Citation Nr: 19150413 Decision Date: 06/27/19 Archive Date: 06/27/19 DOCKET NO. 18-40 267 DATE: June 27, 2019 ORDER Entitlement to an initial compensable rating for herpes simplex virus II (HSV) disability is denied. FINDING OF FACT The Veteran’s HSV does not cover more than 5 percent of his entire body or exposed skin and has not been treated with systemic therapy such as corticosteroids or other immunosuppressive drugs. CONCLUSION OF LAW The criteria for a compensable evaluation for herpes simplex have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1-4.14, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2001 to June 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). HSV evaluation of disability and rating percentage The Veteran contends that he is entitled to a 60 percent disability rating for his HSV. Disability ratings are assigned in accordance with the VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. VA published a final rule amending its regulations on skin disabilities effective August 13, 2018. The amendment, in pertinent part, added a General Rating Formula for the Skin for Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824, and amended Diagnostic Codes 7801, 7802, 7817, 7819, 7825, 7826, 7827, and 7829. See 83 Fed. Reg. 32,592 (July 13, 2018). Claims pending prior to the effective date are to be considered under both old and new rating criteria, and whichever criteria is more favorable to the Veteran will be applied. Under the regulations in effect at the time the Veteran filed his claim, Diagnostic Code 7806 provided: 0 percent rating where less than 5 percent of the entire body or less than 5 percent of exposed areas are affected, and; no more than topical therapy is required during the past 12-month period. 10 percent rating is warranted if 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 are affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12-month period. 30 percent rating is warranted if 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. 60 percent rating is warranted if 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. 38 C.F.R. § 4.118, Diagnostic Code 7806. Under the new regulations, effective August 13, 2018, Diagnostic Code (DC) 7806 will be rated under a General Rating Formula for Skin, under which: 10 percent rating will be assigned if the disability meets at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or 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. 30 percent rating will be assigned if the disability meets at least one of the following: characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or 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. 60 percent rating will be assigned if the disability meets at least one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or 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. The new regulation defines systemic therapy as treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin. 38 CFR § 4.118(a). The ratings schedule for each percentage of entitlement has two criteria that can be satisfied for entitlement for that rating. The first criteria is based on the percent of the body affected. Alternatively, if the affected area is not large enough, the Veteran can receive entitlement to a rating if they are receiving systemic therapy of a corticosteroid or other immunosuppressive drug as treatment for the disability. The Veteran was afforded a VA examination in April 2017. The examiner reported that the Veteran exhibits frequent localized outbreaks in which multiple blisters subsequently appear. The blisters vary in size (1 – 2 cm) on random locations of the scrotum, in less than 5 percent of his total body area, and none appear in exposed areas. The examiner noted that the Veteran exhibited a need for constant systemic therapy but did not identify any systemic treatment or therapy. Instead, the examiner noted that the Veteran takes “other oral medication” Valacyclovir for his frequent HSV outbreaks. To the extent the VA examination report is internally inconsistent in whether or not the Veteran’s disability requires constant systemic therapy, as discussed below, an additional medical opinion was obtained clarifying this question. In an August 2017 statement, the Veteran alleged that his daily use of Valacyclovir qualifies as constant systemic therapy and a 60 percent rating is therefore warranted. In June 2018, VA sought clarification on whether or not the Veteran’s medication is a systemic therapy. Later that month, a VA physician stated that the Veteran’s medication is an oral medication, but it is not a systemic therapy. The Veteran does not appear to dispute that the percentage of his entire body affected by the Herpes Simplex II is less than 5 percent and that none of the affected areas are exposed. Instead, he contends that the medication he is taking qualifies as a systemic therapy, such as corticosteroids or immunosuppressive drugs. The Veteran has argued that the “such as” indicates that this is not an exhausted list. In the Substantive Appeal, the Veteran cited to Dorland’s Illustrated Medical Dictionary as defining systemic therapy as treatment of a disease which affects the entire body as a whole. As noted above, the new regulations define systemic therapy as treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin. Prior to August 13, 2018, the rating criteria stated treatment “such as” corticosteroids or other immunosuppressive drugs. The new rating criteria states treatment “including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs.” It is noted that the use of “such as” and “including, but not limited to” demonstrate that the treatments after that phrase are not intended to constitute an exhaustive list, but rather are intended to serve as examples of the type and degree of the treatment, or their effects, that would justify a particular rating. While the new regulation includes a more expansive list, it is noted that phototherapy, retinoids, biologics, photochemotherapy, and PUVA treatments are immunosuppressive treatments. There is no dispute that the Veteran has been prescribed Valacyclovir, which is an oral medication, for the treatment of his HSV. He also does not dispute that this is an oral antiviral medication. See the Substantive Appeal. For the reasons set forth below, the Board finds that the Veteran’s herpes antiviral medication is not the equivalent of a corticosteroid or immunosuppressive agent. A corticosteroid is any of the 21-carbon steroids elaborated by the adrenal cortex . . . in response to corticotrophin (ACTH) released by the pituitary gland or to angiotensin and is used clinically for hormonal replacement therapy, for suppression of ACTH secretion by the anterior pituitary, as antineoplastic, antiallergic, and anti-inflammatory agents, and to suppress immune responses. See Dorland’s Illustrated Medical Dictionary, 429 (31st ed. 2007). An immunosuppressive or immunosuppressant agent is an agent capable of suppressing immune responses. Id. at 935. An antiviral agent destroy[es] viruses or suppress[es] their replication. Id. at 111. In other words, corticosteroids and immunosuppressive drugs affect a natural function of the body, indicating a significant level of impact on the body’s usual functioning, whereas antivirals defend the body against an invading infectious agent. Thus, while the Veteran takes antiviral medication for HSV treatment, this medication was not akin to a corticosteroid or immunosuppressive agent. Upon review of the evidence of record, the Board finds that a compensable disability rating for the Veteran's service-connected herpes is not warranted. Throughout the period on appeal, the Veteran's disability has been shown to affect less than 5 percent of his entire body or exposed area, requiring no more than oral therapy that is antiviral in nature. Accordingly, as the criteria listed for a 10 percent rating under DC 7806 have not been met, a higher initial disability rating is not warranted. The Board finds that the weight of the evidence is against a higher evaluation for the Veteran's herpes simplex. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. M. Donohue Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Palatt, Associate Counsel 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.