Citation Nr: 1301316	
Decision Date: 01/14/13    Archive Date: 01/23/13

DOCKET NO.  09-37 657	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to an initial compensable evaluation for service-connected genital herpes.  


ATTORNEY FOR THE BOARD

Nadine W. Benjamin, Counsel



INTRODUCTION

The Veteran (appellant) served on active duty from November 1972 to December 1975.  

This matter comes before the Board of Veterans' Appeals  (BVA or Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which established service connection for genital herpes and assigned a noncompensable (zero percent) evaluation, effective May 14, 2007.  The Veteran expressed disagreement with the assigned evaluation, appealed that decision to BVA and the case was referred to the Board for appellate review.

In March 2012, the Board remanded this claim for additional development.  The Board is satisfied that there was substantial compliance with its remand directives concerning the issue decided below.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).   In this regard, the Veteran was examined and his disorder was evaluated.  The examination is adequate for making a determination in this case.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The case has been returned to the Board and is ready for further review. 


FINDING OF FACT

Genital herpes is manifested by occasional lesions on the genitals described as 3 episodes annually.  It does not affect 5 to 20 percent of the entire body or 5 to 20 percent of exposed areas.  Intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs have not been required for a total duration of less than six weeks during the past 12-month period.


CONCLUSION OF LAW

The criteria for an initial compensable disability rating for genital herpes have not been met or approximated.  38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Code 7806 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duties to Notify and Assist 

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). 

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.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to 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.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration.  Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation.  However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

Nevertheless, in this case, the Veteran is challenging the initial disability rating assigned following the grant of service connection.   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.  Id. at 490-91.  Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify has been satisfied. 

Finally, the duty to assist the Veteran also has been satisfied in this case.  The service treatment records as well as VA examination reports are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim.  The Veteran's Virtual VA file has been reviewed by the Board.  VA is not on notice of any evidence needed to decide the claim which has not been obtained.  Moreover, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA examinations obtained in this case are more than adequate as the examiners performed physical examinations, considered the Veteran's statements, and the examiners provided the medical information addressing the rating criteria with respect to the Veteran's service-connected disability.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Furthermore, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorder on appeal since he was last examined.  See 38 C.F.R. § 3.327(a) (2012).  The examination in this case is adequate upon which to base a decision.  For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. 

The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate.  Washington v. Nicholson, 21 Vet. App. 191 (2007).  Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal.  


Increased Initial Evaluation

The Veteran was granted service connection for genital herpes effective May 14, 2007 based on an in-service diagnosis of herpes and post-service VA examination.  

Service treatment records indicate a diagnosis of herpes in March and July 1975.   Thereafter there are no records of treatment in the file.  

After service, the Veteran was examined by VA in October 2007.  The claims file was reviewed.  The Veteran reported getting clusters of blisters on the head of the penis occasionally with no set pattern, a few times a year.  On examination, there were no lesions.  Genital herpes was diagnosed.  

The Veteran was examined by VA in April 2012.  He reported that he was diagnosed twice in service with herpes.  He reported having no treatment.  He indicated that since service he has had recurrences 5 or 6 times a year associated with painful erythematous vesicles on his penis, some erosions and residual scarring.  He reported that since the disorder is self limiting he has not taken any anti viral medication.  He reported that the pain was moderately severe.  He noted that in the last decade he has had about 3 episodes a year.  He indicated that the lesions weep and become unroofed with residual erosions and scarring.  He currently did not have an active infection, but had residual scarring.  He had no debilitating episodes.  The total body area was less than 5 percent.  The examiner noted that the Veteran's disorder had no impact on his ability to work.  The examiner stated that there were no neurologic problems.  The final diagnosis was herpes progenitalis.  


Pertinent Law and Regulations 

The Veteran is seeking an increased initial compensable disability rating for his service-connected herpes. 

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule).  38 C.F.R. Part 4 (2012).  The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012).  In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992).

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2012).  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).  Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  However, an appeal from the initial assignment of a disability rating, as in this case, requires consideration of the entire time period involved, and contemplates "staged ratings" where warranted.  See Fenderson v. West, 12 Vet. App. 119 (1999).  

Service connection for herpes, rated as noncompensable, has been in effect since May 2007.  The Veteran's genital herpes has been evaluated under Diagnostic Code 7820-7806.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27.  In this case, Diagnostic Code 7806 is used to evaluate dermatitis or eczema.  The rating criteria provide for evaluation based upon the frequency and effectiveness of treatment.  See 38 C.F.R. § 4.116 (2012). 

As this condition involves the skin and/or scarring of the affected area, the Board finds that 38 C.F.R. § 4.118, Diagnostic Codes 7801-7806 (2012) are also potentially applicable.  

As noted, the Veteran's genital herpes is rated under Diagnostic Code (DC) 7820, which directs evaluations to be assigned under the rating schedule for the skin (7800-7806), depending on the predominant disability.  See 38 C.F.R. § 4.118, DC 7820. 

During the pendency of this appeal, VA amended the rating criteria for the evaluation of scars, which became effective on October 23, 2008.  However, it was specifically noted that this amendment shall apply to all applications for benefits received by VA on or after October 23, 2008.  A Veteran whom VA rated before such date under Diagnostic Codes 7800, 7801, 7802, 7803, 7804, or 7805 may request review under these clarified criteria, irrespective of whether her disability has worsened since the last review.  The effective date of any award, or any increase in disability compensation, based on this amendment will not be earlier than the effective date of this rule, but will otherwise be assigned under the current regulations regarding effective dates.  See 73 Fed. Reg. 54708 (Sept. 23, 2008).  In this case, the Veteran filed his claim prior to the amendment to the rating criteria, and he has not requested a review under the new criteria.  As such, his pending claim currently on appeal will be reviewed under the criteria in effect prior to October 23, 2008. 

Diagnostic Code 7800 pertains to disfiguring scars of the head, face, or neck and is thus not applicable here.  Diagnostic Code 7801 pertains to scars other than on the head, face, or neck that are deep or that cause limited motion.  A 10 percent evaluation is assigned for an area or areas exceeding 6 square inches; a 20 percent evaluation is assigned for an area or areas exceeding 12 square inches; a 30 percent evaluation is assigned for an area or areas exceeding 72 square inches; and a 40 percent evaluation is assigned for an area or areas exceeding 144 square inches. 

Diagnostic Code 7802 provides for a 10 percent evaluation for scars, other than the head, face, or neck that are superficial, do not cause limited motion and have an area or areas of 144 square inches or greater.  Diagnostic Code 7803 provides for a 10 percent evaluation for unstable, superficial scars.  Diagnostic Code 7804 provides for a 10 percent evaluation for a scar that is superficial and painful. 

Diagnostic Code 7805 provides that scars be evaluated on the basis of any related limitation of function of the body part that they affect. 

Diagnostic Code 7806 pertains to dermatitis or eczema.  A noncompensable evaluation contemplates less than five percent of the entire body or less than five percent of exposed areas affected, and no more than topical therapy required during the past 12-month period.  A 10 percent evaluation is warranted for cases with at least five percent, but less than 20 percent of the entire body, or at least five percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period.  A 30 percent evaluation is assigned in cases of 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period.  A 60 percent evaluation is warranted in cases of more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. 


Analysis

Based upon the evidence of record, the Board finds the Veteran's service-connected genital herpes is manifested by less than 5 percent of the entire body or less than 5 percent of exposed areas affected with no more than topical therapy required.  The VA examination indicated that the Veteran's herpes affects less than five percent of the total body.  He uses no topical or internal medication.  While there is evidence of scarring, based on the criteria noted above, the scarring does not result in a higher evaluation.  That is, there is no showing that the scarring is deep or causes limited motion, exceeds 6 square inches, has an area or areas of 144 square inches or greater, is unstable, painful or limit function of the body part that they affect.  It is noted that the veteran reported painful lesions during an outbreak; the residual scarring is not described as painful.  The present disability is adequately evaluated under the criteria of diagnostic code 7806.  See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence).

Diagnostic Code 7806 specifically states that a noncompensable rating is in order when no more than topical therapy is required during the past 12-month period.  In this case, the Veteran reported no treatment for his disorder.  Furthermore, the Veteran's herpes does not require systemic therapy, such as corticosteroids or other immunosuppressive drugs, for a total duration of less than six weeks during the past 12-month period which would warrant a 10 percent disability rating.  Thus, a compensable rating is not warranted.  As noted, the application of the alternative rating criteria for scars or for disfigurement would not yield a higher rating.   

The Board has considered staged ratings, under Fenderson v. West, 12 Vet. App. 119 (1999), but concludes that they are not warranted.  Since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board recognizes that a lay person is competent to describe what comes to him through the senses.  See Layno v. Brown, 6 Vet. App. 465 (1994).  In this regard, the Veteran can assert that the symptoms associated with his disorder are more disabling.  However, the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).  While the appellant asserts that his service-connected disability is more severely disabling, the Board observes that the findings on VA clinical examinations do not demonstrate more significant symptomatology evidencing more severe disability in this regard. The Board concludes that the observation of a skilled professional is more probative than his lay statement.  In evaluating a claim for an increased schedular rating, VA must only consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals.  See Massey, 7 Vet. App. at 208.  To the extent that the Veteran argues or suggests that the clinical data supports an increased disability rating or that the rating criteria should not be employed, he is not competent to make such an assertion.  See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  

Finally, in reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1) and the Court's decision in Thun v. Peake, 22 Vet. App. 111 (2008). 

Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. 

The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology.  As discussed above, there are higher ratings available under the diagnostic codes, but the Veteran's disability is not productive of such manifestations.  As such, it cannot be said that the available schedular evaluation for the disability is inadequate.  Although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable; therefore, the question of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating) has not been raised.  See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).

Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected genital herpes under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met.  Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, supra. 


ORDER

An initial compensable rating for genital herpes is denied. 



____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs