Citation Nr: 9828184 Decision Date: 09/21/98 Archive Date: 09/25/98 DOCKET NO. 96-45 420A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an increased rating for genital herpes, currently assigned a 10 percent evaluation. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The veteran served on active duty from April 1980 to August 1982, and from July 1983 to May 1995. Following a personal hearing in August 1997, a Department of Veterans Affairs (VA) Hearing Officer, in a decision of March 1998, granted a 10 percent evaluation for recurrent congenital herpes, which had previously been evaluated as noncompensably disabling. The veteran voiced her disagreement with that decision, and the current appeal ensued. Based on various statements contained in the file, the veteran has withdrawn from consideration the issues of service connection for otitis media, and increased evaluations for chondromalacia of both knees, gastroesophageal reflux disease, and trochanteric bursitis of the right hip. Accordingly, those issues, which were formerly on appeal, are no longer before the Board of Veterans’ Appeals (Board). During the course of an informal hearing presentation in August 1998, the veteran’s accredited representative argued that the veteran has in the past and currently suffers from recurrent urinary tract infections which are a “separate manifestation” of her service-connected genital herpes, thereby permitting “different disability ratings” based on “distinct and separate” symptomatology. See Esteban v. Brown, 6 Vet. App. 259 (1994). In consideration of this argument, it would appear that the veteran (and her accredited representative) are not, in fact, arguing for “separate and distinct” disability ratings for each and every symptom of the veteran’s service-connected genital herpes, but rather, for a grant of service connection on a secondary basis for recurrent urinary tract infections and their associated complications. Inasmuch as the issue of service connection on a secondary basis for urinary tract infections has not been developed or certified for appellate review, it is not for consideration at this time. It is, however, being referred to the RO for clarification, and, if necessary, appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran’s argument is that the RO committed error in denying entitlement to an increased evaluation for service- connected genital herpes, in that the various manifestations of that disability are more severe than currently evaluated, and productive of a greater degree of impairment than is reflected by the 10 percent schedular evaluation presently assigned. It is asserted that, as a result of the veteran’s service-connected genital herpes, she suffers from repeated outbreaks of external skin lesions on her vulva and right thigh, as well as internal lesions in the urethra. According to the veteran, on those occasions when her genital herpes is active, she experiences problems with “tingling, itching, and irritation, as well as low grade fever, body aches, and lymph node swelling. It is requested that, in consideration of the veteran’s claim, the provisions of 38 C.F.R. § 4.7 (1998) be applied. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1998), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the record supports the assignment of an increased (30%) rating for service-connected genital herpes. FINDING OF FACT The veteran currently suffers from recurrent genital herpes which is not adequately controlled by continuous treatment. CONCLUSION OF LAW A 30 percent evaluation for service-connected genital herpes is warranted. 38 U.S.C.A. § 1155 (West 1991 & Supp. 1998); 38 C.F.R. §§ 4.3, 4.7, and Part 4, Code 7610, 7899-7806 (1998). REASONS AND BASES FOR FINDING AND CONCLUSION Disability evaluations, in general, are intended to compensate for the average impairment of earning capacity resulting from a service-connected disability. They are primarily determined by comparing objective clinical findings with the criteria set forth in the rating schedule. 38 U.S.C.A. § 1155 (1998); 38 C.F.R. Part 4 (1998). In the present case, service connection is currently in effect for recurrent genital herpes, apparently contracted by the veteran in 1981, while on active duty. On Department of Veterans Affairs (VA) general medical examination in October 1995, shortly following the veteran’s discharge from service, she stated that she “began having genital herpes in 1984,” and that it occurred “about 10 to 12 times per year, usually precipitated by lack of sleep or stress.” According to the veteran, when she experienced an outbreak of genital herpes, this outbreak typically lasted approximately one week, was painful, and did not respond to medication. Further noted was that the veteran’s genital herpes usually healed “spontaneously.” On subsequent VA gynecologic examination in October 1996, the veteran stated that she was first exposed to herpes simplex virus in 1981, while in service. Following this, in 1982, she reportedly experienced high fevers and was “very very ill,” with the result that she was confined to sick bay. According to the veteran, she first noticed the outbreak of lesions in her genital area and the introitus of the vagina. In 1993, she suffered “another outbreak” while “under extreme school stress” as a midshipman at the Naval Academy. In 1984, the veteran was formally diagnosed at Bethesda Naval Hospital after an outbreak in the same general area of her vagina. Since that time, she had experienced annual outbreaks requiring treatment with Acyclovir. However, since 1991, the veteran’s outbreaks had reportedly increased both in severity and frequency, occurring “every 2 to 3 months” and in areas which had become “more involved.” Currently, the veteran was receiving Acyclovir “as needed,” without (out)breaks of her herpes. On physical examination, the mucosa of the veteran’s genitalia was pink and moist, with no evidence of any lesions. The pertinent diagnosis was history of herpes simplex virus to genitals. It was recommended that the veteran be followed up at a VA outpatient clinic by a nurse practitioner. Additionally recommended was that the veteran consider taking Acyclovir on a daily basis, and obtain herpes simplex cultures and titers on her next outbreak “for actual documentation.” On recent VA gynecologic examination in October 1997, it was noted that the veteran was currently being followed in the Women’s Clinic at the Oakland Outpatient Clinic by a (VA) nurse practitioner, and that her service-connected herpes had affected her life “greatly and more so in the last year.” According to the veteran, she currently suffered from abrasive, vesicle-like lesions, in particular, in the area of the inner and outer labia. Additionally noted were problems in the clitoral and perianal areas, as well as some scarring on the right inner thigh. The veteran stated that, while in the past, she had experienced outbreaks approximately once per year, since August of 1996, she had suffered outbreaks “every 3 to 4 weeks.” While in the past, the veteran had been taking Zovirax (Acyclovir) only with each episode, of late, she had begun continuous therapy, at the rate of 400 milligrams, 2 to 3 times per day. At the time of evaluation, the assessment was herpes simplex virus/genital herpes, Class II, “rather severe” since August of 1997. The Board observes that, since the time of the initial grant of service connection in February 1997, the veteran’s genital herpes has been evaluated as analogous to eczema, under the provisions of 38 C.F.R. Part 4, Diagnostic Code 7806 (1998). However, following a full review of the pertinent evidence of record, the Board is of the opinion that the veteran’s service-connected disability is more appropriately rated as analogous to a gynecologic condition, specifically, diseases or injuries of the vulva. 38 C.F.R. § 4.20 and Part 4, Code 7610 (1998). Under the provisions of this code, a 10 percent evaluation is warranted where presenting symptoms require continuous treatment. A 30 percent evaluation is in order where such symptoms are not adequately controlled by continuous treatment. 38 C.F.R. Part 4, Code 7610 (1998). As is clear from the above, the veteran in this case has experienced increasingly frequent outbreaks of her service- connected genital herpes. Such outbreaks have involved lesions not only in the inner and outer areas of the labia, but also in the clitoral and perianal areas, and on the right inner thigh. While in the past, medication (Acyclovir) has been utilized only in conjunction with the veteran’s periodic outbreaks, current evidence is to the effect that the veteran now requires continuous, prophylactic use of prescription medication in order to control her herpetic outbreaks. Even with such medication, the veteran reportedly experiences outbreaks of genital herpes which, at the time of her most recent examination, were described as “rather severe.” Under such circumstances, the Board is of the opinion that symptomatology associated with the veteran’s service- connected genital herpes is not, at present, adequately controlled by treatment. Accordingly, a 30 percent evaluation for the veteran’s disability is in order. 38 C.F.R. §§ 4.3, 4.7, and Part 4, Code 7610 (1998). ORDER An increased (30%) evaluation for service-connected recurrent genital herpes is granted, subject to those regulations governing the award of monetary benefits. John E. Ormond, Jr. Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -