Citation Nr: 1318954 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 09-10 056 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased rating for residuals of circumcision, currently evaluated as noncompensable. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from August 1976 to August 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) in Columbia, South Carolina. In December 2011, the Board remanded the issue for additional development. Jurisdiction over the Veteran's claims file has been transferred to the RO in Atlanta, Georgia. The Veteran and his spouse presented testimony at a Board videoconference hearing in March 2011, and a transcript of the hearing is associated with his claims folder. The issues of entitlement to service connection for a right hand disability, and service connection for an acquired psychiatric disorder, have been raised. These issues have not been adjudicated by the RO, and are referred to the RO for appropriate action. FINDING OF FACT The Veteran's service-connected circumcision is shown to have been productive of complaints of pain during intercourse, but not symptoms that involve at least 5 percent of the entire body, or at least 5 percent of exposed areas affected, scars of any type with an area or areas exceeding 6 square inches, that are painful on objective demonstration, or that cause a limitation of function, that are deep that cause limited motion, or that are superficial and unstable; or which require the need for intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period. CONCLUSION OF LAW The criteria for a compensable evaluation for service-connected circumcision have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4 .16, 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7805, 7806 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION I. Increased Rating The Veteran asserts that he is entitled to an increased rating for his service-connected circumcision. In essence, the Veteran feels that a higher rating is warranted for his residuals of circumcision because of the painful outbreaks he has periodically, that occur in the area of his circumcision scar. With regard to the history of the disability in issue, the Veteran's service treatment records show that in October 1977, the Veteran complained of a one-week history of phimosis. He was give Bacitracin, and advised to clean himself, and a circumcision was scheduled. In November 1977, he was circumcised. Subsequent treatment reports dated that same month do not note any complications. In April 1979, he was treated for a yellowish discharge from his penis. The assessment was rule out GC (gonorrhea). A May 1979 report notes a history of V.D. (venereal disease), and that there was no evidence of active disease. The Veteran's separation examination report, dated in August 1980, reflects that his genitourinary system was clinically evaluated as normal. As for the post-service medical evidence, VA reports show that in August 1982, he sought treatment for a swollen and painful penis. He was noted to have been circumcised in October 1977 "for cleanliness," with no complications. The Veteran reported that sex was satisfactory until six to twelve months earlier, when the site of his circumcision became painful and swollen. There was no bleeding. The diagnosis was painful coitus with penile swelling. In 1984, the Veteran complained of swelling in the area of his circumcision, with medium-sized pimples on the skin which became red and painful at times, lasting four to five days, with as many as three months between episodes. See 38 C.F.R. § 4.1 (2012). In October 1982, the RO denied a claim for service connection for residuals of a circumcision. The Veteran appealed, and in December 1983, the Board granted the claim. In January 1984, the RO effectuated the Board's decision, and assigned a noncompensable rating. There was no appeal, and the RO's decision became final. See 38 U.S.C.A. § 7105(c) (West 2002). In November 2005, the Veteran filed a claim for a compensable rating. In June 2006, the RO denied the claim. There was no appeal, and the RO's decision became final. Id. In September 2007, the Veteran again filed a claim for a compensable rating. In April 2008, the RO denied the claim. The Veteran has appealed. Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the VA's Schedule for Ratings Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board initially notes that in 2008, the Secretary of the VA amended that portion of the Schedule for Rating Disabilities pertaining to scars. As set forth in the Federal Register, the revised criteria apply to all applications for benefits received by VA on or after the effective date of October 23, 2008. See 73 Fed. Reg. 54,710 (Sept. 23, 2008). Here, the Veteran's claim was received at the RO in September 2007. Thus, the new regulations are not applicable. The Board further notes that the RO has previously denied a claim for service connection for herpes simplex virus. Furthermore, although some medical evidence has been received since the most recent supplemental statement of the case, dated in June 2012, the Veteran has submitted a waiver of RO review. See 38 C.F.R. § 20.1304 (2012). The RO has indicated that it has evaluated the Veteran's service-connected circumcision under 38 C.F.R. § 4.118, Diagnostic Codes (DC's) 7800-7806. See 38 C.F.R. § 4.27 (2012) (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). This hyphenated diagnostic code may be read to indicate that a scar (DCs 7800-7805) or dermatitis or eczema (DC 7806) is the service-connected disorder. In this regard, as DC 7800 only pertains to scars of the head, face, or neck, it is not for application. Under Diagnostic Code 7801 (as in effect prior to October 23, 2008), scars, other than head, face, or neck, that are deep or that cause limited motion: area or areas exceeding 6 square inches (39 sq. cm.), warrant a 10 percent rating. Under Diagnostic Code 7802 (as in effect prior to October 23, 2008) a 10 percent rating is warranted for: scars, other than head, face, or neck, that are superficial and that do not cause limited motion: Area or areas of 144 square inches (929 sq. cm.) or greater. Under 38 C.F.R. § 4.118, Diagnostic Code 7803 (as in effect prior to October 23, 2008) a 10 percent rating is warranted for superficial and unstable scars. Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2): A superficial scar is one not associated with underlying soft tissue damage. Under 38 C.F.R. § 4.118, Diagnostic Code 7804 (as in effect prior to October 23, 2008) a 10 percent rating for superficial scars that are painful on examination. Note (1): A superficial scar is one not associated with underlying soft tissue damage. Note (2): In this case, a 10-percent evaluation will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable evaluation. (See Sec. 4.68 of this part on the amputation rule.). Under 38 C.F.R. § 4.118, Diagnostic Code 7805 (as in effect prior to October 23, 2008) other scars are rated on limitation of function of the affected part. Under 38 C.F.R. § 4.1, DC 7806 (as in effect prior to October 23, 2008), a noncompensable rating is warranted with 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 with 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, intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than 6 weeks during the past 12-month period. The notes pertaining to these regulations (re-numbered) are shown below: (1) Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with § 4.25 of this part. (2) A deep scar is one associated with underlying soft tissue damage. (3) A superficial scar is one not associated with underlying soft tissue damage. (4) An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. The relevant medical evidence includes a QTC examination report, dated in January 2008, which indicates that the examination was performed in November 2007. The Veteran complained of urinary symptoms, and impotence, and sexual dysfunction that was caused by an infection and a psychological disorder. Specifically, he reported skin irritation and a pimple that come and went that affected his sexual performance. He indicated that his skin irritation was in the area where he had his circumcision. This examination report shows that the examiner noted that the Veteran had a subjective history of skin reaction that affected his sexual activity. Objectively, he had a normal examination for a circumcised penis, but it was felt that he might have a recurrent genital lesion that might cause him symptoms. The diagnosis was circumcision, and the examiner noted that the Veteran's erectile dysfunction was due to his prostate problem. Reports from a private physician, W.L.T., M.D., dated in 2008, show that in March 2008, the Veteran was treated for a complaint of penile lesions which he had had since his in-service circumcision. He complained of recurrent penile lesions, worse this past week, with liquid discharge and discomfort. Examination revealed slight swelling of the foreskin remnant with crusting exudates. The impression was penile lesion. A medical report, dated in May 2008, shows that Dr. T stated that the Veteran has had a balanitis encompassing about 10 percent of the surface area at the junction of the penile shaft and the glans. A Herpes Simplex Virus 2 specific AB test was elevated. VA progress notes include a report, dated in December 2010, which shows that the Veteran reported that he had genital herpes, that he was on acyclovir for chronic suppression therapy, and that he had had no recent breakout. In July 2012, the Veteran sought treatment for complaints of an "on and off" penile rash which started as a blister, and oozed. He stated that his symptoms flared-up or got irritated every time he had sex. The examiner noted that he may have herpes, and that he was to be placed on acyclovir. A VA examination report, dated in January 2012, shows that the examiner stated that the Veteran's claims file had been reviewed. The examiner noted a history that included an in-service circumcision in November 1977, with complaints of penile swelling beginning in 1982, and complaints of a penile skin problem in 2007, and a normal examination at that time. In 2008, he was noted to have a lesion with discharge and discomfort, and findings of Balanitis, and Herpes Simplex 2. He was placed on long-term acyclovir in December 2010, however, it was noted that he had not been taking his acyclovir, and that his prescription had not been refilled since October. The Veteran asserted that he did not know he was supposed to take it. On examination, there was no crusting, lesions, swelling, discharge, balanitis, tenderness, pain or swelling of the foreskin remnant. There was no voiding or erectile dysfunction. On examination, the penis was normal. There were no relevant scars. There were no other pertinent physical findings, complications, conditions, signs or symptoms. The examiner concluded the following: there is no evidence of complications from circumcision. The Veteran's complaints were consistent with recurrent Herpes Simplex 2, which he contracted after military service and for which he is non-compliant with medication. The claimed condition is less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that the Veteran had a circumcision and that his service records show no ongoing treatment or condition for his penis. His discharge physical was normal for his penis. He did not complain of swelling until years after service. He states he developed Herpes Simplex 2 years after military service. His present complaints are consistent with recurrent Herpes Simplex Virus 2 which occurred years after military service. A statement from the Veteran's spouse, dated in July 2013, shows that she states that the Veteran has a lesion on his penis for 30 years, that he has been diagnosed with Herpes Simplex Virus, and that his symptoms have greatly affected their marriage. The Board finds that the claim must be denied. The evidence is insufficient to show that the Veteran's circumcision is productive of deep scars or scars that cause limited motion, superficial scars that do not cause limited motion with an area or areas of 144 square inches, "superficial and unstable scars," "superficial scars that are painful on examination," symptoms involving at least 5 percent of the entire body, or at least 5 percent of exposed areas affected, or the need for intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period. To the extent that the Veteran has argued that he has lesions or other skin symptoms as residuals of his circumcision, a VA examiner has concluded that his present complaints are consistent with recurrent Herpes Simplex Virus 2 which occurred years after military, and for which service connection is not in effect. Accordingly, a compensable rating is not warranted pursuant to Diagnostic Codes 7801, 7802, 7803, 7804, 7805, or 7806. Although the Board appreciates the arguments of the Veteran's representative that the Board essentially granted service connection for residuals of Herpes Simplex Virus 2 and the symptoms associated therewith in a decision in December 1983, the Board does not agree. First, the sore and maceration arising out o the original circumcision have not been associated with the recurring symptoms associated with the Veteran's Herpes Simplex Virus 2. In fact, as was noted above, an examiner has concluded that the Veteran's current complaints are associated with Herpes that occurred years after service. In addition, the Board finds that in weighing the Veteran's statements with those of the examiner, while the Veteran may be considered competent to relate the symptoms that he has experienced throughout the years, he is not shown to be competent to relate his current symptoms to the circumcision he underwent in service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Secondly, it should again be noted that a claim for service connection for herpes simplex virus was specifically denied by the RO in December 2010, and the record does not reflect that the Veteran sought to appeal that decision. Should the Veteran want to have this claim reopened, he should file a formal application to do so. In deciding the Veteran's claim, the Board has considered the determination in Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased (compensable) evaluation for separate periods based on the facts found during the appeal period. As noted above, the Board does not find evidence that the Veteran's rating should be increased for any other separate period based on the facts found during the whole appeal period. The evidence of record supports the conclusion that the Veteran is not entitled to increased compensation during any time within the appeal period. The Board therefore finds that the evidence of record is insufficient to show that the Veteran had a worsening of the disability on appeal such that a compensable rating is warranted. In reaching this decision, the Board considered the benefit- of-the-doubt rule; however, as the preponderance of the evidence is against the appellant's claim, such rule is not for application. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. The Veterans Claims Assistance Act of 2000 The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). In October 2007, the Veteran was issued a VCAA notice in association with his claim. The RO has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims file. The RO has obtained the Veteran's service treatment reports, and VA and non-VA medical records. The Veteran has been afforded two examinations. In December 2011, the Board remanded the claim. The Board directed that the Veteran be scheduled for a VA examination to determine the current residuals of his service-connected circumcision disability, to include an opinion as to whether it is at least as likely as not (a probability of at least 50 percent) that any manifestations which have been present at any time since the claim was filed in November 2005 are residuals of the Veteran's in-service circumcision or otherwise related to service, including through infection in service. In January 2012, this was done. The examiner stated that the Veteran's claims file had been reviewed, and the requested opinion was provided that is sufficiently responsive to the Board's directions. Under the circumstances, the Board finds that there has been substantial compliance with its remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Board concludes, therefore, that a decision on the merits at this time does not violate the VCAA, nor prejudice the Veteran under Bernard v. Brown, 4 Vet. App. 384 (1993). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Entitlement to a compensable rating for residuals of circumcision is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs