Citation Nr: 21001671 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 12-17 903A DATE: January 11, 2021 ORDER Entitlement to an extra-schedular rating for Herpes Simplex Virus Type I (HSV-I) is denied. FINDING OF FACT The associated signs, symptoms, and consequent functional impairment owing to the Veteran’s HSV-I are fully contemplated by the schedular rating criteria; there is not an exceptional or unusual disability picture; moreover, this condition does not combine or interact with other service-connected disabilities in such a way as to result in further disability not contemplated by the Rating Schedule. CONCLUSION OF LAW The criteria are not met for entitlement to an extra-schedular rating for the HSV-I. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.124a, Diagnostic Code (DC) 7899-7806.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1987 to June 1995. This claim was most recently before the Board of Veterans' Appeals (Board) in August 2020, when the question of whether an increased (i.e., compensable) rating for the Veteran’s HSV-I was warranted on an extra-schedular basis was again referred to the Director of the Compensation Service pursuant to 38 C.F.R. § 3.321(b)(1). Although, in a prior remand in April 2018, the Board already had indicated that a referral was warranted, following that prior remand there only had been recommendation at the Agency of Original (AOJ) level not to do this referral – not, instead, any actual decision by the Director of the Compensation Service or designee that an extra-schedular rating is not warranted. Thus, in the succeeding remand the Board requested an actual determination concerning this by the Director or designee, not instead just a recommendation not to grant a higher rating on this special basis. To this end, the Director denied this special entitlement in a November 2020 memorandum, so this claim was recertified to the Board in December 2020 for further appellate consideration. Entitlement to an extra-schedular rating for the HSV-I The Veteran contends that her HSV-I causes disfigurement of her skin appearance and consequent embarrassment to such a degree that it affects her employment. In the April 2018 decision already mentioned, the Board denied the Veteran’s claim for a higher (i.e., compensable) rating for this service-connected disability on a schedular basis. However, as also already alluded to, in that same decision the Board also referred the claim to the Director of the Compensation Service to determine whether a higher rating was warranted, instead, on an extra-schedular basis under the special provisions of 38 C.F.R. § 3.321(b)(1).   In the exceptional case where the schedular evaluation is inadequate to rate a single service-connected disability, the Director or his or her delegate is authorized to approve an extra-schedular evaluation commensurate with the average impairment of earning capacity due exclusively to the disability. While the Board may not assign an extra-schedular rating in the first instance, the Board may consider whether the case should be referred to the Director for this special consideration. 38 C.F.R. § 3.321(b)(1); see also Barringer v. Peake, 22 Vet. App. 242 (2008); Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). The threshold factor for extra-schedular consideration is finding the evidence presents such an exceptional or unusual disability picture that the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id., at 115-16. If these two elements are met, then the appeal must be referred to the Director for consideration of an extra-schedular evaluation. 38 C.F.R. § 3.321(b)(1). On March 14, 2019, so during the pendency of this appeal, the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) issued Ray v. Wilkie, 31 Vet. App. 58 (2019), which addressed the effect of the Board’s referral of a case for extra-schedular consideration when the Board later reviews the Director’s decision denying an extra-schedular disability rating award. The Court held that the Board’s determination to refer a case for extra-schedular consideration is a factual finding that does not bind or require the Board to award an extra-schedular rating. However, if the Board denies the claim after referral, the Board “must provide adequate reasons or bases for deviating from its earlier referral decision.”   But, by the same token, consider also that the Director's decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. See Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extra-schedular consideration). The Court since has reaffirmed that the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extra-schedular rating and elaborated that the Board is authorized to assign an extra-schedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447 (2015). Although the Board is required to obtain the C&P Service Director's decision before awarding extra-schedular benefits, the Board is not bound by the Director's decision or otherwise limited in its scope of review of that determination. Wages, 27 Vet. App. at 236-38 (2015) (citing 38 U.S.C. §§ 511(a), 7104(a); and 38 C.F.R. § 4.16(b) in the total disability rating based on individual unemployability (TDIU) context). Here, following and as a result of the Board’s referral of this claim, in a November 2020 memorandum the Director determined that an increase in the Veteran's HSV-I rating on an extra-schedular basis was not warranted. To reiterate, here is no restriction on the Board's ability to review the adjudication of an extra-schedular rating once the Director determines that an extra-schedular rating is not warranted. See Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009). With that in mind, as was discussed in the Board’s prior April 2018 decision, the Veteran’s disability is rated by analogy under hyphenated DC 7899-7806 because her HSV-I is not specifically listed in the Rating Schedule. See 38 C.F.R. § 4.20. The highest rating available under DC 7806 is a 60 percent rating. See 38 C.F.R. § 4.118, DC 7806. However, the Board found that her disability is appropriately rated, instead, at 0 percent. According to DC 7806, a non-compensable (i.e., 0 percent) rating is warranted when less than 5 percent of the entire body or less than 5 percent of exposed areas are affected and no more than a topical therapy is required during the past 12 month period. The Board found that her HSV-I has never warranted a rating higher than 0 percent because her condition affects less than 5 percent of her entire body, less than 5 percent of her exposed skin, and no more than topical therapy is required for control of her symptoms. Further, DCs 7800-7805 are inapplicable to the Veteran’s HSV-I because her condition has not caused one or more scars, hyperpigmentation, scaled skin, or otherwise unresolved, textural or structural changes to her skin, all of which are criteria under these other rating codes. Moreover, absent flare-up of her symptoms, the record reflects that they resolve or are dormant/quiescent. As such, DCs 7800-7805 are not for application. So, this acknowledges there are occasions when her symptoms wax and wane and, thus, are more visibly apparent than at others, which is typical of disorders affecting the skin. See Ardison v. Brown, 6 Vet. App. 405, 407 (1994). No information has been added to the record since April 2018 that changes these findings or warrants disturbing the Board’s prior decision. Her disability picture is best reflected by a 0 percent rating under DC 7806. As such, the VA Rating Schedule will apply, as it does unless there are exceptional or unusual factors rendering application of this schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). As already explained, an extraschedular disability rating is only warranted when a case presents such an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). According to the holdings in Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine that the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, the Board must then determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. When remanding this claim in April 2018 and more recently in August 2020, the Board emphasized that it had determined only at most that this referral for extra-schedular consideration was warranted – not, instead, that an extra-schedular rating ultimately should be granted, either by the Director or by the Board. The Veteran's claim was denied by the Director after referral for extra-schedular consideration, based partly on a finding that there was no evidence that the Veteran's HSV-I has caused frequent hospitalizations or interfered with her employment. Although her reported symptoms include purulent sores causing pain and embarrassment, the Board nevertheless finds that the functional effects owing to these and other noted symptoms do not constitute any exceptional or unusual disability picture warranting an extra-schedular rating, as there is no evidence that her experiences are unique or unusual or exceptional for HSV-I sufferers. These findings form the basis for the Board’s deviation from its prior referral, meaning that, while she is entitled to this special extra-schedular consideration, this is not tantamount to also establishing her entitlement to a greater level of compensation on this special basis. It also is important to note that VA amended its adjudication regulation pertaining to extra-schedular consideration of a service-connected disability in exceptional compensation cases. This rule clarifies that an extra-schedular evaluation is to be applied to an individual service-connected disability when the disability is so exceptional or unusual that it makes application of the regular Rating Schedule impractical. An extra-schedular evaluation may not be based on the combined effect of more than one service-connected disability. 82 Fed. Reg. 57830 (Dec. 8, 2017). In Thurlow v. Wilkie, 30 Vet. App. 231 (2018), the Court found that this amendment applied retroactively as it does not have an impermissible retroactive effect. Here, the record does not reflect exceptional or unusual symptoms or manifestations of this service-connected disability to make the application of the regular Rating Schedule impractical. Although her symptoms and the distress they cause are well established on record, the record does not reflect noted, exceptional, or unusual manifestations of her condition. Further, her only other service-connected condition is tinnitus, rated at 10 percent, with symptoms described by the January 2011 rating decision awarding service connection as constant ringing in her ears. The record does not reflect that these conditions interact in any way, and 10 percent is the maximum permissible rating for tinnitus, so she already has the highest possible schedular rating for this other service-connected disability. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), citing 38 C.F.R. § 4.87, DC 6260. Consider, as well, that VA's duty to assist "does not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities." Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011). The record does not contain any descriptions, witness statements, or other testimony discussing how the Veteran’s HSV-I adversely affects her employment, outside a blanket assertion that it does. She was offered several opportunities to provide supporting evidence in this regard, to supplement the file, but she has not done so. See Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60 (1993) (VA's duty to assist is not a one-way street; if a Veteran wants help, she cannot passively wait for it in those circumstances where her own actions are essential in obtaining putative evidence). Moreover, the Rating Schedule is intended to compensate for disability causing actual impairment of earning capacity, so mere affect on employment is insufficient to meet this legal standard because the disability rating, itself, acknowledges there is affect on employment. 38 C.F.R. §§ 4.1, 4.15; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).   In conclusion, then, as the preponderance of evidence is against the Veteran's claim of entitlement to a rating higher than 0 percent for her HSV-I, including on an extra-schedular basis, there is no reasonable doubt to be resolved in her favor, and this claim (even on this additional basis) must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Stearns, 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.