Citation Nr: 1315976 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 05-30 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE 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. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Adrian Jackson, Counsel INTRODUCTION The Veteran had active military service from July 1977 to July 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Atlanta, Georgia. The August 2005 rating decision granted service connection and a 10 percent rating for herpes genitalia and venereal warts prior to December 9, 2004 and a 30 percent rating from December 9, 2004. This claim was previously before the Board in February 2008 and again in July 2012, at which time it was remanded for further evidentiary development. The Veteran testified before a hearing officer at the RO in February 2005 and again, before the undersigned at a video conference hearing, held at the RO in November 2011. The transcripts of the hearings are of record. Following the most recent remand the RO increased the rating for herpes genitalia and venereal warts to 60 percent (the maximum rating under the applicable diagnostic code), effective in January 2005. According to an August 2012 statement submitted by his representative, the Veteran additionally wants a higher rating for migraine headaches. However, as the Agency of Original Jurisdiction (AOJ), the RO has not initially adjudicated this additional claim. Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate development and consideration. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over an issue not yet adjudicated by the RO). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran maintains that his genital herpes and venereal warts should have been rated higher from the initial grant of service connection. The Veteran's herpes genitalia and venereal warts are 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. The Board notes that during the pendency of his appeal some of the schedular criteria by which skin disabilities are rated were revised, effective October 23, 2008. Revisions to the skin regulations became effective on October 23, 2008, during the pendency of the Veteran's appeal. See 73 Fed. Reg. 54,708 (2008); see also 77 Fed. Reg. 2,909 and 2,910 (2012) (correcting amendment intended to clarify applicability of the revisions). However, these revisions are applicable only to claims received by VA on or after this date, or if the Veteran requests review pursuant to the revisions. Neither circumstance exists in this case, and further, these revisions to the rating schedule did not affect the rating criteria for DC 7806. 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. The Veteran underwent VA examination in July 2012. The VA examiner collected skin samples to determine if the skin lesions (which the Veteran claimed were herpes) were herpetic versus follicular type. The examiner indicated that the results would take a week and she would append the examination report. This addendum has not been submitted. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA records are constructively part of the record which must be considered). Although the RO increased the rating to the maximum 60 percent beginning in January 2005, the Board must consider the prior ratings. Moreover, the Board notes that the VA examiner indicated that the Veteran was taking the antiviral drug Valacyclovir. She equates this to systemic corticosteroids. The RO increased the Veteran's rating based on his continued use of the antiviral drug Valacyclovir. In considering the Veteran's staged ratings of 10 and 30 percent, the Board notes that the Veteran's private physician, Dr. A.P. prescribed Zovirax (Acyclovir) as early as November 2002. A VA examination was conducted in April 2004. At that time, the Veteran reported that he was not taking any medication. Private medical records show that he was treated for venereal warts in October and December 2004. The VA examiner should also provide an addendum opinion as to the manifestations of the Veteran's service-connected herpes, for the time period between October 2003 and January 2005. In particular whether herpes involved more than 20 percent of the entire body or more than 20 percent of exposed areas affected prior to December 9, 2004; and whether herpes involved more than 40 percent of the entire body or more than 40 percent of exposed areas affected between December 9, 2004 and January 21, 2005. Also whether the Veteran was on intermittent, constant, or near constant systemic therapy at the time (or at the time of his October 2003 claim). The examiner should provide comment on the date of onset of his systemic treatment with antiviral drugs. Accordingly, the case is REMANDED for the following action: 1. Obtain the July 2012 addendum regarding the laboratory results of the skin biopsy and any other VA records that pertain to the Veteran's genital herpes and venereal warts. 2. Then, the claims folder, including this remand, must be sent to the July 2012 VA examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. If feasible, the examiner should report the percentage of the Veteran's entire body and the percentage of his exposed areas affected by the service-connected skin disability for the period between October 2003 and January 2005. The examiner should also note any systemic therapy that had been provided for the Veteran's service-connected skin disability during this period and the frequency and duration of any such treatment as documented in the record. 3. After the above development has been completed, the RO should readjudicate the issue on appeal. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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 Supp. 2012). _________________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).