Citation Nr: 21064417 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 14-37 767 DATE: October 20, 2021 ORDER A 10 percent rating, but no higher, for herpes simplex is granted. A total disability rating based on individual unemployability (TDIU), to include referral of consideration of a TDIU on an extraschedular basis, is denied. FINDINGS OF FACT 1. Treatment for the Veteran's herpes simplex disability more nearly approximated intermittent systemic therapy for a total duration of less than six weeks over a twelve-month period. 2. Prior to his death, the Veteran did not meet the scheduler criteria for a TDIU; the Veteran's service-connected herpes simplex disability was not shown to result in an inability to obtain or maintain substantially gainful employment so as to warrant consideration of a TDIU on an extraschedular basis. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating, but no higher, for herpes simplex are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 4.118, Diagnostic Code (DC) 7899-7806. 2. The criteria for entitlement to a TDIU, to include referral of consideration of a TDIU on an extraschedular basis, are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is the surviving spouse of a Veteran who served on active duty from August 1995 to July 1999. The Veteran died during the pendency of the appeal in May 2015. In August 2017, the appellant was substituted to assume the Veteran's place and continue the appeal. The issues on appeal were previously remanded by the Board in Au8gsut 2020 and June 2021. Herpes Simplex Disability Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Prior to his death, the Veteran's herpes simplex disability was rated under 38 C.F.R. § 4.118, Diagnostic Code 7899-7806. Here, the use of Diagnostic Code 7899-7806 reflects that there is no diagnostic code specifically applicable to the Veteran's skin disease, and that this disability is rated by analogy to dermatitis or eczema under Diagnostic Code 7806. See 38 C.F.R. § 4.20 (allowing for rating of unlisted condition by analogy to closely related disease or injury). Under Diagnostic Code 7806, a 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; if intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past 12-month period. A 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; if systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is warranted if more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, or; if constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required during the past 12-month period. The medical evidence shows that, prior to his death, the Veteran had "at least" 3 outbreaks of herpes a year. See e. g., December 2014 VA examination report. For example, in 2014, the Veteran was treated with Acyclovir (an antiviral drug) in February, September, and November of 2014. See July 2021 VA medical opinion. Each time an outbreak occurred, the Veteran was noted to receive Acyclovir for 5 days. The December 2014 VA examiner also noted that the Veteran had been prescribed Valacyclovir, another antiviral drug. The Board acknowledges that Acyclovir and Valacyclovir are not corticosteroids or other immunosuppressive drugs; however, the Board finds that such is not a prerequisite to a 10 percent rating under DC 7806. See Warren v. McDonald, 28 Vet. App. 194 (2016); Burton v. Wilkie, No. 16-2037 (Vet. App. Sept. 28, 2018). The Board acknowledges that in Warren the Court held that "[c]ompensation is available for all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs," directly applying the meaning assigned to the phrase "such as" as was explained in Mauerhan v. Principi. See 16 Vet. App. 436, 442 (2002) (finding that "[t]he use of the term 'such as' means 'for example' or 'like or similar to'"). While the evidence does not demonstrate the use of corticosteroids or immunosuppressive drugs, the evidence does show that the Veteran had been prescribed Acyclovir and Valacyclovir, oral antiviral medications, for his herpes simplex outbreaks. These oral medications are considered to be systemic. See Dorland's Illustrated Medical Dictionary, 1888 (31st ed. 2007) (defining systemic as "pertaining to or affecting the body as a whole"). The language in Warren suggests that the systemic nature of the medication is enough to satisfy the rating criteria. Therefore, the Board concludes that intermittent systemic therapy was required for the Veteran's service-connected skin disease for a total duration of less than six weeks over the past twelve-month period. Thus, a 10 percent rating for herpes simplex, but no higher is warranted. The Board considers whether a higher rating may be applied. However, at no time during the applicable period has the Acyclovir or Valacyclovir treatment been for more than six weeks, or constant or near constant, within a 12-month period (i.e., in the past 12 months). Based on the foregoing, no evidence shows that he meets any of the requirements for a rating in excess of 10 under Diagnostic Code 7806. Therefore, the Board finds that the criteria for a rating of 10 percent, but no higher, for the Veteran's service-connected herpes simplex virus are met. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Ver. App. 49 (1990). TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In this case, the Board notes that the Veteran had only one service-connected disability prior to his death, specifically, herpes simplex rated as 10 percent disabling (granted herein). As such, his service-connected disability does not meet the percentage rating standards for TDIU. 38 C.F.R. § 4.16 (a). Accordingly, the Board finds that entitlement to a TDIU is not warranted on a schedular basis. Nevertheless, the Board must consider whether the evidence warrants referral to the Director of Compensation Service for entitlement to a total disability rating for compensation purposes based on individual unemployability on an extraschedular basis under the provisions of 38 C.F.R. § 4.16 (b). See Bowling, 15 Vet. App. at 6. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Here, the Board has considered whether referral for consideration of an extraschedular evaluation is warranted at any time during the appeal, and finds that it is not. The medical evidence of record indicates that the Veteran was unemployed as a result of his psychiatric symptoms, a nonservice-connected disability. See e. g., October 2014 statement from VA psychologist Dr. Patchell. Social Security Administration records also indicate that the Veteran was awarded disability benefits for his severe psychiatric conditions. Having reviewed the record, the Board finds that there is no medical or lay evidence indicating any interference with the Veteran's ability to obtain or maintain employment as a result of his herpes disability prior to his death. The Appellant has not indicated that the Veteran was unemployable due to his service-connected herpes disability. As such, the Board finds that the preponderance of the evidence weighs against finding that the Veteran is unable to secure or maintain substantially gainful employment due to his service-connected herpes simplex disability. Accordingly, a remand for referral of consideration of a TDIU on an extraschedular basis is not required. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.