Citation Nr: 1710285 Decision Date: 03/31/17 Archive Date: 04/11/17 DOCKET NO. 04-22 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial compensable rating for genital herpes prior to February 8, 2011. 2. Entitlement to a rating in excess of 10 percent for genital herpes from February 8, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran, Veteran's wife ATTORNEY FOR THE BOARD K. Marenna, Counsel INTRODUCTION The Veteran served on active duty from August 1984 to October 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. FINDINGS OF FACT 1. Prior to February 8, 2011, the Veteran's service-connected genital herpes affected less than 5 percent of his entire body or exposed areas; regular intermittent systemic therapy was not required. 2. From February 8, 2011, the Veteran's service-connected genital herpes has been treated with intermittent systemic therapy; less than 20 percent of his entire body or exposed areas have been affected. CONCLUSIONS OF LAW 1. The criteria for a compensable rating prior to February 8, 2011, for service-connected genital herpes have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2016). 2. From February 8, 2011, the criteria for a rating in excess of 10 percent for service-connected genital herpes have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 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 (2016). 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. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2016). The service-connected genital herpes is rated by analogy under Diagnostic Code 7806 for dermatitis or eczema. 38 C.F.R. § 4.118, Diagnostic Code 7806. Under Diagnostic Code 7806, a noncompensable rating is warranted for dermatitis or eczema affecting less than 5 percent of the entire body or less than 5 percent of exposed area, and requiring no more than topical therapy during the past 12-month period. Id. A 10 percent evaluation is warranted for dermatitis or eczema affecting at least 5 percent, but less than 20 percent of the entire body or of the exposed areas, or requiring 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. Id. A 30 percent evaluation is warranted for dermatitis or eczema affecting 20 percent to 40 percent of the entire body or of the exposed areas, or requiring 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. Id. A 60 percent evaluation is warranted for dermatitis or eczema affecting 40 percent of the entire body or more than 40 percent of the exposed areas, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. Alternatively, Diagnostic Code 7806 provides that disabilities evaluated as dermatitis or eczema may be rated as disfigurement of the head, face, or neck under Diagnostic Code 7800 or as scars under Diagnostic Codes 7801-7805, depending on the predominant disability. The criteria used to evaluate certain disabilities involving the skin were revised during this appeal, effective October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008) (codified at 38 C.F.R. § 4.118, Diagnostic Codes 7800 to 7805). These modifications were expressly made applicable only to claims filed on or after the effective date. Therefore, they are not pertinent to the pending claim, which was received by VA in 2002. Additionally, these regulatory changes pertain only to the diagnostic criteria governing scars, and did not modify the criteria for Diagnostic Code 7806. Prior to February 8, 2011 Prior to February 8, 2011, genital herpes is rated as noncompensable. The overall evidence does not show the genital herpes symptoms affected more than 20 percent of the entire body or required intermittent systemic therapy. A July 2005 VA examination report indicates the Veteran reported having flare-ups of herpes about every 6 to ten months. He reported that with flare-ups he took antiviral therapy. He denied having a flare-up at that time. The report note that the Veteran had a 2-inch scar located at the base of the glans penis that was hypopigmented compared to normal areas of skin, there was no inflammation, edema or keloid formation, it was superficial, there was no limitation of function by the scar, it was numb to palpation. An April 2009 VA examination report reflects that the Veteran gave a history of having problems with genital herpes which was diagnosed in 1989. He had therapy over 6 months. He recently had some problems over a month ago; however, there were no lesions at that time. The report noted that the genital herpes had no current residuals at that time. At the Board hearing in August 2009, the Veteran testified that he had outbreaks approximately every six months. He stated he used to treat them with a cream, but he had not used any treatment recently. He testified that he had not taken oral medication "for a couple of years." He also noted that he had scar tissue from removing a pre-cancer lesion in service. The Veteran reported at the July 2005 VA examination that he took antiviral therapy when he had outbreaks, which occurred every 6 to 10 months. At the August 2009 Board hearing, he testified that he had not taken oral medication in a few years, and was not treating the outbreaks with anything at that time. However, the medical records from the period prior to February 8, 2011, do not show any prescriptions for antiviral therapy. The Veteran's statements are competent evidence that he took antiviral therapy. However, it is unclear from the evidence of record how often he took antiviral therapy prior to February 8, 2011. The overall evidence does not show consistent or regular intermittent use of systemic therapy for herpes symptoms for any distinct period of time prior to February 8, 2011. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's hearing testimony indicates he had not taken antiviral therapy for several years prior to August 2009. In the absence of specific evidence that he was prescribed antiviral therapy, the overall evidence is consistent with a finding that the Veteran's genital herpes affected less than 5 percent of his entire body or exposed areas and systemic therapy was not required. The evidence does not show the Veteran's genital herpes affected more than 5 percent of his entire body or exposed areas or that regular intermittent systemic therapy was required prior to February 8, 2011. Therefore, the Board finds that a compensable rating is not warranted prior to February 8, 2011. The Board also finds a compensable rating for genital herpes is not warranted prior to February 8, 2011, under another diagnostic code. The genital herpes symptoms have not caused scars and do not affect the head, face or neck. Therefore a higher rating is not warranted under Diagnostic Codes 7800 through 7805. There is also no evidence the Veteran had other symptoms of herpes, other than skin symptoms during outbreaks such as voiding dysfunction. Therefore, the Board finds that the genital herpes most closely approximates a noncompensable rating under Diagnostic Code 7806. 38 C.F.R. § 4.118, Diagnostic Code 7806. From February 8, 2011 Genital herpes is rated as 10 percent disabling from February 8, 2011 under Diagnostic Code 7806. 38 C.F.R. § 4.118, Diagnostic Code 7806. The evidence of record from February 8, 2011 does not show more than 20 percent of the entire body was affected. The February 2011 VA treatment record, which occurred during an outbreak, indicated the Veteran had genitalia ulcerations. A February 8, 2011 VA treatment record indicates the Veteran reported that he had had a herpes outbreak on his penis for four days and was requesting an evaluation. He stated that his previous outbreak was in November 2010. The Veteran reported having a stabbing/burning pain. He was not taking any medication at that time. He stated he had taken Zovirax (Acyclovir) in the past. On examination, there was a 1.5 cm mildly erythemic area on the left side of the penis with about 15 miniscule, 1 mm or less, ulcerations, some in a linear pattern of three. A few ulcers had eschar. There were no lesions on the scrotum. The assessment was genitalia ulcerations, most likely herpes genitalia. A May 2011 VA examination report noted the Veteran reported having herpes outbreaks four times a year, lasting three to seven days. There were no lesions at the time of the examination. Further, the evidence does not show genital herpes required systemic therapy for a duration of six weeks or more during the past 12-month period. The Veteran was prescribed Acyclovir throughout the period after February 8, 2011. The February 8, 2011 VA treatment record indicates Acyclovir 800 mg was prescribed, to be taken for five days. He was instructed to keep excess for future outbreaks. The May 2011 VA examination report noted the Veteran took Acyclovir as needed. The report noted the Veteran had herpes outbreaks four times a year lasting three to seven days. VA treatment records from 2011 to 2015 reflect that the Veteran continued to have a prescription for Acyclovir, to be taken by mouth five times daily for viral infection, for herpes flare, to be taken for five days. Additionally, the evidence does not show that any residuals from the dysplasia lesion removed in service are related to the service-connected genital herpes. The May 2011 VA examiner stated that there was no evidence that the dysplasia lesion removed while in service should be related to genital herpes. The VA examiner noted that neither the Centers for Disease Control and Prevention nor the Mayo Clinic listed pre-cancerous lesions or dysplasia as complications of genital herpes. In a July 2012 addendum, the VA examiner stated that there were no scars secondary to the Veteran's genital herpes. The Board has also considered whether the genital herpes symptoms warrant a higher or separate rating under another diagnostic code. However, the evidence does not show any symptoms other than the genitalia ulcerations during outbreaks. The May 2011VA examination report reflects that there was no renal dysfunction or incontinence or scars due to herpes. He did not have symptoms of frequency, urgency, hematuria, or testicular pain/swelling. As the evidence of record does not demonstrate that 20 percent or more of the total body or exposed area was affected, or that the herpes has required the use of systemic therapy for at least 6 weeks during any 12 month period, the Board cannot conclude that a rating in excess of 10 percent is warranted under Diagnostic Code 7806 at any point since February 8, 2011. After review of the evidence of record, there is no evidence of record that would warrant a rating lesser than or in excess of a noncompensable rating, prior to February 8, 2011, or 10 percent thereafter for genital herpes at any time during the periods pertinent to this appeal. 38 U.S.C.A. 5110 (West 2002); Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). While there have been day-to-day fluctuations in the manifestations of the Veteran's service-connected genital herpes, the evidence shows no distinct periods of time during the appeal periods, where the Veteran's genital herpes has varied to such an extent that a rating greater or less than the ratings assigned would be warranted. Cf. 38 C.F.R. § 3.344 (2016) (VA will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations). Accordingly, a noncompensable rating prior to February 8, 2011, and a 10 percent rating thereafter for genital herpes is not warranted. Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2016). However, because the ratings are averages, it follows that 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. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2016). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board. 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 the 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 Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the already assigned rating inadequate. The Veteran's service-connected genital herpes was evaluated pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7806, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability. Id. Here, prior to February 8, 2011, the Veteran's service-connected genital herpes affected less than 5 percent of his entire body or exposed areas; regular intermittent systemic therapy was not required. From February 8, 2011, the Veteran's service-connected genital herpes has been treated with intermittent systemic therapy; less than 20 percent of his entire body or exposed areas have been affected. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented by the ratings assigned. Evaluations in excess of those assigned are available, but the evidence demonstrates that these manifestations are not present in this case. The criteria for a noncompensable rating prior to February 8, 2011, and the 10 percent rating from February 8, 2011, reasonably describe the Veteran's disability level and symptomatology. Consequently, the Board concludes that a schedular evaluation is adequate and that referral of the Veteran's case for extraschedular consideration is not required. See 38 C.F.R. § 4.118, Diagnostic Code 7806; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). Based on the above, the Board finds that the preponderance of the evidence is against the assignment of an initial compensable disability rating prior to February 8, 2011, and in excess of 10 percent for genital herpes. Gilbert v. Derwinski, 1 Vet. App. 49 (1990) ORDER An initial compensable rating for genital herpes prior to February 8, 2011, is denied. A rating in excess of 10 percent for genital herpes from February 8, 2011, is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs