Citation Nr: 1327898 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 05-03 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a compensable disability rating for recurrent urticaria for the period of time prior to December 7, 2012. 2. Entitlement to a disability rating in excess of 10 percent for recurrent urticaria. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to August 1988. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which in pertinent part continued a noncompensable rating for recurrent urticaria. A July 2013 rating decision granted an increased rating of 10 percent for the Veteran's service-connected skin disability effective December 7, 2012. The case was previously before the Board in January 2010 and October 2012, when it was remanded for examination of the Veteran and medical opinions. The requested development has been completed. This appeal was processed in part using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran's claim for an increased rating for his service-connected recurrent urticaria was received by VA on July 25, 2003. 2. Prior to December 7, 2012 the Veteran's service-connected recurrent urticaria was manifested by recurrent episodes occurring at least four times during the past 12-month period, responding to treatment with antihistamines or sympathomimetics. 3. At no period of time covered by this appeal has the service-connected recurrent urticaria been manifested by recurrent debilitating episodes requiring systemic immunosuppressive therapy for control. CONCLUSIONS OF LAW 1. The criteria for a 10 percent disability rating, and not in excess thereof, for recurrent urticaria for the period of time prior to December 7, 2012 have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.118, Diagnostic Codes 7806, 7825 (2013). 2. The criteria for a disability rating in excess of 10 percent for recurrent urticaria for have not been met for any period of time covered by this appeal. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.118, Diagnostic Codes 7806, 7825 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice with respect to his claim for an increased rating for his service-connected recurrent urticaria in a letter dated August 2003; this notification letter substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. Notice provided in a May 2011 letter substantially complied with the requirements of Dingess v. Nicholson, 19 Vet. App. at 490-91 (2006) with respect to the disability-rating and effective-date elements of the claim. The claim was subsequently readjudicated in May 2011 and July 2013. The Board finds that VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4)(i). In this regard, the Veteran's service treatment records and VA treatment records are associated with the claims folder. The Board recognizes a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4)(i) (2010); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was afforded VA examinations in September 2005, February 2010, and April 2013. 38 C.F.R. § 3.159(c) (4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, an examination for rating purposes should contain sufficient detail and reflect the whole recorded history of a Veteran's disability, reconciling the various reports into a consistent picture. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); 38 C.F.R. § 4.2. The Board finds that the VA examinations and opinions obtained in this case are more than adequate, as they are predicated on a full reading of VA treatment records in the Veteran's claims file. The examiners consider all of the pertinent evidence of record and provide a complete rationale for the opinions stated, relying on and citing to the records reviewed and a thorough examination was provided with regard to the Veteran's increased rating claims. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). Under the circumstances of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations and the record is ready for appellate review. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2010). 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. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1 , 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Consistent with the facts found, separate ratings can be assigned for separate periods of time, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); see also, Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a disability is encountered that is not listed in the rating schedule it is permissible to rate under a closely related disease or injury in which the functions affected, the anatomical location and the symptomatology are closely analogous to the condition actually suffered from. 38 C.F.R. § 4.20. "In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met." 38 C.F.R. § 4.31 (2002). The Veteran retired from serving over 20 years on active duty in August 1988. Service connection for recurrent urticaria (hives) was granted effective September 1988 and a noncompensable 0% disability rating was assigned at that point. Prior to July 2003, the disability rating schedule for skin disabilities did not provide a Diagnostic Code for the rating of urticaria. Accordingly, the Veteran's service-connected urticaria was rated by analogy under Diagnostic Code 7806 for eczema. The Veteran filed his claim for an increased disability rating in July 2003. There is no evidence dated in the year prior to this date showing an increase in severity in the Veteran's service-connected skin disability. In fact, with the exception of the Veteran's statements and the Compensation and Pension examinations conducted with respect to the claim there is no other evidence related to the claimed skin disability. Accordingly the current rating criteria are applicable to the Veteran's claim for an increased disability rating. Compare, 38 C.F.R. § 4.118, Diagnostic Code 7806 (2002) with 38 C.F.R. § 4.118, Diagnostic Codes 7806, 7825 (2003-13) The Veteran filed his claim for an increased rating for his service-connected recurrent urticaria in July 2003. In August 2003 a VA Compensation and Pension examination of the Veteran was conducted. The Veteran reported being diagnosed with urticaria during service, and that the condition occurred more often in the spring or early winter. He described the episodes as hives; itching; and swelling of the lips, throat, and hands, which he treated with Benadryl and calamine lotion. He reported that symptoms resolved in 4 to 6 hours and that he had not gone to the emergency room for treatment. Physical examination did not reveal any current skin lesions. The diagnosis was history of urticaria. In August 2004, another Compensation and Pension examination of the Veteran was conducted. He reported symptoms of swelling of the lips and welts to the arms, abdomen, back, and thighs. He reported having episodes twice a month and that they lasted about 6 hours. He again indicated that he treated his symptoms with Benadryl and that his last attack was the week before the examination. On physical examination there was no evidence of active skin disease. The diagnosis was recurrent urticaria and the examiner indicated that itching was the only functional limitation during a flare-up. In June 2010, another VA Compensation and Pension examination of the Veteran was conducted. Again he reported the same symptoms of rash that he treated with Benadryl orally or with over-the-counter medication to relieve itching. He reported symptoms resolved within two hours of application of medication. He reported applying lotion on the first sign of itching which might be 3 to 4 times a week. The Veteran indicated that his skin disease did not limit his daily living or occupational activities. On physical examination there was a single red raised papular lesion 1 centimeter in diameter below the left knee, which he scratched throughout the examination. In October 2012 the Board remanded the case in an attempt to have the Veteran examined while exhibiting active symptoms of his service-connected recurrent urticaria, and so that photographs could be taken of the condition while active. In December 2012 the most recent Compensation and Pension examination of the Veteran was conducted. The diagnosis was urticaria. The Veteran reported symptoms of rash to his face, lips, abdomen and legs. He reported weekly to monthly outbreaks which he treated with Benadryl and calamine lotion. He denied being incapacitated by the symptoms and that they did not impact his ability to work. Physical examination did not reveal the presence of any active skin disease. There was no evidence of scaring or disfigurement. Photographs were taken, but there were no active manifestations to document. An addendum to the December 2012 examination report was made in May 2013. This report stated that the Veteran was informed to contact the RO during a flare up so that an examination could be scheduled. The Veteran also indicated that he had been traveling for work during his most recent flare-up and that he took photos but "his phone went down and the photos were lost." The Veteran's VA treatment records have been obtained. They fail to show any treatment for his service-connected recurrent urticaria. He receives treatment for a variety of medical conditions, but his service-connected recurrent urticaria is not listed on his active medical problem list and there is no indication that he has ever sought treatment for, or had objective documentation of, any active manifestation of the disability since 2000. The evidence shows that he has presented at the VA emergency room for such ailments as a tooth ache, but never for his service-connected recurrent urticaria. The service-connected recurrent urticaria has been rated at a non compensable disability rating under Diagnostic Code 7806 since 1988. The current version of Diagnostic Code 7806 has been effective during the entire appeal period and is used to rate dermatitis or eczema. Ratings from 0 to 60 percent can be assigned under this Diagnostic Code base upon the surface area of the body covered or the need for medication, including systemic therapy such as corticosteroids or other immunosuppressive drugs. This Diagnostic Code also provides for rating of the skin disability for disfigurement of the head, face, or neck or scars under other Diagnostic Codes depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2013). Rating under this Diagnostic Code is not appropriate as there is no documentation of any of the criteria necessary. Despite the unsuccessful efforts to obtain an examination during active symptoms, all the physical findings on all examination reports of record fail to document any scaring or disfigurement, despite the Veteran incurring recurrent bouts of his urticaria. The Veteran's recurrent urticaria is properly rated under Diagnostic Code 7825 for urticaria: A 10 percent rating contemplates 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 contemplates recurrent debilitating episodes occurring at least four times during the past 12-month period, and; requiring intermittent systemic immunosuppressive therapy for control. Finally a 60 percent rating is warranted for 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. The evidence supports the assignment of a 10 percent disability rating for the period of time prior to December 7, 2012. Specifically, the evidence of record shows that the Veteran's service-connected skin disability was manifested by recurrent episodes occurring at least four times during the past 12-month period which responded to treatment with antihistamines or sympathomimetics. Accordingly a 10 percent disability rating for recurrent urticaria is granted effective July 25, 2003, the date of claim. The evidence is against the assignment of a disability rating in excess of 10 percent for the service-connected recurrent urticaria for any period of time covered by this appeal. Specifically, there is no evidence that the recurrent urticaria is manifested by recurrent debilitating episodes requiring systemic immunosuppressive therapy for control. The preponderance of the evidence is against the claim for a disability rating in excess of 10 percent rating for service-connected recurrent urticaria for any period of time covered by this appeal; there is no doubt to be resolved; and a rating in excess of 10 percent is not warranted. 38 U.S.C.A. § 5107(b), 38 C.F.R. Part 4, §4.118, Diagnostic Codes 7806, 7825. Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service- connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, 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. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). Here, the record reflects that the Veteran has not required frequent hospitalizations for his skin disability and that the manifestations of the disability are consistent with those contemplated by the rating criteria which have been applied in this case. The Veteran has not reported any symptoms outside of those contemplated by the rating schedule. No other factors have been reported that are outside the rating schedule. Hence, referral for consideration of an extraschedular rating is not warranted. In reaching these conclusions the Board has resolved reasonable doubt in the Veteran's favor, where applicable. 3 8 U.S.C.A. § 5107(b). Consideration of a total rating for compensation based on individual unemployability (TDIU) is an element of all claims for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16. Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2001) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this case there is no evidence that a service connected recurrent urticaria has caused unemployability. Rather, the Veteran's own accounts of the disability are that it does not interfere with the his ability to perform his usual employment. As there has been no allegation or evidence of unemployability attributable to the Veteran's service-connected recurrent urticaria, the Board finds that further consideration of entitlement to a TDIU is not required. (CONTINUED ON NEXT PAGE) ORDER A disability rating of 10 percent, but no greater, for recurrent urticaria is granted effective July 25, 2003. A disability rating in excess of 10 percent for recurrent urticaria is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs