Citation Nr: 21071349 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 11-32 820 DATE: November 30, 2021 ORDER A compensable rating for herpes simplex virus II (HSV II) prior to August 19, 2013, is denied. A rating in excess of 10 percent for HSV II from August 19, 2013, to August 13, 2018, is denied. A 30 percent rating, but no more, for HSV II since August 13, 2018, is granted, subject to the criteria governing the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran served on active duty from October 1977 to October 1980; he has been 100 percent disabled based on unemployability since February 2010. 2. Prior to August 19, 2013, HSV II was manifested by a history of genital herpes with a flare-up in June 2001. 3. From August 19, 2013, to August 13, 2018, genital herpes was manifested by treatment with daily antihistamines, topical medications, and Valacyclovir-Acyclovir orally for two flare-ups in July 2014 and October 2016, lasting one week each. 4. Since August 13, 2018, genital herpes has required systemic therapy in the form of oral antiviral medication (Valacyclovir/Acyclovir) for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for HSV II prior to August 19, 2013, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Codes (DCs) 7820-7806 (2001, 2002, 2021). 2. The criteria for a rating in excess of 10 percent for HSV II from August 19, 2013, to August 13, 2018, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DCs 7820-7806 (2021). 3. The criteria for a 30 percent rating, but no more, for HSV II since August 13, 2018, have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DCs 7820-7806 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal has been before the Board on numerous occasions and most recently in January 2019 when it was remanded for additional development. It has now returned for further appellate action. Historically, service connection for HSV II was granted by the Board in May 2009. In October 2009, the Regional Office (RO) implemented the Board's decision, and assigned a noncompensable rating effective March 22, 2000, the date of the claim for service connection. The Veteran filed a timely notice of disagreement with respect to the rating assigned. Thereafter, in a March 2014 rating decision, an increased rating of 10 percent was granted, effective August 19, 2013 (the date of a VA examination showing that an increase was warranted). He continues to pursue an increased rating for all periods on appeal. Turning to the relevant laws and regulations, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran's genital herpes are is rated as noncompensable prior to August 19, 2013 and at 10 percent beginning on August 19, 2013, pursuant to DC 7820-7806 for infections of the skin not listed elsewhere and dermatitis/eczema. There is no diagnostic code specifically applicable to genital herpes. During the pendency of the Veteran's appeal, the schedule of ratings for the skin was amended effective October 23, 2008 but only applicable to claims received by VA on or after October 23, 2008. See 73 Fed. Reg. 54708 (Sept. 23, 2008). The date of this claim was prior to this, thus the regulations under 38 C.F.R. § 4.118 prior to October 23, 2008, are in effect for that time period. Finally, the rating schedule for skin disabilities was again revised, effective August 13, 2018. The pre-amended regulation (pre-August 30, 2002 and pre-August 13, 2018) will be considered for periods both before and after the effective date of the regulatory change. However, the revised criteria will be applied if favorable to the claim from the effective date of the regulatory change. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, there are three potentially applicable sets of diagnostic codes for consideration at various points during the rating period (prior to August 30, 2002, beginning August 30, 2002 but prior to August 13, 2018, and beginning August 13, 2018). As noted above, each successive amended version may only be applied from its effective date forward, but earlier versions may continue to be applied if such yields a more beneficial result. In the interests of clarity, the Board will set forth the relevant code sections in succession chronologically, and will consider their application to the relevant evidence before moving to the next version of the code. Rating Criteria Prior to August 30, 2002 Prior to August 30, 2002, a noncompensable evaluation was assigned for eczema under DC 7806 with slight, if any, exfoliation, exudation or itching, if on a nonexposed surface or small area. A 10 percent evaluation was warranted for eczema with exfoliation, exudation or itching, if involving an exposed surface or extensive area. Under DC 7803, a superficial scar, poorly nourished, with repeated ulceration warranted a 10 percent evaluation. Under DC 7804, superficial, tender and painful scars warranted a 10 percent rating. That same version of the rating schedule holds that under DC 7805 scars, other, are to be rated based on limitation of function of part affected. Turning to the medical evidence for this time period, an August 2000 private treatment record noted a diagnostic history of genital herpes. Skin examination was normal and no medications were reported. A June 2001 VA treatment record indicated that the Veteran was seen for an outbreak of genital herpes since the day before. He requested treatment; however, no medications were noted to be prescribed or otherwise given. In order to warrant a 10 percent rating for this time period, the pre-August 30, 2002, regulations required eczema with exfoliation, exudation or itching, if involving an exposed surface or extensive area. Based on the above, the medical evidence does not support such a finding. Moreover, while there is evidence of genital herpes outbreaks, there is no evidence of poorly nourished scars with repeated ulceration, scars that are tender and painful, or scars that cause limitation of function. In sum, the pre-August 30, 2002 version of the rating schedule for skin disabilities does not warrant assignment of a compensable rating at any point prior to August 19, 2013. Rating Criteria in Effect as of August 30, 2002 Effective August 30, 2002, the rating criteria provide percentage ratings from zero to 60 percent based on, among other things, the percentage of the total body area or total exposed body area affected by the disability. Under DC 7805, a noncompensable rating was warranted for characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating was warranted for when 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 such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the last 12-month period. A 30 percent rating is assigned when 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 were required for a total duration of six weeks or more, but not constantly, during the past 12-month period. "Corticosteroids or other immunosuppressive drugs" refer to any oral or parenteral medication(s) prescribed by a medical professional to treat the underlying skin disorder. For claims filed prior to August 13, 2018, the Court held that compensation was available for all systemic therapies that are "like or similar to corticosteroids or other immunosuppressive drugs." Warren v. McDonald, 28 Vet. App. 194, 197-99 (2016). A topical corticosteroid could be administered on a large enough scale to affect the body as a whole, thus meeting the definition of "systemic therapy." Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed. Cir. 2017). A systemic therapy is one that that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body as a whole in treating a veteran's skin condition; and (2) whether the given treatment is "like" a corticosteroid or other immunosuppressive drug." Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Also, under the version of the rating schedule in effect as of August 2002, DC 7803 provided a 10 percent rating for scar, superficial, unstable. Note (1) stated that an unstable scar was one where, for any reason, there was frequent loss of covering of skin over the scar. Note (2) stated that a superficial scar was one not associated with underlying soft tissue damage. DC 7804 provided that a scar, superficial, painful on examination, warrants a 10 percent rating. Note (1) states that a superficial scar was one not associated with underlying soft tissue damage. DC 7805 provided that other scars are to be rated on limitation of function of the affected parts. Turning to the medical evidence, a December 2004 letter from a private physician stated that the Veteran had recurrent episodes of HSV II. An April 2008 VA examiner noted that when the Veteran was initially diagnosed, he had multiple small vesicles on the penis. Since that time, the genital herpes had been intermittent with remissions. On examination, there were multiple psoriatic lesions on the shaft of the penis. A March 2010 VA examiner indicated that the genital herpes had been intermittent with remissions. He was noted to be on oral and topical medication. On examination there was a "lesion at gland penis." A July 2012 VA treatment record noted that the Veteran used Acyclovir cream for genital herpes, but that it did not work well and he wanted to be evaluated for other alternative treatment. It was noted that Valacyclovir oral medication was prescribed and he continued to take that regularly for outbreaks thereafter. VA treatment records showed that the Veteran was prescribed oral Valacyclovir for genital herpes outbreaks in July 2012, August 2012, October 2012, March 2013, July 2014, and October 2016. An August 2013 VA examiner noted that the Veteran complained of constant tingling, pain, burning, and itching on his genital area not relieved by daily constant use of cetirizine 100mg, hydroxyzine 10mg, and acyclovir cream twice a day. On examination, there were moderately tender multiple scattered small vesicles with surrounding erythema on the penis, glans and suprapubic area. The examiner noted that the Veteran was constantly taking antihistamines, other oral medication noted to be Hydroxyzine, and topical medication. The genital herpes were noted to cover 5 percent, but less than 20 percent of the total body area, and none of the exposed body area. For the time period prior to August 19, 2013, a compensable, 10 percent rating is not warranted because the evidence does not show that the genital herpes affected 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, nor did the evidence show that there was 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 indicated above, the medical evidence does not support such findings for this time period. Notably, there is no evidence that the Veteran's herpes covered the requisite percentage requirements listed above for a compensable rating. Moreover, while he was taking Valacyclovir/Acyclovir orally (systemically) during this time period (for outbreaks/infections in July 2012, August 2012, October 2012, March 2013, it amounted to less than 6 weeks during a calendar year), as discussed in more detail below, Acyclovir-Valacyclovir is not a corticosteroid or immunosuppressive drug. Instead, it is an antiviral medication without immunosuppressive effects. As such, a compensable rating is not warranted prior to August 19, 2013, under the criteria effective August 30, 2002. A compensable rating is also not warranted prior to August 19, 2013, under the pre-August 30, 2002 rating criteria. In this regard, the evidence does not show that there was eczema with exfoliation, exudation or itching involving an exposed surface or extensive area. Moreover, while there is evidence of genital herpes outbreaks, there is no evidence of poorly nourished scars with repeated ulceration, scars that were tender and painful, or scars that caused limitation of function. Therefore, a compensable rating prior to August 19, 2013, is not warranted under any version of the rating criteria for this time period. Further, a rating in excess of 10 percent is not warranted as of August 19, 2013, to August 13, 2018, under the rating criteria effective August 30, 2002. In this regard, the evidence for this time period does not show that the genital herpes affected 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or that 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. While the Veteran was taking Valacyclovir/Acyclovir orally (systemically) during this time period, it was for outbreaks/infections in July 2014 and October 2016. These intermittent episodes, which were generally described as lasting approximately one week each, do not amount to a total duration of six weeks or more during any 12-month period. Therefore, while antiviral medication is a separate category and not considered immunosuppressive medication, this medication was not taken for the requisite amount of time to warrant a higher 30 percent rating for this time period. Additionally, although the August 2013 VA examiner also noted that the Veteran was constantly taking antihistamines (including Hydroxyzine) and constantly using topical medication, none of these medications taken during this time period were in the category of systemic corticosteroids or other immunosuppressive drugs. Antihistamines, including Hydroxyzine, are not corticosteroids or immunosuppressive drugs, nor are they "like" a corticosteroid or other immunosuppressive drug, as they are clearly classified as antihistamines, which do not have immunosuppressive effects. Moreover, prior to August 13, 2018 (date of change in regulations), the evidence does not show that the genital herpes was ever predominantly manifested by scarring or by disfigurement to warrant a higher rating under any other diagnostic codes available under 38 C.F.R. § 4.118 for assessing scars, as these codes require a showing of symptomatology not present in the Veteran's case. There are no medical findings of disfigurement of the head, face, or neck. There is also no evidence of tender, deep, unstable or painful scars, limitation of motion due to scars, or scars covering an area of 144 square inches. Thus, diagnostic codes for rating these manifestations are not for application. A rating in excess of 10 percent is also not warranted from August 19, 2013, to August 13, 2018, under the pre-August 30, 2002, rating criteria, because the medical evidence does not show eczema with exudation or itching constant, extensive lesions, or marked disfigurement. In sum, a compensable rating is not warranted prior to August 19, 2013 and a rating in excess of 10 percent is not warranted from August 19, 2013, to August 13, 2018, pursuant to any version of the rating criteria. Rating Criteria Effective August 13, 2018 Under the rating criteria effective August 13, 2018, DC 7806 is to be rated under the General Rating Formula for the Skin. Under this Formula, a 10 percent rating is assigned for at least one of the following: 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 assigned with at least one of the following: 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 assigned with at least one of the following: 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. Additionally, effective August 31, 2018, VA regulations explicitly state that systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118(a). As before, the current version of DC 7800 is not for application as it refers to disfigurement of the head, face, or neck. Under the amended DC 7802, concerning burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage: a 10 percent rating applies if the scar covers an area or areas of 144 square inches (sq. in.) (929 sq. cm.) or greater. The current version of DC 7804, addressing painful or unstable scars, is essentially unchanged from the prior version of the code. Turning to the medical evidence for this time period, an October 2019 VA examiner diagnosed psoriasis and genital herpes. The Veteran reported recurrent genital herpes sores since service, with the most recent outbreak being two weeks previously lasting about one week. He reported taking Acyclovir by mouth and topically during active infections/outbreaks only but did not take preventative medication. The examiner noted that in the past 12-month period, the Veteran had taken Acyclovir orally and topically for six weeks or more, but not constantly. Physical examination revealed that genital herpes lesions/ulcerations covered none of the total body area or exposed areas of the body; however, the Veteran did have psoriasis which consisted of diffuse scaling patches covering the upper and lower extremities and the back. The examiner specifically noted that the psoriasis began in 1990 and was completely unrelated to the HSV II. Based on the above, a 30 percent rating under DC 7806 is warranted as of August 13, 2018, because the genital herpes required 6 weeks or more of systemic therapy. As stated above, the current, amended version of 38 C.F.R. § 4.118 provides that, for the purposes of evaluating skin conditions, "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." Here, the Board primarily relies upon the October 2019 VA examination which documents that the Veteran has been treated with Valacyclovir/Acyclovir oral medication on a daily basis during active infections and that these infections requiring such medication take place 6 or more weeks out of any given year, but not constantly. Under the new criteria, the regulations provide for 6 weeks or more of systemic therapy including but not limited to the categories of systemic medication listed above. As Valacyclovir/Acyclovir is not specifically listed, but also is not specifically excluded, and has been taken for the requisite amount of time in a 12-month period, the Veteran is afforded the benefit of the doubt and a 30 percent rating is warranted as of the effective date of the new regulations. As such, the Board finds that a rating of 30 percent is warranted under the current version of DC 7806 for the time period beginning on August 13, 2018, the effective date of the new skin regulations. A higher, 60 percent rating is not warranted at any point. In this regard, the evidence does not support a finding that characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or that constant or near-constant systemic therapy is required. There is also no medical or lay evidence supporting a rating in excess of 30 percent based on scars or disfigurement. Finally, a higher 50 percent rating is not warranted based on the pre-August 30, 2002, criteria as there is no evidence of eczema with ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or exceptionally repugnant. In granting a higher 30 percent rating effective August 13, 2018, the Board has considered the Veteran's lay statements regarding his symptoms as well as the evidence provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. In sum, after a careful review of the evidence of record, a 30 percent rating, but no more, for genital herpes is granted effective August 13, 2018. In denying higher ratings for the time periods prior to August 13, 2018, the Board has considered the Veteran's lay statements that his disability was worse throughout the appeal period. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's genital herpes has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran's subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeal for higher ratings prior to August 19, 2018, is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Redman, 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.