Citation Nr: 1318864 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 06-34 587 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for herpes simplex. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from June 1990 to March 2005, and from November 2008 to November 2009, with additional active duty beginning on January 25, 2013. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska, which decision granted entitlement to service connection (and a noncompensable evaluation) for herpes simplex below the buttocks, effective from March 2, 2005, the date following the Veteran's discharge from his initial period of active military service. The Veteran's claims folder was subsequently transferred, and the appeal was certified to the Board by the RO in Columbia, South Carolina. In a decision of October 2010, the Board denied entitlement to service connection for a right wrist disability and a toenail disability. At that same time, the Board remanded for additional development the issues of entitlement to service connection for a bilateral hip disability and a right ankle disability, as well as entitlement to initial compensable ratings for a right third finger disability and herpes simplex. In a rating decision of February 2012, the RO granted entitlement to service connection for right ankle tendinitis, left hip bursitis, and right hip bursitis. Accordingly, those issues are no longer before the Board. In a decision of December 2012, the Board denied entitlement to an initial compensable evaluation for a right third finger disability prior to June 15, 2011, but awarded a 10 percent evaluation for that same disability effective from June 15, 2011. At that same time, the Board remanded for additional development the issue of entitlement to an initial compensable evaluation for service-connected herpes simplex. In a rating decision of February 2013, the RO awarded an initial 10 percent evaluation for service-connected herpes simplex below the buttocks effective from March 2, 2005, the date following the Veteran's discharge from his initial period of active military service. Compensation was terminated effective November 8, 2008, upon the Veteran's return to active military service, and reinstated on November 30, 2009, following completion of that period of active service. The case is now, once more, before the Board for appellate review. FINDING OF FACT The Veteran's service-connected herpes simplex below the buttocks cheeks does not encompass 20 to 40 percent of the Veteran's entire body, or 20 to 40 percent of the exposed areas affected, nor has it required systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for herpes simplex below the buttocks cheeks have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.118 and Part 4, Diagnostic Codes 7806, 7820 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) In the case at hand, the requirements of 38 U.S.C.A. § 5103 and 5103A (West 2002) have been met. There is no issue as to whether the Veteran was provided an appropriate application form, or the completeness of his application. VA notified the Veteran in June 2005 and June 2006, as well as in October 2010 and May 2012, of the information and evidence needed to substantiate and complete his claim, to include notice of what part of that evidence was to be provided by him, and what part VA would attempt to obtain. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim, and, as warranted by law, affording VA examinations. Currently, there is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file, which includes his multiple contentions, as well as service treatment records, and both VA (including Virtual VA) treatment records and examination reports. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's current claim, and what the evidence in the claims file shows, or fails to show, with respect to that claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Increased Rating The Veteran in this case seeks an increased evaluation for service-connected herpes simplex below the buttocks. In pertinent part, it is contended that manifestations of that disability are more severe than presently evaluated, and productive of a greater degree of impairment than is reflected by the 10 percent schedular evaluation now assigned. 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 (West 2002); 38 C.F.R. Part 4 (2012). Where there is a question as to which of two evaluations apply, the higher evaluation will be assigned where the disability picture more nearly approximates the criteria for the next higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). While the Board must consider the Veteran's medical history as required by various provisions under 38 C.F.R. Part 4, including 38 C.F.R. § 4.2 [see Schafrath v. Derwinski, 1 Vet. App. 589 (1991)], the degree of impairment resulting from a service-connected disability is a factual determination, with the Board's primary focus in such cases being upon the current severity of the service- connected disability. See Francisco v. Brown, 7 Vet. App. 55, 57-588 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the Francisco rule does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an award of service connection for the disability in question. Rather, at the time of the initial rating, separate ratings may be assigned for separate periods of time based on the facts found, a practice known as " staged" ratings. Id. at 126. Accordingly, the analysis in this decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Ratings are to be based as far as practicable upon the average impairment of earning capacity, with the additional proviso that the Secretary shall, from time to time, readjust the schedular ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve, on the basis of the criteria set forth in 38 C.F.R. § 3.321 (2012), an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture, with such related factors as a marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012). As noted above, in a rating decision of October 2005, the RO granted service connection (and a noncompensable evaluation) for herpes simplex below the buttocks cheeks, effective from March 2, 2005, the date following the Veteran's discharge from his initial period of active military service. The Veteran voiced his disagreement with that determination, with the result that, in a rating decision of February 2013, the RO awarded a 10 percent evaluation for service-connected herpes simplex below the buttocks cheeks, once again effective from March 2, 2005, the date following the Veteran's discharge from his initial period of active military service. In the present case, at the time of a VA general medical examination in August 2005, the Veteran gave a history of herpes which typically occurred below his buttock cheeks. According to the Veteran, he had been given Zoviraz cream and pills, which he took on those occasions when he experienced a recurrence. According to the examiner, these recurrences, which occurred four to five times per year, most likely represented herpes simplex, and not herpes zoster. By the Veteran's own admission, his most recent episode had occurred three or four weeks prior to the examination. On physical examination, the Veteran's skin was described as within normal limits, with no evidence of any scars or skin lesions. The clinical impression was of herpes simplex with recurrent episodes. At the time of a subsequent VA dermatologic examination in May 2007, it was noted that, while in military service, the Veteran had developed a rash on his distal left buttock. Reportedly, at that time, the Veteran was seen by a dermatologist, who diagnosed herpes simplex. According to the Veteran, he additionally suffered from fever blisters which had their onset at approximately the same time as his herpes simplex. Reportedly, while in the military, the Veteran was prescribed topical Acyclovir, though for the past two years, he had taken that medication orally twice daily. Significantly, the Veteran indicated that he intended to take his medication on a daily basis, but sometimes "forgot." However, when he remembered to take his medication, it suppressed both his fever blisters and the rash on his left buttock. According to the Veteran, while on this program, he experienced no outbreaks of either fever blisters or herpes simplex unless he missed one or more doses of his medication. As it was, he reportedly would have a fever blister every three to six weeks, and an outbreak on his left buttock one to three times per year. According to the examiner, the time course for both of these conditions was "intermittent." Reportedly, according to the Veteran, it typically took about two weeks for resolution of either rash. On physical examination, there was no evidence of a rash or scarring about the Veteran's upper lip where the Veteran typically experienced fever blisters. Moreover, examination of his left buttock was within normal limits, with no evidence of any rash or scarring. The pertinent diagnoses noted were fever blisters; and recurrent herpes simplex cutaneous infection of the left buttock. According to the examiner, at the time of examination, none of the Veteran's exposed skin or total body surface area were involved. During the course of VA outpatient treatment in late March 2011, it was noted that the Veteran took Valtrex for suppressive treatment of his episodes, which occurred slightly more than six times per year. At the time of a subsequent VA dermatologic evaluation in May 2012, the Veteran indicated that his symptoms had begun in approximately 2002, at which time he developed a burning sensation and weeping blisters along the bottom of his right buttock. According to the Veteran, at that time, he saw a dermatologist, who diagnosed shingles. Reportedly, the Veteran was begun on Valacyclovir, which he currently took on a daily basis. Noted at the time of examination was that the Veteran had experienced a flare two months earlier, which tended to occur were he to lapse in taking his medication. However, these "flares" would typically go away in approximately one week once the Veteran was back on his medication. Noted at the time of examination was that the Veteran had not been treated with oral or topical medications in the past 12 months for any skin condition. Physical examination showed no involvement of the total body area or exposed areas of the Veteran's skin. As of the time of a more recent VA dermatologic examination in January 2013, it was noted that the Veteran had in the past or currently had an infectious skin condition, specifically, herpes zoster/herpes simplex. According to the examiner, the Veteran had in the past been diagnosed with herpes zoster (not herpes simplex) across the crease of his left buttock while on active duty. Reportedly, at that time, the Veteran had been treated with Acyclovir. According to the examiner, since that time, the Veteran had experienced several recurrences, the most recent being in 2011, at which time he was treated with Valtrex. The Veteran gave additional history of genital herpes (herpes simplex) diagnosed in 2005 while on active duty, at which time the Veteran received treatment with Acyclovir. Reportedly, the Veteran had experienced no recurrence of genital herpes since that time. According to the Veteran, he had experienced several outbreaks of "fever blisters," which were a herpes simplex virus, for which he had received treatment with Valtrex. Moreover, the Veteran's last outbreak of fever blisters had occurred in January of 2013, and typically occurred every six to eight weeks. At the time of examination, it was noted that the Veteran had been treated with oral medication, specifically, Valtrex, for herpes simplex for a period of less than six weeks over the past 12 months. However, there was no indication that the Veteran had been treated with systemic corticosteroids or other immunosuppressive medications. Physical examination revealed no evidence of any involvement of the Veteran's total body area or exposed areas. Nor was there any evidence of a visible skin condition. According to the examiner, there was no rash consistent with herpes zoster on examination. Rather, the Veteran had been diagnosed with herpes zoster (not simplex) in the buttock region while on active duty "per claims folder review." According to the examiner, a review of the Veteran's claims folder showed documented herpes zoster, which was the rash in question for which evaluation was requested. Significantly, herpes zoster represented a reactivation of the chicken pox virus, while herpes simplex (genital and fever blister type) was typically sexually or orally transmitted. Pursuant to applicable law and regulation, the Veteran's service-connected skin disorder may be evaluated as for infections of the skin not listed elsewhere (including bacterial, fungal, viral, treponemal, and parasitic diseases), which are themselves evaluated as dermatitis based on the predominant disability. 38 C.F.R. § 4.118 and Part 4, Diagnostic Code 7820 (2012). In that regard, a 10 percent evaluation for dermatitis is warranted where there is evidence of involvement of at least 5 percent, but less than 20 percent, of the Veteran's entire body, or at least 5 percent, but less than 20 percent, of the exposed areas affected, or, in the alternative, a need for intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the previous 12-month period. A 30 percent evaluation, under those same laws and regulations, requires demonstrated evidence of involvement of more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or, in the alternative, a need for constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. 38 C.F.R. § 4.118 and Part 4, Diagnostic Code 7806 (2012). As is clear from the above, no more than a 10 percent evaluation is warranted for the Veteran's service-connected herpes simplex (zoster) below the buttocks. In that regard, at no time during the course of the Veteran's appeal has there been involvement of 20 to 40 percent of his entire body, or 20 to 40 percent of the exposed areas affected. In fact, notwithstanding the fact that the Veteran has undergone no less than four VA examinations, there has yet to be demonstrated the presence of any active herpes involvement of the skin below the Veteran's buttocks. While it is true that, on occasion, the Veteran has required medication for control of his service-connected herpes, as of the time of a recent VA dermatologic examination in January 2013, there was no evidence that such medication included systemic corticosteroids or other immunosuppressive medication. Moreover, according to the examiner, at the time of examination, there was no evidence of any rash consistent with herpes zoster. Based on the aforementioned, the Board is of the opinion that the 10 percent evaluation currently in effect for the Veteran's service-connected herpes below the buttock cheeks is appropriate, and that an increased rating is not warranted. Moreover, based on a review of the entire evidence of record, the Board is of the opinion that the disability picture presented by the Veteran's service-connected herpes simplex is appropriately contemplated by the Rating Schedule. At no time during the course of the current appeal has it been demonstrated that, due exclusively to the Veteran's herpes simplex, he has experienced a marked interference with employment or frequent periods of hospitalization. Accordingly, referral for consideration of an extraschedular evaluation is not warranted. See Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). ORDER Entitlement to an initial evaluation in excess of 10 percent for herpes simplex is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs