Citation Nr: 1317876 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 04-03 293A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial rating higher than 10 percent for herpes simplex virus after January 25, 2008. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel INTRODUCTION The Veteran served on active duty from November 1993 to January 2002. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2003 rating decision in of the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska, which granted service connection for herpes simplex virus and assigned a 0 percent, or noncompensable, disability rating. The grant of service connection was effective January 23, 2002. The claim is now in the jurisdiction of the Columbia, South Carolina RO. In February 2011, the Appeals Management Center increased the initial rating for herpes simplex to 10 percent, effective the date of service connection. In February 2012, the Board granted a 60 percent initial rating, effective from January 23, 2002 to January 24, 2008. The issue currently on appeal before the Board is the propriety of an initial rating higher than 10 percent after January 24, 2008. This case was previously before the Board in November 2007, May 2011, February 2012, and August 2012, when it was remanded for further development. The issues of entitlement to service connection or to reopening of previously denied claims of service connection for diabetes mellitus, type II, obesity, Bell's palsy, eczema, and hysterectomy, to include as secondary to service connected herpes simplex virus, have been raised by the Veteran's representative but have not been adjudicated by the RO/AMC. Therefore, the Board does not have jurisdiction over them, and they are referred to the RO/AMC for appropriate action. FINDING OF FACT As of January 25, 2008, the Veteran's herpes simplex virus is shown to be manifested by scarring affecting less than 5 percent of the total bodily surface and the use of systemic therapy at least six weeks a year; but without constant or near-constant use of systemic therapy and/or scarring affecting more than 5 percent of the entire body or exposed areas. CONCLUSION OF LAW The criteria for a disability rating of 30 percent and no higher for herpes simplex virus, effective January 25, 2008 have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.118, Diagnostic Codes 7800-7806 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), As provided for by the 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 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Duty to Notify The Veteran's appeal arises from the initial rating following the grant of service connection. Once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Accordingly, further VCAA notice is not required. Duty to Assist VA also has a duty under the VCAA to assist the Veteran in the development of the claim. This duty includes assisting her in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as all relevant post-service reports of VA and private treatment and examination. Moreover, her statements in support of the claim are of record and the Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's August 2012 remand, the AMC obtained additional medical evidence and opinions in September 2012 and March 2013. These examinations contained all information needed to rate the disability. As discussed below, there are problems with the examination reports in that they indicate that the Veteran was receiving constant or near constant systemic corticosteroid therapy. Further development is not required, because the April 2012 examination report provided an adequate opinion on the Veteran's systemic corticosteroid use and treatment records show that the Veteran's use of this therapy has not increased since that opinion. The September 2012 and March 2013 examinations do include the information that was specifically requested in the Board remand; namely estimates of the percentages of the entire body and exposed areas that were involved. Therefore, this examination is adequate for VA purposes. Thus VA has complied with the August 2012 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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). Assigning Disability Ratings A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). In this instance, staged ratings have been assigned by the Board; but, as discussed below, staged ratings are not warranted for the period since January 25, 2008. The Veteran's herpes simplex virus is currently rated under 38 C.F.R. § 4.118, Diagnostic Codes 7899-7806. 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 assigned. 38 C.F.R. § 4.27 (2012). Here, the use of Diagnostic Codes 7899-7806 reflects that there is no diagnostic code specifically applicable to the Veteran's skin disease, and that this disability is rated by analogy to dermatitis or eczema under Diagnostic Code 7806. See 38 C.F.R. § 4.20 (2012) (allowing for rating of unlisted condition by analogy to closely related disease or injury). Under Diagnostic Code 7806, a 10 percent rating is warranted if 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; if intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted if 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; if systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is warranted if more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, or; if 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, Diagnostic Code 7806. Dermatitis or eczema may also be evaluated under the rating codes for disfigurement of the head, face, or neck, or scars depending on the predominant disability. During the pendency of this claim, the rating criteria for scars were changed, effective October 23, 2008; the new criteria apply only to claims filed on or after October 23, 2008. Under the applicable rating criteria, to warrant a compensable rating, a scar needs to involve the head, face or neck and have at least one character of disfigurement (Diagnostic Code 7800); be deep and nonlinear and cover an area of at least 6 square inches, but less than 12 square inches (Diagnostic Code 7801); be superficial and nonlinear and cover an area of 144 square inches or greater (Diagnostic Code 7802); be unstable or painful (Diagnostic Code 7804); or cause some limitation of the function of the part affected (Diagnostic Code 7805). 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (effective prior to October 23, 2008). Facts At a VA examination in December 2008, the Veteran reported that she used acyclovir when she had flare ups of her skin condition. On a November 2009 VA examination, the Veteran's diagnosis of herpes simplex virus was noted. She was being treated with acyclovir pills, which the examiner stated was a corticosteroid, and with Zovirax ointment. In an addendum opinion offered in April 2012, the VA examiner stated that acyclovir was an antiviral medication, not a corticosteroid or a drug which suppressed immunity. The examiner reviewed the Veteran's medical records and found no indication of treatment with a corticosteroid. Based however, on a review of pharmacy records and refills, the examiner found that the use of acyclovir was constant or near constant from January to May 2008; but was not refilled from June 2008 to March 2010, the equivalent of a 4-month prescription was dispensed for the period of March 2010 to April 2011, and a 4-month prescription was filled for April 2011 to February 2012. In total, the examiner noted that the amount of medication filled between January 2008 and April 2012 (over 48 months) was sufficient to treat for 12 of the 48 months, making the usage less than nearly constant. On September 2012 VA examination, the Veteran's diagnoses of herpes simplex and genital herpes were noted. She reported experiencing some pigmentation changes around her mouth prior to oral outbreaks as well as lesions on her lips during outbreaks. Oral outbreaks occurred a few times per month and genital outbreaks, which produced lesions on the vulva, occurred at least once a month. The examiner checked a box indicating that the Veteran used a systemic oral medication for herpes simplex on a constant or near-constant basis. The examiner indicated that the Veteran's oral lesions affected less than 5 percent of her body and less than 5 percent of the exposed area of the body, and that the genital lesions affected less than 5 percent of her body. There was skin hyperpigmentation around the Veteran's mouth which was not painful and measured .25 cm by 5 cm, and there was an early active lesion present at the time of examination. On March 2013 VA examination the examiner noted that the Veteran had been diagnosed in 1997, as having herpes simplex virus affecting both her oral and genital areas. She reported using acyclovir in capsule form twice a day and in topical cream form as needed. She reported having outbreaks of herpes around her mouth two to three times per month and lasting up to one week each time, as well as outbreaks of genital herpes at least once a once a month with a burning rash in her vaginal and anal areas. The oral outbreaks had left a minimal hypopigmentation scar in the outer lip line, with no notable disfigurement. Total skin area affected was less than 5 percent of the body and total exposed area was also less than 5 percent; this estimation included the amount of skin affected during an outbreak. The examiner again checked a box indicating that the use of oral medication had been constant or near-constant in the past 12 month and the use of topical medication had been for 6 weeks or more but not constant in the past 12 months. The Veteran described the impact on her ability to work as pain and burning as well as embarrassment that she had an ongoing sexually transmitted disease and said she sometimes used leave from work during an outbreak. VA outpatient treatment records for the period through March 2013, show that the Veteran's medications included acyclovir, 800mg. per day by nasogastric tube. Pharmacy notes do not show any refills of this medication after April 2011. Analysis The record does not show that the Veteran's use of medication, including acyclovir, has not been constant or near constant at any point since January 25, 2008. While VA examiners both selected the box indicating usage of medication on a constant or near-constant basis, the evidence of the pharmacy records contradicts this. As noted by the April 2012 addendum opinion, between January 2008 and April 2012, the medication filled was only sufficient to cover about one-fourth of the time period, or 12 months. The records for the period since April 2012, do not show any refills of this medication or other systemic corticosteroid therapy. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The April 2012 opinion included a rationale that was based on a detailed examination of the record. The examiner accurately reported that record and considered the Veteran's reports. The records obtained since the April 2012 addendum do not indicate that there has been any change in the Veteran's prescriptions or use of systemic therapy since the April 2012 opinion. The addendum is highly probative as to the extent of the Veteran's use of systemic corticosteroid therapy. The September 2012 and March 2013 examiners did not include any rationale for their use of check marks indicating the Veteran did have constant systemic corticosteroid therapy. Hence, these reports are of little probative value. The April 2012 addendum indicates that the Veteran used acyclovir for more than 6 weeks per year, but not on a constant or near-constant basis. Although the examiner opined that this was not a systemic corticosteroid, the language of Diagnostic Code 7806 applies to "systemic therapy," and acyclovir oral tablets are a systemic rather than a topical therapy. As such, the Board deems the rating criteria satisfied as to the nature of the medication used. The Veteran is competent to provide evidence of her own first-hand knowledge, which would include use of medication. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). However, the pharmacy records, contradict her reports as to the extent of her use of systemic corticosteroids. Rather, based on the prescribed dosage and the frequency of prescription refills, she has taken, and the review by a medical professional, her use of acyclovir has been at most one-quarter of the time since January 25, 2008. Thus, her reports of near constant use of such medication after January 25, 2008, are not deemed to be credible. While the Veteran's herpes may also be rated based on scarring or disfigurement under other Diagnostic Codes, the evidence reflects that even at the time of an outbreak, less than 5 percent of the Veteran's body is affected and less than 5 percent of the Veteran's exposed bodily surface is affected. Scarring is limited to a small area of minor hypopigmentation around the Veteran's lips, which is not unstable or painful or disfiguring under the rating criteria. As such, a disability rating in excess of 10 percent under Diagnostic Codes 7800-7805, as in effect prior to October 23, 2008, is not warranted. 38 C.F.R. § 4.118. In light of the above evidence and resolving reasonable doubt in favor of the Veteran, the Board concludes that the use of systemic therapy was required for at least six weeks during any 12-month period from January 25, 2008 onward to treat the Veteran's service-connected skin disease. Thus, a disability rating of 30 percent for herpes simplex virus is warranted under Diagnostic Code 7806 as of January 25, 2008. As constant or near-constant usage was not required, a still higher or 60 percent rating is not warranted. 38 U.S.C.A. §§ 5107(b); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7806. Extraschedular Rating Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology, namely burning and itching skin with visible lesions during flare-ups, and provide for higher ratings for more severe symptoms. Thus the disability pictures are contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). Total Rating for Compensation Based on Individual Unemployability (TDIU) The Court has held that TDIU is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2008). In the instant case, there is no evidence that the Veteran has been unemployed at any point since January 25, 2008. Absent evidence of unemployability VA has not duty to further consider the question of entitlement to TDIU. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). ORDER Entitlement to an initial rating of 30 percent for herpes simplex virus, effective January 25, 2008 is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs