Citation Nr: 1804754 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 12-16 663A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for dermatographism urticaria. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Shauna M. Watkins, Counsel INTRODUCTION The Veteran served on active duty from October 1969 to October 1971. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The RO in Providence, Rhode Island, currently has jurisdiction over the appeal. At the April 2011 VA examination, the Veteran indicated that he experiences intermittent dizziness and shortness of breath when he endures an episode of urticaria. The Board finds that the question of whether the Veteran has a disability manifested by dizziness or shortness of breath that is secondary to his service-connected urticaria disability has been raised by the record, and the matter is referred to the agency of original jurisdiction (AOJ) for appropriate action. FINDING OF FACT Throughout the appeal period, the dermatographism urticaria has been manifested by recurrent debilitating episodes that have not required the use of intermittent systemic immunosuppressive therapy for control. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for dermatographism urticaria are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7825 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA has duties to notify and assist claimants in substantiating their claims. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). There has been no allegation or suggestion of any lapse on VA's part in meeting these duties. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. Separate DCs identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § Part 4 (2017). Where a veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. The Veteran is in receipt of a 10 percent disability rating under 38 C.F.R. § 4.118, DC 7825 for his dermatographism urticaria. He seeks a higher initial disability rating. Under DC 7825, 10 percent rating is appropriate in cases involving recurrent episodes (at least four times during the past 12-month period) that are responsive to treatment with antihistamines or sympathomimetics; a 30 percent rating is warranted in cases where there are recurrent debilitating episodes that occurred at least four times during the past 12-month period and which require intermittent systemic immunosuppressive therapy for control; and, the highest rating, 60 percent, is warranted where there are recurrent debilitating episodes which occurred at least four times during the past 12-month period despite continuous immunosuppressive therapy. 38 C.F.R. § 4.118, DC 7825. In applying the above law to the facts of the case, the Board finds that the Veteran is not entitled to a higher disability rating for his dermatographism urticaria. Here, although there is evidence of recurrent debilitating episodes of urticaria, the evidence shows that the Veteran does not use intermittent systemic immunosuppressive therapy to control his urticaria episodes. Rather, he uses the antihistamine Claritin. There is no evidence during the period under review demonstrating that the Veteran was required to treat his urticaria with intermittent systemic immunosuppressive therapy, and the Veteran does not so assert. The Board recognizes the Veteran's representative's recent assertion that, based on the frequency and severity of the Veteran's episodes (characterized as debilitating, two times per week), his symptoms more closely approximate those contemplated by the 30 percent rating. However, for an increased rating, the requisite frequency of episodes, severity of episodes (debilitating) and the required treatment must be shown. Indeed, the criteria for rating urticaria are conjunctive, meaning that each element of the criteria is needed to meet the requirements for the specified evaluation. See Camacho v. Nicholson, 21 Vet. App. 360 (2007); see also Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision means that all of the conditions listed in the provision must be met). The Board observes that, at the April 2011 VA examination, the examiner found that the Veteran's eruptions (i.e., hives) consisted of erythematous pruritic rupture involving the trunk and extremities. The eruptions occurred approximately two times per week and lasted up to eight hours. The Veteran experienced intermittent dizziness and shortness of breath with his eruptions. He treated his eruptions with the Claritin medication. The treatment was constant and systemic, but was determined not to be an immunosuppressive therapy by the VA examiner. The Veteran experienced four or more debilitating episodes during the past 12-month period. His condition responded to the treatment. The examiner diagnosed the Veteran with dermatographism urticaria. In forming this opinion, the examiner reviewed the Veteran's claims file and examined the Veteran. There are no treatment records in the claims file dated since January 2011, the effective date of service connection. Prior treatment records do not show the use of immunosuppressive therapy. In the July 2016 Statement of Accredited Representative, the Veteran's representative stated that the Veteran was not under "immune suppression drugs" and the representative did not argue that the Veteran's dermatographism urticaria had worsened since his last VA examination. The January 2018 Informal Hearing Presentation also did not argue a worsening or the use of intermittent systemic immunosuppressive therapy. The Veteran has not argued a worsening of his dermatographism urticaria or the use of intermittent systemic immunosuppressive therapy. Based on the lay and medical evidence of record, the Board finds that the evidence is against a finding that the Veteran is entitled to a higher disability rating for his dermatographism urticaria. Here, there is no evidence of intermittent systemic immunosuppressive therapy required for control of the Veteran's recurrent debilitating episodes - the requirement for a higher 30 percent disability rating. 38 C.F.R. § 4.118, DC 7825. The Board has considered whether the Veteran's disability could be rated by analogy to another diagnostic code; however, he has been specifically diagnosed with urticaria, and such disability is specifically listed in the Schedule under Diagnostic Code 7825. In Copeland v. McDonald, 27 Vet. App. 333 (2015), the Court held that when a condition is specifically listed in the Schedule, it may not be rated by analogy. See Suttman v. Brown, 5 Vet. App. 127, 134 (1993) (providing that "[a]n analogous rating . . . may be assigned only where the service-connected condition is 'unlisted.'"). While the Veteran believes that his disability should be rated higher than the currently assigned 10 percent, the competent and credible objective evidence described above supports a finding that a higher rating is not warranted. As stated above, the rating criteria are specific in indicating that some of the criteria must be objectively demonstrated. To the extent the Veteran asserts that his service-connected skin disability itself manifests in dizziness and shortness of breath in addition to skin rashes, the Board recognizes that such symptoms are not contemplated by the schedular criteria under Diagnostic Code 7825. However, referral of this appeal for extraschedular consideration under the provisions of 38 C.F.R. § 3.321(b) is not warranted, as the evidence does not demonstrate, nor does the Veteran or his representative assert, that such symptoms require frequent hospitalization or cause marked interference with employment-governing norms that render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). As noted in the Introduction above, to the extent the Veteran is claiming entitlement to service-connection for a stand-alone disability or disabilities manifested by dizziness and/or shortness of breath as secondary to urticaria, such has been referred to the AOJ for appropriate action. In sum, the preponderance of the evidence is against the assignment of an initial disability rating in excess of 10 percent for the service-connected dermatographism urticaria at any time during the appeal period. The claim is denied. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). ORDER An initial disability rating in excess of 10 percent for dermatographism urticaria is denied. ____________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs