Citation Nr: 0912939 Decision Date: 04/07/09 Archive Date: 04/15/09 DOCKET NO. 05-07 299 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial rating greater than 20 percent prior to September 22, 2005, and greater than 40 percent thereafter for urticaria. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from December 1993 to April 1998, January 1999 to March 2003, and additional Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which granted, in pertinent part, the Veteran's claim of service connection for urticaria and assigned a zero percent (non-compensable) rating effective March 18, 2003. This decision was issued to the Veteran and his service representative in April 2003. The Veteran disagreed with this decision in March 2004, seeking an initial compensable rating for urticaria. In June 2007, the Board remanded the Veteran's appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. In an August 2008 rating decision, the RO assigned a 20 percent rating effective March 18, 2003, and a 40 percent rating effective September 22, 2005, for urticaria. Because the initial ratings assigned to the Veteran's service- connected urticaria are not the maximum ratings available for this disability, this claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. Prior to September 22, 2005, the Veteran's urticaria was manifested by, at worst, attacks of angioneurotic edema without laryngeal involvement lasting 1 to 7 days and occurring 5 to 8 times a year, or attacks with laryngeal involvement of any duration occurring once or twice a year. 3. Effective September 22, 2005, the Veteran's urticaria has been manifested by, at worst, attacks of angioneurotic edema without laryngeal involvement lasting 1 to 7 days and occurring more than 8 times a year or attacks with laryngeal involvement of any duration occurring more than twice a year; there is evidence of recurrent debilitating episodes occurring at least 4 times during the past 12-month period despite continuous immunosuppressive therapy. CONCLUSIONS OF LAW 1. The criteria for an initial rating greater than 20 percent prior to September 22, 2005, for urticaria have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.104, 4.118, Diagnostic Codes (DC's) 7118, 7825 (2008). 2. The criteria for an initial 60 percent rating, and no higher, effective September 22, 2005, for urticaria have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.104, 4.118, DC's 7118, 7825 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. The higher initial rating claim for urticaria is a "downstream" element of the RO's award of service connection for urticaria in the currently appealed rating decision issued in March 2003. For such downstream issues, notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 is not required in cases where such notice was afforded for the originating issue of service connection. See VAOPGCPREC 8- 2003 (Dec. 22, 2003). For an increased compensation claim, section § 5103(a) requires, at a minimum, that the Secretary 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 and daily life. Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). To the extent that Dingess requires more extensive notice as to potential downstream issues such as disability rating and effective date, because the March 2003 rating decision was fully favorable to the Veteran on the issue of service connection for urticaria, because the Veteran's higher initial rating claim prior to September 22, 2005, for urticaria is being denied, and because the Veteran's higher initial rating claim effective September 22, 2005, for urticaria is being granted, the Board finds no prejudice to the Veteran in proceeding with the present decision and any defect with respect to that aspect of the notice requirement is rendered moot. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In Dingess, the United States Court of Appeals for Veterans Claims (Court) held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See Dingess, 19 Vet. App. at 490-91. The Board notes that the Court, in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) clarified VA's notice obligations in increased rating claims. The appeal for a higher initial rating for urticaria originates, however, from the grant of service connection for this disability. Consequently, Vazquez-Flores is inapplicable. Additional notice of the five elements of a service- connection claim was provided in June and November 2007 VCAA notice letters, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thus, the Board finds that VA met its duty to notify the Veteran of his rights and responsibilities under the VCAA. With respect to the timing of the notice, the Board points out that the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, because the Veteran's higher initial rating claim prior to September 22, 2005, for urticaria is being denied, and because the higher initial rating claim effective September 22, 2005, for urticaria is being granted, any question as to the appropriate disability rating or effective date is moot and there can be no failure to notify the Veteran. See Dingess, 19 Vet. App. at 473. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328; see also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the RO and the Board, although he declined to do so. It appears that all known and available records relevant to the issue here on appeal have been obtained and are associated with the Veteran's claims file; the Veteran does not contend otherwise. VA also has provided the Veteran with examinations to determine the current severity of his service-connected urticaria. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. The Veteran contends that his service-connected urticaria is more disabling than currently evaluated. In general, disability evaluations are assigned by applying a schedule of ratings that represent, as far as can be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria that must be met for specific ratings. The regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history. 38 C.F.R. § 4.2; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's service-connected urticaria currently is evaluated as 20 percent disabling effective March 18, 2003, and 40 percent disabling effective September 22, 2005, by analogy to 38 C.F.R. § 4.104, DC 7118 (angioneurotic edema). DC 7118 provides a 20 percent rating for attacks of angioneurotic edema without laryngeal involvement lasting 1 to 7 days and occurring 5 to 8 times a year or attacks with laryngeal involvement of any duration occurring once or twice a year. A maximum 40 percent rating is assigned for attacks of angioneurotic edema without laryngeal involvement lasting 1 to 7 days or longer and occurring more than 8 times a year or attacks with laryngeal involvement of any duration occurring more than twice a year. 38 C.F.R. § 4.104, DC 7118 (2008). Because the Veteran is in receipt of the maximum 40 percent rating under DC 7118 for his service-connected urticaria, effective September 22, 2005, the Board also most consider whether a higher initial rating is warranted under other potentially applicable DC's for this time period. In this regard, the Board notes that a 60 percent rating is available under DC 7825 for recurrent debilitating episodes of urticaria occurring at least 4 times during the past 12-month period despite continuous immunosuppressive therapy. 38 C.F.R. § 4.118, DC 7825 (2008). A review of the Veteran's service treatment records from his first period of active service indicates that he denied any history of skin diseases at his enlistment physical examination in February 1993. Clinical evaluation of the skin was normal. In February 1994, the Veteran complained of a rash which had lasted for 6-7 days "or unknown cause." Objective examination of the skin showed multiple raised hyperpigmented red wheals with asymmetric borders confined to the trunk and areas of confluence of the bilateral arms and possible dermatographism. The assessment was urticaria of unknown etiology. In April 1994, the Veteran complained of a rash all over his body for the previous 7 weeks. The Veteran stated, "It first started in boot camp and was seen by a doctor at boot camp." He reported that his rash itched severely and he had trouble breathing "at certain times." After being prescribed medication in boot camp, the Veteran reported that his rash had "cleared for about 1 week then symptoms reappeared." Objective examination of the skin showed red welts ranging from 1/4 inch in size to approximately 1 inch in size on his torso, back, neck, and arms. The rash was worse on his forearms, particularly his right forearm. The assessment was urticaria. Later that same month, it was noted that the Veteran's urticaria was resolving. In May 1994, the Veteran complained of an itching rash which had begun 24 hours earlier. His rash was intermittent and worsened at night. His history included urticaria since boot camp in February 1994. The assessment was urticaria. In June 1994, the Veteran complained of hives and leg swelling. His history included recurrent intermittent urticaria. Objective examination showed diffuse nodular urticaria on his arms. The assessment was urticaria. The Veteran denied any history of skin diseases on a "Report of Medical History" completed in October 1994. In August 1996, the Veteran complained of a rash which had begun 3-4 days earlier on his back with symptoms of welts and pruritis. His history included urticaria. Physical examination of the skin showed multiple wheals on the back and forearm with no excoriations, weeping, crusting, or linear streaking. The impression was urticaria. The Veteran also denied any history of skin diseases on a "Report of Medical History" completed in August 1996. In August 1997, the Veteran complained of a 72-hour history or urticaria and intense pruritis. He reported that he had a lifelong history of similar problems. Objective examination showed reddened raised macules, urticaria on the Veteran's chest, back, and both arms and legs. The assessment was urticaria Later in August 1997, the Veteran reported experiencing a recurrence of hives which resolved within 1-2 hours. He reported being unable to sleep secondary to hives. He denied any food allergies. Objective examination of the skin showed multiple generalized erythematous patches/hives. The assessment was chronic urticaria/angioedema, etiology unknown, probably idiopathic. The Veteran was treated on several occasions in September 1997 for urticaria. For example, on September 10, 1997, the Veteran complained of severe urticaria and itching. He stated that he woke up from sleeping with increased itching. It was noted that the Veteran's rash had been diagnosed as unknown etiology at this time. Objective examination showed urticaria clearly visible on the Veteran's entire body. The assessment was recurrent urticaria over a 2 week period. On September 11, 1997, the Veteran complained of multiple episodes of urticaria over the past 2 weeks. Treatment with steroids and other antihistamines had failed. The assessment was a single episode urticaria/angioedema which may have represented anaphylaxis with no obvious antigenic stimulus. On September 18, 1997, the in-service examiner stated that he would add a second antihistamine to the Veteran's current medication regimen for treating his urticaria. The Veteran reported experiencing intermittent skin rash since 1994 which he described as episodes of sudden onset swelling of the lips, pruritis, and "hives." In the past 2 weeks, the Veteran reported that he had experienced frequent episodes with symptoms that did not resolve. Objective examination showed 2 raised indurated erythematous papules on the right forearm and several scattered small patches (erythematous) to the left inner thigh but otherwise unremarkable skin. In December 1997, the Veteran complained of lesions on his body. His history included urticarial lesions for the past 4 months. He also reported a history of intermittent exacerbations of urticaria over the upper extremities and thorax. The etiology of his urticaria was unclear. His medications brought the urticaria under moderate control. Objective examination showed lesions raised erythematous lesions on his body. The assessment was urticarial exacerbation of unknown etiology. In January 1998, the Veteran complained of chronic urticaria and intermittent angioedema which was controlled "suboptimally" on medication. The Veteran reported that he had experienced chronic hives beginning in February 1994 with the appearance of big erythematous "blotches" all over his skin. Following treatment with antihistamines, his chronic hives improved and then resolved 3 months later. Following allergy testing in February 1998, the assessment was chronic urticaria/angioedema, probably idiopathic. The allergist noted that the Veteran's mildly positive reaction to aero allergies "seems to be an epiphenomenon rather than the cause of his urticaria." At his separation physical examination at the end of his first period of active service in April 1998, the Veteran's history included skin diseases. Clinical evaluation was normal. A review of the Veteran's service treatment records from his second period of active service indicates that, at his enlistment physical examination in July 1998, clinical evaluation of the skin was normal. On outpatient treatment on August 17, 2000, the Veteran complained of urticaria which had lasted for 2 days and waking up with increased pruritis. His history included stress-induced urticaria and multiple emergency department trips. His urticaria had flared up last 2 years earlier. The assessment was urticaria. On August 28, 2000, the Veteran complained of difficulty breathing for 1 weeks. His history included hives breaking out every 2 years over the entire body with redness, itching, and wheezing. Objective examination showed hives on the arms, legs, and trunk diffusely. The assessment was stress- induced urticaria. In September 2000, the Veteran complained of intermittent urticaria which had lasted for 3 weeks. He reported a history of stress-induced hives since 1994. Objective examination showed generalized hives which were itching. The assessment was hives. On periodic physical examination in August 2002, the Veteran's medical history included urticaria. Physical examination showed normal skin. The in-service examiner noted that the Veteran had idiopathic urticaria of unknown cause. A copy of the Veteran's separation physical examination at the end of his second period of active service was not available for review. The post-service medical evidence shows that, on VA examination in January 2003, no relevant complaints were noted. The VA examiner reviewed the Veteran's claims file, including his service treatment records. Physical examination showed a 2 centimeter x 8.5 centimeter pink scar on the left anterior shoulder. The diagnoses included recurring urticaria. On private outpatient treatment on September 8, 2003, the Veteran complained, " I break out." He reported having hives since 1993 which "come and go." His hives recurred in June 2003 but, prior to that, he had experienced "6 months free of hives and angioedema." No atopic disease had been discovered following 2 separate skin tests. The Veteran reported that his hives were followed by pruritic but not painful bruising. Physical examination of the skin showed diffuse urticaria. The diagnoses included chronic urticaria/angioedema of unknown cause. On September 11, 2003, it was noted that the Veteran "reacts to his own serum, i.e., autoimmune urticaria." The diagnoses included autoimmune urticaria, "reaction to his own serum." In October 2003, the Veteran complained of continued difficulty with urticaria and angioedema. He took Benadryl daily "at least six 60 mg tablets." His reaction to his own serum (autoimmune urticaria) was noted. Physical examination showed a large man covered with hives, scattered urticaria, and no angioedema. The diagnoses were urticaria/angioedema of 11 years' duration and autoimmune urticaria. In November 2003, the Veteran complained that his hives continued. "This bout of urticaria has lasted 6 months. He has had urticaria off and on since 1993. He goes through quiescent periods." He treated his urticaria with Benadryl, taking 200 mg 3 times a day. The physician asked the Veteran to taper his Benadryl and substitute Atarax 25 mg as needed. The diagnoses included chronic urticaria. In January 2004, it was noted that the Veteran's "hives and urticaria persist." Physical examination showed no frank angioedema or hives. The diagnoses included chronic urticaria. On VA examination in November 2004, the Veteran complained of worsening urticaria. He reported that he had been diagnosed as having urticaria during active service in 1994. He also reported that he had been diagnosed as having autoimmune urticaria in January 2004. At that time, the Veteran reported that he had developed pruritic hives on his upper torso, face, and experienced wheezing and shortness of breath. He was on Benadryl and an epinephrine pen "which he has used 8 times so far in one year for anaphylaxis reaction." Physical examination showed that the Veteran's skin was normal. The diagnosis was urticaria, autoimmune type. On VA examination in May 2005, the Veteran complained of only occasional attacks of urticaria. The VA examiner reviewed the Veteran's claims file, including his service treatment records. The Veteran reported that his urticaria "began around 1994" and was intermittent and non-progressive. The Veteran took Atarax 25 mg 2 times a day and Sudafed 1 tablet every night but reported no other treatments. He reported that he had been on these medications on a daily basis for the past 12 months. There was slight sedation from Atarax. The Veteran reported that, although he had no skin symptoms presently, "he develops urticaria on the upper chest and upper back, accompanied sometimes by swelling of the lips and the eyelids, especially if he is not taking the medications." He reported that his attacks only were occasional on medication. He reported that his last attack of urticaria had occurred 4 months earlier and "was mild over the anterior chest" and was not accompanied by angioedema. The Veteran reported no systemic symptoms. The VA examiner noted that the Veteran had been diagnosed as having autoimmune urticaria/angioedema. Physical examination showed no urticaria or angioedema. The diagnosis was urticaria/angioedema (intermittent). On VA outpatient treatment on September 22, 2005, no complaints were noted. The Veteran's history included chronic urticaria "which is autoimmune." Objective examination showed no edema, diffuse hives, and urticarial lesions over the arms and legs. The assessment included chronic urticaria, autoimmune. In October 2005, the Veteran complained of a urticaria outbreak which had occurred periodically for the previous 3 weeks. He reported having redness and swelling and his face and hives on his arms. He also stated that his urticaria was "all over his body." He denied any pain or difficulty breathing. Physical examination showed no edema, diffuse hives, and urticarial lesions over his arms and legs. The assessment included chronic urticaria, autoimmune. In November 2005, the Veteran complained of severe urticaria and angioedema. He reported having two emergency room visits since his last VA outpatient treatment. He also reported daily problems with his urticaria and angioedema despite taking high doses of antihistamines. "He is very uncomfortable with it and when it gets very severe in the upper body and neck region he comes in for an epinephrine injection to prevent anaphylaxis and respiratory arrest." The VA examiner opined that the Veteran's condition "has definitely gotten worse over the years" and noted that the Veteran's private allergist/immunologist agreed with this opinion. The Veteran's condition "does not interfere severely with his functional abilities." The Veteran reported that he continued to try and work as a customer service representative dealing with people on a daily basis although work could be problematic with his facial and lip swelling. "On bad days when he has diffuse hand and feet swelling, it hurts to use his hands and hurts to walk on his feet." Due to the Veteran's orthopedic injuries, he only can work in office jobs. "And now with his medical condition and disfigurement and discomfort, many days this is difficult as well." Objective examination showed numerous hives, approximately 20 on each arm, which were quarter sized, and also around his waist, anterior chest, shoulders, back, and thighs, and diffusely swollen hands and feet. The assessment included severe urticaria and angioedema. It was noted that the Veteran's private allergist/immunologist had instructed him "to increase his antihistamines to attempt to improve his hives and itching symptoms." In February 2006, the Veteran complained of severe urticaria and angioedema. He reported that he still was taking antihistamines "which only partially ameliorate the condition." Objective examination showed no edema. The assessment included chronic urticaria and angioedema. In an August 2007 statement, the Veteran described his service-connected urticaria as resulting in "serious episodes that include swelling of the eyes to the point of closure, swelling of the lips that causes difficulty with speech, and difficulty breathing. During these episodes, for safety reasons, I cannot work. Since the beginning of my civilian employment in 2003, I have missed 10-15 days a year due to severe outbreaks." On VA outpatient treatment in August 2007, the Veteran's complaints included severe urticaria and angioedema. He reported that he "continues to have severe exacerbations of urticaria and angioedema. This condition can progress to the point that he requires an epinephrine shot to stop the swelling of his lips and eyes. The swelling can be of sufficient severity that he cannot drive. The generalized urticaria and angioedema are not improving over time, are ongoing, and has been quite bad this summer." The Veteran reported needing more epinephrine shots "approximately up to 20 shots" which had interfered with his work and caused him to miss more work days over the summer. Objective examination showed no edema. The assessment included chronic, ongoing, progressive, not improving urticaria and angioedema which continued to require chronic antihistamines. In January 2008, the Veteran's complaints included severe urticaria and angioedema. "His urticaria is basically unchanged, as long as he takes the antihistamines he does better." Objective examination showed no edema. The assessment included urticaria/angioedema. On VA examination in May 2008, the Veteran complained of continuing urticaria. The VA examiner noted that the etiology of the Veteran's urticaria "has been more well delineated after extensive immunological testing." The VA examiner reviewed the Veteran's claims file, including his service treatment records. The Veteran had been diagnosed with auto-immune urticaria "which cannot be cured or desensitized but rather must be 'managed' as best possible, with continuous antihistamine therapy, as well as episodic additional antihistamines and sympathomimetics (epi-pen injection) for severe outbreaks." The Veteran reported, and the records showed, that he had urticarial and angioedema outbreaks "on a continual basis" with "some days worse than others." He took medication several times a day and received 9 epi-pen (epinephrine) injections a month although the Veteran reported that he reserved these injections "for those episodes which involve significant swelling around the eyes and lips, tightness in the chest, and extensive hives about the upper body and neck." The Veteran reported 4 severe episodes in the previous 2 months, with the most recent severe episode 3 weeks earlier. If a severe attack occurred at work, the Veteran reported that he has to go home because "his eyes are swollen to the point of hindering vision and the mouth/lips are extensively swollen." At this examination, the Veteran reported losing consistently 1-2 days of work per month in the previous 12 months due to urticaria for a total of 15 lost work days in the previous year. When the Veteran had a lesser attack, he reported that he experienced evanescent hives and less severe swelling. His records showed that he had tried using immunosuppressive therapy (systemic steroids) but it was not beneficial. Physical examination showed the Veteran's urticaria was "very quiet" with a 3 centimeter square area of erythema, edematous skin behind each knee, and a feeling of puffiness in an area under each eye which was erythematous but not overtly angioedematous. The VA examiner noted, however, that "this condition is evanescent, and the status of the skin today is not indicative of the severity of the 'attacks' which occur on a frequent basis." In summary, the VA examiner found in May 2008 that the Veteran's urticarial condition waxes and wanes, is not at all currently in remission, requires continuous and intermittent antihistamines and sympathomimetics for both acute and chronic attenuation of symptoms and attacks, and is characterized by debilitating attacks 1- 2 times per month, and non-debilitating, lesser attacks on an every other day to every day frequency. The Veteran's additional antihistamines and epi-pen injections successfully ameliorated the acute attacks "in a matter of minutes to hours" but had adverse side effects. The Board finds that the preponderance of the evidence is against the Veteran's claim for an initial rating greater than 20 percent prior to September 22, 2005, for urticaria. Prior to that date, the Veteran's urticaria was manifested by, at worst, attacks of angioneurotic edema without laryngeal involvement lasting 1 to 7 days and occurring 5 to 8 times a year, or attacks with laryngeal involvement of any duration occurring once or twice a year. 38 C.F.R. § 4.104, DC 7118 (2008). Although the Veteran's skin was normal at his enlistment physical examination in February 1993 at the beginning of his first period of active service, he was treated frequently for urticaria/angioedema during his first period of active service beginning in February 1994. At that time, the Veteran reported that he had experienced urticaria for 6-7 days. In April 1994, he reported experiencing a rash for 7 weeks. In August 1996 and August 1997, he experienced urticaria for 3-4 days each time. His urticaria recurred in September 1997 when he reported that it had lasted for 2 weeks. He experienced an exacerbation of urticaria in December 1997, when he reported experiencing urticarial lesions for 4 months, and was diagnosed with chronic urticaria/angioedema in January 1998. His skin was normal at his separation physical examination in April 1998 at the end of his first period of active service and at his July 1998 enlistment physical examination for his second period of active service. During his second period of active service, the Veteran was treated for urticaria in August 2000. A periodic physical examination in August 2002 showed that his skin was normal but noted that he had idiopathic urticaria of unknown cause. In September 2003, physical examination showed diffuse urticaria and the diagnosis was autoimmune urticaria. Physical examination in October 2003 showed that the Veteran was covered in hives and scattered urticaria. In January 2004, there was no frank angioedema or hives. VA examination in November 2004 showed normal skin. On VA examination in May 2005, the Veteran complained of only occasional attack of urticaria and physical examination showed no urticaria or angioedema. The diagnosis was intermittent urticaria/angioedema. Absent evidence of attacks of angioedema (or angioneurotic edema) without laryngeal involvement lasting 1 to 7 days and occurring more than 8 times a year or attacks with laryngeal involvement of any duration occurring more than twice a year (i.e., a 40 percent rating), the Board finds that an initial rating greater than 20 percent prior to September 22, 2005, for urticaria is not warranted. Id. The Board also finds that the Veteran is entitled to an initial 60 percent rating effective September 22, 2005, for urticaria. As noted above, because the Veteran is in receipt of the maximum 40 percent rating under DC 7118 for urticaria effective September 22, 2005, he is entitled to consideration of other potentially applicable diagnostic codes for evaluating service-connected urticaria during this time period. See 38 C.F.R. § 4.118, DC 7825 (2008). On VA outpatient treatment on September 22, 2005, physical examination showed no edema, diffuse hives, and urticarial lesions over the arms and legs. The assessment included chronic urticaria, autoimmune. In October 2005, the Veteran complained of a urticaria outbreak which had occurred periodically for the past 3 weeks. Physical examination showed no edema, diffuse hives, and urticarial lesions over his arms and legs. The assessment was unchanged. In November 2005, the VA examiner opined that the Veteran's urticaria "has definitely gotten worse over the years." The Veteran reported that it was difficult to use his hands and feet due to swelling on "bad days." Objective examination showed numerous hives, approximately 20 on each arm, which were quarter sized, and also around his waist, anterior chest, shoulders, back, and thighs, and diffusely swollen hands and feet. The assessment included severe urticaria and angioedema. In February 2006, the Veteran reported that he still was taking antihistamines "which only partially ameliorate" his urticaria and objective examination showed no edema. In August 2007, the Veteran reported that he experienced continued "severe exacerbations of urticaria and angioedema." The Veteran reported needing "approximately up to 20 shots" of epinephrine (an immunosuppressive medication) which had interfered with his work and caused him to miss more work days over the summer. Objective examination showed no edema. The assessment included chronic, ongoing, progressive, not improving urticaria and angioedema which continued to require chronic antihistamines. In January 2008, the Veteran's urticaria was unchanged although the VA examiner noted that, when the Veteran took his antihistamines, his urticaria was better. Finally, the VA examiner noted in May 2008 that the Veteran experienced continuous outbreaks of urticaria and the Veteran himself reported 4 severe episodes in the previous 2 months, with the most recent severe episode 3 weeks prior to the examination. This examiner stated that the Veteran's urticaria "requires continuous and intermittent antihistamines and sympathomimetics for both acute and chronic attenuation of symptoms and attacks, and is characterized by debilitating attacks 1-2 times per month, and non-debilitating, lesser attacks on an every other day to every day frequency." Given the medical evidence of recurrent debilitating attacks of urticaria and the need for continuous immunosuppressive therapy since September 22, 2005, the Board finds that the criteria have been met for an initial 60 percent rating, the maximum schedular rating, effective September 22, 2005, for urticaria. See 38 C.F.R. § 4.118, DC 7825 (2008). The evidence of record from the day the Veteran filed this claim to the present also supports the conclusion that he is not entitled to additional increased compensation for his service-connected urticaria at any other time within the appeal period. The potential application of various provisions of Title 38 of the Code of Federal Regulations have been considered whether or not they were raised by the Veteran as required by Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991), including the provisions of 38 C.F.R. § 3.321(b)(1). The Veteran has been employed full-time throughout the pendency of this appeal. In November 2005, the VA examiner stated that the Veteran's urticaria "does not interfere severely with his functional abilities." The Veteran reported that he continued to work as a customer service representative dealing with people on a daily basis although it could be problematic with his facial and lip swelling. "On bad days when he has diffuse hand and feet swelling, it hurts to use his hands and hurts to walk on his feet." The VA examiner also noted that, due to the Veteran's orthopedic injuries, he only could work in office jobs. "And now with his medical condition and disfigurement and discomfort, many days this is difficult as well." The Veteran reported in August 2007 that, since 2003, he had missed at most 10-15 days a year due to severe outbreaks of urticaria. Finally, in May 2008, the Veteran reported losing consistently 1-2 days of work per month in the past 12 months due to urticaria for a total of 15 lost work days in the last year. Thus, the evidence of record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1) (2008). In this regard, the Board finds that there has been no showing by the Veteran that his urticaria has resulted in marked interference with his employment or necessitated frequent periods of hospitalization beyond that contemplated by the rating schedule. And the 60 percent rating assigned to the Veteran's urticaria effective September 22, 2005, contemplates severe disability. In the absence of such factors, the Board finds that the criteria for submission for assignment of an extraschedular rating for either period of time in question pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial rating greater than 20 percent prior to September 22, 2005, for urticaria is denied. Entitlement to an initial 60 percent rating, and no higher, effective September 22, 2005, for urticaria, is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs