Bowers v. Derwinski — Remand required for adequate examination during active stage of herpes outbreaks

The appellant sought a higher rating for service-connected residuals of herpes virus infection. The Court observed that the Board had relied on the fact that the lesions went into remission, but the record did not contain an examination conducted during the active stage of the disease. The Court explained that for conditions evaluated by appearance, disfigurement, and functional limitation, the key evidence is the severity, frequency, and duration of outbreaks during flare-ups, not simply the fact that symptoms are intermittent. Because the record was inadequately developed, the Court remanded for further factual development, including attempts to obtain photographs and an examination during an active phase. The Court also rejected a newly asserted psychiatric residual theory as not well grounded on the existing record and instructed the Board to address the reasonably raised unemployability issue on remand.

For episodic disabilities, VA must obtain and consider evidence that accurately describes the condition during active flare-ups, including frequency, duration, and severity, before assigning a disability rating.

If a condition worsens only in episodes, the record must capture the disability at its worst; remission alone cannot support an accurate rating decision.

Bowers is a practical remand case for fluctuating conditions. It supports requesting an examination during active symptom periods and arguing that VA cannot rate episodic disabilities solely from quiescent findings. It also shows how the Court handles ancillary theories: unsupported lay assertions do not establish a separate disability, but a reasonably raised TDIU issue should be addressed when the case returns to the Board.

Relying on a quiet or remission-stage examination to rate an episodic condition instead of developing evidence during active flare-ups.

A veteran with recurrent skin eruptions is examined only when the condition is dormant. The rating decision underestimates disfigurement and functional impact because it never documents what the rash looks like during an outbreak; Bowers supports remand for an active-stage exam.

Use Bowers to argue for development tailored to flare-up disabilities, especially skin disorders and other episodic conditions. It is also useful when VA ignores a reasonably raised unemployability claim while the underlying rating issue is already on appeal.

Espiritu v. Derwinski