Court reverses Board’s denial of earlier effective date for herpes progenitalis

CCK Law: Our Vital Role in Veterans Law

Summary

The Veteran served in the Army from June 1960 to June 1963, including service in Korea.  During service, he was diagnosed with herpes progenitalis.  He filed a claim for this disability in October 2006.  The following December, the Regional Office granted service connection for herpes progenitalis with a 0% rating.  The Veteran disagreed with this decision in December 2008.  In October 2009 he  perfected his appeal to the Board of Veterans’ Appeals.  The Board remanded the case in June 2011 and again in November 2014.

Board denies compensable rating for herpes progenitalis prior to January 2015

Following the Board’s November 2014 remand, the Veteran underwent a VA examination in January 2015.  The examiner noted that the Veteran was treated with oral or topical medications in the past 12 months.  The examiner also specified that this treatment included systemic corticosteroids or other immunosuppressive medications.  In April 2015, the Regional Office recharacterized the Veteran’s disability as herpes progenitalis with balanitis.  The rating for the condition was increased to 10%, effective the date of the January 21, 2015, VA examination.  The Board confirmed this rating and effective date in a May 2016 decision, and also denied a compensable rating prior to January 21, 2015.

CCK appeals to the Court

CCK successfully appealed to the Court the denial of an increased rating for the Veteran’s service-connected herpes progenitalis with balanitis prior to January 21, 2015.  The Board denied an earlier effective date for the 10% rating because it found that there was no competent evidence of the Veteran’s herpes being treated with systemic therapy such as corticosteroids or other immunosuppressive drugs prior to the January 2015 VA examination.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board erred when it denied an effective date earlier than January 21, 2015, for the Veteran’s herpes.  The Court reversed the Board’s finding that an earlier effective date for a 10% rating was not warranted.  It remanded the case for the assignment of an effective date of at least January 21, 2014.  The Court instructed the Board to reassess all of the evidence of record to determine whether an effective date as early as the date of the claim is warranted.  It also directed the Board to properly address the lay evidence in accordance with the legal issues raised in the Veteran’s brief.