Citation Nr: 21000110 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 15-27 432 DATE: January 4, 2021 ORDER Entitlement to an initial rating higher than 30 percent for a skin disability (dermatitis) stemming from herpes simplex virus II (HSV-2) is denied. FINDINGS OF FACT 1. The Veteran underwent systemic therapy for her service-connected HSV-2 for a total of six weeks or more, but not constantly, over the past 12-month period. 2. During the period on appeal, the Veteran’s skin disability caused lesions on less than 40 percent of her body, and less than 40 percent of the exposed areas of her skin. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent for dermatitis related to HSV-2 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1991 to December 1998, and again from September 2009 to October 2010. This case was previously remanded by the Board of Veterans Appeals (Board) in September 2018 to obtain a VA examination. A new VA examination was administered in October 2019, and the Veteran’s claims were readjudicated in a May 2020 supplemental statement of the case (SSOC). In the May 2020 SSOC, the regional office (RO) found that the Veteran’s Valtrex prescription qualified as a systemic treatment and increased the Veteran’s initial disability rating on this basis. The Board concludes that there has been substantial compliance with its remand orders, and will therefore proceed with a decision. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). In the September 2018 decision, the Board also remanded the issue of service connection for the Veteran’s breast cancer. In June 2020, the RO granted service connection for breast cancer and rated it as 10 percent disabling. As there has been a full grant, the issue of service connection for breast cancer is no longer on appeal. Increased Ratings Disability ratings are based upon VA’s Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings.” Hart v. Mansfield, 21 Vet. App. 505 (2007). Dermatitis and eczema are covered by Diagnostic Code 7806, which falls under the General Rating Formula for the Skin. Under Diagnostic Code 7806, a 10 percent evaluation is assigned where there is 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 including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent evaluation requires involvement of 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is assigned with involvement of more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near constant systemic therapy required during the past 12-month period. 38 C.F.R. § 4.118. In August 2018, VA revised the criteria for skin disabilities. Under the revised criteria, a note preceding 38 C.F.R. § 4.118 provided that, for the purposes of this section, “systemic therapy is 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.” The Veterans Claims Court has held that “where the law or regulation changes after a claim has been filed or reopened but before the... judicial appeal process has been concluded, the version most favorable to appellant should and... will apply unless Congress provided otherwise or permitted the Secretary of Veterans Affairs (Secretary) to do otherwise and the Secretary did so.” Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991). Entitlement to an initial rating for service-connected skin disability in excess of 30 percent disabling For the Veteran to qualify for the next-highest disability evaluation at 60 percent, she would have to either experience skin symptoms covering more than 40 percent of her entire body or more than 40 percent of her exposed areas, or else require constant or near-constant systemic therapy during the past 12 months. 38 C.F.R. § 4.118, Diagnostic Code 7806. The Veteran does not meet either of these criteria. The October 2019 VA Examiner was unable to observe the percentage of the Veteran’s body affected by lesions, as the Veteran was not suffering an outbreak at the time of the examination. Because the exact timing of the Veteran’s outbreaks is not always predictable, and the outbreaks typically do not last more than three days, it would be impractical to remand for an exam during one of her outbreaks – especially when the record suggests that a new exam would not help the Veteran succeed with her claim, and would only serve to delay resolution. See Voerth v. West, 13 Vet. App. 117, 123 (1999). The Veteran told the VA examiner that her HSV-2 outbreaks consist of lesions on her buttocks and genital area, as well as oral sores. All the Veterans’ submitted statements, as well as her statements at the April 2017 hearing, describe her symptoms similarly. The Board finds that the Veteran is competent to report her own symptoms, and that these reports are credible. Based on the Veteran’s description, her lesions do not cover more than 40 percent of her skin in total, nor do they cover more than 40% of the exposed parts of her body. The Veteran said in her October 2014 Notice of Disagreement that she takes Valtrex orally twice per day for periods of five days at a time, starting whenever she has outbreaks related to her HSV-2 infection. In in her April 2017 Board hearing, the Veteran elaborated that she has outbreaks on an approximately monthly basis. The Veteran’s VA treatment records confirm that she frequently refills her Valtrex prescription, and that she has been instructed to take the medication twice a day when she begins to feel an outbreak coming on. Accepting the Veteran’s lay statements as credible and competent, she undergoes systemic therapy for her condition for approximately 60 days – just over 8.5 weeks – per 12 months, spread out over the course of the year. Because of this, she does not qualify for a 60 percent disability evaluation based on “constant or near constant” use of systemic therapy. (Continued on the next page) The Board finds that the Veteran’s symptoms are contemplated by the 30% rating for skin disabilities. 38 C.F.R. § 4.118, Diagnostic Code 7806. The initial rating for the Veteran’s HSV-2-related dermatitis remains at percent, and no higher, effective March 12, 2012. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shermila Sundquist 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.