Citation Nr: 20056597 Decision Date: 08/26/20 Archive Date: 08/26/20 DOCKET NO. 16-55 062 DATE: August 26, 2020 ORDER An initial 60 percent rating for chronic urticaria is granted. FINDING OF FACT The signs and symptoms of the Veteran’s chronic urticaria most nearly approximate chronic refractory urticaria that requires third line treatment for control due to ineffectiveness with first line and second line treatments. CONCLUSION OF LAW The criteria for an initial 60 percent rating for chronic urticaria are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7825. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2012 to April 2016. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Increased Ratings Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation as well as the whole recorded history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, 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. The Board has considered whether separate ratings for different periods of time are warranted based on the facts, which is a practice of assigning ratings that is referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s service-connected chronic urticaria, commonly known as hives, is rated as 10 percent disabling under 38 C.F.R. § 4.118, Diagnostic Code 7825. Where the rating criteria is amended during the course of an appeal, the Board considers both the former and the current schedular criteria because, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991) (holding that, where a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to appellant should and will apply unless Congress provides otherwise or permits the Secretary to do otherwise)). Effective August 13, 2018, the schedule of ratings for the skin was amended. 83 Fed. Reg. 32592 (July 13, 2018) (codified at 38 C.F.R. § 4.118). However, for this final rule, VA’s intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever schedular criteria is more favorable to the veteran will be applied. For applications filed on or after the effective date, only the new schedular criteria will be applied. Because the Veteran’s claim was filed in February 2016, the Board will consider both schedules. Prior to August 13, 2018, 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. A 30 percent rating is assigned for recurrent debilitating episodes occurring at least four times during the past 12-month period, and; requiring intermittent systemic immunosuppressive therapy for control. A 60 percent rating is assigned 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. Effective August 13, 2018, under Diagnostic Code 7825, a 10 percent rating is assigned for chronic urticaria that requires first line treatment (antihistamines) for control. A 30 percent rating is assigned 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 assigned for chronic refractory urticaria that requires third line treatment for control (e.g., plasmapheresis, immunotherapy, immunosuppressives) due to ineffectiveness with first line and second line treatments. 38 C.F.R. § 4.118, Diagnostic Code 7825. The Veteran was first afforded a VA skin examination in May 2016. The Veteran reported that he began to have daily urticarial type rashes in January 2016 that was treated with Cyclosporine and had resolved by the time of the examination. He also reported that when he had urticaria, there is significant itching and he is unlikely to be able to perform jobs with direct sunlight or excessive heat. Pictures of the rash revealed diffuse lesions of his trunk, arms, and legs. The examiner diagnosed the Veteran with asymptomatic urticaria since January 2016. The examiner determined that the Veteran’s skin disability did not cause scarring or disfigurement of the head, face, or neck. He noted that the Veteran had been treated with oral medications, antihistamines and Cyclosporine, for constant or near-constant duration in the last twelve months. The examiner reported that the Veteran’s urticaria affected none of the exposed or total body area. VA treatment records document reports of daily hives since January 2016 for which the Veteran was treated with levocetirizine and cetirizine without relief. In August 2016, the Veteran reported red, raised pruritic hives, about every day, with severe symptoms twice a week. He noted that he experienced significant fatigue, after the urticaria resolved. The Veteran also stated that he was taking antihistamines, including one cetirizine tablet in the evening and one levocetirizine tablet in the morning, for about a month, but that the hives were the same in severity with this regimen. The Veteran reported treatment with cyclosporine, prednisone, and Allegra from February 2016 to May 2016. That same day, the immunologist prescribed the Veteran montelukast (a leukotriene inhibitor) and high dose levocetirizine. In September 2016, the Veteran reported that he still had hives despite the new medication regimen. He was determined to have failed treatment with cyclosporine, prednisone, cetirizine, four-fold dosing levocetirizine, and montelukast, and was additionally prescribed a four-month trial of omalizumab (an immunosuppressant) subcutaneous injections of 300 mg monthly. The Board takes judicial notice of the fact that publicly available medical information indicates that these prescribed medications are antihistamines (Allegra, cetirizine and levocetirizine), corticosteroids (prednisone), leukotriene inhibitors (montelukast), and immunosuppressants (cyclosporine). In November 2016, the Veteran underwent his first dose of omalizumab. In January 2017, the Veteran reported that he had yet to notice any improvement of his condition. The Veteran was advised that some people do not respond until several months on the therapy. A July 2017 treatment note documented that the Veteran failed the four-month trial of omalizumab and that a controlled trial of dapsone or hydroxychloroquine (immunosuppressants) could be tried. That same day the Veteran reported that he had not seen improvement with the omalizumab injections and chose to discontinue treatment with an allergist. The Board takes judicial notice of the fact that publicly available medical information indicates that these medications are systemic immunosuppressants typically administered by injection (omalizumab, a.k.a. Xolair) and orally (hydroxychloroquine, a.k.a. “Plaquenil,” and dapsone, a.k.a. “Aczone”). The Board acknowledges that the Veteran is competent to report observable symptoms, to include flare-ups of daily red, raised pruritic hives with fatigue, and debilitating episodes twice per week, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As the totality of the evidence discussed above demonstrates that throughout the appeal period the Veteran’s chronic urticaria has been unresponsive to first and second line treatments, the Board finds that the preponderance of the evidence supports the assignment of a 60 percent rating under the post August 13, 2018 regulations. Given the favorable nature of this finding, the Board need not address whether the criteria for a rating in excess of 10 percent are met under the old regulatory criteria. All potentially applicable diagnostic codes have been considered, and there is no basis to assign an evaluation in excess of the rating assigned herein for the Veteran’s disability. See Schafrath, 1 Vet. App. at 589. As the Veteran is in receipt of the maximum rating assignable under Diagnostic Code 7825 for his chronic urticaria, a rating in excess of 60 percent is not warranted based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Bilstein, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.