Citation Nr: 1120929 Decision Date: 05/31/11 Archive Date: 06/06/11 DOCKET NO. 08-34 898 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Evaluation for urticaria, currently evaluated as noncompensably disabling. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The appellant served on active duty from September 1990 to May 1997 and from August 2004 to September 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. FINDING OF FACT Urticaria is manifested by episodes of rash with swelling and itching, occurring at least four times during the past 12 month period, treated with antihistamines and immunosuppressive therapy; the appellant has required immunosuppressive drug treatment for a total duration of 6 weeks or more-but not constantly-during the past 12-month period. Immunosuppressive therapy began in 2006 and continued as of VA examination dated January 2009. Constant or near constant immunotherapy is not shown. CONCLUSION OF LAW The criteria for a 10 percent evaluation for urticaria have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.118, Diagnostic Codes 7825 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126), imposes obligations on VA in terms of its duty to notify and assist claimants. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must inform the claimant of any information and evidence not of record that (1) is necessary to substantiate the claim as to all five elements of the service connection claim (including degree of disability and effective date of disability), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006)); (2) VA will seek to provide; and (3) the claimant is expected to provide. 38 U.S.C.A. § 5103(a); Quartuccio, supra. at 187; 38 C.F.R. § 3.159(b). Notice should be provided at the time that VA receives a completed or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) at 119 (2004). This timing requirement applies equally to the initial- disability-rating and effective-date elements of a service connection claim. Dingess/Hartman, supra. Notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the Court, in Dingess requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment and earning capacity, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). See Dingess v. Nicholson, supra. Here, the appellant's increased rating claim arises from his disagreement with the initial evaluation that was assigned to that disability following the grant of service connection. Courts have 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. As a result, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Moreover, the United States Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the appellant has not demonstrated any prejudicial or harmful error in VCAA notice. It is noted that VA supplemented notice in an October 2008 letter that advised the appellant of how VA determines the disability rating and provided him with the diagnostic criteria for urticaria (Diagnostic Code 7825). See Vasquez-Flores v. Peake, 22 Vet. App. 37, 46 (2008). Also, in July 2009, VA again advised the appellant of how VA determines the disability rating and provided him with the diagnostic criteria for urticaria and scars (Diagnostic Codes 7895 and 7800-7805). VA has also satisfied its duty to assist the appellant. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Pertinent treatment records have been associated with the claims folder, to include Social Security Administration (SSA) records. VA afforded the appellant an opportunity to appear for a hearing. He indicated on his VA Form 9 that he did not desire a hearing. Additionally, VA afforded the appellant VA examinations. The Board notes that the VA examinations of August 2008 and January 2009 are adequate as they reflects a pertinent medical history, review of the documented medical history, clinical findings, and diagnoses. The examinations describe the disability in sufficient detail so that the Board may make a fully informed decision. Therefore, the reports of examination are adequate. . D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see Green v. Derwinski, 1 Vet.App. 121 (1991) (medical opinion is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one"). The adequacy of VA examinations and the opinion has not been challenged by either the appellant or his representative. The Board finds that there is no indication that there is any additional relevant evidence to be obtained either by the VA or by the appellant, and there is no other specific evidence to advise him to obtain. See Quartuccio v. Principi, 16 Vet. App. 183 (2002) (holding that both the statute, 38 U.S.C. § 5103(a), and the regulation, 38 C.F.R. § 3.159, clearly require the Secretary to notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the Secretary). Accordingly, appellate review may proceed without prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). I. Legal Criteria: Claims for Increase Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The appellant's skin disorder is currently evaluated under Diagnostic Code 7825, which provides a 10 percent rating where there is evidence of recurrent episodes occurring at least four times during the past 12-month period, and; responding to treatment with antihistamines or sympathomimetics. A 30 percent rating is warranted where there 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 rating is warranted where there is evidence of recurrent debilitating episodes occurring at least four times during the past 12-month period despite continuous immunosuppressive therapy. 38 C.F.R. § 4.118, Diagnostic Code 7825. It is noted that, under Diagnostic Codes 7806, a 30 percent rating is warranted for skin disease (dermatitis or eczema) affecting 20 to 40 percent of the entire body or exposed areas, or that requires systemic therapy, such as corticosteroids or other immunosuppressive drugs, for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is warranted for dermatitis or eczema affecting more than 40 percent of the entire body or exposed areas, or that requires constant or near-constant systemic therapy, such as corticosteroids or other immunosuppressive drugs, during the past 12-month period. II. Factual Background A private treatment record dated August 2007 reflects that the appellant obtained immunotherapy through this office since October 2006. By history, the appellant develops urticaria whenever he performs duties that involve grass. Testing was performed in June 2006, showing mild to severe allergy to trees, grasses, weeds, dust mites, cockroaches, dogs, house dust and multiple molds. The diagnoses included eczema. The plan was to continue allergy shots. It was noted that this was usually a 3-4 year experience with injections given weekly. A November 2007 VA examination report reflects an impression for severe allergic reaction manifest by urticaria and itching dating to 2005, no current treatment, moderate disability with progression. VA treatment records dated 2008 reflect that the appellant began allergen immunotherapy injections in April 2008. Notes dated April, May, June, July, and August 2008 reflects that the appellant presented regularly for allergy injections. In July 2008, he complained of skin rash and wanted something for the itching. The assessment was allergic dermatitis. Treatment included triamcinolone and Benadryl. In September 2008, the appellant complained of mild itching at the injection site on the day of shot allergy shot in August 2008, and then the next day he had swelling with purple coloring-resolved in 10 days. The examiner reported that the appellant was no in distress. The impression was large local swelling at injection site of allergen immunotherapy (grass/tree allergen vaccine given on August 14, 2008). The plan was to hold allergen immunotherapy until new batch available and issue in lesser strength. Report of VA examination dated August 2008 reflects complaints of allergy problems since returning from Iraq. He reported that grass on his skin causes severe swelling in the arms. He reported having an EpiPen for use, but has not used it so far. He reported immunotherapy and has not had any side effects from the injections. Objectively, there was no evidence for allergic urticaria. Zero percent of body was affected at the time of the examination. Report of VA examination dated January 2009 reflects, by history, that the appellant had outbreaks of rashes after returning from Iraq in 2006. He was allergy tested, and he started shots every week. He reported that he breaks out with urticaria lesions one time per month that last for 2 hours, and the rash itches. It occurs with contact with grass. The last episode was in November 2008. He treats with Benadryl daily. Objectively, the skin was clear. There was no evidence of urticaria. There was no scarring or disfigurement present. The diagnosis was urticaria, with no rash seen this day, and no scarring or disfigurement. VA treatment records dated 2009 and 2010 show no complaints or treatment for skin problems. A July 2009 treatment note reflects that examination of the skin showed a dark dry flat lesion, 1.5 centimeters, of the right upper arm. The impression was allergic rhinitis. The plan included resuming allergen immunotherapy. The appellant was to be contacted when the allergen vaccine vile became available. A November 2009 note reflects that the appellant was to follow up with the allergy clinic regarding immunotherapy for severe allergic rhinitis. III. Analysis The appellant's skin disorder is manifested by episodes of rash with redness, swelling, and itching, occurring at least four times during the past 12 month period. Daily treatment includes antihistamines (Benadryl). The record further shows that the appellant has undergone immunosuppressive therapy between 2006 and 2008. It is noted that the appellant reported on VA examination in January 2009 that his skin symptoms occur once a month and last for about 2 hours. This happens with exposure to grass. Although the appellant reported that his last episode was in November 2008 on VA examination in January 2009, the Board finds that this is not remarkable since his allergy trigger is grass and, from November to January, grass is not as prominent in the environment or landscape given the season, fall and winter. Additionally, the appellant reported that he continues to receive weekly allergy shots-an immunosuppressive drug. The appellant is competent to report his rash symptoms and treatment regimen. Layno v. Brown, 6 Vet.App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet.App. 398, 405 (1995). The appellant is also credible with regard to his report of frequency and severity. This is because he has been a fairly consistent historian. The Board notes that there is no requirement that a claimant seeks treatment for every outbreak, and the absence of treatment for every outbreak of rash in the case of the appellant does not bear negatively on his statements. As such, the appellant's statements have significant weight. In weighing the evidence of record, the Board finds that the appellant's skin disorder is manifested by symptoms that meet the criteria for a 10 percent disability rating under Diagnostic Code 7825. However, his symptoms do not meet, or more closely resemble, the criteria for a rating greater than 10 percent under Diagnostic Code 7825. While the record shows recurrent episodes of urticaria, the lay and medical evidence of record show no debilitating episodes of urticaria or skin disorder. There is no indication that urticaria or a skin disorder has had the tendency to weaken or enfeeble the appellant. It is noted that SSA records do not include urticaria or a skin disorder as either a primary or secondary diagnosis for disability purposes. Also, treatment records including those pertaining to the appellant's mental health care visits show no complaints that urticaria or a skin disorder has had any debilitating impact on his health or medical well-being. Lastly, the appellant has reported that an episode only lasts for a couple hours, a relatively short duration, and involves rash with itching. Therefore, as debilitating episodes are not shown, the Board concludes that a rating greater than 10 percent under Diagnostic Code 7825 is not warranted. 38 C.F.R. § 4.119, Diagnostic Code 7825. Also, the Board has considered whether a separate rating may be assigned under Diagnostic Codes 7806-7813, which pertain to scars. However, scars due to urticaria or any skin disorder are not shown. The January 2009 VA examinations specifically indicated that there were no scars or disfigurement found. As the factual findings show no distinct period where the service- connected disability exhibits symptoms that would warrant different ratings, the Board finds that a staged rating is not warranted. See Fenderson supra. at 126. A uniform disability evaluation is for application here. Finally, the Board has considered whether an extraschedular rating is warranted. Such consideration requires a three- step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Id. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. Id. at 115-116. If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. Id. at 116. Here, the symptoms presented by the appellant's skin disorder are fully contemplated by the applicable rating criteria. While the appellant is unemployed, there is no indication that this is due to service connected skin disease, and the record shows no periods of hospitalization for his skin disorder. Thus, referral is not warranted. For the foregoing reasons, an initial rating of 10 percent is warranted for the appellant's urticaria. However, the preponderance of the evidence is against the assignment of an initial evaluation greater than 10 percent and, to that extent, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A 10 percent evaluation for urticaria is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs