Citation Nr: 1527768 Decision Date: 06/29/15 Archive Date: 07/09/15 DOCKET NO. 05-30 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for herpes genitalia and venereal warts prior to December 9, 2004; in excess of 30 percent from December 9, 2004 to January 20, 2005 and in excess of 60 percent from January 21, 2005. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities prior to July 1, 2014. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from July 1977 to July 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In November 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. This case was previously remanded in February 2008 to obtain treatment records and a VA examination. The claim was remanded in July 2012 to obtain a VA examination. In May 2013, the Board remanded the claim to obtain VA medical records and a medical opinion. The requested development has been completed, and no further action is necessary to comply with the Board's February 2008, July 2012 and May 2013 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In a May 2015 written statement, the Veteran raised a claim for an earlier effective date for a 50 percent rating for migraine headaches. That issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to a TDIU prior to July 1, 2014 is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. For the initial rating period from October 20, 2003 to January 20, 2005, the Veteran required constant or near-constant systemic therapy for treatment of herpes genitalia. 2. The Veteran's service-connected herpes genitalia has been assigned a 60 percent rating, which is the maximum rating authorized under Diagnostic Code 7806; the disability has not otherwise been manifested by disfigurement of the head, face or neck. 3. From July 1, 2014, the Veteran has been in receipt of a TDIU rating. CONCLUSIONS OF LAW 1. A 60 percent rating is warranted for herpes genitalia from October 20, 2003 to January 20, 2005. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2014). 2. The Veteran's service-connected herpes genitalia has been assigned a 60 percent rating, the maximum rating authorized under Diagnostic Code 7806; the disability has not been manifested by disfigurement of the head, face or neck. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ, in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The RO initially provided the Veteran with notice of the evidence required to substantiate his service connection claim in an October 2003 letter. The RO did not provide the Veteran with additional notice regarding his claim for a higher initial rating. 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 the notice is intended to serve has been fulfilled. See Dingess, 19 Vet. App. at 490-91. The RO issued a SOC in August 2005 that advised the Veteran of the pertinent laws and regulations and the reasons for the decision. A March 2009 notice letter informed the Veteran of how disability ratings and effective dates are determined. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record indicates that the RO obtained all information relevant to the Veteran's claim. The service treatment records have been obtained, as well as post-service VA treatment records identified by the Veteran. The Board previously remanded the case to obtain a report of a skin biopsy that was referenced in the July 2012 VA examination. In July 2013, the VA medical center notified the RO that there are no records of a skin biopsy. No additional effort is warranted to try and obtain the record, as it appears that any such additional effort would be futile. 38 C.F.R. § 3.159(c)(2). The Veteran was afforded VA examinations in April 2004, December 2005, September 2009, July 2012 and May 2013. When VA undertakes to provide a VA examination or obtain a VA examination or opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has been afforded adequate examinations. The claims file and treatment records were reviewed, the Veteran's history was taken, and the examiners provided complete findings, which addressed the rating criteria pertaining to the Veteran's skin disability. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). As noted above, the Veteran was afforded a personal hearing before the Board in November 2011. At that hearing, testimony was presented on the issue of entitlement to an increased rating for herpes genitalia. The Veterans Law Judge and the Veteran's representative outlined the issue on appeal, and the Veteran and representative engaged in a colloquy as to substantiation of the claim, including identifying relevant types of evidence. Overall, the hearing was legally sufficient and the duty to assist has been met. 38 U.S.C.A. § 5103A (West 2014); Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the relevant records, and has provided adequate examinations to the Veteran. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Initial Rating Claims Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2014). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the policy of the VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Analysis Service connection for herpes genitalia was granted in a November 2004 rating decision. A 10 percent rating was in effect prior to December 9, 2004. A 30 percent from December 9, 2004 to January 20, 2005. A 60 percent rating has been in effect since January 20, 2005. Herpes genitalia is rated according to Diagnostic Code 7806. Diagnostic Code 7806 provides that a 0 percent rating is assignable for dermatitis or eczema when less than 5 percent of the entire body or less than 5 percent of exposed areas are affected and no more than topical therapy required in the past 12-month period. A 10 percent rating is assignable when at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas are affected; or when intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a duration of less than six weeks during the past 12-month period. A 30 percent rating is assignable when 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected or where systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A maximum 60 percent rating is assignable where more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs are required during the past 12-month period. 38 C.F.R. § 4.118. The Veteran asserts that a 60 percent rating is warranted for the initial rating period prior to January 20, 2005. The Veteran asserts that his disability required constant or near-constant systemic therapy prior during this period. A treatment record from Dr. A.P., dated in November 2002, reflects a diagnosis of herpes simplex virus. Zovirax was prescribed. A VA treatment record dated in January 2005 reflects that the Veteran reported that he wanted to continue treatment of herpes and warts. He reported treatment for herpes and warts during service. He reported that he had recently been treated for a recurrence. He reported that he received a one-week course of Valtrex and Zovirax. The Veteran denied pain but reported tenderness in his groin around the healed lesions. A VA physician diagnosed herpes genitalia and prescribed daily Valtrex. The Veteran had a VA examination in December 2005. The Veteran reported that he was taking daily Valtrex. The examiner diagnosed genital herpes and venereal warts. A treatment record from Advanced Medical Associates, dated in March 2006, indicated that the Veteran was on episodic treatments for chronic herpes simplex virus and genital warts. The Veteran had a VA examination in September 2009. The examiner noted that the Veteran was diagnosed and treated for herpes during service in 1978. His herpes continued to flare up over the years. He was currently taking Valtrex once daily. Upon examination, the examiner noted that there were no rashes or skin ulcerations of the genitals. There were no residual scars from herpes. The examiner indicated that the affected areas included 10 percent of exposed areas and 0.25 percent of the total body. The examiner diagnosed genital herpes and condyloma lesions. The examiner noted that diagnostic tests showed positive results for herpes I and herpes II. At the Board hearing in November 2011, the Veteran testified that he was taking Valtrex every day and was treated with steroid packs every six months. The Veteran had a VA examination in July 2012. The examiner noted a history of herpes simplex, diagnosed in 2006. The examiner noted that the Veteran was treated for genital warts during service in 1987 or 1988. The Veteran reported that he initially found out that he had herpes in 2006. The examiner indicated that he was treated with daily Valacyclovir. The examiner indicated that the medication was systemic corticosteroids or other immunosuppressive medication. The Veteran did not have any treatments other than topical treatments or systemic medications. Upon physical examination, the examiner indicated that 5 to 20 percent of the entire body was affected. The examiner indicated that no herpetic lesions or warts were shown on examination; however, the Veteran did have scattered follicular eruptions. The Veteran had a VA examination in July 2012. The examiner noted diagnoses of herpes simplex I and genital warts. The examiner indicated that the Veteran required systemic corticosteroids on a constant or near-constant basis. In an addendum dated in May 2013, the examiner stated that herpes and venereal warts affected 5 to 20 percent of the body during the period from October 2003 to January 2005. Herpes and venereal warts affected less than 5 percent of exposed areas. The examiner noted that the Veteran was treated with Valtrex and a Medrol dose pack for the period from October 2003 to January 2005. In this case, the evidence establishes that constant or near constant systemic therapy was required during the initial rating period from October 20, 2003 to January 20, 2005. Accordingly, the requirements for a 60 percent rating under Diagnostic Code 7806 are met from October 20, 2003 to January 20, 2005. The rating criteria provide that a maximum rating of 60 percent is assignable under DC 7806. See 38 C.F.R. § 4.118. The only potentially applicable diagnostic code for skin disabilities providing for a disability rating in excess of 60 percent for skin disabilities is DC 7800, for disfigurement. In this case, the evidence does not show that the Veteran's disability affects his head, face or neck. Accordingly, there is no basis for a higher rating under Diagnostic Code 7800. Extraschedular considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2014). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. A TDIU has been awarded from July 1, 2014, which fully recognizes functional impairment due to herpes genitalia and venereal warts in combination with the Veteran's other service-connected disabilities. The current assigned rating for the Veteran's herpes genitalia and venereal warts specifically contemplates the demonstrated symptoms of this disability, as described above. However, the Board finds that further consideration of a TDIU for the period prior to July 1, 2014 is warranted, as there is evidence of marked interference with employment during that period based on the combination of the Veteran's service-connected disabilities and not just the herpes genitalia and venereal warts alone. Accordingly, this matter will be addressed in the remand below. ORDER A 60 percent disability rating is granted for herpes genitalia and venereal warts from October 20, 2003 to January 20, 2005, subject to regulations governing the payment of monetary benefits. A disability rating in excess of 60 percent for herpes genitalia and venereal warts from January 21, 2005 is denied. REMAND Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities; provided that, if there is only one such disability, this disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a); see also 38 C.F.R. §§ 3.340, 3.341. For purposes of one 60 percent disability or one 40 percent disability in combination, disabilities of a common etiology or from a single accident are considered to be one disability. 38 C.F.R. § 4.16(a). The United States Court of Appeals for Veterans Claims (Court) has held that a claim for a TDIU is part of an increased rating claim when such claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A vocational rehabilitation report dated in October 2006 reflects that a VA vocational counselor found the Veteran "infeasible to return to work" because of service-connected conditions, including his depressive disorder and skin condition. The vocational rehabilitation report raises a claim for TDIU. A remand is warranted to obtain a medical opinion regarding the issue of entitlement to TDIU for the period prior to July 1, 2014. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should obtain a medical opinion from an appropriate examiner with regarding to the issue of entitlement to a TDIU. The claims folder must be made available for the examiner to review. The examiner should provide an opinion regarding the Veteran's functional impairment due to service-connected disabilities for the period prior to July 1, 2014. The VA examiner should provide an opinion as to the functional impairment caused solely by the Veteran's service-connected disabilities alone or in combination with each other. The examiner should consider the Veteran's level of education, experience, and occupational background. The examiner should not consider the Veteran's age or any nonservice-connected disabilities. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 2. After undertaking any additional development deemed necessary, adjudicate the claim of entitlement to a TDIU prior to July 1, 2014. If the claim remains denied, the Veteran and his representative should be provided with an SSOC and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs