Citation Nr: 21073060 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 16-10 548 DATE: December 7, 2021 ORDER Entitlement to an initial compensable rating for herpes is denied. REMANDED Entitlement to service connection for rhinitis is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a bilateral foot disability, to include Achilles tendonitis, calcaneal spurs, plantar fasciitis, ankle arthralgia, and ankle instability, is remanded. FINDINGS OF FACT The Veteran's herpes does not involve at least 5 percent of his entire body or at least 5 percent of exposed areas; intermittent systemic therapy with immunosuppressive drugs for a total duration of less than six weeks in a 12-month period has not been required. CONCLUSION OF LAW A compensable rating for herpes is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Code 7899-7820. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who had active-duty service from September 1998 to May 1999 and October 1999 to July 2006. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2010 Department of Veterans Affairs (VA) rating decision that granted service connection for herpes and denied service connection for rhinitis, a left shoulder disability, a right hip disability, and bilateral Achilles tendonitis. In November 2018, the Board remanded the instant claims for additional development. The Board also remanded claims of service connection for sinusitis and a bilateral ear disorder, to include otitis externa. Upon remand, in August 2021, the agency of original jurisdiction (AOJ) granted service connection for sinusitis and otitis media. This represents a complete grant of his appeal in regard to those claims. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Th issues are no longer before the Board. Increased Rating The Veteran is seeking a higher initial rating for herpes. The appeal period now before the Board begins in July 2009, which is when service connection went into effect for this condition. See Fenderson v. West, 12 Vet. App. 119 (1999). This disability has been assigned a noncompensable (zero percent) rating throughout the entire appeal period. A. Applicable Law Disability ratings are determined by applying a schedule of ratings that is 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. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding degree of disability is to be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran's herpes is assigned a 0 percent rating under Diagnostic Code 7820. VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to August 13, 2018, Diagnostic Code 7820, instructed to rate as disfigurement of the, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), or dermatitis (7806) depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7820. Prior to August 13, 2018, under Diagnostic Code 7806, a noncompensable rating is assigned for less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12 months. A 10 percent rating is assigned 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 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. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7806. For claims filed prior to August 13, 2018, the Court held that a systematic 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. Id. 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). Additionally, effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118. Under this formula, a noncompensable rating is assigned for no more than topical therapy required over the past 12-month period and at least one of the following: 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 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, 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 at least one of the following: characteristic lesions involving more than 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 for 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, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, General Rating for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824. B. Discussion In this case, the Board finds that the preponderance of the evidence is against the assignment of a compensable evaluation under the pre-August 13, 2018, regulations because the Veteran's disability does not more nearly approximate 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 required for a total duration of less than six weeks during the past 12-month period. The Board also finds that the preponderance of the evidence is against the assignment of a compensable evaluation under the August 13, 2018, regulations because the Veteran's disability does not more nearly approximate (1) characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or (2) at least 5 percent, but less than 20 percent, of exposed areas affected; or (3) intermittent systemic therapy with a corticosteroid or other immunosuppressive drug required for a total duration of less than 6 weeks over the past 12- month period. The claims file does not show the Veteran received treatment for his herpes during the evaluation period. His medical records show that he had no rash on his penis or testes in November 2018 and February 2020. A May 2012 VA examiner medical record states he had 4-5 breakouts a year. His prescription medication was regularly renewed. On May 2010 VA examination, the Veteran reported that he had no specific treatment for his herpes. The examiner reported that there was no evidence of herpetic lesions on examination. The examiner found that the Veteran's herpes affected less than 1 percent of his total body area and none of his exposed area. The Veteran reported continued outbreaks, usually two to three times a year, requiring a two week course of antibiotics with Valtrex [Valacyclovir]. On January 2020 VA examination, the Veteran reported that he had breakthrough flare-ups of herpes about eight times per year and used medications daily. The examiner indicated that the Veteran treated with a prescribed medication but did not treat with prescribed corticosteroids or other immunosuppressive medications, antihistamines, retinoids, sympathomimetics, or biologics. The examiner indicated that the Veteran's herpes did not have any treatment or procedures in the previous 12 months including ultraviolet-B light treatment, PUVA treatment, electron beam therapy, intensive light therapy, or any other treatment. The examiner found that the Veteran's herpes affected less than 5 percent of his total body area and none of his exposed area. It does not appear that any examination has evaluated the condition during an active phase of the disease. This notwithstanding, the evidence, especially the VA examinations, confirm that the condition has not affected at least 5 percent of the entire body or exposed area or has required intermittent systemic therapy for less than six weeks. The most recent VA examination shows that he was on an oral medication on a constant/near-constant basis. The VA examination establishes that this was not an immunosuppressive drug. Hence, a 10 percent rating under either version of the schedular criteria for rating the disability is not warranted. The Board also finds that the herpes does not manifest with any symptoms or impairment not adequately addressed by the schedular rating criteria. The disability picture presented is not shown (or alleged) to be exceptional, so as to suggest referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321 may be warranted. The Veteran argued in his VA Form 9 that an increased rating should be assigned based on emotional distress. Complaints such as emotional distress, which suggest psychiatric disabilities, can be adequately evaluated under VA's General Rating Formula for Mental Disorders. Hence, referral for an extraschedular rating is not warranted on this basis. If the Veteran feels he has a psychiatric impairment resulting from his service-connected skin disability, he is encouraged to file a claim of service connection for that psychiatric condition. A rating on the basis of the skin condition is not available. See Long v. Wilkie, 33 Vet. App. 167, 177 (2020). Considering the foregoing, the Board finds that the preponderance of the evidence is against the claim for a compensable rating for herpes. Therefore, the appeal in the matter must be denied. REASONS FOR REMAND 1. Entitlement to service connection for rhinitis is remanded This issue is remanded for an additional VA opinion. Extensive development has been done on this issue. Currently, there are positive opinions from November 2019 and February 2020 indicating that the Veteran's allergic rhinitis began during active service. There is a negative opinion from January 2020 indicating that the Veteran's allergic rhinitis less likely than not began in service. At present, there remains an unanswered medical question. Specifically, whether the Veteran's condition is a disease of allergic etiology. Pursuant to 38 C.F.R. § 3.380, diseases of allergic etiology, including bronchial asthma and urticaria, may not be disposed of routinely for compensation purposes as constitutional or developmental abnormalities. Service connection must be determined on the evidence as to existence prior to enlistment and, if so existent, a comparative study must be made of its severity at enlistment and subsequently. Increase in the degree of disability during service may not be disposed of routinely as natural progress nor as due to the inherent nature of the disease. Seasonal and other acute allergic manifestations subsiding on the absence of or removal of the allergen are generally to be regarded as acute diseases, healing without residuals. The determination as to service incurrence or aggravation must be on the whole evidentiary showing. 38 C.F.R. § 3.380. Here, the multiple medical opinions classify the Veteran's condition as allergic rhinitis. This indicates that it may involve seasonal or other acute allergic manifestations subsiding on the absence of or removal of the allergen, which therefore must be regarded as acute diseases, healing without residuals. However, no opinion has been obtained to directly address this question. Accordingly, remand is needed. 2. Entitlement to service connection for a left shoulder disability is remanded. 3. Entitlement to service connection for a right hip disability is remanded. Regarding the Veteran's service connection claim for a left shoulder disability, the Veteran's STRs show that he reported a painful shoulder on an August 2005 medical questionnaire. In November 2005, he was diagnosed with left shoulder impingement syndrome. His post-service medical records show that he complained of chronic left shoulder pain just after his separation in February 2007. Regarding the Veteran's service connection claim for a right hip disability, the Veteran's STRs show he was treated for right hip pain in May 2002 and August 2005. On May 2010 VA examination, x-rays of the Veteran's left shoulder and right hip were normal. He was diagnosed with a chronic right hip strain but a normal left shoulder. The examiner did not offer any opinions regarding etiology. On January 2020 VA examination, the examiner reported that the Veteran's STRs did not show evidence of a disabling left shoulder condition or chronic right hip condition during his active-duty service. The examiner opined that the Veteran's left shoulder condition and right hip condition were less likely than not due to his active-duty service. In February 2020, a private physician reviewed the Veteran's claims file and examined the Veteran. The physician opined that the Veteran's left shoulder strain was secondary to his service-connected cervical spine disability and that his right hip strain with bursitis was secondary to his service-connected lumbar spine disability. A June 2021 VA examiner reviewed the Veteran's claims file. The examiner reported that the Veteran's STRs showing the term "shoulder impingement" in 2005 was incorrect and that the Veteran had a rhomboid dysfunction, which was a muscular spasm due to thoracic spine disease and did not represent a true shoulder impingement syndrome. The examiner reported that the Veteran clearly had limitations of motion due to rhomboid dysfunction, which was secondary to a thoracic condition. The examiner opined that the Veteran's left shoulder disability was more likely than not a new condition arising after 2010. The January 2020 and June 2021 VA examinations and opinions are inadequate for rating purposes as the Veteran raised secondary theories of service connection for his left shoulder disability and right hip disability. The January 2020 VA examiner did not discuss secondary service connection. The June 2021 VA examiner reported that the Veteran did not have a left shoulder disability but that instead his left shoulder disability was due to a thoracic spine disease. The Veteran is service connected for both a cervical spine disability and a lumbar spine disability, and as such, the opinion is not adequate as it did not discuss secondary service connection or address the opinions of the private physician. A remand is required in order to obtain new opinions that fully address the Veteran's assertions that is left shoulder disability and right hip disability are secondary to his service-connected disabilities. 4. Entitlement to service connection for a bilateral foot disability, to include Achilles tendonitis, calcaneal spurs, plantar fasciitis, ankle arthralgia, and ankle instability, is remanded. Regarding the Veteran's service connection claim for a bilateral foot disability, the Veteran's STRs show that he treated for Achilles tendonitis in October 2005. On May 2010 VA examination, the Veteran reported having bilateral Achilles tendonitis since 2005 and used over-the-counter medications to relieve his pain. The examiner reported that there was no current evidence of Achilles tendonitis as it had resolved. In May 2012, the Veteran was diagnosed with chronic ankle arthralgia. In May 2016, he reported bilateral ankle pain. Ankle x-rays showed small calcaneal spurs. He was diagnosed with chronic ankle pain. In June 2016, he reported ankle pain and was diagnosed with right ankle instability. In September 2016, he complained of ankle pain and was diagnosed with chronic right ankle instability. In August 2017, he had mild swelling of both ankles. In January 2018, a left ankle x-ray showed Achilles spurring of the calcaneus. On January 2020 VA examination, the examiner reported that there was no evidence of a chronic ankle condition on examination. The examiner opined that the Veteran's bilateral Achilles tendonitis was less likely as not due to his active-duty service. The examiner reported that there was no evidence of a chronic ankle condition during the Veteran's active-duty service as his separation physical did not find a chronic ankle issue. On May 2021 VA examination, the Veteran reported having pain in his Achilles tendons. The examiner diagnosed the Veteran with bilateral calcaneal spur and that there was no diagnosis of a bilateral Achilles tendon disorder. While the examiner provided negative nexus opinions for the Veteran's bilateral Achilles tendonitis and bilateral calcaneal spurs, the examiner reported that the Veteran's symptoms resembled plantar fasciitis. After a review of the examination record, it is unclear if this represents a new diagnosis of a foot disability. In addition, the examiner did not discuss the Veteran's medical records showing diagnoses of chronic ankle arthralgia and instability. As such, a remand is required in order to obtain an addendum opinion regarding any plantar fasciitis, ankle arthralgia, and ankle instability. The matters are REMANDED for the following: 1. Obtain an opinion by an appropriate clinician to determine the nature and etiology of sinusitis The examiner is asked to address each of the following: (a.) Is the Veteran's allergic sinusitis consistent with seasonal and other acute allergic manifestations subsiding on the absence of or removal of the allergen healing without residuals? (b.) If not, is the diagnosis is at least as likely as not related to an in-service injury, event, or disease? 2. Arrange for the Veteran's record to be forwarded to an appropriate clinician (in orthopedics) for review and an opinion regarding the nature and likely etiology of his current left shoulder disability and right hip disability. [If further examination of the Veteran is deemed necessary for opinions sought, such should be arranged.] The consulting clinician should provide opinions that respond to the following: (a.) Does the Veteran have a current diagnosis in the left shoulder or right hip? The examiner must provide a diagnosis for any conditions found extant. In doing so, the examiner must conduct all necessary diagnostic testing, unless it can be explained why such testing is not medically necessary. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. (b.) Was the condition at least as likely as not caused by (i.e., proximately due to) a different medical condition? (c.) Is the condition at least as likely as not aggravated (i.e., worsened beyond its natural progression) by a different medical condition? If it is determined that the condition was either caused or aggravated by a different medical condition, the examiner is asked to identify the primary medical condition. In answering these questions, the examiner is asked to consider the statements from the Veteran regarding his history of symptoms. The examiner is asked to explain why his statements make it more or less likely that the current condition is related to the service-connected disability. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. 3. Arrange for the Veteran's claims file to be returned to the April 2021 examiner for an addendum opinion regarding the likely nature and etiology of the Veteran's bilateral foot disability, to include plantar fascitis, chronic ankle arthralgia, and ankle instability. [If that provider is unavailable or unable to provide the addendum opinions sought, arrange for the record to be forwarded to another clinician for review and the opinions sought. If that occurs, and further examination of the Veteran is deemed necessary, such should be arranged.] The examiner should provide opinions that respond to the following: (a.) Does the Veteran have a current diagnosis? The examiner must provide a diagnosis for any conditions found extant. In doing so, the examiner must conduct all necessary diagnostic testing, unless it can be explained why such testing is not medically necessary. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. (b.) Is the condition at least as likely as not related to service? In answering these questions, the examiner is asked to consider the statements from the Veteran regarding his history of symptoms during and since service. The examiner is asked to explain why his statements make it more or less likely that the current condition is related to service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed condition is known to develop, or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. Corey Bosely Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berryman, 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.