Citation Nr: 21007031 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 14-05 017 DATE: February 8, 2021 ISSUE Entitlement to an increased rating in excess of 10 percent for herpes simplex virus. REMANDED Entitlement to an increased rating in excess of 10 percent for herpes simplex virus is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 1983 to July 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2007 the Veteran was granted service connection for his herpes simplex virus and was assigned a 0 percent rating effective July 7, 2006. In July 2010 the Veteran filed a claim for an increased rating, and in April 2019 the RO issued a rating decision which increased the Veteran’s rating for his skin disorder to 10 percent effective July 15, 2010. In July 2019 the Board denied the Veteran’s claim for an increased rating in excess of 10 percent. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Court granted a Joint Motion for Remand (JMR), vacating the July 2019 Board decision which denied the Veteran’s claim for an increased rating in excess of 10 percent for his skin disability. The JMR found that in the Board’s July 2019 decision the Board erred when it provided inadequate reasons or bases when it failed to address all lay and medical evidence of record. After vacating the Board’s decision, the case was remanded pursuant to 38 U.S.C. § 7252 (a) for readjudication of the issue of entitlement to an increased rating, consistent with the JMR. Consistent with the foregoing JMR, the Board finds that evidentiary development is still required before the claim on appeal can be adjudicated. Entitlement to an increased rating in excess of 10 percent for herpes simplex virus is remanded. The Veteran contends that his service-connected herpes simplex virus is more severely disabling than reflected in the currently assigned 10 percent rating. As further discussed below, the Board finds that an adequate medical opinion must be obtained upon remand concerning this issue on appeal. The Veteran was afforded VA examinations in September 2010 and June 2018 to assess the severity and extent of his skin disorder, which the Board relied upon in its July 2019 denial for an increased rating. In the JMR the parties agreed that the Board failed to discuss a June 2010 VA treatment note in which the Veteran reported he “remain[ed] on the [V]alacyclovir continuously,” as well as the Veteran’s lay assertions of his use of either Valacyclovir or Acyclovir for virus suppression. Additionally, in the September 2010 examination report, the examiner noted that the Veteran’s use of Valacyclovir during the 12-month period prior to the examination had been “constant.” However, it was unclear from this statement if the Veteran’s skin disorder required the use of systemic therapy for a total of six weeks or more during that time period. Additionally, at the June 2018 examination the examiner noted that Valacyclovir and Acyclovir were considered systematic therapy and were used for a short period of time (less than 6 weeks) for the treatment of the Veteran’s skin disorder. This examiner however also noted that the Veteran had been treated with Acyclovir for “6 weeks or more, but not constant” during the 12-months prior to the examination. Finally, the JMR notes the evidence of record indicates that the Veteran received additional prescriptions for a 60-day supply of Acyclovir between August 2016 and September 2018. However no medical opinion has been provided to discuss these additional prescriptions and whether the rate of the Veteran’s prescription refills supports a finding that his skin disorder required systemic therapy for a total of six weeks or more. In the JMR the parties agreed that the Board failed to properly address all the previously discussed evidence of record when deciding that an increased rating for the Veteran’s skin disorder was not warranted. Thus, after consideration of the JMR, the Board finds that an addendum medical opinion is necessary to address all the lay and medical evidence of record. Furthermore, additional and relevant evidence has been submitted since the most supplemental statement of the case (SSOC) was issued in April 2019. This additional relevant evidence includes a prescription record submitted by the Veteran in November 2020. Given that this new evidence pertains to the claim and given that the Veteran has not waived consideration by the AOJ, the RO must consider this evidence and reevaluate the claim. Accordingly, the Board finds that a remand is necessary for AOJ consideration of the additional evidence and the issuance of a supplemental SSOC. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. Contact the Veteran to determine whether there are any additional relevant private treatment records and obtain any necessary authorizations to procure such records. 2. The claims file and a copy of this remand must be made available to, and reviewed by, the June 2018 VA examiner (or a suitable substitute). The examiner should determine the nature and severity of the Veteran’s service- connected herpes simplex virus. The examiner must indicate on the examination report that the claims file and copy of this remand were reviewed. If it is determined that another examination is needed to provide the required opinion, the Veteran must be afforded the appropriate VA examinations. The examiner should consider the evidence of the claims file including all lay and medical evidence of record. The examiner should directly address the prescription refill for a 60-day supply of Acyclovir between August 2016 and September 2018, and determine whether any evidence of record indicates that at any point during the period on appeal the Veteran remained on systematic therapy for a total of six weeks or more in a 12 month period. The examiner must also consider and discuss the prescription record provided by the Veteran in November 2020. The examiner must include the underlying reasons for any conclusions reached. (Continued on next page.) 3. Then, after conducting any other development deemed necessary, readjudicate the Veteran's claim with consideration of the evidence added to the electronic record since the last SSOC in April 2019. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental SSOC and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board.  Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Nettey, 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.