the hiatal hernia, itself, as small. However, he has also testified that the severity of his symptoms can reach a level or 8 or 9. Also, he has been on medication for this disability during the course of this appeal. Further, his condition went from what was described as grade 1 reflux esophagitis in November 2000, to grade 2 to 3 reflux esophagitis with hiatal hernia on the most recent examination in June 2003. In addition, the upper endoscopy revealed evidence of gastric erosion and ulcerations. Based on the foregoing, the Board finds that the competent medical evidence tends to show that the severity of the veteran's hiatal hernia symptomatology more nearly approximates the criteria of considerable impairment of health. Taking into consideration the benefit of the doubt doctrine (38 C.F.R. §§ 3.102, 4.3, 4.7), the Board concludes that the veteran is entitled to a rating of 30 percent under Diagnostic Code 7346. The Board further finds that the veteran's hiatal hernia does not warrant a rating in excess of 30 percent under Diagnostic Code 7346. As the benefit of the doubt doctrine was necessary for the 30 percent rating, it would appear axiomatic that a higher rating is not warranted. Moreover, the competent medical evidence does not show that the veteran is entitled to the next higher, and maximum, rating of 60 percent. The VA medical examinations have consistently shown that the service-connected disability is not manifest by vomiting, anemia, hematemeis, melena, or material weight loss. In fact, the record reflects that the veteran's weight has actually increased during the course of this appeal. Additionally, the competent medical evidence does not support a finding that the hiatal hernia has resulted in severe impairment of health. For the reasons stated above, the Board finds that the veteran is entitled to an increased schedular rating of no more than 30 percent for his service-connected hiatal hernia with esophagitis. Urticaria Background. Service connection was established for urticaria by a December 1987 rating decision. The record reflects that the veteran has been examined and treated for his service-connected urticaria on multiple occasions during the course of this appeal. He has also submitted photographs which provide a visual record of his urticaria episodes. As part of this case, the veteran underwent a VA medical examination of his skin in September 1996 which evaluated the severity of his service-connected urticaria. He reported that during service he had an episode of urticaria, which he described as hives that were generalized, accompanied by swelling of the lower lip. These episodes would last 4 to 7 days, and he was treated with Benadryl and Cortisone injections. Further, he reported that he continued to experience episodes 2 to 3 times per year, with the last occurrence being in June 1996. He did not have an exacerbation at the time of the examination. However, he reported that when the urticaria was active, he had itching, severe, elevated lesions which were generalized, and extreme swelling of the lower lip. No objective findings were made at the time of this examination. Diagnosis was chronic urticaria per history; no objective findings noted at the time of this exam. Records dated in July 1997 note complaints of right ankle and right wrist swelling, with findings of chronic urticaria. At the October 1997 hearing, the veteran testified, in part, that he was currently taking the medication Claritin for his urticaria. However, he testified that the medication only decreased the duration of his symptoms, not the frequency thereof. Further, he testified that his episodes of urticaria could happen anywhere on his body. He also testified that he had missed time from work due to this disability, because he had to deal with the public. He indicated that he was a deputy of the county, and that his job involved working at large conventions, baseball games, and similar events. Records dated in December 1997 note complaints of allergies with redness of the left arm. Diagnosis was chronic urticaria. The veteran underwent a new VA medical examination for skin disease in January 1998, at which he reported that he was first treated for urticaria while on active duty, and that it had been ongoing but intermittent since the onset. He also reported that he had been hospitalized several times for this condition, and that he was currently using the medications Claritin-D and Hismanal. Further, he complained of painful, hot to the touch, pruritic, edematous, and erythematous welts. On examination, the veteran's skin was found to be warm, moist, and elastic. No evidence of skin disease or rash was present during this examination. Nevertheless, the veteran reported that the welts used to occur across his entire body, but now concentrated from his waist and below. He also reported that the rash would last from hours to days, and that he had missed time at work due to his condition. He denied ulceration or crusting, but reported that exfoliation sometimes occurred. No systemic or nervous manifestations were noted. Diagnosis was recurrent urticaria. Records dated in October 1998 noted treatment for chronic urticaria. At the September 1999 videoconference hearing, the veteran testified, in part, that he had been advised to keep a diary of his urticaria episodes and described the contents thereof. Specifically, he detailed the following episodes: January 1997, on the right foot which lasted for 4 hours with swelling; December 1997 at the mid-stomach area around the belt area, manifest by itching, with duration about 12 hours; January 1998, manifest by left foot swelling, itching lesions, painful, hot; February 1998 at the right wrist, described as itching lesion; March 1998, at the inner thigh area, with swelling, itching; November 1998 at the face area, with swelling around the eyes, cheeks, forehead, very ugly; March 1999 on the right foot; 2 episodes in May 1999, one of which was manifest by swelling and itching of the foot area; and June 1999 at the belt area, described as extensive lesion, itching, swelling, burning. He also testified that he had missed time from work due to these episodes, to include in May 1999. When asked, he acknowledged that the episodes occurred about every 2 months on average. Regarding medication, he testified that he was no longer taking Claritin, and that his current medication was Hydroxyzine. In describing the urticaria episodes, he testified that he usually noticed it first with itching and/or burning sensation, then a lesion would emerge with swelling. He testified that usually only one lesion would occur at a time. Additionally, he testified that it would look reddened, as if someone had struck his skin with a 4 inch belt or something like that. He further testified that he had regular appointments for his urticaria, which occurred about every 6 months. The veteran underwent a VA arranged dermatology examination in November 2000, at which the examiner indicated that the medical records had been reviewed. Among other things, it was noted that the veteran took Salicylate and Claritin, that the onset of the urticaria was in 1971, and that the veteran found that it got better and worse with remissions and exacerbations. Regarding his medications, it was noted that he had been on Claritin of several different types, and Benadryl-type medications. He reported that the medications did reduce the swelling of the skin when that occurred, but that they caused a drowsiness and a listless feeling. Also, he had a Medrol Dosepak that he could take for a severe eruption. With respect to his symptomatology, he reported that it included itching, pain, paresthesias and heat of the skin. It was noted that he brought in pictures that showed various episodes of past eruptions, including November 2000 where he had severe swelling of the lower lip; October 2000, where the right foot was swollen; May 1999 where he had swelling of the face; November 1998, where his entire face was swollen and January 1998 where his left foot was very swollen and edematous. Examination of the skin was generally unremarkable. However, some erythema was noted on the face and on the upper chest, but there was no specific evidence of urticaria. Nevertheless, it was stated that this was highly understandable regarding urticaria because it was a transient condition. Further, the examiner stated that when he scratched the veteran's right arm in an effort to elicit dermatographism, he saw a highly abnormal result with erythema developing indicative of dematographism, which was marked. No ulceration, exfoliation, or crusting was seen. In addition, the veteran had no knowledge of associated systemic or nervous manifestations. Diagnosis following examination of the veteran was urticaria. In a January 2001 addendum, the clinician who conducted the November 2000 examination noted that review of the records showed the veteran had outbreaks on the following dates; in June 1991, when he had swelling of the eyes and hives; in September 1991, when he was hospitalized for an allergic reaction with urticaria, swelling of the eyes, throat, knees, and feet; in November 1991, when he was hospitalized for urticaria for 4 days; in November 1992, when his lips swelled; episodes of urticarial outbreaks in February 1993, May 1993, March 1994; 3 episodes between July and September 1994; as well as additional episodes in June 1996, January 1998, April 1998, October 1998, November 1998, March 1999, May 1999, September 1999, May 2000, and November 2000. The clinician also noted that some of these outbreaks had included pictures. Moreover, the clinician opined that the ongoing involvement the veteran had with urticaria was a significant disability that could clearly limit his ability to conduct normal functions of daily life or work. Records dated in February 2001 noted no rash/lesions on examination of the skin. Records dated in November 2001 noted, in part, rash/lesions on examination of the skin. Records dated in March 2002 note that the veteran reported 2 episodes of hives in the last months. Examination of the skin showed rash/lesions. Records dated in September 2002 note that the veteran's chief complaints were trouble with joint pains and recurrent hives. Examination of the skin showed rash/lesions. Records dated in January 2003 note that the veteran had 2 attacks of urticaria since his last visit, but that his medications seemed to be helping. Records dated in May 2003 noted, in part, that the veteran complained of recurrent urticarial lesions, and that he currently had one at lower lip times 24 hours. Also in May 2003, the veteran underwent a new VA arranged dermatology examination conducted by the same examiner as in November 2000. At this examination, it was noted, in part, that the veteran had an area of erythema on the buccal mucosa of the lower lip. He reported that this was 3 times its current size, and was, therefore, very evident grossly. He also reported that 2 weeks earlier, the palmar surface of his right hand exhibited swelling, pain and itching, and then resolved spontaneously. Further, he reported that various allergy tests had been run over the years, but they had not come up with a specific allergen. It was noted that his current medication was Fexofenadine, which was a systemic drug and not a corticosteroid or immunosuppressive drug. It was also noted that he took Fexofenadine on a daily basis. No topical therapy was being used at that time. Moreover, the veteran reported approximately 20 episodes of his urticaria during the past 12 month period, and that these episodes were helped and made less severe by the treatment. Additionally, it was noted that he had been on another product previously that he was switched from, which was not as effective, and made him very drowsy. On examination, the inner aspect of the veteran's buccal mosa showed an erythematous and indurated area. It was noted that this involved 50 percent of the buccal mucosa of the lower lip area, which was less than 1 percent of the total body surface area. No other relevant, objective findings were made as part of this examination. Diagnosis was urticaria. Later in May 2003, the clinician who conducted the examination submitted a statement in which he reported, in essence, that the veteran still had symptoms of urticaria, and, therefore, the disability was still ongoing. Legal Criteria. The record reflects that the veteran's urticaria is evaluated as 30 percent disabling pursuant to the criteria found at 38 C.F.R. § 4.118, Diagnostic Code 7817. However, during the pendency of this appeal, the criteria for evaluating skin disabilities was changed effective August 30, 2002. Among other things, the criteria found at Diagnostic Code 7817 was amended, and Diagnostic Code 7825 was added for the purpose of evaluating urticaria. See 67 Fed. Reg. 49,590 (July 31, 2002). In order to ensure a full and fair adjudication of the veteran's claim, the Board will address whether he is entitled to a rating in excess of 30 percent under any of the potentially applicable Diagnostic Codes. Prior to August 30, 2002, Diagnostic Code 7817 provided that dermatitis exfoliativa was to be rated as for eczema under Diagnostic Code 7806. Prior to August 30, 2002, a 10 percent rating was warranted under Code 7806 for eczema with exfoliation, exudation or itching, if involving an exposed surface or extensive area. A 30 percent rating was warranted for eczema with exudation or itching constant, extensive lesions, or marked disfigurement. Eczema with ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or exceptionally repugnant warranted a 50 percent rating. Effective August 30, 2002, Diagnostic Code 7817 provides that a 30 percent rating is warranted for exfoliative dermatitis where there is any extent of involvement of the skin, and; systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA (psoralen with long- wave ultraviolet-A light) or UVB (ultraviolet-B light) treatments, or electron beam therapy required for a total duration of less than six weeks during the past 12- month period. Any extent of involvement of the skin, and; systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA (psoralen with long-wave ultraviolet-A light) or UVB (ultraviolet-B light) treatments, or electron beam therapy required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is warranted where there is generalized involvement of the skin without systemic manifestations, and; constant or near- constant systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA (psoralen with long-wave ultraviolet-A light) or UVB (ultraviolet-B light) treatments, or electron beam therapy required during the past 12-month period. The revised criteria of Diagnostic Code 7806, effective August 30, 2002, provides that a 10 percent rating is warranted for dermatitis or eczema that is 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 affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12- month period. A 30 percent rating is warranted 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. 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 warrants a 60 percent rating. Under the new Diagnostic Code 7825 for rating cases of urticaria, a 10 percent rating is warranted for recurrent episodes of urticaria occurring at least four times during the past 12-month period, responding to treatment with antihistamines or sympathomimetics, warrant a 10 percent rating. 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. Analysis. In the instant case, the Board finds that the veteran does not meet or nearly approximate the criteria for a rating in excess of 30 percent for his service-connected urticaria under any of the potentially applicable Diagnostic Codes. The Board acknowledges that the veteran has maintained at his various VA medical examinations, as well as at his hearings, that his urticaria is manifest by recurrent episodes of swelling lesions/hives on his skin which are painful, itching, and hot. In addition, he reported that these eruptions could occur on any part of his body. Moreover, the competent medical evidence shows that he has received outpatient treatment for this disability on multiple occasions, and that he has been prescribed medication therefor. Nevertheless, the competent medical evidence does not reflect that the veteran's service-connected urticaria is manifest by eczema with ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or exceptionally repugnant. Although the veteran reported at the January 1998 examination that exfoliations sometimes occurred, he has also testified that his episodes usually occur only on one part of his body at a time, and that they lasted a short period of time. As such, the exfoliation is not extensive. Further, the January 1998 examination also noted that he denied ulceration and crusting. Moreover, the November 2000 VA examination specifically stated that no ulceration, exfoliation, or crusting was seen. Both the January 1998 and November 2000 VA examinations found no evidence of systemic or nervous manifestations. Consequently, the veteran does not meet or nearly approximate the criteria for a rating in excess of 30 percent under the "old" version of Diagnostic Code 7806 (i.e., prior to August 30, 2002). Regarding the criteria in effect since August 30, 2002, the competent medical evidence reflects that the veteran's service-connected urticaria is not manifest by generalized involvement of the skin without systemic manifestations, and; constant or near-constant systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA (psoralen with long-wave ultraviolet-A light) or UVB (ultraviolet-B light) treatments, or electron beam therapy required during the past 12-month period. The Board acknowledges that he reported on the September 1996 examination that his treatment included Cortisone injections. However, none of the subsequent examinations indicate treatment with therapeutic doses of corticosteroids. Moreover, the most recent VA examination in May 2003 noted that his current medication was a systemic drug, and not a corticosteroid or immunosuppressive drug. This examination also noted that no topical therapy was used at that time. Accordingly, he does not meet or nearly approximate the criteria for a rating in excess of 30 percent under the current version of Diagnostic Code 7817. With respect to the current version of Diagnostic Code 7806, the Board has already noted that the veteran's urticaria is not treated by corticosteroids or other immunosuppressive drugs. Further, neither the medical evidence, nor the veteran's hearing testimony, nor the photographs on record, reflect that the urticaria affects more than 40 percent of his entire body or more than 40 percent of exposed areas. In fact, the May 2003 examination found that the erythematous and indurate area on his buccal mucosa covered less than 1 percent of the total body surface area. Thus, he is not entitled to a rating in excess of 30 percent under this Code. In regard to Diagnostic Code 7825, the Board finds that the competent medical evidence does not show that the veteran's service-connected urticaria is manifest by evidence of recurrent debilitating episodes occurring at least four times during the past 12-month period despite continuous immunosuppressive therapy. As already stated, the veteran's current treatment does not involve immunosuppressive therapy. Further, even though the veteran has indicated that he has lost time from work due to outbreaks of his urticaria, there is nothing in the competent medical evidence to support a finding that such incidents were of such severity as to constitute a debilitating episode. As such, he does not meet or nearly approximate the criteria for a rating in excess of 30 percent under Diagnostic Code 7825. For the reasons stated above, the Board finds that the veteran does not meet or nearly approximate the schedular criteria for a rating in excess of 30 percent for his urticaria under any of the potentially applicable Diagnostic Codes. Thus, the Board concludes that the preponderance of the evidence is against the claim, and it must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). III. Extraschedular Rating The Board notes that it does not appear the RO considered whether the veteran was entitled to an extraschedular rating under 38 C.F.R. § 3.321(b)(1), which provides that in exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be approved provided the case presents such an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. See Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). However, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Further, the Court has held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Here, the Board finds that the neither the veteran's hiatal hernia or urticaria warrants referral to the Director of VA's Compensation and Pension Service for consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). The Board acknowledges that he has reported that he has lost time from work due to his episodes of urticaria. Nevertheless, he remains employed, and the Board is of the opinion that his time lost from work is adequately compensated by the current schedular rating. In short, it does not rise to the level of "marked" interference with employment. Moreover, he has not indicated any impairment with work attributable to his hiatal hernia. Further, even though the record reflects that he has been examined and treated for both the hiatal hernia and urticaria on a variety of occasions, it does not appear that he has been hospitalized for either disability during the course of this appeal. Accordingly, neither of these disabilities presents such an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. ORDER Entitlement to an increased rating of 30 percent for hiatal hernia with esophagitis, is granted, subject to the law and regulations applicable to the payment of monetary benefits. Entitlement to an increased rating for urticaria, currently evaluated as 30 percent disabling, is denied. ____________________________________________ D. C. Spickler 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