Citation Nr: 1605394 Decision Date: 02/11/16 Archive Date: 02/18/16 DOCKET NO. 14-38 763A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for the service-connected herpes simplex II disability (herpes). REPRESENTATION Appellant represented by: Daniel Krasnegor, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from March 1945 to June 1946; and, in the United States Army from May 1951 to March 1960. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In that rating decision, the RO granted service connection for herpes simplex II and assigned an initial 10 percent disability rating, effective from March 8, 2007. The Veteran disagreed with the initial disability rating assigned and this appeal ensued. In October 2015, the Veteran testified at a Travel Board hearing at the RO before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. In this case the Veteran has not specifically alleged that he is unemployable due to his service-connected herpes, and the record does not otherwise reasonably raise the issue of the Veteran being unable to engage in substantially gainful employment due to this disability. Thus, this appeal does not raise the issue of entitlement to a total disability rating based on individual unemployability (TDIU). See 38 C.F.R. §§ 3.340, 4.16 (2014); Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). This appeal was processed using the Virtual Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. At a June 2015 VA examination, the Veteran asserted that he had radiculopathy caused by the herpes simplex II infection. At his travel Board hearing in October 2015, he testified that his peripheral neuropathy/numbness of the lower extremities was part of his herpes simplex II infection, thereby raising the issue of service connection for peripheral neuropathy as secondary to the herpes. In addition, the examiner noted that the Veteran should be afforded a mental health examination given his reports of anxiety, worry, stress and feelings of helplessness over having the herpes disease, thereby raising the issue of service connection for an acquired psychiatric disorder, secondary to the herpes. These issues have been raised by the record as noted above, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT Since the effective date of service connection, the Veteran's service-connected herpes simplex II virus has required constant or near-constant use of oral systemic anti-viral immunosuppressive drug therapy. CONCLUSION OF LAW The criteria for the assignment of an initial 60 percent rating, but not higher, for the service-connected herpes simplex II virus have been more nearly approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159 , 4.7, 4.27, 4.118, Diagnostic Code 7800-7806, 7820 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). The Veteran's claim arises from a disagreement with the initial disability rating that was assigned following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and 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). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran 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 relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issue has been obtained. The Veteran's service and post-service treatment records, VA examination reports, and lay statements have been obtained. VA has associated with the claims folder records of the Veteran's VA outpatient treatment records, and he was afforded two VA examinations, which are adequate because the examiners discussed his medical history, described his disabilities and associated symptoms in detail, and supported all conclusions with analyses based on objective testing and observations. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran has not reported that his herpes disability has worsened since the date of the latter examination. A remand is thus not required solely due to the passage of time. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Finally, the Veteran was afforded an opportunity to testify at a Board hearing before the undersigned in October 2015. The VLJ who conducted the hearing noted the current appellate issue at the beginning of the hearing, and asked questions to clarify the appellant's contentions and treatment history. The appellant provided testimony in support his claim and expressed his contentions clearly. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Moreover, neither the appellant nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. Based on the foregoing, VA has satisfied its duties to notify and assist under the governing law and regulations. Increased Ratings The Veteran seeks an initial disability rating in excess of 10 percent for the service-connected herpes. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). See also Fenderson v. West, 12 Vet. App. 119, 126 (1999) (applying this concept to initial ratings). It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Veteran is competent to provide evidence of observable symptoms, including pain. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). See also Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. His statements have been consistent with the medical evidence of record, and are probative for resolving the matters on appeal. The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. The Veteran's genital herpes infection is rated under Diagnostic Code 7899-7816. The Diagnostic Code 7899 represents an unlisted disability requiring rating by analogy to one of the disorders rated under 38 C.F.R. § 4.118 (2015). See 38 C.F.R. § 4.27 (2015). Diagnostic Code 7816 governs the criteria for rating psoriasis. Diagnostic Code 7816 provides for a noncompensable rating if 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 if the psoriasis results in at least 5 percent, but less than 20 percent, of the entire body being affected, or at least 5 percent, but less than 20 percent, of exposed areas being affected; or, if intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than 6 weeks during the past 12-month period. A 30 percent evaluation is assigned in cases where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas is 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. See 38 C.F.R. § 4.118 , Diagnostic Code 7816 (2015). At the outset, the Board notes that 38 C.F.R. § 4.118, Diagnostic Code 7820 specifically provides for ratings associated with infections of the skin not listed elsewhere (including bacterial, fungal, viral, treponemal, and parasitic diseases). Because herpes simplex II is a virus affecting the skin that is not listed elsewhere in 38 C.F.R. § 4.118, the disability is more appropriately rated under Diagnostic Code 7820 rather than under Diagnostic Code 7816. Under Diagnostic Code 7820, viral infections of the skin not listed elsewhere are to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801-7805, or dermatitis (Diagnostic Code 7806, depending upon the predominant disability. The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In this case, the Veteran's herpes does not affect the head, face, or neck, and is not considered a scar. As such, the most appropriate Diagnostic Code is 7806 for dermatitis. The rating criteria at 38 C.F.R. § 4.118, Diagnostic Code 7806 for dermatitis essentially mimics the criteria listed above for psoriasis. Thus, while the rating criteria for psoriasis and dermatitis are the same, the more appropriate diagnostic code under which to rate the herpes simplex virus is 7820, and not 7816, because 7820 contemplates skin viruses, which includes herpes simplex II, and 7816 is limited to psoriasis. VA treatment records dated throughout the appeal period, as well as a memorandum from HC, the Veteran's private doctor, received in October 2012, and the June 2015 examination report collectively show that the Veteran's herpes disability has consistently required constant or near-constant oral anti-viral immunosuppressive medication. According to HC, the Veteran has recurrent flare-ups of herpes which warrant suppressive therapy with daily Acyclovir. Similarly, the June 2015 examiner indicated that the Veteran required constant/near-constant oral medications of acyclovir and famciclovir (suppressive therapy and treatment for outbreaks); and, despite this medication, the Veteran's condition was not getting any better. The Veteran's outbreaks included consistent burning and pain as a result of an outbreak of sores on the shaft and the inside of the Veteran's penis. The Veteran testified at his travel Board hearing in October 2015 that his flare-ups take up to six months to clear up, even when he increases his medication dosage. The private treatment records from Dr. HC show prescriptions for acyclovir dating back to 2002 and from the effective date of service connection up through the present time. Accordingly, the evidence shows that the Veteran has required this oral anti-viral suppressive drug therapy daily; i.e., constantly or nearly so since the effective date of service connection. Moreover, the Veteran has credibly reported that despite the daily use of the medication, his outbreaks continue and can last months at a time. Under Diagnostic Code 7820-7816, a maximum 60 percent schedular rating is assigned for a viral skin disorder not otherwise specified in the rating schedule that requires constant or near-constant use of oral immunosuppressive drug therapy during a 12-month period. The record in this case supports the assignment of a 60 percent rating for the entire period covered by this claim, as the evidence shows that since the effective date of service connection, the Veteran's service-connected herpes has required the use of oral anti-viral immunosuppressive drug therapy every day, which does not control his symptoms. In light of the foregoing, the criteria for the assignment of an initial 60 percent rating, but no higher, are more nearly approximated. The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2015). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). 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 first 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. With respect to the first prong of Thun, the evidence does not show such an exceptional disability picture that the available schedular evaluations for the Veteran's service-connected lumbar spine disability are inadequate. A comparison between the level of severity and symptomatology of the Veteran's herpes disability with the established criteria found in the rating schedule for that disability shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. In particular, the Veteran has severe outbreaks for which he requires daily anti-viral oral suppressive medication; and, despite this near-constant use of this medication, his outbreaks persist. The criteria for the evaluation of the Veteran's herpes specifically contemplate the need for systemic medication, and frequency required. Therefore, it cannot be said that the criteria under which this disability is evaluated do not contemplate this Veteran's symptoms. The Board also notes that a 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, 762 F.3d 1362 (Fed. Cir. 2014). In this case, the Veteran's herpes is his sole service-connected disability. In light of this discussion, the Board concludes that the schedular rating criteria adequately contemplate the Veteran's symptomatology, and the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In short, there is nothing in the record to indicate that the Veteran's herpes disability causes impairment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. ORDER An initial 60 percent disability rating for the service-connected herpes simplex II disability is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs