Citation Nr: 1304707 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 09-09 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for prolactinoma. 2. Entitlement to a rating in excess of 10 percent for herpes simplex virus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from February 1991 to February 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran testified before the undersigned during a Board hearing held in April 2010. A copy of the hearing transcript has been associated with the record. The issues on appeal were remanded by the Board for further development in July 2010. Following that remand, the Veteran herpes simplex evaluation was increased from 0 percent to 10 percent, effective May 22, 2007, the date that the Veteran's claim for an increased rating was received. FINDINGS OF FACT 1. The medical evidence of record shows that the Veteran's prolactinoma is controlled by continuous medication; the Veteran's complaints of constipation, fatigue, and mental sluggishness have not been attributed to her diagnosis of prolactinoma by a medical expert. 2. The Veteran's herpes simplex virus involves less than 0.5 percent of total body surface area and 1 percent of exposed surface area, and does not require systemic treatment. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for a prolactinoma have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.119, Diagnostic Codes 7903, 7916 (2012). 2. The criteria for a rating in excess of 10 percent for herpes simplex virus have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.27, 4.118, Diagnostic Code 7806 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Neither the Veteran nor her representative has alleged prejudice with respect to notice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. VA's duty to notify has been satisfied. The Veteran was notified in June 2007 of the criteria for establishing service connection and an increased rating, the evidence required, and her and VA's respective duties for obtaining evidence. That letter addressed all notice elements and predated the initial adjudication in October 2007. She also was notified of how VA determines disability ratings and effective dates if service connection is awarded. Nothing more is required in this case. The Veteran is challenging the initial rating assigned following the grant of service connection for prolactinoma. In cases where service connection has been granted and an initial disability rating has been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Thus, because the notice that the Veteran was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. As for the duty to assist, the Veteran's service medical records have been obtained. Pertinent post-service medical records have been obtained, to include those requested by the Board in July 2010, to the extent available. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Board finds that no additional evidence, which may aid the Veteran's claim or might be pertinent to the claim, has been submitted, identified, or remains outstanding, and the duty to assist requirement has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. 38 C.F.R. § 3.159(c)(4) (2012); Green v. Derwinski, 1 Vet. App. 121 (1991). Here, the Veteran was most recently afforded a VA examination to address her claims in October 2010. When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The VA examination report is adequate to decide the claims addressed herein, as the examination report included a thorough review of the file, and examination findings relevant to the issues. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any failure is harmless. Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Increased Ratings The Veteran claims that her -service-connected prolactinoma and herpes simplex virus are more severe than indicated by her current disability ratings. Disability ratings are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). In order to rate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589 (2002). However, 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). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, the reasonable doubt shall be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a staged rating. Fenderson v. West, 12 Vet. App 119 (1999). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. In this case, the evidence of record does not establish additional, distinct time periods in which either issue on appeal resulted in symptoms that warrant a staged rating. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined. 38 C.F.R. § 4.25 (2012). However, the rating of the same disability or the same manifestations under various diagnoses is not allowed. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as such a result would overcompensate the claimant for the actual impairment of her earning capacity. Brady v. Brown, 4 Vet. App. 203 (1993); 38 U.S.C.A. § 1155 (West 2002). That would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Assignment of a particular Diagnostic Code is completely dependent on the facts of a particular case. Butts v. Brown, 5 Vet. App. 532 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in Diagnostic Code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on her behalf. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Prolactinoma The Veteran's prolactinoma disability has been assigned an initial rating of 10 percent pursuant to Diagnostic Codes 7916-7903. 38 C.F.R. § 4.119 (2012). Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27 (2012). Diagnostic Code 7916 directs the rater to rate the disability of hyperptuitarism (prolactin secreting pituitary dysfunction) as a malignant or benign neoplasm. 38 C.F.R. § 4.119 (2012). Benign endocrine neoplasms are rated for residuals of endocrine dysfunction. 38 C.F.R. § 4.119, Diagnostic Code 7915 (2012). Under Diagnostic Code 7903, used for rating hypothyroidism, a 10 percent rating is warranted for fatigability, or; continuous medication required for control. A 30 percent rating is warranted for fatigability, constipation, and mental sluggishness. A 60 percent rating is warranted for muscular weakness, mental disturbance, and weight gain. A 100 percent rating is warranted for cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness. 38 C.F.R. § 4.119, Diagnostic Code 7903 (2012). The Board can find no more relevant diagnostic code. The medical evidence of record shows that the Veteran's prolactinoma is controlled by continuous medication. While the Veteran has also reported experiencing fatigability, occasional constipation, mental sluggishness, weight gain, and body pains, the medical evidence of record shows that none of those symptoms are related to the Veteran's service-connected prolactinoma. She was afforded a VA examination to address her service connection claim in August 2007. At that time, it was noted that the Veteran was prescribed Bromocriptine for the prior 10 months, and that her fatigue level improved over that period, though some fatigue was still present. Other reported symptoms included headaches, though not as severe as in the past, premature menopause while she underwent fertility treatment, and occasional nausea as a side effect of her medication. An MRI did not indicate an invasion of the optic chasm, however the Veteran reported difficulty with peripheral vision. She blinked frequently during the interview, avoiding the light, and complained of dry eyes for the prior two to three weeks. The examiner noted that an ophthalmological examination revealed normal visual fields. The Veteran did not report any other known endocrine problems, and her thyroid was normal. A statement from the Veteran's private provider, dated April 30, 2009, indicated that prolactinoma was likely related to her infertility, and may have been related to prior intermittent menstrual cycles and sleep disturbance. In April 2010, the Veteran testified during a Board hearing. At that time, she indicated that her prolactinoma made her tired, and that she had to nap frequently. She also claimed to be irritable often, with lapses in concentration. She testified that she gained 35 pounds over the past several years, and attributed that change to her prolactinoma. She attributed other symptoms to her pituitary tumor also, such as a sleep disorder, infertility, and depression. Most recently, the Veteran reported for a VA examination in October 2010 to address the severity of her service-connected prolactinoma. The examiner noted that serial MRI pituitary images demonstrated no significant changes to the initial MRI from 2007. The Veteran reported that her prolactinoma affected all of her hormones, to include such symptoms as hot flashes, the cessation of periods, intolerance to heat, depression due to hormonal changes, sleep disturbance, extreme fatigue, mental sluggishness with short term memory problems, and occasional constipation. Regarding fatigue, she reported that, following exercise, she was enveloped in a "cloud" of fatigue that would last for several days. She also indicated suffering from occasional joint and back pain. She denied aching muscles, though she felt weak (without singling out a specific muscle group). On her current medication regimen, she reported regular menstrual cycles. She denied urinary problems and visual disturbances. The examiner noted that fatigue was the main symptom which affected her activities of daily living. She was ultimately diagnosed with hyperprolactinemia, secondary to prolactinoma, controlled on current medication. However, it was noted that disorder presented with relatively few and typical symptoms in premenopausal women, including infertility (for which the Veteran already receives special monthly compensation), galactorrhea, and visual disturbances. Based on a follicular stimulating hormone test, it was noted that her lack or regular menstrual cycles was due to primary ovarian failure (early menopause), and not related to her pituitary gland. Further, while visual disturbance was noted in 2007, none was reported on examination. The examiner noted that prolactinoma was not directly related to any other hormonal imbalance save for growth hormone, which was normal in 2007 and appeared normal during the 2010 clinical evaluation, and therefore other reported symptoms such as fatigue, constipation, mental sluggishness, weakness, weight gain, and temperature intolerance were not the result of prolactinoma or hyperprolactinemia. Regarding employability, it was noted that her prolactinoma did not impede gainful employment. The Board notes that, while private treatment reports and VA outpatient treatment records were reviewed, those documents do not demonstrate symptomatology more severe than detailed above, attributed to prolactinoma. In summary, the Board finds that the preponderance of the evidence of record shows that the Veteran's prolactinoma, though controlled by continuous medication, is not responsible for the majority of the Veteran's reported symptomatology. Specifically, and with regard to a rating in excess of 10 percent, the 2010 examiner found that her service-connected disability was not the cause of constipation or mental sluggishness. Accordingly, a rating in excess of 10 percent is not warranted under Diagnostic Code 7903. 38 C.F.R. § 4.119 (2012). The Board has also considered rating the Veteran's service-connected disability under all appropriate Diagnostic Codes. However, the medical evidence of record does not demonstrate that, during the period pertinent to this appeal, the Veteran has ever had hyperthyroidism, toxic or nontoxic adenoma of the thyroid gland, hyperparathyroidism, hypoparathyroidism, or Cushing's syndrome. 38 C.F.R. § 4.71a, Diagnostic Codes 7900, 7901, 7902, 7904, 7905, 7907 (2012). The examiner found that the prolactinoma did not affect any other hormonal imbalance except growth hormone, which was normal. Accordingly, the Board finds that a rating in excess of 10 percent is not warranted for prolactinoma. The preponderance of the evidence is against the claim for increase and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Herpes Simplex Virus The Veteran's herpes simplex virus is rated under Diagnostic Code 7899-7806. The hyphenated diagnostic code indicates an unlisted dermatological disorders under Diagnostic Code 7899 rated, by analogy, under the criteria for dermatitis or eczema Diagnostic Code 7806. 38 C.F.R. § 4.118 (2012). Diagnostic Code 7806 provides a non-compensable rating for the evaluation of dermatitis or eczema if there is less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12-month period. A 10 percent rating is warranted if there is 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 affected; or, if intermittent systemic therapy, such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than 6 weeks during the past 12-month period. A 30 percent rating requires 20 to 40 percent of the entire body, or 20 to 40 percent of exposed areas be affected, or; that systemic therapy, such as corticosteroids or other immunosuppressive drugs, were required for a total duration of 6 weeks or more, but not constantly, during the past 12-month period. Finally, a rating of 60 percent is warranted when the disability covers an area of more than 40 percent of the entire body, or when more than 40 percent of exposed areas are affected, or when constant or near-constant systemic therapy, such as corticosteroids or other immunosuppressive drugs, were required during the past 12-month period. 38 C.F.R. § 4.118 (2012). Diagnostic Code 7806 also provides for a rating of disfigurement of the head, face, or neck under Diagnostic Code 7800, or scars under Diagnostic Codes 7801, 7802, 7803, 7804, or 7805, depending upon the predominant disability. The Board finds that the Veteran's herpes simplex virus has not resulted in any scars or disfigurement of the head, face, or neck. Therefore, the Board finds that the Veteran is most accurately rated under Diagnostic Code 7806. 38 C.F.R. § 4.118 (2012). On review of the pertinent evidence of record, the Board notes that the Veteran was afforded a VA examination in August 2007. She reported that she suffered from a cold sore on her face approximately once per month, localized underneath her nose and around her lips. She stated that, when that occurred, she also noted some swelling in her submandibular glands. She also indicated that she felt extremely fatigued during outbreaks. She treated outbreaks with topical Denavir, and noted that was the only agent that managed her sores. On examination, there was a small, dry, vesicular lesion, measuring less than half a millimeter, on her upper lip. No other lesions were found. The Veteran testified in April 2010 that she was taking immunosuppressive medication at one time, Valtrax, in 2008. She noted that it was very expensive, and that she could not afford its continued use. She also stated that her outbreaks caused exhaustion and fatigue, to the point where she had to sleep. She indicated that breakouts were only on her face, and not on her extremities. Most recently, the Veteran reported for a VA examination in October 2010. She reported that, during a typical breakout, she occasionally felt a tingle before the oral lesion appeared. The lesions were generally found in the nose, around the lower nasolabial folds, and around the mouth. The chin and the area under the chin were not affected. An outbreak generally consisted of multiple lesions, lasting seven to ten days. If she took the topical antiviral cream, an outbreak was shortened to approximately seven days. She also reported extreme fatigue prior to breakouts. The Veteran denied the use of immunosuppressives or corticosteroids. Though she was prescribed a suppressive for daily use, she did not currently take that medication. At the time of the examination, one area was affected, the center of her lower lip, which was resolving from the most recent outbreak. There were no other areas affected. Total body area affected was 0 percent, and exposed body area affected was 0 percent. Based on her history, the examiner stated that the percentage of total body surface affected during breakouts was less than one half of a percent, and the percentage of exposed area affected was less than one percent. There were no visible scars. The examiner noted that these lesions did not affect her activities of daily living, and that they did not impede gainful employment. Based on the foregoing, the Board finds that the Veteran's herpes simplex does not meet the criteria for a higher rating under Diagnostic Code 7806. At no point during the appellate period was the Veteran's skin disorder noted to affect 5 percent of her entire body or 5 percent of exposed areas. Rather, during her most recent VA examination, the examiner noted that the Veteran's herpes simplex virus affected 0 percent of her total body surface and 0 percent of his exposed areas, while historically affecting less than one percent of total and exposed areas. The evidence of record also fails to show that the Veteran's herpes simplex virus has required systemic therapy such as corticosteroids or other immunosuppressive drugs for the past 12 months. The Veteran specifically denied the use of any medication or treatment aside from a topical steroid. The Board acknowledges that the Veteran has been prescribed oral medication. However she reported that she did not use this medication. While she did use topical treatment, these medications are not systemic corticosteroid or immunosuppressive drugs, and as therefore the criteria for a rating of 10 percent are not met in this case. Accordingly, the evidence of record does not indicate that the Veteran's herpes simplex virus affects at least 5 percent of her entire body or at least 5 percent of the exposed areas, and did not require systemic therapy such as corticosteroids or other immunosuppressive drugs. Therefore, a rating in excess of 10 percent under Diagnostic Code 7806 is not warranted in this case. Moreover, the Board has reviewed the remaining diagnostic codes for skin disabilities and finds that the evidence does not support a rating under any alternate diagnostic codes relevant to the disability at issue, as the Veteran does not have any scaling, scars, or disfigurement. 38 C.F.R. § 4.118 (2012). Conclusion In reaching the above conclusions, the Board has also not overlooked the Veteran's statements regarding the severity of her service-connected disabilities. The Veteran is competent to report on factual matters of which she has first-hand knowledge, such experiencing herpes simplex outbreaks, or symptoms such as fatigue and mental sluggishness. Washington v. Nicholson, 19 Vet. App. 362 (2005). However, while the Board may consider the Veteran's subjective statements regarding the severity of her disabilities, the Board notes that with respect to the Rating Schedule, the criteria set forth therein generally require medical expertise which the Veteran has not been shown to have and the types of findings are not readily observable by a layperson. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Furthermore, the Board finds the objective medical findings and opinions provided by the VA examiners are afforded the greater probative weight. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the Board as adjudicator. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The above determinations are based upon consideration of applicable rating provisions. There is no showing that either of the Veteran's disabilities have demonstrated so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. 38 C.F.R. § 3.321(b)(1) (2012). The symptoms of each disability have been accurately reflected by the schedular criteria. Further, the Board points out that her disability rating encompasses a degree of occupational impairment relative to that rating. The most recent VA examination found that neither disability impeded gainful employment in any way. Without sufficient evidence showing that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extraschedular rating is not warranted. In addition, the evidence does not show frequent hospitalization or marked interference with employment due to either disability. Thun v. Peake, 22 Vet. App. 111 (2008). In light of the foregoing, the Board finds that the preponderance of the evidence is against the assignment of any rating in excess of 10 percent rating for prolactinoma o herpes simplex virus. Therefore, the claims for increase are denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an initial rating in excess of 10 percent for prolactinoma is denied. Entitlement to a rating in excess of 10 percent for herpes simplex virus is denied. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs