Citation Nr: 18154391 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-15 684 DATE: November 29, 2018 REMANDED Entitlement to an initial compensable rating for herpes simplex is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1981 to March 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran attempted to raise the issue of entitlement to service connection for a psychiatric disorder secondary to his service-connected herpes simplex. In particular, in a March 2016 substantive appeal, the Veteran indicated he experiences depression as a result of his service-connected herpes simplex. The Veteran and his representative are advised that a claim for benefits must be submitted on the standard application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2018). Entitlement to an initial compensable rating for herpes simplex. Remand is required for clarification regarding the Veteran’s treatment for his service-connected herpes simplex. The Veteran’s herpes simplex is rated under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7806. To warrant a 10 percent rating under DC 7806, at least 5 percent, but less than 20 percent, of the entire body or exposed areas must be affected, or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than less than six weeks during the past 12-month period. A 30 percent rating is warranted if between 20 percent and 40 percent of the entire body or exposed areas are affected, or if systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly. A 60 percent rating is warranted when more than 40 percent of the entire body or exposed areas are affected, or with constant or near constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. Id. Prior Diagnostic Code 7806 draws a clear distinction between “systemic therapy” and “topical therapy.” See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017) (reversing Johnson v. McDonald, 27 Vet.App.497, 504 (2016)). Systemic therapy means “treatment pertaining to or affecting the body as a whole,” whereas topical therapy means “treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied.” Johnson, 862 F.3d at 1355. For example, a topical treatment may affect the body as a whole if it circulates through the bloodstream. Burton v. Wilkie, 2018 U.S. App. Vet. Claims LEXIS 1314 (Decided September 28, 2018). In this case, VA medical treatment records reflect a history of prescribed oral medication such as Valtrex and Acyclovir, an oral or topical medication used to treat herpes simplex virus. See Dorland’s Illustrated Medical Dictionary, 24 (32nd ed. 2012). For example, a November 2013 VA examination report reflects a diagnoses of herpes simplex treated with oral medication - Valtrex. VA treatment records dated in August 2014 reflect the Veteran presented with a herpes outbreak and sought to refill his medication - Acyclovir. The record since that time is repeatedly reflects Acyclovir in the Veteran’s “active medication.” Furthermore, the use of Clotrimazole topical cream is noted. In light of the foregoing, the Board finds that a VA examination commenting on the evidence of record, including the frequency and duration of such treatment, and whether it may be considered systemic therapy, is necessary. Additionally, in a November 2018 statement, the Veteran challenged the adequacy of the November 2013 VA examination to the extent it diagnosed herpes simplex with compensable symptoms, without considering flare-ups. In that regard, VA should attempt to provide an examination during an active stage of a skin disorder. Ardison v. Brown, 6 Vet. App. 405 (1994) (holding that an examination during remission phase did not accurately reflect elements of disability that caused veteran to miss three to four months of work at a time). This case is seemingly distinguishable from Ardison because, in this case, the available evidence reflects sporadic outbreaks of herpes simplex lasting a few days. Moreover, in a statement dated in October 2014, the Veteran reported his herpes simplex flare-up during periods of increased stress and sexual activity. Notwithstanding the practical aspects of such attempts where flare-ups are not prolonged, the Board finds that the AOJ should attempt to do so on remand. The matter is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected herpes simplex. Clarify with the Veteran if he would like to be examined during a flare-up and is such arrangements can be made. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. Additionally, the examiner must address the following: (a.) Identify the types of treatment the Veteran’s herpes simplex requires, including any oral and/or topical medications such as Valtrex and Acyclovir. (b.) Identify whether such treatment is a corticosteroid or immunosuppressive drug, or is similar to a corticosteroid or immunosuppressive drug in the manner being used. (c.) Is each treatment indicative of systemic therapy for VA purposes? Systemic therapy is treatment that affects the entire body in its treatment of the condition. (d.) If the treatment is systemic therapy, the examiner must indicate the frequency and/or duration of such treatment, e.g., constant, near-constant, or intermittent. (e.) Elicit from the Veteran a full history of his flare-ups, to include the frequency, onset, characteristics, and any relevant symptoms. 3. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Kalolwala, Associate Counsel