Citation Nr: 1747148 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 16-28 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an evaluation in excess of 30 percent for urticaria (claimed as skin condition and body rash) prior to March 25, 2014. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Bonnie Yoon, Counsel INTRODUCTION The Veteran served on active duty from April 1962 to November 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A November 2014 rating decision granted the Veteran a 60 percent evaluation for urticaria, effective March 25, 2014. In the July 2016 statement of the case, the RO indicated that the only portion of the appeal remaining was that prior to March 25, 2014, as the November 2014 rating decision had granted the maximum schedular rating under the applicable criteria. In his August 2016 VA Form 9, the Veteran also acknowledged the 60 percent award and indicated that he felt he was entitled to a 60 percent rating for his disability during the period when he was only receiving a 30 percent rating. Therefore, the period prior to March 25, 2014 is the period remaining on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The issue on appeal was previously before the Board in May 2017, when it was remanded for additional development. It has now been returned to the Board for further appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT Prior to March 25, 2014, the Veteran's urticaria affected more than 40 percent of the entire body or more than 40 percent of exposed areas. CONCLUSION OF LAW Prior to March 25, 2014, the criteria for an evaluation of 60 percent for urticaria (claimed as skin condition and body rash) have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7806-7825 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA has also complied with the Board's May 2017 remand orders. In response to the Board's remand, the Veteran was contacted in a May 2017 letter and asked to identify all private providers that have treated his service-connected urticaria and to execute necessary release forms allowing VA to obtain additional records, including from Dr. M.M. of Medical Associates of Brevard. No response to this request was received. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). VA treatment records from July 2013 to present were also associated with the claims file. The claim was also readjudicated in an August 2017 supplemental statement of the case (SSOC). Accordingly, the Board finds that VA has substantially complied with directives of the May 2017 remand, and appellate review may proceed without prejudice to the Veteran with respect to his claim. See Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Criteria and Analysis In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings contained in the Rating Schedule represent the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The Veteran is seeking an evaluation in excess of 30 percent for his service-connected urticaria (claimed as skin condition and body rash) prior to March 25, 2014. Prior to March 25, 2014, the 30 percent disability rating has been assigned pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7806 and Diagnostic Code 7806-7825. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The hyphenated diagnostic code in this case indicates that dermatitis or eczema under Diagnostic Code 7806 is the service-connected disorder and urticaria, under Diagnostic Code 7825, is a residual condition. Under Diagnostic Code 7806 (dermatitis or eczema), a 30 percent disability rating is assigned 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. A maximum 60 percent disability rating is assigned for 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. 38 C.F.R. § 4.118, Diagnostic Code 7806. Under Diagnostic Code 7825 (urticaria), a 30 percent rating is warranted for 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 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. At the outset, the Board notes that in Johnson v. Shulkin, the United States Court of Appeals for the Federal Circuit (Federal Circuit) determined that "constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs" under Diagnostic Code 7806 is not inclusive of topical corticosteroids. 862 F.3d 1351 (Fed. Cir. 2017). The Federal Circuit explained that Diagnostic Code 7806 "draws a clear distinction between 'systemic therapy' and 'topical therapy' as the operative terms of the diagnostic code." The Federal Circuit further explained that "systemic therapy means 'treatment pertaining to or affecting the body as a whole,' whereas topical therapy means 'treatment pertaining to a particular surface area, as a topical antiinfective applied to a certain area of the skin and affecting only the area to which it is applied." Although a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy. Id. at 1355. Turning to the evidence of record, November 2011 VA treatment records note that the Veteran had a rash on his anterior shins which was pruritic for many months. He took Triamcinolone cream and Atarax for itching. Private treatment records from Medical Associates of Brevard from March 2012 note the Veteran's issues with itching primarily on his lower extremities. It had bothered him to the point that he took a short course of Prednisone. He used Hydrocodone once a day, Advair HFA, and Xolair. He was also using topical steroid creams. The Veteran had some excoriations and urticarial-type lesions primarily on the lower extremities. There were some scattered patches of rash and dermatitis on the lower extremities as well. It was noted that the Veteran continued to have pruritic dermatitis. In April 2012 and May 2012, the Veteran continued to report itching and urticaria. Xolair was discontinued. In July 2012, it was noted that the Veteran was on Singulair. VA treatment records from May 2012 note the Veteran having reported itching to his thighs, buttocks, lower back, and arms. He was prescribed capsaicin cream and hydrophilic cream for treatment. In July 2012, it was noted that the Veteran had persistent pruritic eruption which was nonresponsive to repeated (2 times) Prednisone therapy. He was prescribed Prograf by his dermatologist. He was taking Pramasone ointment, Hydrocortisone ointment, and Atarax. In September 2012 and October 2012, the Veteran reported that his itching was getting better, and that he used Periactin, and Lac-Hydrin lotion, and Lidex ointment. The plan was for the Veteran to use clobetasol and Lac-Hydrin lotion. In November 2012, the Veteran reported a rash on his buttocks, legs, arm and back which had increased in severity and that his medications (Hydrophilic cream, Triamcinolone cream, and Ammonium Lactate lotion) were not working. In a December 2012 statement, the Veteran stated that his urticaria had spread to more of his body despite the medications he was prescribed. He indicated that his discomfort was somewhat seasonal in the past, but now it was year round. The Veteran underwent a VA examination in January 2013. The Veteran reported that his urticaria had gotten worse over the past year. He reported constant itching that was keeping him awake at night. He also indicated that increased Atarax had provided some help. The examiner noted that the Veteran's skin condition did not cause scarring or disfigurement of the head, face, or neck, and the Veteran did not have any benign or malignant skin neoplasms. The Veteran's treatment included systemic corticosteroids or other immunosuppressive medications (Medrol) for a total of less than 6 weeks in the past twelve months; constant/near-constant antihistamines (Zyrtec, cythtadine) in the past twelve months; constant/near-constant oral medications (Atarax) in the past twelve months; constant/near-constant topical corticosteroids (triamcinolone) in the past twelve months; and constant/near-constant topical medications (ammonium lactate, hydrocerin) in the past twelve months. The Veteran did not have any treatments or procedures other than systemic or topical medications in the past twelve months for exfoliative dermatitis or papulosquamous disorders. The Veteran had two debilitating episodes in the past twelve months due to urticaria, which occurred despite ongoing immunosuppressive therapy. The Veteran had four or more non-debilitating episodes in the past twelve months due to urticaria, which occurred despite ongoing immunosuppressive therapy. The Veteran reported near daily episodes of itching affecting his sleep. A physical examination revealed dermatitis with greater than 40 percent of total body area and exposed areas affected. There were reddened, blotchy, raised papules, over the bilateral upper extremities and trunk. The examiner also found that the Veteran's skin condition did not impact his ability to work. Additional private treatment records from Medical Associates of Brevard from April 2013 note that the Veteran was uncomfortable due to numerous pruritic papular lesions primarily on the buttocks and thighs. They were unable to get Prograf approved, so he was started on Cyclosporin tablets. VA treatment records from March 2013 indicate that the Veteran complained of itchiness that woke him up at night. He indicated that the itchiness was constant and was continued on Atarax and Periactin. It was noted that the Veteran had taken two six packs of prednisone which did not work and a Medrol dose pack. In May 2013, it was noted that the Veteran was on cyclosporin pills. July 2013 records note that the Veteran had been taking Cyclosporin since April 2013. August 2013, September 2013, October 2013, December 2013, and April 2014 treatment records note the continued use of Cyclosporin. Treatment records from July 2013, August 2013, September 2013, October 2013 and December 2013 also note ammonium lactate lotion, clobetasol propionate ointment, hydrophilic cream, and triamcinolone acetonide ointment for treatment. After a careful review of the evidence, the Board finds that for the appeal period prior to March 25, 2014, the preponderance of the evidence is against a finding that the Veteran's service-connected urticaria warrants an evaluation in excess of 30 percent under Diagnostic Code 7825. During this period there is no evidence of recurrent debilitating episodes occurring at least four times in a 12-month period, which would warrant an increased rating under Diagnostic Code 7825. However, the Board finds that a higher 60 percent rating is warranted for the appeal period prior to March 25, 2014 under Diagnostic Code 7806. At the time of the January 2013 VA examination, the Veteran indicated that his urticaria had worsened over the past year, and the examiner found that the Veteran had dermatitis which covered more than 40 percent of his total body area and exposed area, which were described as reddened, blotchy, raised papules over the bilateral upper extremities and trunk. The examiner did not suggest that the dermatitis was distinct from the urticaria. The Veteran's service-connected urticaria has been manifested as itchy skin and rashes, and the medical evidence indicated that it had been repeatedly characterized as being associated with dermatitis and eczema, including private medical records from August 2005 which associate the Veteran's dermatitis with eczema with rash and itching, and March 2012 private treatment records which indicate that the Veteran had pruritic dermatitis. Although there is no specific indication of the area affected prior to the January 2013 VA examination, the Board will afford the Veteran the benefit of the doubt and grant a 60 percent rating for the entire period on appeal prior to March 25, 2014, as the evidence shows that the Veteran's urticaria affected numerous parts of his body, including his arms, legs, buttocks, thighs, and lower back. Additionally, private and VA treatment records show that the Veteran had been taking numerous topical and oral medications for treatment, including cyclosporine, an oral immunosuppressant medication on a continuous basis since April 2013. The Board has also considered whether a rating higher than 60 percent would be available under Diagnostic Code 7800 for a disfigurement of the head, face, or neck, or under Diagnostic Codes 7801-7805 for scars. However, the Board finds that at no time during the pendency of this appeal has the Veteran's skin disorder been shown to result in any disfigurement or scarring that would result in a higher or separate rating. Additionally, the Veteran has not been diagnosed with any of the disabilities covered by Diagnostic Codes 7815-7824, 7826-7833. Accordingly, a higher rating under those diagnostic codes would also not be appropriate. The Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which a higher rating is sought, then part and parcel to that claim for a higher rating is the matter of whether a total disability evaluation based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this instance the Veteran filed a formal TDIU claim on March 25, 2014, where he alleged his "sinusitis and allergy" caused his unemployability and TDIU was granted following this claim with an effective date of March 25, 2014. As for the appeal period prior to March 25, 2014, the Board does not find that a TDIU claim was reasonably raised either by the Veteran or the record. In support of this finding the Board points to the lack of allegations of unemployability due to his service-connected urticaria by the Veteran prior to filing the TDIU claim in March 2014. The medical evidence prior to March 25, 2014 also did not indicate that the Veteran's skin disability resulted in unemployability, and the January 2013 VA examiner found that the Veteran's skin conditions did not impact his ability to work. Thus, the Board finds a TDIU claim pursuant to Rice has not been raised prior to March 25, 2014. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER An evaluation of 60 percent for urticaria (claimed as skin condition and body rash) prior to March 25, 2014 is granted, subject to the regulations governing the payment of monetary awards. ____________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs