Citation Nr: 18133767 Decision Date: 09/11/18 Archive Date: 09/11/18 DOCKET NO. 15-41 593 DATE: September 11, 2018 ORDER Entitlement to a 10 percent rating for urticaria is granted. FINDING OF FACT Resolving all doubt in the Veteran’s favor, the Veteran experienced recurrent episodes of urticaria at least four times during the past 12-month period that responded to treatment with antihistamines; however, chronic urticaria symptoms are not debilitating and do not require intermittent systemic immunosuppressive therapy or second line treatment for control. CONCLUSION OF LAW The criteria for a 10 percent rating, and no higher, for chronic urticaria have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.118, Diagnostic Code (DC) 7825. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1987 to August 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that continued a noncompensable rating for urticaria. Although new evidence was received following the October 2015 Statement of the Case, the evidence was duplicative and/or irrelevant to the issues being decided herein. Accordingly, no waiver or Supplemental Statement of the Case is necessary concerning the issues decided herein. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155 (2012). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability, therefrom, and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. As in this case, it is the present level of disability that is the primary concern for increased rating cases. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126–27 (1999). Where there is a question as to which of two disability ratings shall be applied, the higher rating 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, if a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Urticaria is evaluated pursuant to 38 C.F.R. § 4.118, DC 7825. During the appeal, effective August 13, 2018, VA revised the criteria for diagnosing and evaluating urticaria. The revisions are applicable to claims pending on August 30, 2018. When the regulations concerning entitlement to a higher rating are changed during the course of an appeal, the Veteran may be entitled to resolution of his claim under the criteria that are to his advantage. The old rating criteria may be applied throughout the period of the appeal, if they are more favorable to him. The new rating criteria, however, may be applied only prospectively from the effective date of the change forward, unless the regulatory change specifically permits retroactive application. 38 U.S.C. § 5110 (g); VAOPGCPREC 7-03; VAOPGCPREC 3-00; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, VA will review the Veteran’s appeal under both the prior and current versions of the criteria under the circumstances noted above. Under 38 C.F.R. § 4.118, DC 7825, as in effect prior to August 13, 2018, a 10 percent rating is warranted for episodes recurring at least four times during the past 12-month period that respond to treatment with antihistamines or sympathomimetics. A 30 percent rating is warranted for recurrent debilitating episodes occurring at least four times during the past 12-month period that require intermittent systemic immunosuppressive therapy for control. 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. The current criteria, effective from August 13, 2018, provide that a 10 percent rating is warranted for chronic urticaria that requires first line treatment (antihistamines) for control. A 30 percent rating is warranted for chronic urticaria that requires second line treatment (e.g., corticosteroids, sympathomimetics, leukotriene inhibitors, neutrophil inhibitors, thyroid hormone) for control. A 60 percent rating is warranted for chronic refractory urticaria that requires third line treatment for control (e.g., plasmapheresis, immunotherapy, immunosuppressives) due to ineffectiveness with first and second line treatments. 1. Entitlement to a compensable rating for urticaria The Veteran contends that he is entitled to a compensable disability rating for his urticaria symptoms. Historically, service connection for urticaria was granted in an October 2000 rating decision. The service-connected urticaria was rated as part of a skin disability characterized by the RO as ‘skin disorders, tinea, urticaria, and acne with residual scars.’ A 10 percent rating was assigned under 38 C.F.R. § 4.118, DC 7899-7806 and made effective September 1, 1999. In an August 2006 rating decision, the RO continued the 10 percent rating, but under DC 7800. The RO received the current claim for an increased rating on March 8, 2014. In the December 2014 rating decision on appeal, the RO continued the 10 percent rating for acne with residual scars under DC 7800; and separately evaluated the tinea versicolor (under DC 7813) and urticaria (under DC 7825) - each was given a noncompensable rating effective September 1, 1999. [Parenthetically, the Board notes that in an October 2015 rating decision, the RO awarded a 30 percent rating for the acne with residual scars under DC 7828, effective from August 7, 2015. The RO granted an earlier effective date of March 8, 2014, in a February 2016 rating decision.] Turning to the evidence of record, the Veteran’s VA treatment records document episodes of recurrent urticaria in December 2013, February 2014, February 2015, June 2015, and September 2015. Of note, June and July 2015 treatment records show the Veteran’s reported frequency of urticaria symptoms. He was seen with a complaint of hives on June 5th where he reported that his hives come and go. He reported occasionally itchy hives to the examining clinician, who did not observe any at that time (although the Veteran showed a cellphone photo himself with hives all over). Five days later, the Veteran complained of intermittent itchy hives, but none were observed on examination. The following week, the Veteran presented for an evaluation. He reported that he had been experiencing pruritic urticarial rashes since 1991, they initially appeared 2-3 times per week, then 2-3 times per month. He stated the recently the frequency of symptoms had increased back to about 2-3 per week. He indicated the episodes start with small bumps on localized areas of the body, then evolve to red urticarial like lesions, then will evolve to dark areas with scaling. He also reported that the areas are intensely pruritic, but hot showers improve symptoms. On clinical examination, there were hyperpigmented areas on sites of prior urticarial rash. The pertinent clinical impression was urticarial rash. He was prescribed diphenhydramine to use as needed. In July 2015, the Veteran was seen for an allergy and immunology consult. No hives were observed on examination. The Veteran reported that for the past 3 years he gets hives 3 times/week. He denied any emergency room or shortness of breath. SOB. The clinician noted that he had not been on antihistamines on a regular basis. The Veteran’s medical problem list shows urticaria and a medication of Diphen hydramine HCL to be used as needed for urticaria. The Veteran was afforded a VA examination in July 2014. The examiner noted that the Veteran did not have any debilitating or non-debilitating episodes due to urticaria within the past 12 months. The examiner also noted that the Veteran did not complain of urticaria during the examination. In the Veteran’s June 2015 notice of disagreement, he reported that he experiences urticaria symptoms 2 to 3 times a week. The Veteran was also afforded a VA examination in August 2015. The examiner noted that the Veteran did not have any debilitating or non-debilitating episodes of urticaria in the past 12 months. The examination report shows urticaria had been past 12 months with Diphenhydramine for a period of six weeks or more, but not constantly. A September 2015 allergy and immunology consult shows the Veteran’s urticaria was found to be well-controlled on Claritin (loratadine). VA treatment records subsequent to this show continued use of diphenhydramine as needed for urticaria. After review of the evidence, the Board finds that a 10 percent rating, and no higher, is warranted after all reasonable doubt in resolved in in the Veteran’s favor. In reaching this conclusion, the Board notes that the Veteran is generally competent to report witnessing skin manifestations. See McCartt v. West, 12 Vet. App. 164, 167-68 (1999) (a veteran is competent observe skin conditions such as boils, blotches, and rashes). A veteran is not necessarily competent to be able to distinguish between several different skin conditions that overlap and occur concomitantly, such as in this case where the Veteran experiences both tinea and urticaria, both of which are service-connected. However, the clinical evidence demonstrates that the urticaria primarily manifests as itchy hives. The Veteran is considered competent to observe itchy hives on his skin, and further his statements about the frequency of such itchy hives is considered credible. Thus, resolving all doubt in the Veteran’s favor, the Board finds that for the entire period on appeal, when the former criteria of DC 7825 is applied, the evidence of record shows the Veteran manifested at most recurrent episodes occurring at least four times during the past 12-month period that respond to treatment with antihistamines or sympathomimetics, warranting a 10 percent rating. The Board further finds that, the Veteran’s symptoms do not meet the criteria for a higher rating for urticaria, to include both a 30 percent and a 60 percent rating, under either the former or revised rating criteria. As shown, a 30 percent rating under the former criteria requires recurrent debilitating episodes and intermittent systemic immunosuppressive therapy for control. The evidence of record, to include the VA treatment records and VA examinations, does not demonstrate that the Veteran had recurrent debilitating episodes at any time during the appeal. VA records do not include such notations, and the VA examiners also did not report such. The treatment records also fail to show the Veteran required frequent, or any emergency, treatment for his urticaria. Although the Veteran reports his symptoms are debilitating, he has not sufficiently explained how this is so. He has not indicated that his symptoms significantly interfere with any of his daily activities or work. Rather, throughout the appeal his urticaria has been shown to be managed with use of antihistamines on an as needed basis, which seem to alleviate some of his symptoms. The evidence of record also does not indicate that his urticaria requires intermittent systemic immunosuppressive therapy for control or occurs despite continuous immunosuppressive therapy. See 38 C.F.R. § 4.118, DC 7825 (2017). The Board notes that ddiphenhydramine is an antihistamine and does not constitute systemic therapy such as corticosteroids or other immunosuppressive medications contemplated by the criteria. See Dorland’s Illustrated Medical Dictionary 208, 523 (32nd ed. 2012). A September 2015 treatment record also notes that the Veteran’s urticaria is well controlled on Claritin (loratadine), which is also classified as an antihistamine used for the treatment of chronic idiopathic urticaria. See Dorland’s Illustrated Medical Dictionary 368, 1074 (32nd ed. 2012). As for whether a higher rating is warranted for urticaria from August 2018, under the revised criteria of DC 7825, the objective findings show that the Veteran’s urticaria requires first line treatment (antihistamines) for control, warranting a 10 percent rating. A 30 percent rating under the revised criteria requires chronic urticaria that requires second line treatment for control. The evidence, including the medical records and lay statements, does not show that the Veteran’s urticaria requires second line (e.g., corticosteroids, sympathomimetics, leukotriene inhibitors, neutrophil inhibitors, thyroid hormone) or third line (e.g., plasmapheresis, immunotherapy, immunosuppressives) treatment for control as none of the Veteran’s prescribed urticaria medications are within these drug classifications. Therefore, the Veteran cannot obtain a higher evaluation in excess of 10 percent for urticaria under the revised criteria as well. Based on the foregoing, the Board finds that a 10 percent rating, but no higher, is warranted. (Continued on the next page)   There are no additional expressly or reasonably raised issues presented on the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Aoughsten, Associate Counsel