Citation Nr: 1808551 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 13-34 042 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an initial rating higher than 10 percent for genital herpes. WITNESSES AT HEARING ON APPEAL The Veteran and Veteran's friend ATTORNEY FOR THE BOARD Alexia E. Palacios-Peters, Associate Counsel INTRODUCTION The Veteran had active service from November 1984 to November 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs Regional Office (RO) in San Diego, California. The Veteran filed a notice of disagreement to the February 2012 decision for the issues of entitlement to service connection for right eye disorder, and entitlement to increased ratings for posttraumatic stress disorder (PTSD) and genital herpes. However, she limited her substantive appeal solely to the issue of entitlement to an increased rating for her genital herpes. See October 2013 VA Form 9. The Veteran requested a hearing before the Board. The requested hearing was conducted in February 2016 by the undersigned Veterans Law Judge. A written transcript of this hearing has been prepared and incorporated into the evidence of record. In May 2016, the Board remanded the case for additional development and it now returns for further appellate review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As noted above, the Board remanded the case for additional development in May 2016. During the course of this appeal, the United States Court of Appeals for Veterans Claims (Court) considered the question of the types of treatment that qualify as "systemic therapy such as corticosteroids or other immunosuppressive drugs" under Diagnostic Code 7806. In Johnson v. McDonald, 27 Vet. App. 497 (2016), the Court held that because DC 7806 "explicitly mentions corticosteroids as an example of 'systemic therapy' and does not further distinguish between different types of corticosteroid application," then the use of a topical corticosteroid constitutes "systemic" corticosteroid therapy for the purposes of assignment of ratings under DC 7806. See Johnson, 27 Vet. App. at 502-04; see also 38 C.F.R. § 4.118, DC 7806. Additionally, the Court found that the "topical therapy" identified in the noncompensable rating criteria necessarily referred to "non-corticosteroid" topical treatment. See Johnson, 27 Vet. App. at 504. The Court subsequently held that the types of systemic treatment that are compensable under Diagnostic Code 7806 are not limited to "corticosteroids or other immunosuppressive drugs"; rather, compensation is available for "all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs." See Warren v. McDonald, 28 Vet. App. 194, 197 (2016); see also 38 C.F.R. § 4.118 , DC 7806. In so finding, the Court specifically determined that the Board erred in failing to make a determination "as to whether Lamisil is a systemic therapy like or similar to a corticosteroid or other immunosuppressive drug." See Warren, 28 Vet. App. at 198 (emphasis in original). VA appealed the Court's holding in Johnson v. McDonald, and a stay was put in place pending final resolution of this matter. The United States Court of Appeals for the Federal Circuit (Federal Circuit) issued the decision of Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. July 14, 2017), which reversed the Court's holding in this matter, and the stay on affected appeals was lifted. In reversing the Court's holding, the Federal Circuit found the Court erred when it read Diagnostic Code 7806 as unambiguously elevating any form of corticosteroid treatment, including any degree of topical corticosteroid treatment, to the level of "systemic therapy." The Federal Circuit noted that Diagnostic Code 7806 draws a clear distinction between "systemic therapy" and "topical therapy" as the operative terms of the Diagnostic Code. Further, the Federal Circuit went on to explain that "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. Although the Federal Circuit acknowledged that a topical corticosteroid treatment could meet the definition of "systemic therapy" if it was administered on a large enough scale such that it affected the body as a whole, the Federal Circuit emphasized this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy. Pursuant to the Board's Remand, the Veteran underwent a VA examination in July 2016. The VA examiner noted that the Veteran takes "constant/near-constant" Acyclovir to treat her skin condition. In light of Warren and Johnson, the Board finds that an addendum opinion is necessary. Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum opinion to the July 2016 VA skin examination report by a physician (M.D.). Based on a review of the file, including VA and private treatment records, and the results from the June 2012, July 2013, and July 2016 VA examinations, the physician is asked to do the following: (a) Is it at least as likely as not (i.e., probability of 50 percent or higher) that Acyclovir, an oral antiviral, IS a corticosteroid or other immunosuppressive drug? (b) Is it at least as likely as not (i.e., probability of 50 percent or higher) that Acyclovir, an oral antiviral, is LIKE or SIMILAR to a corticosteroid or other immunosuppressive drug? Please include in your discussion the type of side effects associated with Acyclovir compared to corticosteroid or other immunosuppressive drugs. (c) In light of the Veteran's report that her breakouts of genital herpes affect her entire body, and her descriptions of the lesions, please indicate the following: Part A: (1) Is it at least as likely as not (i.e., probability of 50 percent or higher) that the lesions the Veteran contends affect her arms/shoulders are attributed to the herpes simplex virus? Please explain. (2) Is it at least as likely as not (i.e., probability of 50 percent or higher) that the lesions the Veteran contends affect her back/chest/trunk are attributed to the herpes simplex virus? Please explain. (3) Is it at least as likely as not (i.e., probability of 50 percent or higher) that the lesions the Veteran contends affect her legs are attributed to the herpes simplex virus? Please explain. (4) Is it at least as likely as not (i.e., probability of 50 percent or higher) that the lesions the Veteran contends affect her eyes are attributed to the herpes simplex virus? (Note: June 2011 private medical records note a diagnosis of Herpes Simplex Keratitis). Please explain. (5) Is it at least as likely as not (i.e., probability of 50 percent or higher) that the lesions the Veteran contends affect her face/cheek are attributed to the herpes simplex virus? Please explain. Part B: In light of the findings regarding body parts affected by the herpes simplex virus noted in Part A as well as the Veteran's genitals and anus affected by the herpes simplex virus, please (1) estimate the approximate total body area affected by the herpes simplex virus, and (2) estimate the approximate exposed body area (face, neck, and hands) affected by the herpes simplex virus. 2. Once the above actions have been completed, the RO must re-adjudicate the Veteran's claim. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran. After having an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).