Citation Nr: 1519469 Decision Date: 05/06/15 Archive Date: 05/19/15 DOCKET NO. 13-21 728 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a rating in excess of 10 percent for genital herpes simplex virus. REPRESENTATION Veteran is represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Banister, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1995 to February 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran testified at an June 2014 hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. The Board notes that in September 2014, the Veteran submitted a new VA Form 21-22 appointing the Illinois Department of Veterans Affairs as his representative. However, this form was received over 90 days after the Veteran's appeal was certified to the Board, and there has been no motion or showing of good cause for the delay. Therefore, Disabled American Veterans remains the Veteran's representative until the case returns to the RO. See 38 C.F.R. § 20.1304(b)(1)(i) (2014). The issue of entitlement to service connection for erectile dysfunction, claimed as secondary to the Veteran's service-connected genital herpes simplex virus, has been raised by the record during a June 2014 hearing before the Board, but has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over this claim, and it is referred to the RO for appropriate action. 38 C.F.R. § 19.9(b) (2014). FINDING OF FACT Throughout the appeal period, the Veteran's service-connected genital herpes simplex virus has been manifested by intermittent outbreaks of lesions in the genital area affecting less than five percent of the entire body and none of the exposed areas and requiring oral antiviral medication on a constant or near-constant basis. CONCLUSION OF LAW The criteria for a maximum schedular rating of 60 percent for genital herpes simplex virus have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Proper notice from VA must inform the veteran 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 veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This 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, 120 (2004). The RO's December 2011 letter advised the Veteran that he must submit, or request that VA obtain, evidence of the worsening of his disability and the different types of evidence available to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187; Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1275-82 (2009). The RO also advised the Veteran that should an increase in disability be found, a disability rating will be determined by applying the relevant diagnostic code, and an effective date will be assigned. Furthermore, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, including the opportunity to present pertinent evidence. The duty to assist the Veteran has also been satisfied. Prior to the initial adjudication of the above-captioned claim, the RO obtained all VA treatment records identified by the Veteran. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 116. The Veteran was also provided a VA examination in January 2012. The examiner administered a thorough clinical evaluation which provided findings pertinent to the rating criteria and allowed for a fully informed evaluation of the disability at issue. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the board finds that the Veteran was afforded an adequate examination for evaluation purposes. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this claim, the Board finds that any such failure is harmless. See Mayfield, 20 Vet. App. at 542-43; See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency and clarifying that the burden of showing that an error is harmful or prejudicial normally falls upon the party attacking the agency's determination); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974)("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2014). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2014). Additionally, staged ratings are appropriate when the factual findings show distinct time periods during which a disability exhibits symptoms that warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In a February 1999 rating decision, service connection was granted for herpes simplex virus of the genital area, to which a non-compensable rating was assigned, effective February 28, 1999. See 38 C.F.R. § 4.118 Diagnostic Code 7806. In July 2011, the Veteran submitted a claim of entitlement to a compensable rating for his service-connected herpes simplex virus, which was denied in a May 2012 rating decision. Subsequently, in a June 2013 rating decision, the RO increased the disability rating assigned to the Veteran's herpes simplex virus to 10 percent, effective July 8, 2011. Thereafter, the Veteran perfected an appeal. The Veteran's service-connected genital herpes simplex virus has been assigned a 10 percent disability rating pursuant to the criteria set forth in 38 C.F.R. § 4.118, Diagnostic Code 7899-7806. Diagnostic Code 7899 represents an unlisted disability requiring rating by analogy to one of the disorders rated under 38 C.F.R. § 4.118. See 38 C.F.R. § 4.27 (2014). The Veteran's genital herpes simplex virus is rated under Diagnostic Code 7806, relating to dermatitis or eczema. See 38 C.F.R. § 4.118, Diagnostic Code 7806. Pursuant to Diagnostic Code 7806, a 10 percent disability rating is assigned for dermatitis or eczema affecting 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, or; when intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12-month period. A 30 percent disability rating is assigned for dermatitis or eczema affecting at least 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or; when systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A maximum 60 percent disability rating is assigned for dermatitis or eczema affecting more than 40 percent of the entire body or more than 40 percent of exposed areas, or; when constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs are required during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. VA treatment records dated November 2011 through December 2011 indicate that the Veteran had a history of genital herpes and was prescribed 500 milligrams of Valacyclovir, or Valtrex, daily. A March 2012 VA treatment record indicates that the Veteran was on Valtrex suppression to treat his genital herpes. During a January 2012 VA examination, the Veteran reported that his herpes simplex virus was manifested by outbreaks on the penile shaft and anogenital region since 1996. The examiner indicated that the Veteran's genital herpes did not affect any exposed areas and affected less than five percent of the total body area during outbreaks. It was noted that the Veteran was not experiencing an outbreak at the time of the examination. Additionally, the Veteran's herpes simplex virus did not cause any scarring or disfigurement of the head, face, or neck; did not produce any systemic symptoms such as fever, weight loss, or hypoproteinemia; and did not affect his ability to work. The examiner also indicated that during the past 12 months, the Veteran's herpes simplex virus was treated with Acyclovir, an oral antiviral medication, on a constant or near-constant basis. During a June 2014 hearing before the Board, the Veteran testified that he experienced outbreaks of lesions in the genital area approximately once a month, lasting up to two weeks in duration. He indicated that the lesions covered a "substantial area" from the penile area to the anal area, but it varied from month to month. The Veteran described the lesions as open sores the size of a penny or a nickel and compared them to "cigarette burns," both in appearance and feel. He testified that during an outbreak, he felt a burning sensation, which was exacerbated by clothing rubbing against his genital area, making it difficult to walk. He denied any scarring or infections resulting from the lesions. The Veteran testified that he was prescribed daily oral medication on a constant basis to treat his genital herpes. He indicated that the medication was "very disturbing" to his system and produced side effects such as stomachaches and diarrhea. He further testified that he continued to experience outbreaks despite taking daily medication. As discussed above, the Veteran's service-connected genital herpes simplex virus has already been assigned a 10 percent disability rating pursuant to the criteria set forth in 38 C.F.R. § 4.118, Diagnostic Code 7806. In order for a higher rating to be assigned, the evidence of record must demonstrate, at a minimum, that the Veteran's genital herpes more nearly approximates coverage of 20 to 40 percent of the entire body or 20 to 40 percent of the exposed areas, or; required systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more during the past 12-month period. 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7806 (2014). In order for a maximum 60 percent disability rating to be assigned, the evidence of record must demonstrate that the Veteran's genital herpes affected more than 40 percent of the entire body or more than 40 percent of exposed areas, or; required constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. 38 C.F.R. § 3.118, Diagnostic Code 7806. The evidence of record demonstrates that the Veteran's genital herpes simplex virus affected less than five percent of the entire body and no exposed areas. The record also shows that during the 12 months preceding the Veteran's claim and throughout the pendency of this appeal, the Veteran was prescribed oral antiviral medications, such as Valtrex, Valacyclovir, and Acyclovir, to suppress the herpes virus. The January 2012 VA examiner confirmed that the Veteran's genital herpes was treated with oral Acyclovir on a constant or near-constant basis during the past 12 months. The rating criteria allows for a rating based on systemic therapy such as corticosteroids or immunosuppressive drugs. See 38 C.F.R. § 4.118, Diagnostic Code 7806. Although the rating criteria mention corticosteroids or other immunosuppressive drugs as examples of systemic therapy, the term "such as" indicates that this is not an exhaustive list, and "systemic therapy" is not otherwise defined in the regulations. See, e.g., Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002) (holding that with respect to the criteria for rating mental disorders, "[t]he use of the term 'such as' demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating."). The common definition of "systemic therapy" would be treatment of a disease which affects the entire body. See Dorland's Illustrated Medical Dictionary, 1865, 1911 (32nd ed. 2012) (defining "systemic" as "pertaining to or affecting the body as a whole" and defining "therapy" as "the treatment of a disease"). As the Veteran was prescribed oral antiviral medications to suppress the herpes virus throughout the body, as opposed to a topical ointment, the Board finds that such treatment constitutes systemic therapy. Therefore, the evidence of record shows that the Veteran has used systemic therapy to control his service-connected genital herpes simplex virus on a constant or near-constant basis. Accordingly, the criteria for a maximum disability rating of 60 percent have been met. See 38 C.F.R. § 4.118, Diagnostic Code 7806. The Board has considered whether the Veteran's service-connected herpes simplex virus warrants a higher disability rating under an alternative diagnostic code relating to disabilities of the skin. However, the medical evidence of record does not show that the Veteran's herpes simplex virus was manifested by burns of the head, face, or neck or systemic symptoms such as fever, weight loss, and hypoproteinemia. See 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7817 (2014). Thus, a higher rating is not warranted under an alternative diagnostic code. Generally, evaluating a disability using the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2014). Because the ratings are averages, an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2014). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical"). Therefore, initially, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Throughout the pendency of this appeal, the Veteran's service-connected genital herpes simplex virus was manifested by intermittent outbreaks of lesions in the genital area and has been treated with constant or near-constant oral antiviral medications. When comparing this disability picture with the symptoms contemplated by the rating criteria, the Board finds the Veteran's disability picture is not so unusual or exceptional in nature as to render the already assigned schedular rating inadequate, as the criteria under which the Veteran's service-connected disability is evaluated specifically contemplate the level of occupational and social impairment caused by intermittent outbreaks of genital herpes and take into account any side effects of constant or near-constant systemic therapy. See 38 C.F.R. § 4.118, Diagnostic Code 7806. Additionally, the Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Johnson v. McDonald, 2013-7104, 2014 WL 3562218 (Fed. Cir. Aug. 6, 2014). However, in this case, there are no additional symptoms that have not been attributed to a specific service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record or the appellant. In this case, the appellant has not asserted, and the record does not reflect, that he is rendered unemployable due to the disability at issue. Indeed, on VA examination in January 2012, the examiner noted that the diability did not impact his ability to work. As such, the issue is not for consideration. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against assigning the Veteran's service-connected genital herpes simplex virus a rating in excess of the maximum schedular rating of 60 percent, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER A rating of 60 percent for genital herpes simplex virus is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs