Citation Nr: A24030786 Decision Date: 06/11/24 Archive Date: 06/11/24 DOCKET NO. 210210-135064 DATE: June 11, 2024 REMANDED Entitlement to an initial compensable rating for herpes simplex is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1980 to January 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2021 rating decision by a Department of Veterans Affairs (VA) regional office, which is the Agency of Original Jurisdiction (AOJ). The Veteran elected the Board's Direct Review docket. See February 2021 VA Form 10182. This restricts the Board's review to the evidence of record at the time of the January 2021 rating decision. 38 C.F.R. § 20.301. The Board notes that evidence was associated with the claims file after the January 2021 rating decision on appeal, which was during a period of time that is outside the applicable evidentiary window. However, as the Veteran's claim is being remanded, the AOJ will consider the claim in light of the entire claims file upon remand. ? Entitlement to an initial compensable rating for herpes simplex is remanded. The Veteran asserts that an initial compensable rating for herpes simplex is warranted. A VA examination for herpes simplex took place in January 2021. It found that there were currently no visible characteristic lesions at the time of the examination and found no other pertinent physical findings, complications, conditions, signs, and/or related symptoms. The examination noted the Veteran's report that recurrent outbreaks occurred about six times per year and each outbreak lasted for about two weeks. The examination appeared to state that literature supported the Veteran's report. Based on the above, it appears that the VA examination occurred during an inactive phase of the Veteran's herpes simplex. Caselaw states that a VA examination should take place during an active phase of a skin condition. See Ardison v. Brown, 6 Vet. App. 405 (1994); see also Bowers v. Derwinski, 2 Vet. App. 675 (1992) (holding that "it is the frequency and duration of the outbreaks and the appearance and virulence of them during the outbreaks that must be addressed"). This is a duty to assist error. Therefore, a remand is needed for a new VA examination. The matter is REMANDED for the following action: Schedule an appropriate VA examination to determine the nature and severity of the Veteran's service-connected herpes simplex disability. The examination should take place during an active phase of the disability if possible. If it is determined that such is not possible, provide an explanation. The claims file and a copy of this remand should be made available to, and be reviewed by, the examiner. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should report all signs and symptoms necessary for evaluating the disability. If the examination is not able to take place during an active phase of the disability, the examiner should estimate the nature and severity of the disability during an active phase based on the Veteran's reports, other evidence of record, etc. A complete rationale for all opinions offered should be provided. Address the Veteran's documented history and assertions. All necessary tests and studies should be conducted. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community's knowledge or due to the limits of the examiner's medical knowledge. The Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. T. V. Casey Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dougan, Adam T. 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.