Citation Nr: 0314035 Decision Date: 06/26/03 Archive Date: 06/30/03 DOCKET NO. 99-08 385 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to higher initial ratings for herpes simplex, evaluated as noncompensably disabling from May 31, 1996, through August 29, 2002, and 10 percent disabling from August 30, 2002. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M.N. Romero, Associate Counsel INTRODUCTION The veteran served on active duty from June 1971 to July 1973. This matter came before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the St. Louis, Missouri Regional Office (RO) of the Department of Veterans Affairs. The veteran presented testimony at a hearing before a hearing officer at the RO in June 1999. A transcript of the hearing is of record. When this case was before the Board in February 2001, the issues of entitlement to an initial compensable evaluation for herpes simplex and entitlement to service connection for hypertension were remanded to the RO for further actions. While the case was in remand status, the RO granted service connection for hypertension, thereby resolving that issue. In addition, the RO granted a 10 percent rating for herpes simplex, effective August 30, 2002. The veteran has continued his appeal with respect to this initial evaluation issue. Also while the case was in remand status, the veteran filed a notice of disagreement with the RO decision assigning an effective date of September 21, 1999, for the grant of service connection for hypertension. The RO has responded to this notice of disagreement and is maintaining a temporary file with respect to this matter. The effective date issue has not been certified for appellate consideration and is not currently before the Board. FINDINGS OF FACT 1. The veteran's herpes simplex involves the groin and genital area; active episodes occur two or three times a year and are manifested by itching, burning and pain without ulceration, systemic manifestations or nervous manifestations. 2. The veteran's outbreaks of herpes simplex require the intermittent use of the drug Acyclovir for less than 6 weeks in any 12 month period. CONCLUSION OF LAW The veteran's herpes simplex does not warrant a compensable evaluation during the period prior to August 30, 2002, or an evaluation in excess of 10 percent during the period beginning August 30, 2002. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.20, 4.118, Diagnostic Code 7806; 67 Fed. Reg. 49,590-99 (July 31, 2002); 67 Fed. Reg. 58,448 (September 16, 2002); and 67 Fed. Reg. 62,889 (October 9, 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background. In accordance with 38 C.F.R. §§ 4.1, 4.2 (2002) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the veteran's herpes simplex disability. With respect to the initial evaluation period, there is no medical evidence documenting active herpes simplex prior to April 1998. A VA outpatient record dated in April 1998 notes that the veteran reported that he had herpes in service and had had 2 or 3 outbreaks of the condition per year since then. The outbreaks generally resolved on their own without treatment. The physical examination disclosed a small lesion on the shaft of the penis with a clear fluid discharge. Viral cultures were done and the assessment was herpes simplex. The veteran was placed on Acyclovir for a 10 day period. A VA outpatient treatment record dated in March 1999 indicates that on this particular occasion, the veteran presented without physical complaints, but was concerned about his herpes simplex condition. He reported that his disease had been marked by multiple recurrences since his initial infection, despite drug therapy. According to the veteran, he continued to experience multiple breakouts although he continued medication therapy. These recurrences were accompanied by pain and itching in his genital and groin areas. He also experienced extensive swelling throughout his inguinal area with lymphadenopathy. The veteran also developed multiple vesicular lesions over the shaft of his penis and extending towards his groin. He reported that anything coming in contact with the involved area, including clothing, caused great discomfort. Medications included: Acyclovir 200 mg 5 times daily during outbreaks, Aspirin daily, Simvastatin 10mg daily, Indomthacin, and Methocarboma. A June 1999 VA outpatient record indicates that the veteran reported having had multiple breakouts of herpes in the past years. These breakouts occurred two to three times per year and generally resolved on their own. It was noted that the veteran's herpes simplex usually involved the genital tract, and the outbreaks were intermittent with reactivation by unknown stimuli. The signs of infection were demonstrated by asymptomatic shedding, followed by lesions that could itch, burn, and cause pain or discomfort. It was noted that prevention of recurrent mucocutaneous disease was most effective when treated with Acyclovir and abstinence from sexual contact. He did not report any current lesions, and no physical examination was performed. The assessment was herpes with a history of a lesion on the penis. At a June 1999 RO hearing, the veteran testified that the herpes lesions involve his hands, penis and groin and that the lesions cause burning, itching and pain. He stated that he wore loose fitting clothes in order to avoid any rubbing which would intensify his itching. He also testified that the herpes also caused him to experience swelling in the penis area. The veteran indicated that during an outbreak, he would experience discomfort for several days. During this time, he took the medication Acyclovir five times daily, but he did not utilize any kind of topical ointments. In July 1999 the veteran underwent a VA skin examination. At this time, the veteran reported that he experienced one to three breakouts per year and that he had had two breakouts in the last one and a half years. He reported that he would develop a sensation on the shaft of his penis with pain and that blisters would then form. When the blisters formed, he would also develop bilateral lymphadenopathy in the groin which was painful. The blisters would last approximately seven days and then a scab would form. The scab would subsequently resolve in approximately three to four weeks and the lymphadenopathy improved. In addition to this, the veteran reported that approximately two and a half to three months ago he had some vesicular-type lesions on his hands. He denied any exposure to any known agents that would result in the contact dermatitis such as poison ivy or poison oak. The examiner noted the lesion on the veteran's left hand on the posterior aspect at the base of the left thumb had formed a blister which subsequently healed with a current residual scar. The veteran further indicated there was associated pain and itching similar to the lesions on the shaft of his penis. He also reported that between the fingers on his right hand he had small bumps without any blistering, but had associated itching. These also resolved. He also reported that at the onset of symptoms he would take Acyclovir and continue the medicine for 10 days or until the symptoms resolved. Physical examination of the penis in July 1999 did not reveal any active lesions. Examination of the left hand revealed a small 0.5 cm circular hyperpigmented scar. Examination of the digits on the right hand revealed multiple, 1-2 mm hypopigmented scars which the veteran reported were from the lesions approximately two to three months ago. There was no tenderness or associated abnormalities at this time. The examiner diagnosed herpes simplex virus, type II. He stated that it was associated with intermittent outbreaks of lesions but no active lesions were currently present.. In August 2002 the veteran underwent additional VA examination. On the occasion of this particular examination, the veteran reiterated that he experienced two to three episodes per year. During each episode, he had a painful cluster of blisters, which then turned into a scab which lasted for several days. The veteran indicated that his last episode was in May 2002, and he was taking the medication Acyclovir. On physical examination, the veteran had no active lesions. The assessment was history of herpes simplex of the penis with two to three episodes per year. The examiner commented that patients with genital herpes have recurrent infections which are often painful and itchy. The examiner noted that the examination had been ordered two and a half months ago but the veteran had had no attack of herpes simplex during that period so the veteran's claim folder was returned to the RO in order to allow the veteran's claim to be processed. II. Veterans Claims Assistance Act of 2000. During the pendency of the veteran's claim, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law and codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). In addition, regulations implementing the VCAA were published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) and codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2002). The liberalizing provisions of the VCAA and the implementing regulations are applicable to the veteran's claim. The Act and implementing regulations essentially eliminate the requirement that a claimant submit evidence of a well- grounded claim, and provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The record reflects that through the statement of the case, supplements thereto, and various letters from the RO to the veteran, the veteran has been informed of the requirements for the benefit sought on appeal, the evidence and information needed to substantiate the claim, the information required of the veteran to enable the RO to obtain evidence on his behalf, the assistance that VA would render in obtaining evidence on the veteran's behalf, the evidence that the veteran should submit if he did not desire VA's assistance in obtaining such evidence, and the evidence that the RO has obtained. Therefore, the Board is satisfied that VA has complied with the notification requirements of the VCAA and the implementing regulations. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The record also reflects that pertinent treatment records have been obtained, and the veteran has been provided with appropriate VA examinations of his herpes simplex. Neither he nor his representative has identified any additional, available evidence or information that could be obtained to substantiate the claim. The Board is also unaware of any such evidence or information. Therefore, the Board is also satisfied that the RO has complied with the duty to assist requirements of the VCAA and the implementing regulations. III. Analysis. 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 (2002). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.10 (2002). When a disability not specifically provided for in the rating schedule is encountered, it will be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2002). The veteran's herpes simplex is rated by analogy under the diagnostic code for eczema. A noncompensable rating is assigned for eczema if there is slight, if any, exfoliation, exudation, or itching, and the condition involves only a nonexposed surface or a small area. A 10 percent rating is assigned for eczema with exfoliation, exudation or itching if it involves an exposed surface or extensive area. A 30 percent rating is assigned for eczema with exudation or constant itching, extensive lesions, or marked disfigurement. A 50 percent rating is assigned for exceptionally repugnant eczema, or eczema with ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2002). Effective August 30, 2002, the rating criteria for skin disorders were revised. See 67 Fed. Reg. 49,590-99 (July 31, 2002); see also corrections at 67 Fed. Reg. 58,448 (September 16, 2002) and 67 Fed. Reg. 62,889 (October 9, 2002). The veteran is entitled to the application of the version of the regulation that is more favorable to him from the effective date of the new criteria, but only the former criteria are to be applied for the period prior to the effective date of the new criteria. See Karnas v. Derwinski, 1 Vet. App. 308, 312- 13 (1991); VAOPGCPREC 3-2000 (April 10, 2000), published at 65 Fed. Reg. 33, 422 (2000). Under the revised version of Diagnostic Code 7806, dermatitis or eczema warrants a 60 percent evaluation if it covers more than 40 percent of the entire body, more than 40 percent of exposed areas are affected, or if constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs have been required during the past 12-month period. Dermatitis or eczema covering 20 to 40 percent of the entire body, affecting 20 to 40 percent of exposed areas, or requiring systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period warrants a 30 percent evaluation. Dermatitis or eczema covering at least 5 percent, but less than 20 percent, of the entire body; affecting at least 5 percent, but less than 20 percent, of exposed areas; or requiring intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period warrants a 10 percent evaluation. Dermatitis or eczema covering less than 5 percent of the entire body, affecting less than 5 percent of exposed areas; and requiring no more than topical therapy during the past 12-month period warrants a noncompensable evaluation. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The medical evidence confirms that the veteran had an active episode of herpes simplex in April 1998. At that time the veteran was found to have a small lesion on the penis with a clear fluid discharge. The medical evidence shows that the veteran has been followed for this condition and provided VA examinations for the purpose of determining the severity of the condition. On none of these other occasions has an active lesion been present. The veteran has alleged that the herpes simplex also involves his hands. Although this allegation is recorded in the medical evidence, no active lesion of either hand has been observed by a health care professional and the assessments in the record only identify herpes simplex of the penis and groin area. Therefore, the Board must conclude that the disability involves only a small, nonexposed area. The veteran has alleged that the outbreaks of herpes simplex occur two to three times per year and that the lesions are productive of itching, pain and burning. The medical evidence indicates that persons with genital herpes generally have recurrent infections that are often painful and itching. The veteran has not alleged and there is no medical evidence showing that the disorder is productive of ulceration, systemic manifestations or nervous manifestations. Accordingly, there is no appropriate basis for assigning a compensable evaluation under the criteria in effect prior to August 30, 2002. The RO has assigned a 10 percent rating under the new criteria from the effective date of the new criteria based on the medical evidence indicating that the veteran's herpes simplex has been treated with Acyclovir. As noted previously, the new criteria are only for application from their effective date. The medical evidence clearly shows that the area of involvement, the penis and groin, does not justify an evaluation in excess of 10 percent under the new criteria. In addition, only one active episode of herpes simplex has been documented in the medical evidence pertaining to the initial evaluation period, the veteran has alleged that the active episodes occur 2 or 3 times a year, and the medical evidence shows that the active episodes are treated with a 10 day course of Acyclovir. Thus, neither the veteran's statements nor the medical evidence supports the proposition that the veteran has required systemic therapy for a total duration of six weeks or more during a 12 month period. Therefore, the disability does not warrant an evaluation in excess of 10 percent under the new criteria. Consideration has been given to assigning a higher staged rating; however, at no time during the initial evaluation period has the disability warranted staged ratings in excess of those already assigned by the RO. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) (2002). The record reflects that the veteran has not required hospitalization for his herpes simplex disability and that the manifestations of the disability are contemplated by the schedular criteria. In sum, there is no indication in the record that the average industrial impairment from the disability warrants a compensable rating prior to August 30, 2002, or an evaluation in excess of 10 percent during the period beginning August 30, 2002. Therefore, the Board has determined that referral of this case for extra-schedular consideration is not in order. In reaching this decision, the Board has determined that application of the evidentiary equipoise rule is not required in this case because the preponderance of the evidence is against the claim. ORDER Entitlement to higher initial ratings for herpes simplex is denied. Shane A. Durkin Veterans Law Judge Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.