Citation Nr: 19138917 Decision Date: 05/21/19 Archive Date: 05/20/19 DOCKET NO. 15-04 098A DATE: May 21, 2019 ORDER Entitlement to a disability rating higher than 10 percent for herpes simplex is denied. FINDING OF FACT The Veteran’s herpes simplex affects less than five percent of the entire body and less than five percent of exposed areas, and is treated intermittently with systemic therapy required for a total duration of less than six weeks during the past 12-month period and does not cause disfigurement, scars, or extensive lesions. CONCLUSION OF LAW The criteria for a disability rating higher than 10 percent for herpes simplex are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.118, DC 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1987 to May 1995. The Veteran is seeking higher evaluation for her service-connected herpes simplex. Disability ratings are determined by comparing a veteran’s present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Review of the recorded history of a disability is necessary to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s herpes simplex is currently assigned a 10 percent disability rating under DC 7806. The applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended effective August 13, 2018. See 83 Fed. Reg. 32,592 (July 13, 2018). “VA’s intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied.” 83 Fed. Reg. 32,592 (July 13, 2018). Because the Veteran’s claim was pending prior to August 13, 2018, the Board will consider both the old and new criteria and apply the more favorable. Under the new schedule, “systemic therapy” refers to treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin. 38 C.F.R. § 4.118(a). “Topical therapy” refers to treatment that is administered through the skin. Id. Two or more skin conditions may be combined in accordance with § 4.25 only if separate areas of the skin are involved. 38 C.F.R. § 4.118(b). Only the highest evaluation shall be used if two or more skin conditions involve the same area of skin. Id. Prior to August 2018, DC 7806 provided a 10 percent rating is warranted for involvement of at least 5 percent, but less than 20 percent, of the entire body or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is assigned for dermatitis or eczema affecting 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, 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 disability rating is assigned for 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. Alternatively, rate as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7804, or 7805), depending upon the predominant disability. 38 C.F.R. § 4.118. Effective August 13, 2018, dermatitis or eczema are evaluated under the General Rating Formula for the Skin. A 10 percent rating is provided for at least one of the following: (i) characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; (ii) at least 5 percent, but less than 20 percent, of exposed areas affected; or (iii) intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. A 30 percent rating is provided for at least one of the following: (i) characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or (ii) systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is provided for at least one of the following: (i) characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or (ii) constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-month period. 38 C.F.R. § 4.118. Alternatively, dermatitis or eczema can be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7804, or 7805), depending upon the predominant disability. 38 C.F.R. § 4.118. The General Rating Formula for the Skin does not apply to DC 7824. Id. The pertinent evidence in this case consists primarily of clinical findings from VA examinations in 2013 and 2014. During VA examination in June 2013, the Veteran gave a history of an itchy, painful rash on her right thigh in 1988. It appeared as a cluster of small blisters and covered an area about 2-3 centimeters in diameter. She was given an unknown cream and the rash resolved in about a week. Since then she has had recurrence of similar lesions about one or two times per year. She has not been prescribed any medications for the majority of the episodes and they resolve on their own in about one week. She has also noted outbreaks on her left thigh and has had an occasional episode of similar lesions on the inside of her mouth. The Veteran reported that the last episode was in March 2013 and involved the posterior aspect of the right thigh. Pictures that were taken at the time showed a cluster of vesicles on her thigh that were typical of herpes simplex. The Veteran had not been treated with oral or topical medications in the past 12 months. Currently there was no evidence of symptoms, visible rash, or other skin pathology. On examination there was no current involvement of any body surface or exposed area. Additionally, the examiner indicated that the Veteran’s skin condition did not cause scarring or disfigurement of the head, face or neck and she did not have any systemic manifestations. In November 2014, the Veteran submitted several Infectious Diseases Disability Benefits Questionnaires (DBQ) completed by a private physician, who noted the Veteran’s herpes simplex was considered active beginning in August 2014. The Veteran reported a recent outbreak of an itchy and painful skin lesion on the left thigh confirmed by positive culture. She also reported the recurrences were happening more frequently at every 1-2 months. The reports are otherwise silent for any notations or reports of treatment. See VA DBQs for Infectious Diseases, dated August 6, 2014, and October 6, 2014, and November 4, 2014. However, VA treatment records show that in November 2014 the Veteran’s active medications included the antiviral medication Acyclovir. Subsequently dated VA treatment records show that the Veteran has not sought regular treatment for multiple active recurrences of herpes simplex, since November 2014. An entry dated in November 2015, shows she denied skin lesions or rashes. In June 2016 the Veteran presented for routinely scheduled visits with no concerns or complaints. However, she did report occasional eruptions on medial right thigh treated with Acyclovir as needed. In June 2017, the Veteran denied any new problems or concerns. The most recent records include a Medication Profile from March 2018 which shows the antiviral medication, Acyclovir was last filled in June 2016. See VA outpatient treatment records dated from November 8, 2014 to January 18, 2019. Based on the evidence, the Veteran’s current disability picture resulting from her service-connected herpes does not meet or approximate the requirements for a higher disability rating. The evidence shows that she has a recurrent herpes simplex which is primarily manifested by pain and itching and requires intermittent systemic therapy (Acyclovir) of less than six weeks during any 12-month period. Beyond that there is no evidence that large portions of her anatomy are involved as it affects less than 5 percent of the entire body or exposed areas (the skin condition is predominantly confined to either the left or right thigh) or systemic therapy of at least six weeks. Accordingly, a disability rating higher than 10 percent is not warranted for herpes simplex under the old or new criteria pertaining to the skin. Nor does the evidence show that the Veteran’s herpes is predominantly manifested by scarring or by disfigurement to warrant a higher disability rating under any other diagnostic codes available under 38 C.F.R. § 4.118 for assessing scars, as these codes require a showing of symptomatology not present in the Veteran’s case. There are no medical findings of disfigurement of the head, face, or neck. There is also no evidence of tender, deep, unstable or painful scars, limitation of motion due to scars, or scars covering an area of 144 square inches. Thus, diagnostic codes for rating these manifestations are not for application. See 38 C.F.R. § 4.118 DCs 7800, 7801, 7802, 7803, 7804, 7805. A preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.R. Bryant The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.