Citation Nr: A21019599 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 191204-55031 DATE: December 8, 2021 ORDER An increased disability rating of 60 percent for the service-connected genital herpes disability from September 26, 2019 is granted. FINDING OF FACT For the rating period on appeal from September 26, 2019, the service-connected genital herpes disability manifested in the treatment of constant or near constant systemic therapy over a 12-month period. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, for the rating period on appeal from September 26, 2019, the criteria for an increased (maximum) disability rating of 60 percent for the service-connected genital herpes disability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2007 to April 2013. The Veteran originally filed a claim for service connection for genital herpes on April 17, 2013. In December 2013, the Regional Office (RO) granted service connection and initially rated the disability at 0 percent from April 19, 2013. The Veteran filed a notice of disagreement in January 2014 and a statement of the case was issued in July 2016. The Veteran did not file a substantive appeal (VA Form 9); therefore, the appeal was not perfected, and the December 2013 rating decision assignment of initial rating became final. The Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA), became effective in February 2019. This law has created a new framework to seek review for veterans who disagree with VA's decision on their claim. The Veteran filed a claim for increased rating for the genital herpes on September 26, 2019. The Agency of Original Jurisdiction (AOJ), also known as the RO, denied the claim in a November 2019 rating decision. The Veteran filed a timely appeal in December 2019, requesting a Board hearing. Under the AMA, when a claimant seeks appellate review through the Board's hearing docket, the Board may consider the evidence of record at the time of the AOJ decision on appeal, additional evidence submitted on the date of the Board hearing (including testimony), and additional evidence submitted within 90 days of the hearing. Pub. Law 115-55 (Aug. 23, 2017), 131 Stat. 1114 (to be codified at 38 U.S.C. § 7113 (b)). A Board hearing was held on May 27, 2021 before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. The record closed 90 days after the Board hearing, on August 25, 2021. Duties to Notify and Assist The Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Legal Authority for Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. 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. Under DC 7806, the rating code for dermatitis and eczema, a 10 percent rating is provided when at least 5 percent, but less than 20 percent, of the entire body is affected by characteristic lesions, or at least 5 percent, but less than 20 percent, of exposed areas are affected, or if treated with 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 six weeks during the past 12-month period. A 30 percent rating is provided when 20 to 40 percent of the entire body is affected by characteristic lesions, or 20 to 40 percent of exposed areas are affected, or if treated with systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent disability rating is provided when more than 40 percent of the entire body is affected by characteristic lesions, or more than 40 percent of exposed areas are affected, or for required 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 during the past 12-month period. 38 C.F.R. § 4.118. The disability may also be rated as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801 through 7805), depending upon the predominant disability. Entitlement to an Increased (Compensable) Rating for Genital Herpes from September 26, 2019 For the entire period on appeal, from April 19, 2013, the Veteran is in receipt of a noncompensable (0 percent) rating for the genital herpes disability under DC 7806. After review of all the lay and medical evidence, the Board finds that, for the rating period from September 26, 2019, the service-connected genital herpes disability manifested in the treatment of constant or near constant systemic therapy over a 12-month period. According to the Veteran's testimony at the May 2021 Board hearing, medical treatment records, and VA examinations, the Veteran has been prescribed Acyclovir to treat the genital herpes and instructed to take the medication daily. See October 2019 VA Examination; May 2021 Transcript; July 2021 VA treatment Records. While Acyclovir is not a corticosteroid, phototherapy, retinoid, biologic, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drug, it is an anti-viral medication and used as a suppressive systemic therapy to treat herpes. See https://www.goodrx.com/acyclovir/what-is. (Continued on the next page) Based on the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for an increased (maximum) disability rating of 60 percent for the service-connected genital herpes disability from September 26, 2019 have been met. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Costantino, 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.