Citation Nr: 1412273 Decision Date: 03/24/14 Archive Date: 04/02/14 DOCKET NO. 07-35 624 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to an initial rating greater than 10 percent for human immunodeficiency virus (HIV) with recurrent folliculitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from January 1992 to June 1997 and from December 2003 to September 2006, including in support of Operation Enduring Freedom. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, which granted, in pertinent part, the Veteran's claim of service connection for human immunodeficiency virus (HIV) with recurrent folliculitis and assigned a 10 percent rating effective September 13, 2006. The Veteran disagreed with this decision in May 2007, seeking a higher initial rating for his service-connected HIV with recurrent folliculitis. He perfected a timely appeal in November 2007. In July 2011, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The Board directed that the RO/AMC schedule the Veteran for updated VA examination to determine the current nature and severity of his service-connected HIV with recurrent folliculitis. This examination occurred in September 2011. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDINGS OF FACT 1. The record evidence shows that, prior to September 20, 2011, the Veteran's service-connected HIV with recurrent folliculitis is manifested by, at worst, definite medical symptoms including fever, chills, night sweats, and fecal incontinence once a month. 2. The record evidence shows that, effective September 20, 2011, the Veteran's service-connected HIV with recurrent folliculitis is manifested by, at worst, recurrent constitutional symptoms including persistent cutaneous and gastrointestinal symptoms only partially controlled with medication and frequent daily bowel movements consisting of unformed diarrhea and occasional discomfort. CONCLUSION OF LAW The criteria for an initial 30 percent rating effective September 20, 2011, for service-connected HIV with recurrent folliculitis have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.88b, Diagnostic Code (DC) 6351 (2013). REASONS AND BASES FOR FINDINGS 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 HIV with recurrent folliculitis 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 October 2006, VA notified the Veteran of the information and evidence needed to substantiate and complete the service connection claim for HIV with recurrent folliculitis, 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 has 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, the October 2006 VCAA notice was issued prior to the currently appealed rating decision issued in March 2007; thus, this notice was timely. Because the Veteran's higher initial rating claim is being granted to 30 percent effective September 20, 2011, in this decision, any question as to the appropriate disability rating or effective date is moot. See Dingess, 19 Vet. App. at 473. And any defect in the notices provided to the Veteran and his service representative has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. 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. 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 NOD with respect to the initial rating or effective date assigned following the grant of service connection. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), 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. Id., at 490-91. 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 HIV with recurrent folliculitis, 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 also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 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 although he declined to do so. 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 has not contended otherwise. The Veteran's Virtual VA and VBMS paperless claims files have been reviewed and no relevant evidence was located there. The Veteran also does not contend, and the evidence does not show, that he is in receipt of Social Security Administration (SSA) disability benefits such that a remand to obtain his SSA records is required. The Veteran has been provided with VA examinations which address the current nature and severity of his service-connected HIV with recurrent folliculitis. Given that the pertinent medical history was noted by the examiners, these examination reports set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations. Thus, the Board finds the examinations of record are adequate for rating purposes and additional examination is not necessary regarding the claims 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. Higher Initial Rating Claim The Veteran contends that his service-connected HIV with recurrent folliculitis is more disabling than currently evaluated. He specifically contends that this disability results in significantly disabling gastrointestinal symptoms. 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 HIV with recurrent folliculitis currently is evaluated as 10 percent disabling effective September 13, 2006, under 38 C.F.R. § 4.88b, DC 6351 (HIV-Related Illness). See 38 C.F.R. § 4.88b, DC 6351 (2013). A 10 percent rating is assigned under DC 6351 for HIV-related illness following development of definite medical symptoms, T4 cell of 200 or more and less than 500, and on approved medication(s) or with evidence of depression or memory loss with employment limitations. A 30 percent rating is assigned for HIV-related illness with recurrent constitutional symptoms, intermittent diarrhea, and on approved medication(s) or minimum rating with T4 cell count less than 200 or hairy cell leukoplakia or oral candidiasis. A 60 percent rating is assigned for HIV-related illness with refractory constitutional symptoms, diarrhea, and pathological weight loss or minimum rating following development of AIDS-related opportunistic infection or neoplasm. A maximum 100 percent rating is assigned for HIV-related illness with AIDS with recurrent opportunistic infections or with secondary diseases afflicting multiple body systems, HIV-related illness with debility and progressive weight loss, without remission, or few or brief remissions. Id. Factual Background The Veteran's service treatment records show that he was diagnosed as having HIV in 2005. Multiple pre- and post-deployment health assessments completed in 2004-2005 were negative for any relevant symptoms. On outpatient treatment in April 2005, it was noted that the Veteran had tested positive for HIV following a recent deployment. It was noted that the Veteran had broken up an 8-year relationship 15 months earlier and had had multiple sexual partners since that time. He also had not always had protected sex during that time period and had a few anonymous partners. The assessment was HIV positive. On private outpatient treatment in June 2005, the Veteran's CD4 count was 409. "He has staph infection of the face and this is quite a lot better. This is due to hair follicles that had become infected." Physical examination showed mild folliculitis. On private outpatient treatment in October 2005, the Veteran complained of a recurrent rash which had lasted for 3 days. "This is the fourth time the [Veteran] has had it." A history of HIV infection was noted. Objective examination showed multiple scabs on his face and submental area which was severely tender with indurated areas "as large as .5 to 1 centimeter" and a .5 to 1 centimeter (cm) pustule on the left testicle. The assessment was folliculitis/furunculosis "in the setting of HIV disease." In a January 2006 letter, T.P.F., M.D., stated that he had seen the Veteran in consultation for his HIV and "recurrent skin infections due to staph aureus." Dr. T.F. stated that the Veteran initially "had a quite severe skin infection due to staph." This physician also stated that the Veteran's "HIV infection has been relatively stable. His CD4 count prior to initiating therapy was about 400. A repeat CD4 count is 422." This physician stated further that he had been treating the Veteran's HIV and hepatitis B "at the same time." The Veteran's CD4 count had risen to 517. "He is immunocompetent and has no significant immunosuppression with this excellent CD4 count." Physical examination showed multiple superficial skin lesions which "appear to be relatively stable," and "he is doing remarkably well." On private outpatient treatment later in January 2006, the Veteran's complaints included mild diarrhea from taking Viracept "but otherwise is tolerating the [medications] well." A history of HIV, a CD4 count of 517, and an undetectable viral load was noted. It was noted that the Veteran had 2 episodes of facial cellulitis positive for methicillin-resistant staphylococcus aureus (MRSA) "since last visit." Physical examination showed some erythematous lesions crusted over diffusely around the beard area of the face. The assessment included a history of HIV and "doing well since last visit." The Veteran was advised to continue his current HIV medications. In a "Medical Board Report" dated in February 2006, the Veteran was recommended for referral to an Informal Physical Evaluation Board (IPEB) due to diagnoses including HIV. A Narrative Summary dated in March 2006 noted that the Veteran was diagnosed as having HIV following a confirmed post-deployment HIV screening test drawn in April 2005. The Veteran reported that he had been deployed repeatedly to southwest Asia "and believes he was infected after his return home" in October 2004. "He admits multiple sex partners and unprotected sex and adamantly denies [intravenous] drug use." The Veteran's HIV viral load "is now undetectable and his CD4 count has gone from about 400 to 517." Physical examination showed multiple superficial skin lesions. The diagnoses included HIV. The Veteran was recommended for separation from service. On private outpatient treatment in May 2006, it was noted that the Veteran's "skin has never looked better. These infections are all superficial." The Veteran's CD4 count also was "high." The Veteran "always practices safe sex." Physical examination showed "some well-healed scars on his skin." In June 2006, it was noted that the Veteran "is doing very well" with regard to his HIV "without any difficulties." Physical examination showed that the Veteran's "skin is normal, better than it has ever been." A Narrative Summary dated in July 2006 indicated that the Veteran was diagnosed as being HIV positive in March 2005 with his most recent test in March 2004 having been negative. "He reported no known positive contacts, needle stick exposures, blood donations, or blood transfusions." The Veteran had initiated retroviral therapy in August 2005. The Veteran reported "fatigue and intermittent extremity pain." Physical examination showed a normal rectal examination and no skins rashes or lesions suspicious for malignancy or Kaposi's sarcoma. The Veteran's CD4 count was 384. It was noted that the Veteran experienced "recurrence of follicular eruptions [of the] face, arms, and chest" which was treated with doxycycline, topical celcin, and Bactroban "for healing of furuncles." The Veteran's HIV was stage 1A. The final diagnoses included HIV associated syndrome. In an addendum to a Medical Evaluation Board (MEB) dated in July 2006, an in-service clinician noted that the Veteran "continues to be asymptomatic for [gastrointestinal] complaints, fever, [and] myalgias. Folliculitis is unchanged, as medications not yet started." The assessment included HIV infection and folliculitis, unchanged. On private outpatient treatment later in July 2006, the Veteran complained of lesions on his lip, face, arm, and legs which could be herpes simplex virus (HSV). Physical examination showed no hairy cell leukoplakia. The Veteran's "HIV viral load is non-detectable." In August 2006, it was noted that the Veteran was "doing great." The Veteran's "HIV viral load is non-detectable. He does not have any HSV. His skin is looking excellent today." Physical examination showed no hairy cell leukoplakia. The IPEB subsequently determined in September 2006 that the Veteran's medical condition (characterized as HIV associated syndrome) "does not prevent [him[ from reasonably performing the duties" of his active service position. The IPEB recommended that the Veteran return to duty. The post-service evidence shows that, on VA examination in December 2006, the Veteran's complaints included HIV-associated syndrome. The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. A history of HIV diagnosed in April 2005 "on his return from southwest Asia" was noted. He tolerated his current medication regimen "without incident." He experienced recurrent bouts of folliculitis, primarily in the facial area but also on his arms, and they usually recur in the same exact areas" since being diagnosed as having HIV. His recurrent folliculitis was kept "under reasonable control" with medications. He also reported that, following "an infection with an intestinal spirochete during the summer of 2005," his bowel movements "have never returned to normal since that time and he continues to have loose stools and watery stools and continues with a tender area in his rectum. But he does not have any fistula or fecal drainage." His last bout of folliculitis had occurred in October 2006. He had 3-4 bowel movements per day "generally after meals or snacks, any kind of eating. The volume is variable, depending on the diet." His HIV was treated with approved medications. He lived alone, was independent in his activities of daily living, and worked full-time with scheduled breaks. He lifted weights for 90 minutes after work. He had reported gaining weight "back to his baseline over the past year." Physical examination in December 2006 showed no rashes or suspicious skin lesions, multiple flat, pink, round to oval superficial scars scattered over the arms, chest, face and neck without induration, elevation, depression, deformity, or tenderness, a few tiny pitting type scars on the face and neck without induration, elevation, depression, deformity, or tenderness, mild irritation around the anus with a tiny, less than 1 cm shallow ulcer at 2 o'clock without drainage, erythema, or induration. A review of prior laboratory results indicated that the Veteran's viral load was undetectable. The VA examiner opined that the Veteran's folliculitis "is likely related to his HIV status and subsequent compromised immunity." This examiner also opined that the etiology of the Veteran's intestinal spirochetes was unknown per an infectious disease specialist. The diagnoses included HIV and recurrent folliculitis. On VA outpatient treatment in May 2007, the Veteran reported experiencing constitutional symptoms of fever and chills at night which he characterized as "night sweats." Physical examination showed his skin was warm. The assessment included asymptomatic HIV. On VA gastrointestinal consult in August 2007, the Veteran complained of ongoing diarrhea. He had 10-12 watery bowel movements every day of "large volume" since 2005. He denied any blood in the stool but occasionally noted blood on toilet paper. He had lost 15 pounds in the previous 6 months but put 10 pounds back on "by going to the gym." He also reported occasional nausea/vomiting. A history of folliculitis multiple times treated with Bactrim was noted. The assessment included chronic diarrhea. On VA outpatient treatment in September 2007, the Veteran's complaints included daily diarrhea "treated with Pepto-Bismol" with 12-15 bowel movements per day. No constitutional symptoms were noted. The Veteran reported experiencing intermittent nausea about twice a week which did not need medication for treatment and intermittent facial rash related to MRSA. Physical examination showed his skin was warm. Laboratory results were reviewed and showed the Veteran's CD4 level was 571 in May 2007 and 463 in December 2006. The Veteran's HIV viral load was non-detectable in June 2007. The assessment included HIV which was stable and diarrhea which was not controlled with Pepto-Bismol. The Veteran was advised to add lomotil 1 by mouth every 6 hours as needed for diarrhea. In November 2007, the Veteran's complaints included 8-12 watery bowel movements per day of "small volume" which occurred at night "with a few episodes of incontinence" and intermittent abdominal cramping and an occasional small amount of bright red blood per rectum which he "attributes to hemorrhoids." The Veteran stated that his gastroesophageal reflux disease (GERD) symptoms had resolved. An esophagogastroduodenoscopy (EGD) and colonoscopy conducted in October 2007 were both normal. The assessment included chronic diarrhea. In January 2008, the Veteran reported experiencing constitutional symptoms of flu "for a day and then he 'forgets about it," diarrhea, and an outbreak of folliculitis which was treated with doxycycline for 2 weeks. Physical examination showed his skin was warm. The Veteran's CD4 level was 617 and his HIV viral load was not detectable. The assessment included symptomatic HIV and diarrhea. On VA examination in February 2008, the Veteran's complaints included "watery bowel movements occurring 10 to 12 times per day, usually after eating. He has occasional nocturnal symptoms. He reports abdominal cramping with some relief following the bowel movements. He complains of fecal incontinence one to two times per week, which he describes as residual stool at his anal opening." The Veteran also complained of fatigue and occasional night sweats. He reported losing 5 pounds "in the last month. He states he needs to work out in the gym to maintain his weight." The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. The Veteran reported that Atropine "seems to decrease frequency of diarrhea." The VA examiner stated: The etiology of this [Veteran's] chronic diarrhea remains unknown. The differential diagnosis of chronic diarrhea is complex. Recent endoscopy shows no evidence of ulcerative proctitis or intestinal spirochetosis. Presently this Veteran is immunocompetent with CD4 count of 631, thus the likelihood of diarrhea secondary to opportunistic infection is low. Extensive work up to date has been negative for infectious cause, celiac sprue and thyroid disease, inflammatory processes, and microscopic colitis....In addition, medication effect of his [highly active antiretroviral treatment] remains a possibility and an attempt to modify his regimen, specifically Nelfinavir, as this medication can be associated with diarrhea. On VA outpatient treatment in March 2008, the Veteran's complaints included a rash on his face and arms "mostly but does note spots on legs as well." He treated this skin rash with Bactrim and doxycycline "alternately for [a] two week period." He experienced a fever and insomnia "[the] night before [the] rash breaks out." Physical examination showed his skin was warm and scattered red small lesions on his face which were healing. The Veteran's CD4 level was 631 and his HIV viral load was not detectable. The assessment included asymptomatic HIV. In May 2008, the Veteran's "major concern" was his incapacitating diarrhea. He denied any constitutional symptoms but reported experiencing diarrhea "THROUGHOUT DAY EVERY DAY." Physical examination showed his skin was warm with normal turgor. The Veteran's CD4 level was unchanged and his HIV viral load was unchanged. The assessment was HIV "continues with diarrhea." In July 2008, the Veteran's complaints included 10 yellow watery bowel movements per day of "large volume." The Veteran reported that "with the Atropine he goes less but has more volume during that time. Has formed stool about once per week. Has fecal incontinence once per two weeks associated with urgency. He says that he has had several outbreaks of folliculitis recently (all stemming from his previous spirochete infection, he states, and also with a tendency for MRSA) for which he is treated with alternating courses of doxycycline and Bactrim." He was constipated when taking these antibiotics "and goes approximately 3-4 times per day but is associated with urgency. His stools are more formed during this time period as well." His diarrhea usually occurred 20 minutes after eating and occurred at night but improved with fasting. The Veteran denied any blood in his stool. His weight had been stable "while he is going to the gym but states he will lose weight if he does not go to the gym." He experienced subjective fevers twice a week at night "with some associated night sweats." The assessment included chronic diarrhea of unknown etiology. On VA examination in December 2008, the Veteran's complaints included ongoing diarrhea with 8-10 watery stools per day. The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. "He claims that he has had fecal incontinence but does not use pads. He relates this to explosive diarrhea when he has not been close enough to a bathroom. He also has had fecal incontinence during his sleep. Usually he has only had small amounts of fecal leakage with a little staining on his under garments." A history was noted of alternating courses of antibiotics in the previous year "for outbreaks of folliculitis associated with [MRSA] infections in the perineal area related to his fecal incontinence but the folliculitis has resolved." The Veteran denied any blood in his stool. "His weight has been stable." Physical examination showed a stable weight, no evidence of fecal leakage, excellent sphincter tone, no evidence of bleeding, and no overt signs of anemia. The VA examiner opined that the Veteran "does not have evidence of loss of sphincter control, however when a large volume of liquid stool enters the rectum, it creates a sense of urgency, therefore a fecal accident is more apt to happen. Controlling diet and medications would probably be able to control consistency of the stool and thus improve the fecal incontinence issue with this [Veteran]." On VA examination on September 20, 2011, the Veteran complained of diarrhea 5-7 times per day "unformed, not liquid, with occasional discomfort," and recurrent folliculitis every few months on the face, chest, legs, and arms "and currently...on his chest and his ankle." The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. The Veteran's CD4 level was 547 which was within normal limits. Physical examination showed the Veteran "looks quite healthy," a few follicular infections "consistent with his folliculitis. Total probably is something like eight, spread on his anterior aspect of his arms and his chest without surrounding erythema and without any active sites of acute inflammation." The VA examiner concluded that he Veteran has well-documented AIDS "with mainly cutaneous and gastrointestinal symptoms. His symptoms are persistent, recurrent in the case of the dermal presentation, however, does disappear completely and currently is still in the process of treating one of those episodes. He also continues to have complaints with frequent bowel movements" only partially controlled with medication "but still having six to eight bowel movements a day" which did not interfere with his activities of daily living. Analysis The Board finds that the evidence supports assigning an initial 30 percent rating effective September 20, 2011, for the Veteran's service-connected HIV with recurrent folliculitis. The Veteran contends that this disability results in significantly disabling chronic diarrhea. The record evidence supports his assertions, at least as of September 20, 2011, the date of a VA examination showing worsening symptomatology attributable to the service-connected HIV with recurrent folliculitis. Prior to September 20, 2011, the record evidence shows that this disability is manifested by, at worst, definite medical symptoms including fever, chills, night sweats, and fecal incontinence once a month. The Veteran's service treatment records show that he was diagnosed as having HIV in 2005. These records also show that the Veteran's HIV was manifested by mild folliculitis (as seen on outpatient treatment in June 2005) and a relatively stable HIV infection (as Dr. T.F. noted in January 2006). These records further show that the Veteran's CD4 (or T4) cell count was above 500 and his HIV viral load became undetectable after he began antiretroviral treatment for HIV. The VA examiner related the Veteran's folliculitis to his HIV following VA examination in December 2006. This examiner also noted that the Veteran's HIV was treated with approved medications. The Veteran lived alone, was independent in his activities of daily living, and worked full-time with scheduled breaks. He lifted weights for 90 minutes after work. He had reported gaining weight "back to his baseline over the past year." Although the Veteran reported experiencing constitutional symptoms of fever and chills at night which he characterized as "night sweats" on VA outpatient treatment in May 2007, no constitutional symptoms of his HIV-related illness were noted on subsequent VA outpatient treatment in December 2007. The Veteran also complained frequently of continuing chronic diarrhea, which the February 2008 VA examiner noted was possibly related to the Veteran's highly active antiretroviral treatment for HIV although the etiology of his chronic diarrhea was "unknown" and the differential diagnosis for this disability was "complex." The Veteran's CD4 level remained above 500 and his HIV viral load remained undetectable on multiple VA outpatient treatment visits in 2007-2008. Although he experienced outbreaks of folliculitis during this time period, he attributed these outbreaks to his MRSA infection and treated them successfully with alternating rounds of antibiotics. The December 2008 VA examiner noted the Veteran's complaints of continuing chronic diarrhea and concluded that controlling his diet and medications "would probably be able to control consistency of the stool and thus improve the fecal incontinence issue." There is no indication that, prior to September 20, 2011, the Veteran's service-connected HIV with recurrent folliculitis was manifested by recurrent constitutional symptoms, intermittent diarrhea, a T4 cell count of less than 200, hairy cell leukoplakia, or oral candidiasis (i.e., at least a 20 percent rating under DC 6351) such that an initial rating greater than 10 percent is warranted for this time period. See 38 C.F.R. § 4.88b, DC 6351 (2013). The Veteran also has not identified or submitted any evidence, to include a medical nexus, demonstrating his entitlement to an initial rating greater than 10 percent prior to September 20, 2011, for his service-connected HIV with recurrent folliculitis. Thus, the Board finds that the criteria for an initial rating greater than 10 percent prior to September 20, 2011, for the Veteran's service-connected HIV with recurrent folliculitis have not been met. By contrast, the record evidence supports assigning a higher initial 30 percent rating effective September 20, 2011, for the Veteran's service-connected HIV with recurrent folliculitis. Id. The Board finds that, on VA examination on September 20, 2011, the symptomatology associated with this service-connected disability had worsened. Physical examination showed multiple follicular infections consistent with recurrent folliculitis although the Veteran's CD4 (or T4) cell count was within normal limits. The September 2011 VA examiner concluded that the symptomatology associated with the Veteran's service-connected HIV with recurrent folliculitis was "persistent" and included "recurrent" folliculitis that "disappears completely" with antibiotic treatment. This service-connected disability also was manifested by frequent bowel movements which occurred 5-7 times per day according to the Veteran and were only partially controlled on medication. Having reviewed the record evidence, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that the evidence supports assigning an initial 30 percent rating effective September 20, 2011, for the Veteran's service-connected HIV with recurrent folliculitis. The Board finally finds that consideration of additional staged ratings for the Veteran's service-connected HIV with recurrent folliculitis is not warranted. See Fenderson, 12 Vet. App. at 119. As discussed above, the evidence of record demonstrates that the Veteran experienced essentially the same level of disability due to his service-connected HIV with recurrent folliculitis prior to September 20, 2011. The evidence also supports assigning a staged 30 percent rating effective September 20, 2011, based on worsening symptomatology attributable to this disability. Thus, consideration of additional staged ratings is not warranted. Id. 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 HIV with recurrent folliculitis. 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). 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 the schedular evaluations assigned for the Veteran's service-connected HIV with recurrent folliculitis are not inadequate in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of this service-connected disability. This is especially true because the initial 10 percent rating assigned for the Veteran's HIV with recurrent folliculitis effective September 13, 2006, contemplates mild disability and the higher initial 30 percent rating assigned effective September 20, 2011, contemplates moderate disability. Moreover, the evidence does not demonstrate other related factors such as marked interference with employment and frequent hospitalization. The Veteran does not contend, and the record evidence does not indicate, that he was hospitalized for treatment of his service-connected HIV with recurrent folliculitis during the appeal period. He also is in receipt of a TDIU. In light of the above, 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 a 30 percent rating effective September 20, 2011, for HIV with recurrent folliculitis is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs