Citation Nr: 20003221 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 17-01 345 DATE: January 14, 2020 ORDER The claim of entitlement to an initial compensable disability rating for herpes simplex prior to December 1, 2016, is denied. The claim of entitlement to a disability rating in excess of 30 percent for herpes simplex from December 1, 2016, to December 1, 2017, is denied. The claim of entitlement to an initial compensable disability rating for herpes simplex beginning on December 2, 2017, is denied. FINDINGS OF FACT 1. Prior to December 1, 2016, the Veteran’s herpes simplex affected less than 5 percent of his total body area and exposed areas and required no more than topical therapy during the past 12-month period. 2. For the period from December 1, 2016, to December 1, 2017, the Veteran’s herpes simplex required systemic therapy for a total duration of six weeks or more, but not constantly. 3. Beginning on December 2, 2017, the Veteran’s herpes simplex affected less than 5 percent of his total body area and exposed areas and required no more than topical therapy during the past 12-month period. CONCLUSIONS OF LAW 1. Prior to December 1, 2016, the criteria for an initial compensable rating for herpes simplex have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1-4.14, 4.118, Diagnostic Code 7806 (2018). 2. From December 1, 2016, to December 1, 2017, the criteria for an initial disability rating in excess of 30 percent for herpes simplex have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1-4.14, 4.118, Diagnostic Code 7806 (2018). 3. Beginning on December 2, 2017, the criteria for an initial compensable rating for herpes simplex have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1-4.14, 4.118, Diagnostic Code 7806 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active service with the United States Army from May 1979 to May 1982. This case was most recently before the Board in July 2019, at which time it was remanded for additional development. Duties to Notify and Assist Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Additionally, the Board finds there has been substantial compliance with its July 2019 remand directives. The claim was remanded to obtain VA medical opinion, which was provided in August 2019. Stegall v. West, 11 Vet. App. 268 (1998). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2018). In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2018) and Schafrath v. Derwinski, 1 Vet. App. at 589, the Board has reviewed all evidence of record pertaining to the history of the service-connected disability under appeal. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability under review. In addition, the Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). As such, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran’s claims. 1. Entitlement to an initial compensable disability for herpes simplex prior to December 1, 2016. The Veteran’s herpes simplex has been rated under 38 C.F.R. § 4.118, Diagnostic Code 7806, for dermatitis or eczema. The Board notes that during the appeal period, changes were made to 38 C.F.R. § 4.118, Diagnostic Code 7806. Effective August 13, 2018, VA amended its regulations governing skin disabilities. 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. 32592 (July 13, 2018). Under both the pre-August 2018 rating criteria and the post-August 2018 rating criteria, dermatitis or eczema that affects at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of the exposed areas; or that requires intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than 6 weeks during the past 12-month period is assigned a 10 percent rating. 38 C.F.R. § 4.118, Diagnostic Code 7806. Dermatitis or eczema that affects 20 to 40 percent of the entire body or 20 to 40 percent of the exposed areas; or that requires systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of 6 weeks or more, but not constantly, during the past 12-month period, is assigned a 30 percent rating. Id. Dermatitis or eczema that affects more than 40 percent of the entire body or more than 40 percent of the exposed areas, or that requires constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period is assigned a 60 percent rating. Id. In Johnson v. Shulkin, the United States Court of Appeals for the Federal Circuit (Federal Circuit) distinguished between “systemic” therapy versus “topical” therapy, holding that systemic therapy means treatment affecting the whole body, whereas topical therapy means treatment pertaining to a particular surface area that affects only the area to which it is applied. 862 F.3d 1351 (Fed. Cir. 2017). In considering whether a treatment is systemic, the Board must also consider whether the treatment affects the body as a whole and whether the given treatment is like or similar to a corticosteroid or other immunosuppressive drug. See Burton v. Wilkie, 30 Vet. App. 286 (2018). The post-August 2018 rating criteria clarify that systemic therapy includes, but is not limited to corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, and other immunosuppressive drugs. 38 C.F.R. § 4.118 (August 2018). Additionally, dermatitis can alternatively be rated as disfigurement of the head, face or neck (DC 7800) or scars (DC’s 7801-7805) depending upon the predominant disability. 38 C.F.R. § 4.118, DC 7806. The Veteran was afforded a VA examination in February 2016. The Veteran described fever blisters on his mouth that occurred at least annually. He treated the blisters with Blistex, a topical medication, which he used for less than six weeks in the past 12 months. The physical examination did not reveal any visible herpes simplex. The skin disorder did not cause scarring or disfigurement of the face or neck. In March 2016, the Veteran reported that his outbreaks occurred two to three times a year on his mouth and back. He stated that he applied Bactroban cream to his back during the outbreaks. In December 2016, the Veteran’s primary care physician prescribed a trial of acyclovir to take twice per day as suppression for his genital herpes. The Veteran was afforded another VA examination in December 2016. The examination report indicated that the Veteran was treated with medication for herpes simplex on the lips and genitalia during service without any treatment since. He experienced flareups of his lips and genitals twice a year. He also developed itchy tiny blisters on his back that crusted and was slow to resolve. The skin disorder did not cause scarring or disfigurement of the face or neck. The physical examination showed a dark crusted oblong lesion on the right back under the scapula, which did not have the appearance of having blisters underneath. The lesion measured 2 cm. by 0.5 cm. The examiner stated that the Veteran did not have any visible herpes simplex on physical examination. There were no scars associated with herpes simplex. He continued to use Blistex treat his herpes simplex. The treatment was used for six weeks or more but not constant during the prior 12 months. A December 2016 VA dermatology note indicated that his right back lesion appeared to represent a hypertrophic scar/keloid due to a prior trauma. VA treatment records showed that the acyclovir prescription was still active in January 2017, April 2017, and May 2017. An April 2018 VA treatment record showed that in December 2016 the Veteran was prescribed 90 acyclovir tablets with instructions to take one-half tablet by mouth twice a day. His acyclovir prescription expired on December 2, 2017. A March 2019 printout of his VA prescriptions showed that the Veteran started acyclovir on December 1, 2016, and that his prescription included two refills. Subsequent VA treatment records do not show that the Veteran treated his herpes simplex with acyclovir or any other prescription medication. Specifically, after May 2017, acyclovir was no longer included on the Veteran’s active medications list. A medical opinion was obtained in August 2019 to determine whether the Veteran’s treatment for herpes simplex involved the use of systemic therapy at any point during the appeal period. The examiner found that acyclovir is a systemic therapy. However, his use of Blistex and Bactroban are topical therapies in that they did not significantly enter the bloodstream. The examiner stated that topical therapy was confined to the application site. After a review of all the evidence of record, the Board finds that the weight of the competent, credible, and probative evidence of record does not support higher ratings for the Veteran’s herpes simplex at any point during the appeal period. For the period prior to December 1, 2016, the evidence does not show that the Veteran’s herpes simplex involved at least 5 percent of the entire body or the exposed areas affected. The evidence also does not show that the Veteran used systemic therapy to treat the disorder. The February 2016 VA examination report noted that the physical examination was negative for any visible herpes simplex. While the Veteran reported outbreaks that occurred at least annually during this period, there is no competent medical evidence showing the percentage of his entire body or exposed areas that were affected. Moreover, the Veteran’s topical medication is not considered a systemic therapy as the August 2019 VA examiner explained that his topical therapies did not significantly enter the bloodstream. For the period from December 1, 2016, to December 1, 2017, the evidence does not show that the Veteran’s herpes simplex involved 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. Specifically, the evidence shows that the Veteran was prescribed a trial of acyclovir on December 1, 2016. The medication was listed as active through May 2017 with the medication no longer being included on his subsequent medication lists after May 2017. His prescription authorized an additional two refills between December 1, 2016 and December 2017. However, there is no indication that the Veteran refilled the prescription. Therefore, the evidence does not show that the Veteran treated his service-connected skin disorder with constant or near-constant systemic therapy during this period. Additionally, the December 2016 VA examination report indicated that herpes simplex was not visible at the time of the examination. For the period beginning on December 2, 2017, the evidence does not show 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. As noted above, the December 2016 VA examiner did not find any visible herpes simplex on physical examination. Additionally, the Veteran was no longer treating his service-connected skin disorder with acyclovir and his use of topical medication is not considered systemic therapy. The Board has further considered other potentially applicable Diagnostic Codes, including those for disfigurement of the head, face, or neck (Diagnostic Code 7800) and scars (Diagnostic Codes 7801 to 7805). The record does not reflect scars related to his herpes simplex and there is no evidence that the Veteran has characteristics of disfigurement or gross distortion or asymmetry of any feature or set of features. Therefore, the Board finds that the Veteran’s herpes simplex does not warrant a compensable disability rating prior to December 1, 2016, a disability rating in excess of 30 percent from December 1, 2016, to December 1, 2017, or a compensable disability rating from December 2, 2017. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. 2. Entitlement to an initial disability rating in excess of 30 percent for herpes simplex from December 1, 2016, to December 1, 2017. Please see discussion in paragraph 1. 3. Entitlement to an initial compensable disability rating for herpes simplex from December 2, 2017. Please see discussion in paragraph 1. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. N. Nolley, 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.