Citation Nr: 21061561 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 20-11 904 DATE: October 4, 2021 ORDER Entitlement to an initial disability rating of 30 percent, but no higher, for migraine headaches is granted. Entitlement to a compensable initial rating for herpes simplex virus II (HSV) is denied. Entitlement to an initial rating greater than 30 percent for generalized anxiety disorder (GAD) is denied. FINDINGS OF FACT 1. The Veteran's migraine headaches were manifested by characteristic prostrating attacks occurring one to two times a month; his migraines were not manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. The Veteran's HSV was not manifested by characteristic lesions involving less than 5 percent of the entire body or exposed areas, did not require systemic therapy during a 12-month period, and did not involve symptoms and functional impairments not contemplated by the schedular rating criteria. 3. The Veteran's GAD was manifested by symptoms resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. The Veteran's GAD was not manifested by symptoms resulting in occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 30 percent, but no higher, for migraine headaches have been met. 38 U.S.C. §§ 1155, 5107 (2019); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124, Diagnostic Code 8100 (2020). 2. The criteria for an initial compensable disability rating for HSV have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2019); 38 C.F.R. §§ 3.102, 3.159, 4.118, Diagnostic Code 7806 (2018) (2020). 3. The criteria for an initial disability rating greater than 30 percent for GAD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2019); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9400 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the Air Force from January 2008 to July 2017 and with the Army from July 2017 to June 2018. He appeals September 2018 and October 2018 rating decisions by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). Specifically, the Veteran contends he is entitled to initial compensable ratings for his service-connected HSV and migraines in addition to an initial rating greater than 30 percent for GAD. See March 2020 and May 2020 VA Form 9. Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. When considering the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Migraines The Veteran's migraines are currently rated noncompensable under 38 C.F.R. § 4.124a, DC 8100. Under DC 8100, a 10 percent rating is warranted for characteristic prostrating attacks averaging one in two months over the last several months. See 38 C.F.R. § 4.124a, DC 8100. A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average once a month over the last several months. Id. A maximum 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. VA regulations do not define "prostrating." As a reference, the Board notes Webster's New World Dictionary of American English, Third College Edition (1986), p.1080, defines "prostration" as "utter physical exhaustion or helplessness." A very similar definition is found in Dorland's Illustrated Medical Dictionary 1554 (31st Ed. 2007), in which "prostration" is defined as "extreme exhaustion or powerlessness." In August 2018, the Veteran underwent a VA examination to assess the severity of his migraine headaches. There, the Veteran noted he has "two migraines per month" that typically last "12 to 24 hours," often starting in the afternoon. See August 2018 VA examination report. The Veteran noted he has "nausea and loss of peripheral vision" with numbness and tingling in his jaw, tongue, and occasionally the hands. Id. The VA examiner noted the Veteran endorsed symptoms of photo- and phonophobia during attacks and denied vomiting during his bouts of nausea. Id. As treatment, the VA examiner noted the Veteran took prescribed medication at the onset of his migraine symptoms and found resting in a "dark quiet room" the most helpful. Although the VA examiner did not find the Veteran's symptoms were considered "characteristic prostrating attacks," the Board disagrees. The VA examiner noted the Veteran suffered from nausea, sensitivity to light and sound, changes in vision, and sensory changes that are best addressed by resting in a quiet dark room. These symptoms and treatment render the Veteran helpless during his attacks and fit the definition of prostrating attacks. As such, the Board finds he meets the criteria for an initial rating of 30 percent as his migraines result in characteristic prostrating attacks occurring on average once a month. The Veteran is not, however, entitled to an initial rating greater than 30 percent as there is no evidence the Veteran's migraines are very frequent and completely prostrating productive of severe economic inadaptability. For example, the VA examiner noted the Veteran's migraines occurred twice a month, but were not productive of severe economic inadaptability. Id. Additionally, the Veteran has not provided any contention that his migraines were very frequent, completely prostrating, or resulted in severe economic inadaptability. As such, the Board finds the VA examiner's findings and the Veteran's reported symptoms do not reflect the criteria required for the next highest rating, 50 percent. Therefore, the Veteran is entitled to an initial rating of 30 percent, but no higher, for his service-connected migraines. HSV The regulations pertaining to rating skin disabilities were revised, effective August 13, 2018. Claims, such as this, pending prior to the effective date will be considered under both old and new rating criteria from that date, and whatever criteria is more favorable to the Veteran will be applied from the effective date of the new rating criteria. The Veteran was rated under Diagnostic Code 7806 for his HSV and assigned a noncompensable rating. See 38 C.F.R. § 4.118, Diagnostic Code 7806. Under the old Diagnostic Code 7806, a 10 percent rating is warranted for 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 (head, neck, hands) 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 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, 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 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. Under the new Diagnostic Code 7806, the condition is evaluated under the new General Rating Formula for the Skin (Formula). Under this Formula, a 10 percent rating is warranted where at least one of the following is present: 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. A 30 percent rating is warranted where at least one of the following is present: 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. A 60 percent rating is warranted for 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. Thus, the old and new rating criteria have the same criteria regarding percentages of total exposed area and body area but differ regarding the use and definitions of topical versus systemic therapy. See 38 C.F.R. § 4.118, Diagnostic Code 7806. Under the new Formula, a note preceding 38 C.F.R. § 4.118 provides 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." Whereas, under the old rating criteria, systemic therapy is defined as "pertaining to or affecting the body as a whole" and "therapy" is defined as "treatment of diseases." Johnson v. Shulkin, 862 F.3d 1351, 1355 (2017). Thus, under the old rating criteria, topical ointments could be considered systemic if they were applied on a large enough scale and if the method by which they work treats the medical condition and affects the entire body. Burton v. Wilkie, 30 Vet. App. 286, 290 (2018). For instance, if the topical ointment works by circulating through the bloodstream, it could be considered systemic therapy for ratings purposes. Id. at 291. Whereas, under the new Formula systemic therapy is any treatment not applied topically. At an August 2018 VA examination for male reproductive organ conditions, the Veteran noted he had a painless outbreak (flareup) of HSV one month prior. Although he noted flareups occur "four to five times per year" the VA examiner noted he did not take continuous medication for treatment. In September 2018, the Veteran received a separate skin diseases VA examination. There, the Veteran noted he was prescribed Valtrex, an oral medication, that he takes "as needed." See September 2018 VA examination report. However, the VA examiner noted the Veteran had not taken Valtrex, or any other medication, for his HSV in the past twelve months. Thus, although Valtrex is an immunosuppressive drug, there is no evidence the Veteran actually took this medication at any point during the appeal period. Importantly, the Veteran has not provided any relevant lay statement or medical record reflecting otherwise. As such, the Veteran is not entitled to a compensable rating under the old or new formula as the record does not reflect he received intermittent systemic therapy, under both the old and new formula standards during the appeal period. Additionally, the Veteran's HSV appears as lesions on the genitals during flareups and does not appear on the skin otherwise. Id. The VA examiner noted the Veteran did not have lesions present at the examination as he was not having an outbreak; thus, his HSV covered none of his exposed area or total body area. Id. The VA examiner did not estimate the amount of exposed body area and total body area during an outbreak; however, based on the description of the Veteran's outbreaks, which exist solely on his genitals when present, the Board may competently note his HSV still covers none of his exposed areas and less than 5 percent of his total body area during flareups. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Again, the Board notes the Veteran has not submitted any relevant lay statement or medical record reflecting otherwise. As such, the Veteran is not entitled to a compensable rating under either old or new diagnostic code as his HSV did not cover at least 5 percent of the entire body or exposed areas affected. In summation, the preponderance of the evidence reflects the Veteran's service-connected HSV did not meet the criteria for a compensable rating as his skin condition was not manifested by characteristic lesions involving at least 5 percent of the entire body or exposed areas, and there is no evidence the Veteran used his systemic therapy for HSV outbreaks during any 12-month period of the appeal. As such, the Veteran's claim for entitlement to an initial compensable disability rating for HSV is denied. GAD The Veteran's GAD is currently rated under C.F.R. § 4.130, Diagnostic Code 9400, which provides the following rating criteria: A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). See 38 C.F.R. § 4.130, Diagnostic Code 9400. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing effective work and social relationships. Id. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for total occupational and social impairment. Id. Although the Veteran's symptomatology is the primary consideration, the Veteran's level of impairment must be in "most areas" applicable to the relevant percentage rating criteria. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-19 (2013). After review of the record, the Board finds the Veteran's symptom picture more closely reflects the criteria for a 30 percent disability rating and the preponderance of the evidence reflects the Veteran does not meet the 50 percent rating criteria as he does not exhibit occupational and social impairment with reduced reliability and productivity. In July 2018, the Veteran was afforded a VA examination to determine the severity of his GAD. There, the Veteran noted he was married and had a "great" relationship with his wife and four children. See July 2018 VA examination report. Socially, he also noted having "a few friendships." Id. The Veteran also stated he is currently employed as a space systems operator and noted no impairment in his work environment. Id. As such, there is no evidence of record the Veteran has difficulty establishing or maintaining relationships. Further, the Veteran noted no impairment at work, which reflects the Veteran does not have disturbances of motivation or mood effecting his ability to adapt or work. The Veteran noted his psychiatric symptoms include anxiety, chronic sleep impairment, and panic attacks that occur "one to two times per week" and are "triggered by new environments and change." Id. He also denied "significant symptoms of depression." Id. Overall, these psychiatric symptoms do not warrant a higher rating of 50 percent as they do not meet the criteria considered for a higher rating. For example, although "one to two" panic attacks weekly nears one criterion considered for a 50 percent rating, the Veteran did not note his panic attacks were consistently more than once a week and his overall symptom picture does not meet any of the other criterion considered for a higher rating. Id. Further, the VA psychologist marked on the examination report that the Veteran only had "panic attacks that occur weekly or less often." Id. Importantly, the Veteran noted his panic attacks occur with "new environments and change" indicating he generally functions satisfactorily with routine behavior, self-care, and normal conversation, the defined characterization of the 30 percent rating. As such, the Board finds the Veteran's anxiety, sleep impairment, and panic attacks do not meet the criteria for reduced reliability and productivity, the next highest rating. Instead, these symptoms more closely approximate occupational and social impairment with an occasional decrease in work efficiency and intermittent inability in occupational tasks. Further, the VA examiner concluded the Veteran's symptoms did not rise to the severity to disturb his motivation and mood and the evidence of record does not reflect otherwise. During the appeal, the Veteran was found to have good insight and judgment with an affect congruent to his mood. See December 2018 VA treatment records; see also July 2018 VA examination report. He was also properly oriented, and was found to have normal attention and an intact memory with no note of memory loss. Id. Finally, the Veteran's general conversation appeared normal, and there is no record reflecting impaired speech, thought, or ability to understand complex commands. Id. Neither the Veteran nor the record reflect he received psychiatric treatment during the appeal period. In fact, the Veteran denied participating in individual therapy since his discharge from the military. See July 2018 VA examination report. Further, the Veteran has not provided any statement or medical evidence to suggest his psychiatric symptoms are more severe than those found by the July 2018 VA examiner. The July 2018 VA psychologist interviewed the Veteran for an assessment of his symptoms, reviewed the record, and provided a detailed VA examination report that the Board finds probative as there is no record indicating the Veteran's symptoms are more severe or different than those reported at the examination. (Continued on the next page) Overall, the record reflects the Veteran does not exhibit memory loss or any impairment to speech, thought, or judgment. He has been properly oriented, understood complex commands, and had an appropriate affect. Id. There is no evidence of neglected hygiene, suicidal ideation, grossly inappropriate behavior, delusions or hallucinations and he can complete activities of daily living. Thus, based on the entirety of the record, the Board finds the Veteran's psychiatric symptom picture more closely approximates his current rating of 30 percent as he is generally functioning satisfactorily with routine behavior and does not exhibit the frequency, duration, or severity of symptoms required for a finding of reduced reliability and productivity, a necessary finding for an increased rating of 50 percent. See 38 C.F.R. § 4.130, Diagnostic Code 9400. As such, the Board finds the preponderance of the evidence does not favor the Veteran's claim and the criteria for an increased disability rating in excess of 30 percent for GAD have not been met. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bona, 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.