Citation Nr: 22018114 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 14-05 017 DATE: March 28, 2022 REMANDED The issue of entitlement to a rating in excess of 30 percent from April 22, 2013 onward for herpes simplex virus, type II (herpes) is remanded. REASONS FOR REMAND The Veteran served on active duty 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 St. Petersburg, Florida. Jurisdiction is currently with the RO in Oakland, California. The Board previously denied this matter in a July 2019 Board decision, which the Veteran appealed to the United States Court of Appeal for Veterans Claims (the Court). In September 2020, the Court vacated and remanded the decision for readjudication consistent with the Joint Motion for Remand (JMR). Following the September 2020 JMR, in a September 2021 decision, the Board granted a 60 percent rating from July 15, 2010 to April 22, 2013, and a 30 percent rating from April 22, 2013 onward, and remanded the issue of entitlement to a rating in excess of 30 percent from April 22, 2013 onward. The appeal has now been returned to the Board for further appellate review. Entitlement to a rating in excess of 30 percent from April 22, 2013 onward for herpes simplex virus, type II (herpes) is remanded. After reviewing the record, the Board finds that an additional remand is warranted regarding the increase rating issue identified above because there has not been substantial compliance with the Board's remand directives from September 2021. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Specifically, the September 2021 Board remand directives requested that the examiner attempt to estimate the percentage of the Veteran's body affected during a flare-up. However, the November 2021 VA examiner did not attempt to make such an estimate. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Also, a remand by the Board confers on a claimant, as a matter of law, the right to compliance with remand requests. Stegall, 11 Vet. App. at 268. Therefore, the Board finds that an addendum opinion should be obtained on remand. Barr v. Nicholson, 21 Vet. App. 303 (2007). Additionally, in light of the remand required herein for an addendum opinion regarding flare-ups, the Board will also attempt to obtain clarification regarding Veteran's use of systematic therapy. Specifically, the November 2021 VA examiner's statement regarding the Veteran no longer having breakouts as a result of daily doses of suppressive therapy. The matters are REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. The RO should document in the record why it was not feasible to schedule the Veteran's last VA examination during a flare-up/outbreak. See September 2021 Board Remand Directives. 3. Return the claims file to the examiner who conducted the Veteran's November 2021 VA Skin Diseases examination, if available. If that examiner is not available, send the claims file to another examiner. The claims file and this remand should be made available to the examiner and review of the file should be noted in the requested report: (a.) The examiner is to review information about the worsening of the Veteran's condition during flare-ups. Then, to the extent possible, the examiner is to determine whether more than 40 percentage of the entire body or more than 40 percent of exposed areas are/were affected during a flare-up. Please explain why or why not. Please provide an opinion including a retrospective opinion addressing the period from April 22, 2013, onward. Please note that the June 2018 VA examiner documented that the Veteran reported outbreaks on a regular basis, the April 2021 documented that the Veteran reported viral outbreaks 3 to 5 times per year, and November 2013 VA treatment records document that the Veteran reported a mild herpes outbreak in October 2013. (b.) Did the Veteran's condition require constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs in any 12-month period from April 22, 2013, onward? Please explain why or why not. Please specifically address the November 2021 statement that since beginning daily doses of suppressive therapy, the Veteran was no longer having outbreaks. Please note that it has been determined that the medications prescribed for the Veteran's condition, including Valcyclovir and Acyclovir (both antiviral drugs), are considered systemic therapy because they are taken orally and absorbed into the blood steam through the gastrointestinal system for systemic delivery to the affected region. All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith-Jennings, 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.