Citation Nr: 21063454 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-07 740 DATE: October 14, 2021 ORDER 1. Entitlement to a rating in excess of 40 percent for a lumbar spine disability is denied. 2. Entitlement to a rating in excess of 30 percent for chronic urticaria prior to July 30, 2020, is denied. FINDINGS OF FACT 1. The Veteran's lumbar spine disability is not shown to have been manifested by ankylosis of the thoracolumbar spine, incapacitating episodes of lumbar disc disease, or neurological manifestations other than right lower extremity radiculopathy, which is separately rated. 2. Prior to July 30, 2020, the Veteran's chronic urticaria was not shown to have been required continuous immunosuppressive therapy or (from July 13, 2018) to have been refractory, requiring third line treatment for control. CONCLUSIONS OF LAW 1. A rating in excess of 40 percent for a lumbar spine disability is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5242-5237. 2. Prior to July 30, 2020, a rating in excess of 30 percent for urticaria was not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.21, 4.118, Code 7825. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who had active service from February 1984 to March 1988. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2015 Department of Veterans Affairs (VA) rating decision that continued the assigned 30 percent rating for urticaria and continued a 10 percent rating for lumbar spine disability. In January 2020, the Board remanded the claims for further development. An August 2020 rating decision increased the rating for the back disability to 40 percent effective April 21, 2015, i.e., throughout. He has not expressed satisfaction with the grant, and the matter of the rating for the low back disability remains before the Board. The August 2020 rating decision also increased the rating for chronic urticaria to 60 percent, the maximum schedular rating available, effective July 30, 2020. However, this does not constitute a full grant of all benefits possible, and the matter of the rating for urticaria prior to July 30, 2020 also remains before the Board. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The August 2020 rating decision also granted service connection and assigned a separate rating and effective date for right lower extremity radiculopathy. He has not expressed dissatisfaction with either the rating or effective date assigned, and this matter is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Increased Ratings 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. Reasonable doubt regarding degree of disability is to be resolved in favor of the claimant. 38 C.F.R. § 4.3. Lumbar Spine Disability Disabilities of the spine are rated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in a higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, a 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Code 5243, Note (1). Under the General Rating Formula, a 40 percent rating is assigned if forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. The criteria for evaluating musculoskeletal disorders were amended effective February 7, 2021. As relevant to this decision, the amended rating criteria limit the types of back disorders entitled to consideration under the alternative criteria for rating IVDS based on incapacitating episodes but do not otherwise revise the substance of the pertinent rating criteria. The amended regulation specifies that only disc herniation with compression and/or irritation of the adjacent nerve root qualifies as IVDS; otherwise, the back disorder is to be rated under Code 5242. Since the prior rating criteria are less restrictive in the types of neck and back disorders that qualify for consideration of the IVDS criteria, and are more favorable to the Veteran, those former criteria will be applied in this case. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). In determining the degree of limitation of motion, the provisions of 38 U.S.C. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. As discussed above, the Veteran's lumbar spine disability is now rated 40 percent under Codes 5242-5237. The evidence of record does not show that the Veteran has experienced incapacitating episodes of IVDS due to his lumbar spine disability. June 2015, May 2016, and July 2020 VA examiners both indicated that the Veteran did not have IVDS. There is no evidence in the record showing that bed rest has been prescribed to treat the Veteran's lumbar spine disability. Thus, the analysis is limited to whether a rating in excess of 40 percent is warranted under the General Formula and whether a separate rating is warranted for neurological manifestations other than right lower extremity radiculopathy. The Veteran's treatment records show treatment for lumbar spine symptoms, but do not show findings of, or consistent with, ankylosis. In October 2015 and February 2018 he denied having any bowel or bladder incontinence. On June 2015, May 2016, and July 2020 VA examinations, the examiners indicated that the Veteran did not have any ankylosis of the spine, and did not have any other neurological abnormalities or findings other than right lower extremity radiculopathy related to his lumbar spine disability, such as bowel or bladder problems. Considering the foregoing, a 50 percent rating under the General Formula and a further separate rating for neurological manifestations are not warranted. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca, 8 Vet. App. 202. However, such additional functional loss is not shown or specifically alleged. The Board also finds that the lumbar spine symptoms and impairment shown do not include any that are not adequately addressed by the schedular rating criteria. The disability picture presented is not shown (or alleged) to be exceptional, so as to suggest referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321 may be warranted. Considering the foregoing, the Board finds that the preponderance of the evidence is against this claim. Therefore, the appeal in this matter must be denied. Chronic Urticaria The Veteran's urticaria has been rated 30 percent under Code 7825 prior to July 30, 2020. Effective August 13, 2018, VA amended its regulations governing skin disabilities, including Code 7825. See 83 Fed. Reg. 32,592 (July 13, 2018). 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 criteria is more favorable to the veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. Here, as the claim was made prior to August 2018, the Board will evaluate the Veteran's urticaria under both the new and old regulations. However, application of the new criteria prior to the effective date of the amended regulation is not allowed. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under the previous version of Code 7825, 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. Under the new version of Code 7825, a 30 percent rating is assigned for chronic urticaria that requires second line treatment (e.g., with 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 of first and second line treatments. The Veteran's medical records show that he has received treatment for flare-ups of his urticaria. He has consistently reported that he would have flare-ups about two to three times per month. His physicians discussed immunosuppressive therapy, but he consistently indicated that he did not want to undertake this type of treatment and instead continued to use, mostly, antihistamines and corticosteroids to treat his urticaria. Most recently, in May 2020, he reported that he continued to have two flare-ups per month and that his urticaria was unchanged. The treatment records for prior to July 30, 2020 do not show that his urticaria was manifested by at least 4 debilitating episodes in a 12 month period despite use of continuous immunosuppressive therapy or that it was refractory and required third line treatment for control. On June 2015 VA examination, the Veteran reported having episodes of hives two to three times per month. Prednisone was prescribed and an Epi-pen was provided. He reported that during a flare-up, he took prednisone for two to three days and then it would clear. The examiner indicated that the Veteran's urticaria did not cause scarring or disfigurement of the head, face, or neck. The examiner noted that the Veteran was treated with oral or topical medication for urticaria that included systemic corticosteroids or other immunosuppressive medications for six weeks or more, but not constantly. The examiner indicated that the Veteran did not have any debilitating episodes but had four or more non-debilitating episodes during the previous 12 months that required treatment with intermittent systemic immunosuppressive therapy. On May 2016 VA examination, the Veteran reported having flare-ups approximately two times a month that lasted two to three days each time. He reported taking cetirizine, loratadine, prednisone, and carrying an Epi-pen. The examiner noted that the Veteran's urticaria did not cause scarring or disfigurement of the head, face, or neck, and noted that the Veteran was treated for urticaria with oral or topical medications that included systemic corticosteroids or other immunosuppressive medications for six weeks or more, but not constantly. The examiner reported that the Veteran treated with antihistamines constantly/near constantly. The examiner noted that the Veteran had four or more debilitating episodes and four or more non-debilitating episodes during the previous 12 months, both requiring treatment with intermittent systemic immunosuppressive therapy. To warrant a 60 percent rating for chronic urticaria prior to July 30, 2020, the evidence has to show either that the urticaria was manifested by recurrent debilitating episodes despite continuous [emphases added] immunosuppressive therapy or from July 13, 2018 has been refractory requiring 3rd line treatment. Neither his treatment records nor the examination reports show the urticaria was of such severity. While on occasion he reported debilitating episodes (when, examiners noted intermittent immunosuppressive therapy was provided), continuous immunosuppressive therapy is not shown (or alleged). Likewise (from July 2018) the disability was not shown to have been refractory, requiring 3rd line treatment. The Veteran reported that his flare-ups would clear after using prednisone and an Epi-pen. While the May 2016 VA examiner indicated that the Veteran required constant/near constant use of antihistamines, under Code 7825, antihistamines are a first line treatment (not immunosuppressive). The Veteran reported that his flare-ups would clear with prednisone, a second line treatment. In May 2020, he reported that his urticaria was unchanged. Therefore, the clinical data support no more than the 30 percent rating assigned prior to July 20, 2020, and do not warrant the next higher, 60 percent, rating under either the prior or revised rating criteria. The Board also finds that the urticaria symptoms and impairment shown do not include any that are not adequately addressed by the schedular rating criteria. The disability picture presented is not shown (nor alleged) to be exceptional, so as to suggest referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321 may be warranted. Considering the foregoing, the Board finds that the preponderance of the evidence is against the claim. Accordingly, the appeal in this matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berryman, 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.