Citation Nr: 21063127 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 10-45 275 DATE: October 13, 2021 ORDER Entitlement to an initial compensable rating for cold urticaria from October 1, 2008 to October 5, 2018, and a rating in excess of 10 percent thereafter is denied. FINDINGS OF FACT 1. From October 1, 2008 to October 5, 2018, the Veteran's cold induced urticaria was not chronic nor manifested by at least 4 episodes in a 12-month period. 2. From October 5, 2018, the Veteran's cold induced urticaria was manifested by chronic urticaria requiring and responding to antihistamines but did not require second line treatment (e.g. corticosteroids, sympathomimetics, leukotriene inhibitors, neutrophil inhibitors, thyroid hormone) for control nor intermittent systemic immunosuppressive therapy for control. CONCLUSION OF LAW The criteria for entitlement to an initial compensable rating for cold urticaria from October 1, 2008 to October 5, 2018, and a rating in excess of 10 percent thereafter have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, Diagnostic Code 7825. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1984 to February 1988 and May 1990 to September 2008. This case comes before the Board of Veterans' Appeals (Board) on appeal from January 2009 and June 2019 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Board denied entitlement to increased initial ratings for the Veteran's service-connected cold induced urticaria. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), which, in August 2020, granted a Joint Motion for Remand (JMR). The Court's order vacated the Board's September 2019 decision and remanded the matter to the Board consistent with the terms of the joint motion which required VA to conduct both Decision Review Officer (DRO) and Board hearings. In April 2021 correspondence the Veteran withdrew his request for a hearing stating: "I am withdrawing my request for a hearing to address my cold induced urticaria." In July 2021 and August 2021 requests for clarification were sent to the Veteran requesting clarification regarding whether he was withdrawing his requests for both a DRO and a Board hearing. The Veteran did not respond to the July 2021 and August 2021 correspondence. Accordingly, the Board finds that the Veteran's April 2021 correspondence served as a withdrawal of his requests for both a DRO and a Board hearing. Accordingly, the Board may proceed with adjudication of the Veteran's appeal. Entitlement to an initial compensable rating for cold urticaria from October 1, 2008 to October 5, 2018, and a rating in excess of 10 percent thereafter Factual Background On his July 2008 claim form, the Veteran asserted that he experienced allergic reactions to cold with symptoms typically including swelling of his hands and face and bumps and hives with itching. He explained that his swelling is so severe that his thumbs and fingers swell to almost twice their size. He also reported internal swelling in really cold weather conditions which caused slight complications with breathing. He further asserted that during service deployment restrictions were implemented limiting him to deployment in warm or mild weather environments. The Veteran was afforded a VA examination for his cold induced urticaria in September 2008. The Veteran reported that he experienced hives and swelling in exposed areas when exposed to cold. His symptoms reoccurred when exposed to cold and varied over time. The Veteran reported taking Benadryl. However, the frequent and duration of treatment in the last 12 months was noted as "none". The Veteran also did not have scarring or disfigurement. The Veteran reported functional impairment because he was restricted to mild or warm climates during service. A November 2008 VA treatment notes that the Veteran got hives and swelling after cold exposure but learned to avoid situations in which he gets cold and wet. A July 2009 VA treatment record notes that the Veteran had a history of cold and heat urticaria, especially on his arms, with his last episode occurring 3 months prior and treated with hydrocortisone cream. Other VA treatment records indicate that the Veteran was prescribed hydrocortisone cream for his service-connected psoriasis. An August 2009 VA treatment record again notes that the Veteran had a history of cold and heat urticaria with his last episode 4 months prior and occurring especially on his arms. The Veteran stated on his October 2010 VA Form 9 that he previously lived in Arizona where there was warmer weather, so he did not experience flare ups. However, he had since moved to Washington and reported he was experiencing flare ups often. A May 2012 VA treatment record notes that the Veteran had a history of cold urticaria. The Veteran denied ingestion of new medications, food, or irritants. The Veteran was on an ace inhibitor. The Veteran showed the VA provider pictures on his phone that showed swollen lips and facial rash primarily on his upper cheek areas that was papular and reddened in nature. A July 2012 VA treatment record notes that the Veteran had acquired cold urticaria but no systemic reactions. Another July 2012 VA treatment record and a December 2012 VA treatment record note that the Veteran reported swelling on his face and hand after exposure to cold. The Veteran explained that his swelling starts within 2 minutes of entering a warm area after cold exposure. The record notes that the Veteran was given Benadryl in the past but that it was hard to determine whether the Benadryl worked since the Veteran's urticaria resolved spontaneously within a few minutes. The Veteran denied any associated pain or swelling in his joints, hair loss, chest pains, sores in his mouth or nose, or shortness of breath. The December 2012 VA treatment record also noted that the Veteran had chronic folliculitis of his face and neck, post inflammatory pigmentation, and dermatosis papulosa nigra of the face and neck, a variant of seborrheic keratosis. However, the VA provider noted that the cause of his erupt, erythematous plaques on his cheeks and upper lips was still unclear and a drug reaction, eczema, atopic dermatitis, or contact dermatitis were suspected. A September 2014 statement in support of the Veteran's claim indicates that he moved from Washington to South Carolina in September 2014. The Veteran was afforded another in-person VA examination for his cold induced urticaria in October 2018. The Veteran reported that when he came in contact with cold weather or cold drinks he itched and his hands swelled. The Veteran could not state how often his symptoms occurred but that they occurred randomly and more often in the winter due to cold weather. In the past 12 months, the Veteran treated himself with oral antihistamines for 6 weeks or more, but not constantly. The Veteran reported that he took Benadryl as needed for his cold induced urticaria. The Veteran did not have any treatments or procedures other than systemic or topical medications in the past 12 months for any skin condition. The Veteran's cold induced urticaria resulted in visible symptoms on less than 5 percent of his total and exposed body areas. The Veteran's condition was also manifest without any visible characteristic lesions at the time of the examination. The Veteran reported that any cold object or cold water caused itching and swelling so his condition was not visible at the time of examination. The Veteran's skin condition did not cause scarring of the head, face, or neck. The VA examiner determined that the Veteran's cold urticaria impacted his ability to work because the Veteran reported it affected his job if he didn't protect himself such as wearing gloves to pick up tools that were cold to the touch. Also, the Veteran reported his job consisted of being outside where he must deal with cold weather in winter months. The VA examiner concluded that the Veteran's cold induced urticaria was ongoing and of mild to moderate severity and triggered by cold weather, cold objects, and cold water. The Veteran's representative argued in an August 2020 informal hearing presentation that the Veteran self-treated with Benadryl throughout out the period on appeal and that remanded was warranted under the new regulation to address whether the Veteran's treatment with an antihistamine, namely Benadryl, warranted a 10 percent rating prior to October 5, 2018. In January 2021, the Veteran's representative argued in another informal hearing presentation that the most recent VA examination was inadequate for failing to consider the Veteran's lay statements and also for failing to address the Veteran's service-connected psoriasis as it relates to his service-connected cold induced urticaria. Analysis Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). With the initial rating assigned with the award of service connection for a disability, "staged" ratings to reflect distinct periods when different levels of impairment were shown are for consideration. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). During the pendency of the appeal, the criteria for rating urticaria under 38 U.S.C. § 4.118, Diagnostic Code 7825, were revised, effective July 13, 2018. The announcement of the final regulation specifically states that "claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied." In this regard, if a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g); VAOPGCPREC 7-2003. Amendments with a specified effective date without provision for retroactive application may not be applied prior to the effective date. As of that effective date, the Board must apply whichever version of the rating criteria is more favorable to the veteran. In this case, either the old or revised rating criteria may apply, although the new rating criteria are only applicable since their effective date. VAOPGCPREC 3-2000. Prior to July 13, 2018, the criteria for urticaria were based on the severity and number of episodes per year, as well as the type of treatment used. A 10 percent rating was warranted for recurrent episodes of urticaria 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 was warranted for recurrent debilitating episodes occurring at least four times during the past 12-month period, and; requiring intermittent systemic immunosuppressive therapy for control. Id. A maximum 60 percent rating was warranted for recurrent debilitating episodes occurring at least four times during the past 12-month period despite continuous immunosuppressive therapy. Id. Under the revised code, the criteria for chronic urticaria are based on the disorder's response to required treatment. A 10 percent is warranted for chronic urticaria that requires first line treatment (antihistamines) for control. 38 C.F.R. § 4.118, Diagnostic Code 7825 (effective July 13, 2018). A 30 percent is warranted for chronic urticaria that requires second line treatment (e.g. corticosteroids, sympathomimetics, leukotriene inhibitors, neutrophil inhibitors, thyroid hormone) for control. Id. A maximum 60 percent 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. Chronic urticaria is defined as continuous urticaria at least twice per week, off treatment, for a period of six weeks or more. Id. Upon review, the Board finds that a compensable rating for the period from October 1, 2008 to October 5, 2018 is not warranted. Initially, the Board notes that prior to October 5, 2018, the medical evidence demonstrates that the Veteran did not have four recurrent episodes in a 12-month period. During the September 2008 VA examination, the Veteran indicated that he did not have any episodes in the past 12 months. And, during the October 2018 VA examination, the Veteran stated that he did not recall how often he experienced flare ups. Although the record contains an October 2010 statement from the Veteran indicating an increase in the frequency of flare ups, this is not evidence of four occurrences in a 12-month period. Besides, the Veteran indicated that his alleged increase in the frequency of his flare ups was due to moving from a warm climate, Arizona, to a cold climate, Washington; however, the Veteran relocated again to a mild climate, South Carolina, in 2014. The Veteran has asserted that his condition improved in mild and warm climates. See September 2008 VA examiner's report. Moreover, the Veteran indicated that he had learned to avoid being cold and wet which prevented symptoms. See November 2008 VA treatment record. Accordingly, there is also no indication the Veteran had chronic urticaria as defined under the new criteria either. Thus, even considering the argument made by the Veteran's representative, that a 10 percent rating should be awarded due to antihistamine use, the Board finds that a compensable rating is not warranted from October 1, 2008 to October 5, 2018 because the Veteran has not alleged, and the evidence does not show, that the Veteran's cold induced urticaria was manifested by at least four episodes in a 12-month period or was chronic. The Board finds that a rating in excess of 10 percent for the period from October 5, 2018 is also not warranted. In order to be entitled to a higher, 30 percent rating the Veteran's cold induced urticaria must have been manifested by recurrent debilitating episodes occurring at least four times during the past 12-month period, and; requiring intermittent systemic immunosuppressive therapy for control; OR, chronic urticaria that required second line treatment (e.g. corticosteroids, sympathomimetics, leukotriene inhibitors, neutrophil inhibitors, thyroid hormone) for control. The October 2018 VA examination report noted that the Veteran did not require intermittent systemic immunosuppressive therapy for control. Additionally, the VA examiner reported that the Veteran did not suffer from chronic urticaria that required second line treatment. From October 5, 2018, the Veteran only reported using Benadryl, an antihistamine, to control symptoms of his urticaria. He did not treat his disability with the use of medicine such as corticosteroids, sympathomimetics, leukotriene inhibitors, neutrophil inhibitors, or thyroid hormone. Moreover, the evidence further indicates that the Veteran moved from Washington to South Carolina, which has a milder climate, in September 2014. The Veteran's claims file indicates that he still resides in South Carolina and the Board emphasizes that the Veteran has regularly reported decreased symptoms in mild to warm climates. Accordingly, the Board finds no evidence that the Veteran's service-connected cold induced urticaria required intermittent systemic immunosuppressive therapy for control or second line treatment for control. Entitlement to a higher 30 percent rating from October 5, 2018 has not been shown. The Board acknowledges the January 2021 arguments raised by the Veteran's representative; however, it is clear that the October 2018 VA examiner considered the Veteran's responses and even documented then in his VA examiner's report. Moreover, the Veteran's service-connected psoriasis is a separate disability which is not appeal. The Veteran is welcome to file a claim for an increased rating for his service-connected psoriasis if he desires. (Continued on the next page) Since the preponderance of the evidence is against the claim, entitlement to an initial compensable rating for cold urticaria from October 1, 2008 to October 5, 2018, and a rating in excess of 10 percent thereafter is denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Palombi 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.