Citation Nr: 21040194 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 17-07 505 DATE: July 2, 2021 ORDER Entitlement to service connection for left knee disability is dismissed. Entitlement to service connection for right knee disability is dismissed. Entitlement to a 30 percent rating for allergic rhinitis is granted. Entitlement to a 10 percent rating for urticaria is granted. Entitlement to a compensable rating for residual surgical scar of the left wrist, status post left dorsal ganglion cyst excision is denied. FINDINGS OF FACT 1. Service connection for left knee disability was granted in a March 2021 rating decision. 2. Service connection for right knee disability was granted in a February 2021 rating decision. 3. The Veteran's allergic rhinitis manifested rhinitis with polyps. 4. The Veteran's urticaria requires first line treatment involving antihistamines. 5. The Veteran's left wrist scar is not manifest by any disabling effects not considered under Diagnostic Codes 7800-04. CONCLUSIONS OF LAW 1. The criteria for dismissal of entitlement to service connection for left knee disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for dismissal of entitlement to service connection for right knee disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for entitlement to a 30 percent rating for allergic rhinitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.97, Diagnostic Code 6522. 4. The criteria for entitlement to a 10 percent rating for urticaria have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7825. 5. The criteria for entitlement to a compensable rating for residual surgical scar of the left wrist, status post left dorsal ganglion cyst excision have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1984 to March 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board issued a remand in February 2020 instructing the RO to obtain TRICARE treatment records, VA examinations to determine the etiology of the Veteran's bilateral knee conditions, and VA examinations to determine the level of severity of the Veteran's urticaria, rhinitis, and wrist scar. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO sent a July 2020 letter to inquire about the TRICARE records and obtained VA examinations for all the claims on appeal. The Board finds the RO substantially complied with the February 2020 remand directives. 1. Entitlement to service connection for left knee disability. 2. Entitlement to service connection for right knee disability. In February 2020, the Board remanded the claim of entitlement to service connection for left and right knee disabilities. While on remand, the Veteran's claim was granted in a February 2021 and March 2021 rating decision. The Veteran was provided a March 2021 notification letter informing him that the decision was considered a full grant of benefit sought on appeal. Neither the Veteran nor his representative has submitted correspondence disagreeing with the finding. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. In this case, there is no claim in controversy. Therefore, entitlement to service connection for left and right knee disability is dismissed. Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, 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. Where there is a question as to which of two 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, 4.59 allows consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). 3. Entitlement to an increased rating for allergic rhinitis. The Veteran contends that he is entitled to a compensable rating for his service-connected allergic rhinitis, because the symptoms of his disability has increased. During the November 2019 Board hearing, the Veteran testified that on a daily basis he uses two nasal sprays to combat the effects of polyps. While sleeping and eating, he has to breathe through his mouth. It affects his sleep dramatically. The Veteran is service connected for allergic rhinitis with a non-compensable rating effective October 11, 2012 under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6522. Pursuant to this DC, a 10 percent rating is warranted for allergic or vasomotor rhinitis without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. A maximum 30 percent rating is warranted for allergic or vasomotor rhinitis with polyps. Post-service treatment records show the Veteran's condition manifested polyps. See e.g., July 2016 Orlando ENT (polyp of nasal cavity diagnosed February 15, 2016; nasal poly excision scheduled); March 2016 Private Treatment record (complained of nasal congestion but denied nasal discharge; presence of mucosal edema of nasal passages with hypertrophy of nasal turbinates); December 2016 Orlando ENT ( May 2016 CT sinus showed some polypoid obstruction of the right middle complexes bilaterally, location was the nose, severity was moderate, symptoms included facial pressure and headaches); July 2017 Orlando ENT (chronic rhinosinusitis - stuffy and congested primarily at night, facial pressure, headaches, cough); June 2018 Dr. S. M. Record (allergic rhinitis due to pollen); February 2020 Orlando ENT (history of nasal obstruction; polyp on the right of nasal cavity). The Veteran underwent a VA examination in September 2013. The examiner noted that the Veteran's rhinitis did not cause greater than 50 percent obstruction of the nasal passage on both sides, no complete obstruction on one side, no permanent hypertrophy of the nasal turbinates, and no nasal polyps. The Veteran's disability was re-evaluated in December 2020. The Veteran reported occasional sinusitis episodes throughout the year and treatment from prescription antibiotics and nasal spray, but the condition stayed the same. The examiner noted that the condition did not cause greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis. The condition also did not cause complete obstruction of the left or right side individually, did not cause permanent hypertrophy of the nasal turbinates, did not cause nasal polyps, and did not cause granulomatous. In February 2021, the examiner submitted a medical opinion stating that after extensive review of medical records, remand letter dated February 4, 2020, it was at least as likely as not (50 percent probability or higher) that the Veteran's allergic rhinitis has been manifested by polyps (even if they have since resolved). "Nasal polyps are inflammatory outgrowths of paranasal sinus mucosa caused by chronic mucosal inflammation, Nasal polyps typically present with nasal congestion, nasal obstruction, and anosmia or hyposmia, and occur more frequently in patients with persistent asthma, aspirin-exacerbated respiratory disease (AERD), CRS, and cystic fibrosis." (Kwah, Peters; 2019). The original claim for allergic rhinitis, nasal polyps occurred in 2012. Medical records for these conditions go as far back to 1986 for allergic rhinitis and nasal polyps in 1993 when the Veteran was still in service. The Veteran had very extensive medical records conducted by Dr. D. H., ENT, as well as his allergist Dr. S. regarding treatment and diagnosis of nasal polyps, allergic rhinitis, recurrent sinusitis, hypertrophied turbinates and asthma. The examiner concluded that it was less likely as not that the veteran's allergic rhinitis nasal polyps has been manifested by either greater than 50 percent obstruction of nasal passage on both sides OR complete obstruction on one side. He has consistent records documenting positive findings for nasal polyps, but none of them document obstruction of one side, or greater than 50% obstruction of nasal passage. Based on the evidence of record, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the maximum rating of 30 percent disabling is warranted for allergic rhinitis under DC 6522 based on the presence of polyps. Therefore, entitlement to a 30 percent rating for allergic rhinitis is granted. 4. Entitlement to a compensable rating for urticaria. The Veteran contends that he is entitled to a compensable rating for his service-connected urticaria, because the symptoms of his disability has increased. During the November 2019 Board hearing, the Veteran testified that he had recurrent symptoms at least four times in the past 12 months. His skin is responsive to antihistamine, but the medication does not fix the issue. He also stated that he does not know what triggers his breakouts. However, he has noticed that it occurs some time when he has an asthma attack. The Veteran is service connected for urticaria with a non-compensable rating effective October 11, 2012 under 38 C.F.R. § 4.118, DC 7825. The Veteran's urticaria is rated under Diagnostic Code 7825. As an initial matter, the Board notes that the rating criteria contained in Diagnostic Code 7825 specifically, and in the rating schedule for disabilities of the skin generally, were amended effective August 13, 2018. 83 Fed. Reg. 32,592 (July 13, 2018) (eff. Aug. 13, 2018). In light of the amendment, the Board will consider both sets of criteria when evaluating whether increased ratings are possible under any other any alternative Diagnostic Codes, although if an increased rating is 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). Based on the foregoing, the Board will analyze the current claim under the criteria in effect prior to August 13, 2018, and will then consider whether an increased rating under the new criteria is possible from August 13, 2018, forward. Under the criteria in effect prior to the amendment, under Diagnostic Code 7825 a 10 percent rating was warranted for recurrent episodes of urticaria occurring at least four times during the past 12-month period, and that is responding to treatment with antihistamines or sympathomimetics. 38 C.F.R. § 4.118, Diagnostic Code 7825 (2017). A 30 percent rating was warranted for recurrent debilitating episodes of urticaria occurring at least four times during the past 12-month period and requiring intermittent systemic immunosuppressive therapy for control. Id. Finally, a 60 percent rating was contemplated for recurrent debilitating episodes of urticaria occurring at least four times during the past 12-month period despite continuous immunosuppressive therapy. Id. Under the post-amendment criteria contained in Diagnostic Code 7825, chronic urticaria is defined as continuous urticaria at least twice per week, off treatment, for a period of six weeks or more. 38 C.F.R. § 4.118, Diagnostic Code 7825 (2019). A 10 percent rating is contemplated for chronic urticaria that requires first line treatment (antihistamines) for control. Id. 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. Id. 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. Id. Post-service treatment records showed the has received treatment for urticaria. See e.g., July 2015 Orland Record (urticaria onset March 2015); March 2017 Dr. S. M. Record (Veteran reported that hives diminished in frequency and severity but on occasion it reoccurred); April 2018 Dr. S. M. Record (Veteran stated taking loratadine for nasal symptoms or hives); June 2018 Dr. S. M. Record (Veteran reported hives on and off for the past several years). In March 2016, the Veteran went to his private physician for a follow up appointment. The record of the appointment noted that the Veteran denied hives since his last visit. Physical examination also revealed no hives were present. The Veteran underwent a VA examination in September 2013. The examiner noted that the Veteran's skin condition did not have benign or malignant neoplasms or systemic manifestations. It was also noted that the Veteran used topical treatment for his condition constantly. There were no debilitation episodes in the past 12 months. Less than 5 percent of the total body area was affected by infections of the skin. And between 5 percent to 20 percent of the exposed area was affected by infections of the skin. Skin examination does not reveal any lesions that are consistent with urticaria. There are no raised welts, erythema, or hive like reactions of the skin. The Veteran's skin condition was re-evaluated in February 2021. The Veteran reported that symptoms were redness, dry pruritic patches of the skin, but at the time of the examination he had no current symptoms and he was not receiving treatment for it. The Veteran also reported that he would take antihistamines to treat the urticaria when symptoms occurred. Physical examination showed that none of the total body area or exposed area was affected by the urticaria. There was no benign or malignant neoplasm or metastases related to the urticaria. The examiner explained that there was no medical documentation that showed the urticaria occurred twice per week. The Board finds that a compensable rating for urticaria is not warranted under the old rating criteria. In this regard, the Board notes that the evidence fails to show recurrent episodes of urticaria occurring at least four times during the past 12-month period. Although the Veteran testified as to having episodes four times during the previous year, this is contradicted by his treatment records which suggest less frequent episodes. Regarding the revised rating criteria, based on the evidence of record, including the Veteran's testimony, the Board finds that a 10 percent rating, but no higher, is warranted. In this regard, the evidence shows that he has required use of antihistamines to control symptoms. The most recent VA examination conducted in 2021 noted that the Veteran had used antihistamines for 6 weeks or more in the past 12 months, but had not used them constantly. Accordingly, a 10 percent rating is warranted under the new rating criteria. However a rating higher than 10 percent is not warranted. The urticaria has not required second line treatment (e.g. corticosteroids, sympathomimetics, leukotriene inhibitors, neutrophil inhibitors, thyroid hormone) for control. The Board notes that the Veteran has reported symptoms not directly contemplated by the rating criteria governing urticaria, including itching and body area coverage. Thun v. Peake, 22 Vet. App. 111, 116 (2008). However, the medical evidence does not reflect that the Veteran's urticaria result in frequent hospitalizations, nor is there evidence that the disability results in marked interference with the Veteran's employment. The Veteran has only been diagnosed with urticaria, which is specifically covered by Diagnostic Code 7825. As such, it would be inappropriate to rate this disability by analogy to any other Diagnostic Codes. Copeland v. McDonald, 27 Vet. App. 333, 33637 (2015) ("the Court reiterates that when a condition is specifically listed in the Schedule, it may not be rated by analogy"). Thus, consideration of any alternative Diagnostic Codes is not warranted in this case. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against awarding a compensable rating for the Veteran's service-connected urticaria. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. 5. Entitlement to a compensable rating for residual surgical scar of the left wrist. The Board addresses the increased rating claims together as they stem from the same factual background and are addressed under the same legal basis. Prior to the November 2019 Board hearing, the Veteran was service connected for residual of surgical scar of the left wrist with a non-compensable rating effective October 11, 2012, under DC 7805. During the November 2019 Board hearing, the Veteran testified that his left wrist scar was painful and limited his ability to move. His job required him to type all day. He put cream on his wrist scar for pain. In February 2020, the Board remanded the claim for further evaluation. While on remand, a February 2021 rating decision granted service connection for a separate rating under DC 7804 for painful scar of the left wrist and residuals of painful surgical scar of the left inguinal varicocelectomy. A 10 percent rating was assigned effective November 1, 2019. A compensable rating under DC 7805 was not awarded. DC 7800 pertains only to scars of the head, face, or neck. Effective October 23, 2008, DC 7803 was eliminated from the rating criteria. Therefore, these DCs would not be applicable in this case. DC 7801 pertains to burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. A minimum compensable rating requires the scar to be at least 6 square inches (39 sq. cm.). DC 7802 pertains to burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. The only compensable rating under DC 7802 requires a scar to cover an area or areas of 144 square inches (929 sq. cm.) or greater. Pursuant to DC 7804 a 10 percent rating is assigned for one or two unstable or painful scars. A 20 percent rating is assigned for three or four scars that are unstable or painful. A 30 percent rating is assigned for five or more scars. Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2): If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3): Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. DC 7805 evaluates scars based on effects not covered by DC 7800-7804. The Board notes that the RO has already assigned a 10 percent rating for the two scars (wrist and scrotum), and there is no evidence that the Veteran has more than two painful scars. Therefore, the only potential basis for additional compensation requires a showing of impairment of function which would warrant a rating a separate compensable rating under DC 7805. The Veteran's condition was evaluated in September 2013. The examination showed the Veteran had a ganglion cyst status post excision. The Veteran reported that after the cyst was removed, he experienced dull aching pain triggered by typing and lifting. He rested his wrist and took over the counter medication to treat the pain. He also reported that he experienced flare-ups approximately 3 times a week that lasted 2 to 4 hours. The examiner noted the Veteran had a scar but it was not painful, not unstable, and it was not at least 6 square inches. A November 2013 Jewett Clinic record showed the Veteran reported soreness on the dorsum of his left wrist which was the same side of his excision ganglion cyst. Physical examination revealed mild sensitivity reflecting underlying ligamentous instability due to scar. In June 2014, the Veteran reported left wrist pain with yard work or activities when the movements were repetitive. A December 2019 UCF record noted the Veteran sought treatment for his left wrist and was diagnosed with arthritis of the wrist. The Veteran's scar was re-evaluated in February 2021. The Veteran reported that that is condition worsened over time with symptoms of pain and stiffness. The Veteran also reported monthly flare-ups of the left wrist. The flare-ups were mild and last 1-2 days. Flare ups were triggered by physical activity and rest alleviated the pain. The examiner noted function all due to pain, stiffness, limited range of motion, difficulty with heavy lifting or repetitive motion. A scar VA examination was also conducted in February 2021. Physical examination revealed a scar on the extremity, but not the head, face, or neck. One painful scar was noted, but it was not unstable. The scar measured 3.5 x 1 cm on the anterior left wrist and was tender on palpation. However, the scar was not unstable and did not cause underlying soft tissue damage. The Board has noted that he testified of having limitation of motion and difficulty grasping objects, however, a VA examiner in February 2021 noted that the Veteran also had a history of nonservice-connected carpal tunnel syndrome and concluded that it is less likely than not that nay limitation of motion is due to his scar or that any decrease in strength or loss of functional impairment was due to the scar. A compensable rating for DC 7805 is not warranted for any time during the entire appeal period, because there was no evidence of symptoms not already contemplated by diagnostic code 7804. Although the Veteran experiences pain, that is already contemplated by his 10 percent rating which has been assigned under code 7804. He is not shown to have limitation of motion warranting a compensable rating under DC 5215 or ankylosis warranting a compensable rating under 5214. Accordingly, the criteria for a separate compensable rating for limitation of function under 7805 are not met. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Harris, Attorney Advisor 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.