Citation Nr: 1808167 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 12-23 335 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a higher initial evaluation than 10 percent for chronic idiopathic urticaria and angioedema. 2. Entitlement to a higher initial evaluation than 10 percent for posterior tibial tendon dysfunction (PTTD) with arthritis, status post-surgery right foot with post-operative infection. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and her spouse ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel INTRODUCTION The Veteran served on active duty from August 1977 to February 1982. This case is before the Board of Veterans' Appeals (Board) from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A Travel Board hearing was held October 2015. A transcript is of record. This matter was previously before the Board in December 2015, at which time it was remanded for additional development. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA (VVA) electronic claims processing systems. Any future consideration of this claim should take into consideration the existence of the electronic record. The issue of entitlement to an increased rating for posterior tibial tendon dysfunction (PTTD) with arthritis, status post-surgery right foot with post-operative infection is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's service-connected urticaria has been manifested by more than four episodes occurring during the past 12-month period, requiring intermittent systemic immunosuppressive therapy and constant antihistamines and topical corticosteroids. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran's favor, the criteria for an initial rating of 30 percent, but no higher, for service-connected urticaria are approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7825 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) When VA receives a complete or substantially complete application for benefits, it 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. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has been provided notice letters throughout the appeal that address all notice elements required. There has been no allegation of notice error in this case. See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2017). Service treatment records are associated with claims file. All post-service treatment records identified by the Veteran have also been obtained. VA's duty to further assist the Veteran in locating additional records has been satisfied as to this issue. The Veteran has been afforded VA examinations in conjunction with her appeal. See 38 U.S.C.A. § 5103A (d); see also 38 C.F.R. § 3.159 (c)(4) (2017); Wells v. Principi, 327 F.3d 1339, 1341 (Fed. Cir. 2002). The Board finds the examinations are adequate, as they involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, a discussion of her symptoms as they pertain to the rating criteria, and an adequate basis for the diagnosis and opinions rendered. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The instant appeal has been previously remanded in December 2015 for additional development. There has been substantial compliance with the Board's remand directives, and adjudication of the appeal on this issue may proceed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Increased rating claim Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 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 rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the then-current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to receive a staged rating. That is, it is possible to be awarded separate percentage evaluations for separate periods, based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (in determining the present level of a disability for any increased evaluation claim, the Board must consider staged ratings). The Veteran contends she is entitled to an increased rating for her service-connected urticaria, currently rated as 10 percent disabling. Her rating was established pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7825. As addressed below, the Board finds that with resolution of the doubt in favor of the Veteran, the Veteran's urticaria more nearly approximates the level of severity contemplated by a 30 percent rating during the appeal. Under Diagnostic Code 7825, a 10 percent rating is assigned for recurrent episodes occurring at least four times during the past 12-month period, and; responding to treatment with antihistamines or sympathomimetics. 38 C.F.R. § 4.118, Diagnostic Code 7825. 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. Id. A January 2010 VA treatment record showed the Veteran reported urticaria intermittently. She was treated with antihistamines. The Veteran underwent a VA examination in September 2010. The Veteran reported onset of hives in 1977. She reported repeated outbreaks of raised, red, itchy welts of various sizes and over various parts of her body. The most recent episode was in September 2010. The Veteran takes allergy medication daily, which is neither a corticosteroid nor an immunosuppressive. The Veteran reported 4 or more episodes in the past 12 month period which are not debilitating and are responsive to treatment. During the physical examination, there was no evidence of a current outbreak. A diagnosis of chronic idiopathic urticaria and angwedema was assigned. In a February 2012 treatment record, the Veteran's physician diagnosed chronic idiopathic urticaria. He diagnosed prednisone, hydroxyzine, and Plaquenil. In May 2012, it was noted that she was no longer taking prednisone. A September 2015 emergency department record showed the Veteran reported for treatment with a flare up of hives. She was prescribed prednisone for treatment. The Veteran appeared at a Board hearing in October 2015. Regarding her skin disorder, she testified that she continues to experience flare-ups and is put on several medications, including steroids, for a few weeks and then slowly wean off, only to have a recurrence. She stated that she recently had a severe episode requiring her to go the emergency room. The Veteran was afforded a VA skin disease examination in February 2016. The examiner noted a diagnosis of chronic urticaria with recurrent attacks. The examiner found no debilitating episodes during the prior 12 months due to urticaria. The Veteran was treated with systemic corticosteroids or other immunosuppressive medications for six weeks or more, but not constantly, during the past 12 months. She also treated with antihistamines, Singulair, and doxepin on a constant basis. With resolution of the doubt in favor of the Veteran, the Board finds that a rating of 30 percent is warranted for the Veteran's service-connected urticaria. The evidence shows the Veteran continues to have urticaria with recurrent symptoms and requires treatment with intermittent systemic immunosuppressive therapy for control. Although the VA examiner did not find that the Veteran's recurrent episodes were debilitating, the evidence shows the Veteran sought treatment at the emergency room and she testified that her symptoms her affected her ability to work and cause pain and discomfort. The evidence does not show that she has had continuous immunosuppressive therapy but rather that she begins a course of steroids after an outbreak and then stops after the symptoms wane. Therefore, the Board finds that a 30 percent rating more closely approximates the Veteran's symptoms and a higher 60 percent rating is not warranted. ORDER Entitlement to an increased rating of 30 percent, but not higher, for urticaria, is granted. The appeal is allowed to this extent subject to the law and regulations governing the award of monetary benefits. REMAND With regard to the Veteran's claim for an increased rating for posterior tibial tendon dysfunction (PTTD) with arthritis, status post-surgery right foot with post-operative infection, the Board finds that remand is necessary. In a March 2016 rating decision, the RO granted service connection for pes planus of the right foot and assigned a 20 percent rating, effective December 15, 2015. This rating considered symptoms of marked pronation, objective evidence of actual deformity, pain, and weight-bearing line over medial to great toe. The Veteran appealed this rating decision, asking for an earlier effective date alleging that her symptoms began in 2010. Along with this appeal, the Veteran requested a Board hearing at the RO. The Board finds that although the pending claim for an earlier effective date for pes planus is not presently before the Board, it is potentially inextricably intertwined with the Veteran's claim for an increased rating for PTTD as many of the symptoms overlap and the period on appeal is the same. Therefore, remand is necessary pending adjudication of that claim. Moreover, the record reveals that since the last adjudication of this issue, multiple pertinent records appear to have been added to the record. It does not appear that these records have been reviewed initially by the AOJ, and that should also be done as part of the appeal. To the extent separate findings and ratings are in order, that should be set out. Accordingly, the case is REMANDED for the following action: After the Veteran is afforded a Board hearing on the issue of entitlement to an earlier effective date for the grant of service connection for pes planus, the AOJ must review all the relevant evidence and readjudicate the claim on appeal in light all additional evidence received. (The appeals may be kept separate as appropriate, with consideration of the medical evidence added to the claim since the last adjudication on this issue.) Separate ratings should be explained in detail and findings due to the instant disorder should be set out and distinguished from flat feet as possible. If any benefit sought on appeal is not granted, the Veteran and her representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs