Citation Nr: 1227106 Decision Date: 08/07/12 Archive Date: 08/14/12 DOCKET NO. 07-09 305 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial compensable rating prior to June 20, 2005, and to an initial rating greater than 60 percent thereafter for genital herpes, including on an extraschedular basis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from October 1980 to December 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted the Veteran's claim of service connection for herpes, assigning a zero percent (non-compensable) rating effective December 29, 2004 (this date was later revised to December 20, 2004), and denied the Veteran's claim of service connection for schizoaffective disorder (characterized as bipolar disorder/schizophrenia (claimed as bipolar schizophrenia)). Although the Veteran requested a Travel Board hearing when he perfected a timely appeal in February 2007, he failed to report for this hearing when it was scheduled in June 2012. Thus, his Board hearing request is deemed withdrawn. See 38 C.F.R. § 20.704 (2011). An RO hearing was held in April 2008 and a copy of the hearing transcript has been added to the record. In a June 2011 rating decision, the RO assigned a higher initial 60 percent rating effective June 20, 2005, for the Veteran's service-connected genital herpes. The Veteran continued to disagree with the initial ratings assigned for his service-connected genital herpes. In an October 2011 rating decision, the RO granted service connection for schizoaffective disorder, assigning a 100 percent rating effective December 20, 2004. There is no subsequent correspondence from the Veteran expressing disagreement with the rating or effective date assigned. Accordingly an issue relating to schizoaffective disorder is no longer in appellate status. See Grantham v. Brown, 114 F .3d 1156 (1997). In a January 2012 rating decision, the Veteran was found not competent to handle the disbursement of VA disability compensation. The appellant was appointed the Veteran's guardian in February 2012. The Board notes that, in Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) recently held that a TDIU claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability. The Court also found in Rice that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. The Veteran has not asserted and the record does not demonstrate that he is not employable by reason of his service-connected genital herpes. Thus, the Board finds that Rice is not applicable. Accordingly, the decision will not discuss whether a TDIU rating based on the Veteran's service-connected genital herpes is warranted. FINDING OF FACT Throughout the pendency of this appeal, the competent evidence suggests that the Veteran's service-connected genital herpes is manifested by recurrent outbreaks every few months and requires oral medication to control these outbreaks. CONCLUSION OF LAW The criteria for an initial 60 percent rating effective December 20, 2004, for service-connected genital herpes have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.118, Diagnostic Code (DC) 7820-7806 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. The Veteran's higher initial rating claim for genital herpes is a "downstream" element of the RO's grant of service connection for this disability in the currently appealed rating decision. For such downstream issues, notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 is not required in cases where such notice was afforded for the originating issue of service connection. See VAOPGCPREC 8-2003 (Dec. 22, 2003). Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d. 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In February and May 2005 and in March 2006, VA notified the Veteran of the information and evidence needed to substantiate and complete this claim, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187. With respect to the timing of the notice, the Board points out that the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, all of the VCAA notice was provided to the Veteran and his service representative prior to the currently appealed rating decision issued in May 2006; thus, all of this notice was timely. The Board is aware of the decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) in which the Court held that, for an increased-compensation claim, section § 5103(a) requires, at a minimum, VA notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Relying on the informal guidance from VA's Office of General Counsel (OGC) and a VA Fast Letter issued in June 2008 (Fast Letter 08-16; June 2, 2008), the Board finds that Vazquez-Flores is not applicable to this appeal. According to OGC, because this claim concerns an appeal from an initial rating decision, VCAA notice obligations are satisfied fully once service connection has been granted. Any further notice and assistance requirements are covered by 38 U.S.C. §§ 5104(a), 7105(d)(1), and 5103A as part of the appeals process, upon the filing of a timely notice of disagreement with respect to the initial rating or effective date assigned following the grant of service connection. To the extent that Dingess requires more extensive notice as to potential downstream issues such as disability rating and effective date, because the currently appealed rating decision was fully favorable to the Veteran on the issue of service connection for genital herpes, and because the Veteran was fully informed of the evidence needed to substantiate this claim, the Board finds no prejudice to the Veteran in proceeding with the present decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In Dingess, the Court held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See Dingess, 19 Vet. App. at 490-91. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the RO and the Board. As noted in the Introduction, the Veteran testified at an RO hearing in April 2008 and then failed to report for his Board hearing when it was scheduled in February 2012. It appears that all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file. The Veteran's complete Social Security Administration (SSA) records have been obtained and associated with the claims file. The Veteran's Virtual VA claims file also has been reviewed and no relevant evidence was located there. The Veteran has contended that he was treated at VA Medical Centers in Butler, Pennsylvania ("VAMC Butler"), and in Pittsburgh, Pennsylvania ("VAMC Pittsburgh"), for his service-connected genital herpes. In response to requests for the Veteran's records, VAMC Butler notified the RO in December 2005 and in January 2011 that no such records existed. Similarly, VAMC Pittsburgh informed the RO in May 2008 that it had no records for the Veteran. The RO concluded in a November 2010 memorandum that no records were available from VAMC Pittsburgh and further attempts to obtain them would be futile. The Board agrees. The Veteran has been provided with a VA examination which addressed the current nature and severity of his service-connected genital herpes. Given that the pertinent medical history was noted by the examiner, this examination report sets forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations. Thus, the Board finds the examination of record is adequate for rating purposes and additional examination is not necessary regarding the claim adjudicated in this decision. See also 38 C.F.R. §§ 3.326, 3.327, 4.2. In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. The Veteran contends that his service-connected genital herpes is more disabling than currently evaluated. The Veteran specifically contends that he experiences frequent outbreaks of genital herpes and is required to take medication to treat these outbreaks. In general, disability evaluations are assigned by applying a schedule of ratings that represent, as far as can be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria that must be met for specific ratings. The regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history. 38 C.F.R. § 4.2; see Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as in this case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's service-connected genital herpes currently is evaluated as zero percent disabling (non-compensable) effective December 20, 2004, and as 60 percent disabling effective June 20, 2005, by analogy to 38 C.F.R. § 4.118, DC 7820-7806 (other skin infections-dermatitis or eczema). DC 7820 provides that other skin infections will be rated as disfigurement of the head, face, or neck (DC 7800), scars (DC's 7801 through 7805) or dermatitis (DC 7806, depending upon the predominant disability. See 38 C.F.R. § 4.118, DC 7820 (2011). Under DC 7806, a zero percent rating is assigned for dermatitis or eczema affecting less than 5 percent of the entire body or less than 5 percent of the exposed areas of the body and requiring no more than topical therapy during the previous 12-month period. A 10 percent rating is assigned for dermatitis or eczema affecting at least 5 percent, but less than 20 percent, of the entire body or at least 5 percent, but less than 20 percent, of the exposed areas of the body or requiring intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than 6 weeks during the previous 12-month period. A 30 percent rating is assigned for dermatitis or eczema affecting 20 to 40 percent of the entire body or 20 to 40 percent of the exposed areas of the body or requiring systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of 6 weeks or more, but not constantly, during the previous 12-month period. A maximum 60 percent rating is assigned under DC 7806 for dermatitis or eczema affecting more than 40 percent of the entire body or more than 40 percent of the exposed areas of the body or requiring constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the previous 12-month period. See 38 C.F.R. § 4.118, DC 7806 (2011). If a Veteran has separate and distinct manifestations relating to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). The evaluation, however, of the same manifestation under different diagnostic codes is to be avoided. 38 C.F.R. § 4.14 (2011). The Rating Schedule may not be employed as a vehicle for compensating a claimant twice or more for the same symptomatology, since such a result would overcompensate the claimant for the actual impairment of his earning capacity and would constitute pyramiding. See Esteban, citing Brady v. Brown, 4 Vet. App. 203 (1993). The Board finds that the evidence supports assigning an initial 60 percent rating effective December 20, 2004, for the Veteran's service-connected genital herpes. The Veteran has contended that his service-connected genital herpes has been severely disabling and manifested by frequent outbreaks which required medication for treatment since he filed his service connection claim. The Board agrees. The Veteran's service treatment records show that he experienced recurrent outbreaks of genital herpes during active service which required medication for treatment. At the Veteran's enlistment physical examination in October 1980, clinical evaluation of his genitourinary system was normal. The Veteran denied any pre-service history of venereal disease. On outpatient treatment on May 26, 1986, the Veteran's complaints included 2 sores on his penis. He reported that he had sexual contact 2 days earlier and his partner had not been lubricated. Objective examination showed 2 sores present on the penis shaft, both located at the base of the head, with "exudate present on both" lesions, and painful to the touch. A history of non-specific urethritis was noted. The assessment included chancroid versus friction burn. On May 29, 1986, the Veteran's complaints included sores on his penis. Physical examination showed a friction burn on the penis without secondary infections. The assessment included a friction burn to the penis. On May 30, 1986, the Veteran's complaints included a groin rash and lesions on the glans of his penis. Objective examination showed lesions diagnosed as friction burn "but have not resolved." The assessment included lesions to the penis. Following subsequent outpatient treatment that same day, the assessment included possible herpes. On June 6, 1986, the Veteran complained of a painful inflammation of the groin region with "much discomfort" on ambulation. He reported applying cream as prescribed. Objective examination showed erythematosus pustules in the groin region extending in to the surrounding perianal region, and no masses, lesions, or nodules on the testicles. It was noted that the Veteran's rash "appears much better than 2 days ago." The assessment included herpes simplex II. He was advised to continue using Zovarax cream and to avoid sexual contact until resolved. The Veteran was hospitalized in August and September 1986 for treatment of mixed substance abuse and herpes. The discharge note indicated that the Veteran's chronic adult illnesses included herpes simplex II, genitalia, "beginning three months ago." A history of gonorrhea also was noted. Physical examination showed healing herpetic lesions on the inner aspect of the right thigh. He was placed on Zovirex cream applied three times a day. The Axis III discharge diagnosis was herpes simplex II of genitalia. The Veteran was returned to duty. On outpatient treatment later in September 1986, the Veteran complained of recurring erythematic eruptions to the right groin region and a tiny "yellowish" lesion with crusting on the left mid-shaft of the penis which had lasted for 3 days. He requested a refill of acyclovir cream which had been effective in clearing up previous lesions. Objective examination showed a rash-like erythematic eruptions over the right groin region on the upper inner thigh and small yellowish lesions with a crusted center and reddish outer edges and no abnormal masses or lesions noted on the scrotum. The assessment was recurring herpes simplex virus II in the groin area. The Veteran was prescribed acyclovir cream and advised to apply it to the affected area every 3 hours and to abstain from sexual contacts until it was fully cleared or resolved. In October 1986, the Veteran complained of a rash in the right groin region, drying, bleeding, and pruritis. He reported being treated with zovarax cream with only minimal relief. Objective examination showed mild erythematosus patches on the right groin with some scaling edges. The assessment was questionable fungal infection. At the Veteran's separation physical examination in November 1986, clinical evaluation of his genitourinary system was normal. On outpatient treatment in December 1986, just prior to his discharge from active service, the Veteran complained of recurrent sloughing of tissue in the right groin area and burning and itching. He reported that he had been diagnosed previously as having herpes simplex virus II and treated with acyclovir cream with normal results. Objective examination showed sloughing of tissue in the right groin area with yellow and clear-colored discharge and odor and nothing noted on the penis shaft. The assessment was recurring herpes simplex virus II. The Veteran was advised to apply acyclovir cream. The competent post-service evidence also supports assigning an initial 60 percent rating effective December 20, 2004, for the Veteran's service-connected genital herpes. This evidence demonstrates that, following active service, the Veteran continued to experience recurrent outbreaks of genital herpes which required medication for treatment. A VA Form 119, "Report Of Contact," indicates that the Veteran filed an informal service connection claim with VA on December 20, 2004. His formal claim for VA disability compensation (VA Form 21-526) was date-stamped as received on December 28, 2004. A review of the Veteran's voluminous post-service VA outpatient treatment records shows that, on April 7, 2005, while the Veteran was hospitalized at a VA Medical Center for treatment of a psychiatric disability, his mother reported that he currently was experiencing a flare-up of genital herpes. It was noted that the Veteran's genital herpes had been treated with a course of acyclovir "and the flareup cleared." On June 1, 2005, it was noted that the Veteran's medical issues included genital herpes. On June 20, 2005, the Veteran asked to be placed on long term medication to treat recurrent genital herpes infections that occurred "every few months." He denied any current symptoms of genital herpes and reported that he acquired this disease in 1985. The assessment included herpes. A print out of the prescriptions the Veteran was taking shows that in June 2005, he began long term oral medication to treat recurrent genital herpes. The Veteran's SSA records, which were date-stamped as received by the RO in July 2005, relate to treatment for psychiatric disabilities and consist of duplicates of VA outpatient treatment records. The Veteran testified at his April 2008 RO hearing that he had been prescribed cream to treat his service-connected genital herpes during active service but it had not worked very well. He also testified that he experienced boils as a result of his service-connected genital herpes. On VA examination in July 2009, the Veteran complained of constant genital herpes which was well controlled by acyclovir 400 mg twice daily. The Veteran stated that, when he is hospitalized, he is taken off of acyclovir "and he gets severe outbreaks. So this time, when he was hospitalized, they resumed the oral acyclovir and also gave him acyclovir cream. Currently he is asymptomatic." Physical examination showed approximately zero percent of the exposed areas of the body were affected by genital herpes, less than 1 percent of the entire body was affected, and the "pruritic herpetic blisters occur at the base of the penis and on the perineum," no bleeding, scarring, or disfigurement, and no evidence of any active infection of the perineum, inguinal, or anal areas. The VA examiner stated that there was no indication of disfiguring skin condition or scars of the head, face, or neck. This examiner also stated that the skin condition did not impair the Veteran's activities of daily living or employment. The diagnosis was genital herpes simplex virus. On VA outpatient treatment in November 2010, no relevant complaints were noted. The assessment included chronic genital herpes (on acyclovir). The Board acknowledges the Veteran's assertions that his service-connected genital herpes is more disabling than currently evaluated. He has reported consistently that he experiences frequent outbreaks of his service-connected genital herpes every few months which require oral medication for treatment. The record also demonstrates that in order to control his genital herpes oral medication is required, otherwise he would get outburst every few months. The Board finds that the competent evidence supports the Veteran's assertions concerning the frequency and severity of outbreaks of his service-connected genital herpes which require medication for treatment. The Veteran's service treatment records show that, each time he experienced an outbreak of genital herpes during service, he was prescribed acyclovir cream. The evidence shows that he continued to have outbreaks when prescribed topical medication. The Veteran also has been seen frequently since he filed his service connection claim on December 20, 2004, by a variety of VA treating providers for treatment of flare-ups (or outbreaks) of his service-connected genital herpes. The Veteran's VA treating providers prescribed oral medication (acyclovir) to treat his recurrent outbreaks of service-connected genital herpes. The Veteran himself reported on VA examination in July 2009 that, when he is taken off acyclovir during hospitalizations for psychiatric problems, he experiences severe outbreaks of his service-connected genital herpes. This statement persuasively suggests that the Veteran has experienced severe disability due to his service-connected genital herpes throughout the pendency of this appeal. The Board finds that the evidence shows that in order to control the Veteran's genital herpes outbreaks, he was placed on oral medication, which he has taken since June 2005 constantly or near constantly. Prior to June 2005, the evidence shows that while the Veteran may not have taken oral medication (systemic therapy), his condition was not controlled until oral medication was prescribed constantly or near constantly. As such, the Board finds that the Veteran's condition more nearly approximates the criteria for a 60 percent rating under 38 C.F.R. § 4.118, Diagnostic Code 7806 from December 20, 2004. The Board also finds that consideration of additional staged ratings for the Veteran's service-connected genital herpes is not warranted. This is especially true because, in this decision, the Veteran has been awarded the maximum schedular rating available for his service-connected genital herpes effective December 20, 2004 (the date that he filed his service connection claim). Id. Because the Board has found in this decision that the Veteran's service-connected genital herpes essentially demonstrated the same of level of severe disability since he filed his service connection claim, consideration of additional staged ratings is not warranted. See Fenderson, 19 Vet. App. at 119. Extraschedular The Board must consider whether the Veteran is entitled to consideration for referral for the assignment of an extraschedular rating for his service-connected genital herpes. 38 C.F.R. § 3.321; Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record). The Board again notes that, in this decision, the Veteran has been awarded the maximum schedular rating available for his service-connected genital herpes effective December 20, 2004. See 38 C.F.R. § 4.118, DC 7806 (2011). An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The Board finds that schedular evaluation assigned for the Veteran's service-connected genital herpes is adequate in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected genital herpes. This is especially true because the 60 percent rating assigned in this decision for the Veteran's genital herpes effective December 20, 2004, contemplates severe disability. The Veteran has not contended, and the evidence does not show, that his service-connected genital herpes has interfered with his employability. As the schedular criteria are adequate, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to an initial 60 percent rating effective December 20, 2004, for genital herpes is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs