Citation Nr: 1322115 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 10-45 591 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an increased rating for herpes, currently rated as noncompensably disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from December 1950 to April 1958. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT Throughout the rating period on appeal, the Veteran's herpes has been manifested by outbreaks of lesions on the penile tip and perianal area at least 12 times per year, with each lasting approximately 5-6 days. It does not affect 5 to 20 percent of the entire body or 5 to 20 percent of exposed areas. Intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs have not been required. CONCLUSION OF LAW The criteria for entitlement to a compensable disability evaluation for the Veteran's service-connected herpes have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.7 and Codes 7806-7820 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Notify As provided for by the Veterans Claims Assistance Act of 2000 (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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, No. 08-7150, 2009 WL 2835434 (Fed. Cir. Sept. 4, 2009). Here, the Veteran was sent a letter in October 2009 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him 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. The Board finds that 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 claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. 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. 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). Increased Ratings Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 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. In order to evaluate 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, 594 (1991). 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). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran's service-connected herpes has been rated by the RO under the provisions of Diagnostic Code 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, Diagnostic Code 7820. In this case, the Board finds that Diagnostic Code 7806, which is used to evaluate dermatitis or eczema, is the most applicable Diagnostic Code. The rating criteria provide for evaluation based upon the frequency of treatment and the percentage of the body that is affected by the disability. 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. Diagnostic Code 7800 pertains to scars of the head, face, or neck, and thus is inapplicable here. Diagnostic Code 7801 concerns deep and nonlinear scars. A 10 percent evaluation applies here scars encompass an area or areas of at least 6 square inches but less than 12 square inches. Diagnostic Code 7802 concerns scars that re superficial and nonlinear. To achieve a 10 percent rating, the scar must involve an area or areas of 144 square inches, or greater. Diagnostic Code 7804 provides for a 10 percent evaluation for a scar that is unstable or painful. Diagnostic Code 7805 instructs the rater to evaluate any other disabling effects not considered under Diagnostic Codes 7800-7804 under an appropriate code. Turning to the facts in this case, an April 2009 emergency room report reflects complaints of blisters in the genital area, along with a variety of other symptoms (intermittent dizziness with ear pain, left sided vision changes, left side nasal pain). Upon examination, he had a few clear blisters on his penis and several bumps on his scrotum. The Veteran underwent a VA examination in November 2009. He reported that when he was a young man, he would have 2-3 outbreaks per month. He was unaware that he had herpes until 2007. He also reported scrotal lesions that bled intermittently, for which he wore padding. However, the examiner noted that these lesions had been diagnosed as angiokeratoma of the scrotum, and that they were unrelated to service connected herpes outbreaks that occur on his penis. The herpes outbreaks were treated with Acyclovir tablets (400 mg.) three times per day as needed for outbreaks, and Acyclovir ointment as needed. The Veteran reported that his treatment (Acyclovir) has been topical and been greater than six weeks. The examiner noted that there are no systemic symptoms and that the treatment was neither a corticosteroid nor an immunosuppressant. Upon examination, the examiner found that the outbreaks did not affect any exposed areas and that they affected less than 5 percent of the total body area. There were no eruptions at the time of the examination. However, the examiner noted that according to historical evidence and an April 2009 emergency room note, the outbreaks always occurred in the same place. Six days after the Veteran's VA examination, he reported to the emergency room with lesions on his right buttock. However, his chief complaint was scrotal pain of two weeks duration. He was diagnosed with scrotal pain and perianal herpes simplex virus. He was treated only for the scrotal pain (which was thought to be related to epididymis). In November 2009 (three weeks after his VA examination), he submitted correspondence in which he stated that his herpes infection had increased in severity. Sometimes the outbreaks occurred on his penis, other times on his buttocks, and sometimes both areas were affected. The Veteran submitted a May 2010 note from the Memphis Internal Medicine Group, P.C. which reflects a diagnosis of recurrent herpes simplex virus (genital) that had spread from penile to anal area and buttocks. A report from Dr. M.G. (also of the Memphis Internal Medicine Group) also noted episodic flare-ups of herpes. Virtual VA records reflect that the Veteran requested an outpatient appointment due to a possible recurrence of genital herpes in March 2011. He was examined in May 2011. At that time, the Veteran was unsure why he was scheduled for the appointment, as he stated that he had no new issues with his skin. Upon examination, genitalia were without vesicles or ulcers. His scrotum showed widespread discrete hyperpigmented small keratotic papules; there were no ulcers or pustules. He was assessed with (1) angiokeratomas of the scrotum (Fordyce's) and (2) genital herpes with no active lesions. Pursuant to the Board's Remand, the Veteran underwent another VA examination in April 2013. The examiner reviewed the claims file in conjunction with the examination. The Veteran reported experiencing outbreaks at least 12 times per year, and that each outbreak lasts 5-6 days. He reported that the vesicular lesions crop up on his penile tip and lately in his perianal areas. No scarring was noted. He reported that the Acyclovir did not work, and that he only used Vaseline. The examiner noted that the Veteran's herpes has not been treated with oral or topical medications in the past 12 months and that the Veteran had not experienced any debilitating episodes within the past 12 months. Upon examination, there were no infections of the skin (0% of exposed areas and 0% of total body area). There were no lesions in the entire scrotal area or perianal area consistent with genital herpes. The skin disorder did not affect the Veteran's ability to work. The examiner noted that the Veteran's most recent prescription was for Valtrex in 2010, but the Veteran managed outbreaks with Vaseline petroleum jelly. Analysis Based upon the evidence of record, the Board finds the Veteran's service-connected herpes is manifested by less than 5 percent of the entire body or less than 5 percent of exposed areas affected with no more than topical therapy required. The VA examination reports each indicate that the Veteran's herpes affects less than five percent of the total body. As of the last examination he was treating outbreaks with Vaseline and his most recent prescription was for Valtrex (in 2010). There is no evidence of scarring that is deep or causes limited motion, exceeds 6 square inches, has an area or areas of 144 square inches or greater, is unstable, painful or limit function of the body part that they affect. To the contrary, there has been no evidence of scarring of any kind. The present disability is appropriately evaluated under the criteria of Diagnostic Code 7806. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). Diagnostic Code 7806 specifically states that a noncompensable rating is in order when no more than topical therapy is required during the past 12-month period. In this case, the Veteran reported no current treatment for his disorder (with the exception of Vaseline). His prior treatment was neither a corticosteroid or immunosuppressant drug. His herpes does not require systemic therapy, such as corticosteroids or other immunosuppressive drugs, for a total duration of less than six weeks during the past 12-month period which would warrant a 10 percent disability rating. Thus, a compensable rating is not warranted. As noted, the application of the alternative rating criteria for scars or for disfigurement would not yield a higher rating. The Board recognizes that a lay person is competent to describe what comes to him through the senses. See Layno v. Brown, 6 Vet. App. 465 (1994). In this regard, the Veteran can assert that the symptoms associated with his disorder are more disabling. However, the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). While the appellant asserts that his service-connected disability is more severely disabling, the Board observes that the findings on VA clinical examinations do not demonstrate more significant symptomatology evidencing more severe disability in this regard. The Board concludes that the observation of a skilled professional is more probative than his lay statement. In evaluating a claim for an increased schedular rating, VA must only consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. See Massey v. Brown, 7 Vet. App. 204, 208 (1994). Finally, in reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1) and the Court's decision in Thun v. Peake, 22 Vet. App. 111 (2008). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. As discussed above, there are higher ratings available under the diagnostic codes, but the Veteran's disability is not productive of such manifestations. As such, it cannot be said that the available schedular evaluation for the disability is inadequate. Although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable; therefore, the question of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating) has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected herpes under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 1995); Thun v. Peake, supra. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for a compensable rating for herpes must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). ORDER Entitlement to a compensable rating for herpes is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs