Citation Nr: 0320052 Decision Date: 08/13/03 Archive Date: 08/25/03 DOCKET NO. 00-15 619 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for Bowen's disease (gynecologic cancer). 2. Entitlement to service connection for a cervical spine disability. 3. Entitlement to service connection for a right hip disability. 4. Entitlement to service connection for a back disability. 5. Entitlement to an increased rating for vaginitis, currently assigned a 10 percent evaluation. 6. Entitlement to an increased rating for residuals of a right knee injury with traumatic arthritis, currently assigned a 10 percent evaluation. REPRESENTATION Appellant represented by: South Carolina Department of Veterans Affairs ATTORNEY FOR THE BOARD R.P. Harris, Counsel INTRODUCTION The appellant had active service from November 1976 to June 1983. Historically, by a May 1998 rating decision, service connection was denied for a back disability. After appellant was provided timely notification of that rating decision the following month, she did not file a timely Notice of Disagreement therewith. That May 1998 rating decision represents the last final decision with regards to the back disability service connection issue. Evans v. Brown, 9 Vet. App. 273, 285 (1996). This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2000 rating decision by the Columbia, South Carolina, Regional Office (RO), which, in part, denied direct-incurrence service connection for neck and right hip disabilities; denied reopening of a claim for entitlement to service connection for a back disability; and confirmed 10 percent evaluations each for vaginitis and residuals of a right knee injury with traumatic arthritis. A January 2001 informal personal hearing was held before a decision review officer (DRO) at the RO. Appellant subsequently appealed a July 2001 rating decision, which denied service connection for Bowen's disease (gynecologic cancer). In November 2002, the Board referred the case to the Veterans Health Administration (VHA) of the VA for a medical opinion regarding the Bowen's disease service connection issue in controversy, pursuant to 38 U.S.C.A. § 7109 (West 2002) and 38 C.F.R. § 20.901 (2002). A VHA medical opinion was subsequently rendered, and the Board provided appellant's representative a copy thereof in March 2003. Thereafter, her representative submitted an April 2003 written statement noting that appellant had "no further evidence or argument to present." Since the Board in the decision herein has reopened and allowed service connection for a back disability, as will be explained in detail below, that appellate issue has been reframed on the title page of this decision. The case is now ready for appellate review. FINDINGS OF FACT 1. It is at least as likely as not that appellant's Bowen's disease (gynecologic cancer) is related to service. 2. It is at least as likely as not that appellant's cervical spine disability is related to in-service trauma. 3. It is at least as likely as not that appellant's right hip disability is related to in-service trauma. 4. By a May 1998 rating decision, service connection was denied for a back disability. After appellant was provided timely notification of that rating decision the following month, she did not file a timely Notice of Disagreement therewith. 5. Additional evidence submitted subsequent to said unappealed May 1998 rating decision, when viewed in the context of all the evidence, indicates the likelihood that appellant's back disability is related to in-service trauma. 6. Appellant's service-connected vaginitis is manifested by complaints of recurrent infection with vaginal discharge. Recent medical opinion states that the vaginitis has been controlled with medication. 7. The appellant's service-connected right knee disability is manifested primarily by normal extension, no less than 120 degrees' flexion, and radiographic evidence of mild arthritic changes. The clinical evidence does not show any right knee instability/ligamentous laxity, weakness, or effusion. No more than slight impairment of that knee has been demonstrated. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt, appellant's Bowen's disease (gynecologic cancer) was incurred during peacetime service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2002). 2. With resolution of reasonable doubt, appellant's cervical spine disability was incurred during peacetime service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2002). 3. With resolution of reasonable doubt, appellant's right hip disability was incurred during peacetime service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2002). 4. Evidence received subsequent to the May 1998 final rating decision, which denied entitlement to service connection for a back disability, is new and material, and the claim is reopened. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156(a), 3.310(a), 20.302(a) (2001- 2002). 5. With resolution of reasonable doubt, appellant's back disability was incurred during peacetime service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2002). 6. The criteria for an evaluation in excess of 10 percent for vaginitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.116, Diagnostic Code 7611 (2002). 7. The criteria for an evaluation in excess of 10 percent for residuals of a right knee injury with traumatic arthritis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7. 4.10, 4.40, 4.45, 4.71a, Codes 5010, 5257, 5260, 5261 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the Board's allowance herein of appellant's service connection claims at issue, no further evidentiary development is necessary with respect to those issues. As for the increased rating appellate issues, there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000), as codified at 38 U.S.C.A. § 5100 et. seq. (West Supp. 2001) became law. This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. There have also been final regulations promulgated to implement the new law. See 66 Fed. Reg. 45,620-32 (August 29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326). This change in the law is applicable to all claims filed on or after the date of enactment of the Veterans Claims Assistance Act of 2000, or filed before the date of enactment and not yet final as of that date. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099-2100 (2000). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). However, recent decisions rendered by the United States Court of Appeals for the Federal Circuit have held that Section 3 of the Veterans Claims Assistance Act of 2000, dealing with notice and duty to assist requirements, does not apply retroactively to any claim filed prior to the date of enactment of that Act and not final as of that date. See Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002) and Bernklau v. Principi, 291 F.3d 795 (Fed. Cir. 2002). Thus, since appellant's increased rating claims were obviously not final on November 9, 2000, it appears that Section 3 of the Veterans Claims Assistance Act of 2000, dealing with notice and duty to assist requirements, may not be applicable here with respect to said appellate issues. Even assuming arguendo, that Section 3 of the Veterans Claims Assistance Act of 2000 is applicable in the instant appeal, after reviewing the record, the Board is satisfied that all relevant facts have been properly developed and no useful purpose would be served by remanding said disability rating appellate issues with directions to provide further assistance to appellant. A comprehensive medical history and detailed findings with respect to the service-connected vaginitis and right knee disability over the years are documented in the medical evidence. VA gynecologic and orthopedic examinations and other post-service clinical records are associated with the claims folders. The VA examinations are sufficiently detailed and comprehensive and, together with the other clinical evidence of record, adequately detail the nature and severity of the appellant's vaginitis and right knee disability. Appellant has had the opportunity to present evidence including testimony at a January 2001 informal DRO personal hearing. It is apparent to the Board that appellant and her representative were knowledgeable regarding the necessity of competent evidence that would tend to show that the service- connected vaginitis and right knee disability have increased in severity as to meet the applicable rating criteria for entitlement to higher evaluations. Appellant was issued a Statement of the Case and Supplemental Statement of the Case, which included relevant clinical evidence, applicable rating criteria, laws and regulations, and a detailed explanation of the rationale for said adverse rating decision. There is no indication that other relevant medical records exist that would indicate a greater degree of severity of said disabilities in issue than that shown on said VA examinations and treatment reports. It does not appear that there are any other relevant medical records that exist and should be obtained prior to deciding these increased rating appellate issues. Additionally, the RO, in an April 2001 letter, specifically advised appellant and her representative of the Veterans Claims Assistance Act of 2000 and its applicability, including as to which party could or should obtain which evidence. See also July 2001 Supplemental Statement of the Case, which referred to said April 2001 letter. The Board concludes it may proceed, as specific notice as to which party could or should obtain which evidence has been provided in effect and no additional pertinent evidence appears forthcoming. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Thus, it is concluded that appellant and her representative had sufficient notice of the type of information needed to support said claims and the evidence necessary to complete the application. Therefore, the Board concludes that the duty to assist and notify as contemplated by applicable provisions, including the Veterans Claims Assistance Act of 2000, has been satisfied with respect to said increased rating issues on appeal. Accordingly, appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). In deciding the service connection appellate issues, the Board will consider applicable statutory and regulatory provisions, including the following: Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by peacetime service. 38 U.S.C.A. § 1131. In pertinent part, for the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnoses including the word "Chronic." Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic, or where the diagnosis of chronicity may legitimately be questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In Pond v. West, 12 Vet. App. 341, 346 (1999), the United States Court of Appeals for Veterans Claims (Court) held that "[g]enerally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." I. Service Connection for Bowen's Disease The service medical records indicate that appellant had gynecological treatment, including for vaginitis (for which service connection is in effect). In April 1978 and May 1979, gynecologic cytologic findings were negative. In March 1980, gynecologic cytologic findings revealed mild dysplasia. An April 1980 gynecologic pathology report was negative for malignant cells. An August 1980 gynecologic cystology was negative. In August 1981, gynecologic cytologic findings showed atypical epithelial cells, noted probably secondary to inflammation. In March 1982, gynecologic cytologic findings were negative. A June 1983 service separation examination report did not include any pertinent complaints, findings, or diagnoses. Post-service military clinical records reveal that in August 1985, appellant had a history of a labial lesion diagnosed as bowenoid papulosis by pathology. In September 1985, there were two areas of maculopapular lesions in the vaginolabial area. The assessment was to rule out Bowen's disease with excisional biopsy. Later that month, a gynecologic pathology report was negative for malignancy. In October 1986, recurrence of symptoms of Bowen's disease of the vulva, status post wide local excision, was noted and serial examinations every three months with wider local excision if necessary were planned. It was not expected that the lesion would progress to invasive disease. In December 1987, cervical punch/multiple vulva biopsies and wide local excision of recurrent lesion on the vulva were performed; and gynecologic cytologic findings were negative. Another wide local excision of vulvar lesions was performed in May 1988. In September 1988, a history of a June 1988 skinning vulvectomy with laser ablation was noted. In October 1989, appellant underwent a hysterectomy, in part, for mural leiomyoma. After a punch biopsy of the vaginal wall was performed in December 1990, microscopic pathological diagnoses were severe squamous cell dysplasia/carcinoma-in- situ of the vaginal wall and condyloma with dysplasia of the vulva left labia majora. In 1999, pathological diagnoses included in-situ squamous cell carcinoma of the mons pubis and severe squamous cell dysplasia/carcinoma-in-situ of the vaginal wall. A July 2001 VA examination report included diagnoses of status post vulvectomy and status post total hysterectomy secondary to Bowen's disease. There was no further elaboration. In view of the somewhat confusing clinical evidence then of record regarding the etiology of appellant's Bowen's disease, the Board in November 2002 requested a VHA medical opinion; and a VHA medical opinion by a gynecologist was subsequently rendered in response to questions from the Board. In response to the Board's questions whether appellant's gynecological cancer/Bowen's disease (a) had its onset during military service, (b) was initially manifested within a one- year post-service presumptive period, (c) was causally or etiologically related to the service-connected vaginitis, or (d) was post-service aggravated by the service-connected vaginitis and whether the Bowen's disease was the reason for the hysterectomy, the VHA medical opinion stated, in pertinent part: After a complete review of the patient's records, I have come to the following conclusions. The records show that the patient had condylomata noted on her left labia as early a[s] 7/18/77.... It is quite feasible that this was the precursor to her further problems with vulvar intraneoplasia (VIN) because condylomata are the result of infection of tissue with the human papilloma virus (HPV).... The patient had a diagnosis of Bowen's disease already in October of 1986. Bowen's disease was simply a term used in the past that is synonymous to carcinoma in situ of the vulva or VIN III (the most severe form of vulvar intraneoplasia/dysplasia).... In summary, it appears that it is at least as likely as not that the patient had the onset of her disease, that mainly consisting of vulvar intraneoplasia, with its most severe form being Bowen's disease, during her military tour.... Her hysterectomy was not related to her Bowen's disease.... Additionally, vaginitis...would not be related to her Bowen's disease.... The Board assigns significant evidentiary weight to the VHA medical opinion by a gynecologist, since the gynecologist specified that she based her opinion on review of the claims file and provided a detailed rationale for the medical conclusions reached. It should be added that no clinical evidence of record rebuts that VHA medical opinion's conclusion. With resolution of all reasonable doubt in appellant's favor, it is the Board's opinion that the positive evidence, that includes the VHA medical opinion (which states, in effect, that appellant's Bowen's disease likely had an in-service onset), appears to outweigh any negative evidence. Thus, with resolution of reasonable doubt, service connection for Bowen's disease is warranted. II. Service Connection for a Cervical Spine Disability The negative evidence includes the available service medical records, which did not reveal any complaints findings, or diagnoses pertaining to a cervical spine disability. However, the service medical records document a history of trauma to the right knee from a fall from a telephone pole apparently in 1976 and complaints of a strained left trapezius from obstacle training in August 1980. Parenthetically, service connection is in effect for a right knee disability. Appellant's service records indicate that during peacetime service, her military occupational specialties were field medical assistant and field wireman. Significantly, no history of trauma as a result of that fall to any other part of her body was alleged during service. A June 1983 service separation examination report and attendant medical questionnaire did not include any complaints, findings, or diagnoses pertaining to a cervical spine disability. Apparently, the earliest clinical evidence of record pertaining to a cervical spine disability was not until the late 1990's, more than a decade and a half after service. Post-service military medical records reveal that in early 1999, appellant had cervical pain. Significantly, in February 1999, x-rays revealed some C5 vertebral body height loss with spur. A March 1999 MRI revealed anterior disc herniation at C4-C5. In a May 1999 private medical statement by a neurologist, appellant complained of left-sided neck pain and expressed a belief that she injured her neck "about twenty-one years ago when she fell while in the military. She was climbing a telephone pole, landing on her back, and hitting the back of her head.... Since that fall, she has had some left-sided neck discomfort...and associated tingling sensation...." Significantly, x-rays of the cervical spine were interpreted as showing changes "which could be consistent with an old injury at C4-5 with some slight anterior compression of C5 and some anterior bridging and fusion at C4-5...." The impression was chronic neck pain without demonstrable neurologic deficit but with x-ray changes of anterior bridging at C4-5 "which could possibly have been related to old trauma." On May 2000 VA orthopedic examination, appellant provided a history of a 1977 fall from a telephone pole with pain and discomfort on the right side since that fall. It was noted that she did not know the exact height, but "it sounds like it was at least a 20-foot fall onto her right side. She has had pain and discomfort on the right side of her body since that fall...." In a November 2000 private medical statement by an orthopedist, it was noted that appellant had requested a second opinion concerning "various musculoskeletal symptoms. She recalls an injury in 1978 when she fell from a telephone pole... She injured her right knee at the time. She believes that her neck and lower back symptoms were initiated by this accident as well." The orthopedist diagnosed degenerative changes of the cervical and lumbar spines and knees and opined that "[u]nfortunately I cannot say with certainty that these spinal complaints are tied to the injury although possible, although I cannot say that it is probable. She would need to have medical records supporting her claim closer to the time of the fall." The positive clinical evidence includes the February 1999 post-service x-rays of the cervical spine, which were interpreted as showing decreased cervical vertebral body height (apparently the cervical region was not radiographically examined prior to February 1999); and the private medical opinion stating that the radiographic findings including slight anterior compression of C5 could be consistent with an old injury. Additionally, appellant has alleged many years after service that she sustained neck trauma from that in-service fall with neck symptoms since that fall. In Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1991), the Court stated "[a] layperson can certainly provide an eye-witness account of a veteran's visible symptoms." However, as the Court further explained in that case, "the capability of a witness to offer such evidence is different from the capability of a witness to offer evidence that requires medical knowledge such as a diagnosis...." Here, appellant as a lay person is not competent to offer medical opinion as to the cause of the claimed disability, since this requires medical opinion. However, she is competent to describe the fall and her symptoms thereafter, and such evidence might be particularly probative as to the etiological question in controversy. It is a reasonable inference that appellant's recorded in- service history of a fall from a telephone pole apparently while she was a field wireman may have caused a vertebral body deformity, depending on the height of the fall and other factors. Unfortunately, there are no actual service medical records contemporaneous to the claimed fall in question, although service medical records years later recorded a history of the claimed fall and document a right knee disability claimed as related to that fall. However, in light of the documented in-service history of the claimed fall, post-service documentation of a cervical vertebral body deformity, and the private medical opinion suggesting a possible relationship between her cervical spine disability and an old injury, the Board has resolved all reasonable doubt in appellant's favor on this appellate issue. As the Court stated in Smith v. Derwinski, 1 Vet. App. 235, 237 (1991), "[d]etermination of credibility is a function for the BVA." Accordingly, with resolution of reasonable doubt in the appellant's favor, service connection is granted for a cervical spine disability. 38 U.S.C.A. §§ 1131, 5107; 38 C.F.R. § 3.303. III. Service Connection for a Right Hip Disability The negative evidence includes the available service medical records, which did not reveal any complaints findings, or diagnoses pertaining to a right hip disability. Although the service medical records document a history of trauma to the right knee from appellant's fall from a telephone pole, no history of trauma as a result of that fall to any other part of her body was alleged during service. A June 1983 service separation examination report and attendant medical questionnaire did not include any pertinent right hip complaints, findings, or diagnoses. Apparently, the earliest clinical evidence of record pertaining to a right hip disability was not until the early 1990's, approximately a decade after service, when right hip pain and a history of trochanteric bursitis were reported. See 1993 post-service military medical records. In August 1993, it was noted that x-rays of the right hip were negative. Right greater trochanteric bursitis was assessed. On April 1998 VA orthopedic examination, appellant's complaints included low back pain radiating to the right hip. On May 2000 VA orthopedic examination, appellant provided a history of a 1977 fall from a telephone pole with pain and discomfort on the right side since that fall. On current examination, the right hip had painful restricted motion. Significantly, x-rays of the right hip were interpreted as showing no significant arthritic change, malalignment, or fracture injury. A substantial positive piece of evidence is the fact that the examiner's impression was "right leg pain, specifically...right hip...related to a fall in 1977." VA outpatient treatment records reveal that in December 1999 and February 2000, appellant provided a history of right hip pain "from injuries received while in military service" and "fell off telephone pole." In September 2000, a VA MRI of the hips was normal. For the Board to determine what probative weight should be assigned to the May 2000 VA examination's clinical impression rendered, the material facts appear somewhat confusing. On the one hand, the VA examiner's clinical impression relating a right hip condition to an in-service fall could be construed as based on unsubstantiated history, since neither the actual service medical records nor the post-service clinical evidence for many years after service indicate that appellant had an in-service right hip injury or any right hip pain during or proximate to service. Additionally, the post- service radiographic findings do not identify any right hip pathology, particularly any objective evidence of arthritis, fracture, or deformity of that hip that might be consistent with in-service traumatic origin. Even assuming that an unsubstantiated medical history of right hip pain after an in-service injury was recorded by a physician, the Board is cognizant of decisions by the Court holding that a medical opinion based on an inaccurate factual premise has no probative value. See Reonal v. Brown, 5 Vet. App. 458 (1993). On the other hand, the appellant's service medical records document an in-service history of a fall from a telephone pole; post-service clinical findings include right hip pain, restricted motion, and an assessment of bursitis of that hip; and the May 2000 VA examination's clinical impression relates a right hip disability to an in-service fall. The Board has considered appellant's contentions, including that presented at an informal DRO hearing. Although lay statements are not competent evidence with respect to medical causation, she is competent to describe the fall and her symptoms thereafter. Espiritu, supra. Additionally, the service medical records appear to support appellant's post-service contention that she sustained a right-sided injury from that fall, since she had a right knee disability claimed as related to that fall during service (and the RO granted service connection for residuals of a right knee injury with traumatic arthritis). Thus, the VA examiner's clinical impression appears somewhat strengthened by the fact that he related a right-sided hip disability to that in-service fall in question. For the aforestated reasons, and with resolution of all reasonable doubt in appellant's favor, it is the Board's opinion that since the negative and positive evidence is in relative equipoise, service connection for a right hip disability is warranted. 38 U.S.C.A. §§ 1131, 5107; 38 C.F.R. § 3.303. IV. Entitlement to Service Connection for a Back Disability With respect to the issue of whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a back disorder, "new" evidence means more than evidence which was not previously physically of record, and must be more than merely cumulative. To be "material" evidence, it must by itself or in connection with evidence previously assembled be so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a); and Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The unappealed May 1998 rating decision, which denied service connection for a back disability, is final, since appellant was notified and did not perfect an appeal as to that issue. Parenthetically, no appropriate collateral attack with respect to said rating decision has been made. Thus, said final May 1998 rating decision may not be reopened, in the absence of new and material evidence. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156(a), 20.302(a). The evidence previously considered in the unappealed May 1998 rating decision, which denied service connection for a back disability, included appellant's available service medical records. The service medical records did not include any complaints findings, or diagnoses pertaining to a back disability. However, the service medical records document a history of trauma to the right knee from a fall from a telephone pole. No history of trauma as a result of that fall to any other part of her body was alleged during service. Although appellant was seen in October 1979 for gynecologic reasons and complained of the lower back with "frequency", a urinalysis was performed but no pertinent back findings or diagnoses were noted. A June 1983 service separation examination report did not include any pertinent complaints, findings, or diagnoses. Although in an attendant medical questionnaire, she did check off a box indicating that she had or had had recurrent back pain, no back complaints, findings, or diagnoses were recorded therein in a physician's elaboration. Apparently, the earliest post-service clinical evidence of record pertaining to a back disability was not until the early 1990's, approximately a decade after service, when low back pain and an assessment of mechanical/musculoskeletal low back pain were reported. See 1993 post-service military medical records. It was noted that April 1993 x-rays had shown questionable L4-L5 narrowing. In March 1998, x-rays and CT scan of the lumbar spine revealed degenerative changes and mild disc bulging. On April 1998 VA orthopedic examination, x-rays of the lumbosacral spine revealed vertebral spurring and joint space narrowing. The radiographic impression noted "[n]o definite acute fracture or dislocation identified." Mechanical low back pain and right sacroiliac pain were assessed. Based on the evidence then of record, the May 1998 rating decision denied service connection for a back disability, essentially on the basis that the service medical records did not reveal treatment for a back condition nor was there any evidence indicating that the claimed condition was related to service. The evidence received subsequent to said May 1998 rating decision includes, in part, numerous non-VA and VA medical statements or records that are irrelevant, since they are dated many years after service and do not in any way relate any back disability to service. A February 2000 post-service military CT scan of the lumbar spine revealed degenerative changes without herniation or evidence of fracture/decreased vertebral body height. However, a May 2000 VA orthopedic examination report appears to constitute "new and material evidence." On May 2000 VA orthopedic examination, appellant provided a history of a 1977 fall from a telephone pole with pain and discomfort on the right side since that fall. X- rays of the lumbar spine revealed mild spondylosis without subluxation/fracture injury. Significantly, however, the examiner's impression was "right lower back pain related to a fall in 1977." In a November 2000 private medical statement, it was noted that appellant had requested another opinion concerning "various musculoskeletal symptoms. She recalls an injury in 1978 when she fell from a telephone pole... She injured her right knee at the time. She believes that her neck and lower back symptoms were initiated by this accident as well." The orthopedist diagnosed degenerative changes of the cervical and lumbar spines and knees and opined that "[u]nfortunately I cannot say with certainty that these spinal complaints are tied to the injury although possible, although I cannot say that it is probable. She would need to have medical records supporting her claim closer to the time of the fall." The Board has resolved all reasonable doubt in appellant's favor, including with respect to whether the May 2000 VA orthopedic examination may reasonably be interpreted as expressing a credible causal or etiological relationship between appellant's currently manifested back disability and an in-service injury. See Smith, supra. The Board must consider only independent medical evidence to support its findings rather than provide its own medical judgment. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board concludes that the additional evidence presents, when considered with evidence previously assembled, an evidentiary situation so significant that it must be considered in order to fairly decide the merits of the claim, since it appears to suggest a causal or etiological relationship between appellant's currently manifested back disability and an in-service injury. On the one hand, the VA examiner's clinical impression relating a right-sided low back condition to an in-service fall could be construed as based on unsubstantiated history, since neither the actual service medical records nor the post-service clinical evidence for many years after service indicate that appellant had an in-service back injury or any associated back pain/disability during or proximate to service. Even assuming that an unsubstantiated medical history of right- sided low back pain since an in-service injury was recorded by a physician, a medical opinion based on an inaccurate factual premise has no probative value. See Reonal, supra. On the other hand, the appellant's service medical records document an in-service history of a fall from a telephone pole; post-service clinical findings include back pain and degenerative changes of the lumbar spine; and the May 2000 VA examination's clinical impression relates a low back disability to an in-service fall. The Board has considered appellant's contentions, including that presented at an informal DRO hearing. Although lay statements are not competent evidence with respect to medical causation, she is competent to describe the fall and her symptoms thereafter. Espiritu, supra. Additionally, the service medical records appear to support appellant's post-service contention that she sustained a right-sided injury from that fall, since she had a right knee disability claimed as related to that fall during service (and the RO granted service connection for residuals of a right knee injury with traumatic arthritis). Thus, the VA examiner's clinical impression appears somewhat strengthened by the fact that he related a right-sided low back disability to that in-service fall in question. Therefore, the Board concludes that the additional positive evidence, particularly said May 2000 VA orthopedic examination report, is new and material and is at least in equipoise with the negative as to whether appellant's current back disability is related to an in-service injury, for the foregoing reasons. Accordingly, the claim is reopened and with resolution of reasonable doubt in the appellant's favor, service connection for a back disability is allowed on the merits. 38 U.S.C.A. §§ 1131, 5107, 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156(a), 3.303, 3.310(a), 20.302(a). V. A Rating in Excess of 10 percent for Vaginitis Disability evaluations are determined by application of a schedule of ratings which is based on average impairment of earning capacity under the VA's Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The Board will consider appellant's service-connected disability on appeal in the context of the total history of that disability, particularly as it affects the ordinary conditions of daily life, including employment, as required by the provisions of 38 C.F.R. §§ 4.1, 4.2, 4.10 and other applicable provisions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Rating disabilities is not an exact science, as indicated by the Schedule for Rating Disabilities: "[t]he percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disabilities." 38 C.F.R. § 4.1. The service-connected vaginitis is currently rated as 10 percent disabling under Diagnostic Code 7611. Under a General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs, disease or injury of the vagina is rated as follows: Symptoms that require continuous treatment may be assigned a 10 percent evaluation. A 30 percent rating, the maximum rating assignable under that code, requires symptoms not controlled by continuous treatment. 38 C.F.R. Part 4, § 4.116, Diagnostic Code 7611. The service medical records indicate that appellant's gynecological complaints included vaginitis. Post-service military medical records reveal that in September 1993, recurrent yeast infections were reported. On April 1998 VA examination, it was noted that the vaginal vault was of normal pink mucosa with a thick, white discharge. Post-service military medical records reveal that in August 1999, appellant complained of vaginal itching/discharge. Yeast vaginitis was assessed and treated. VA outpatient treatment records reveal that in December 1999, appellant complained of vaginal yeast infections "occurring almost monthly." She had been using Moncrief, Monistat, or Diflucan. Clinically, it was noted that the vaginal mucosa was pink and moist with small amount of white discharge without odor. Possible vaginal Candidasis was assessed. However, a mycology smear revealed no fungus. On May 2000 VA gynecologic examination, appellant reported a history of chronic yeast infections with constant vaginal tenderness. Clinically, it was noted that the vaginal mucosa was pink and moist without lesions. There was a thick, white vaginal discharge and tenderness on palpation. Diagnoses were chronic yeast infections; status post hysterectomy; and vaginal tenderness. On February 2001 VA gynecologic examination, appellant had a history of constant vaginal infection since the 1980's and had been treated with Diflucan on a "regular basis." Her current complaints included a vaginal discharge and mild dyspareunia. Clinically, no vaginal discharge was noted. Recurrent vaginal infections were diagnosed. Significantly, the examiner stated that appellant "currently appears to be controlled with the Diflucan she is taking. She takes about four of these per month." On July 2001 VA gynecologic examination, appellant reported that since surgery for Bowen's disease and a total hysterectomy, she had been having recurrent vaginal infections on an "almost monthly basis." Significantly, the examiner stated that on clinical evaluation, there was no evidence of yeast infections. The evidence is overwhelmingly negative, and indicates that although appellant asserts that she has had vaginal infections on an "almost monthly basis", nevertheless the infections have responded to treatment. In fact, on 2001 VA gynecologic examinations, vaginitis was not clinically shown and the examiner specifically opined that the infections were controlled with medication. The Board has considered appellant's contentions, including that presented at an informal DRO hearing. However, although her yeast infections may recur, nevertheless the VA medical opinion describes such infections as controlled with medication. It should be added that no clinical evidence of record rebuts that medical opinion's conclusion. Thus, since appellant's service- connected vaginitis has been clinically reported to be controlled by medication and therefore the criteria for the next higher evaluation under Code 7611 have not been met or more nearly approximated, an increased rating for vaginitis is not warranted. The clinical evidence does not reflect that the service-connected vaginitis presents such an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to warrant consideration of an extraschedular evaluation. 38 C.F.R. § 3.321(b)(1). Since the preponderance of the evidence is against allowance of this appellate issue, the benefit-of-the-doubt doctrine is inapplicable, for the aforestated reasons. VI. A Rating in Excess of 10 percent for Residuals of a Right Knee Injury Appellant's service medical records reveal treatment for right knee pain and associated limitations. On April 1998 VA orthopedic examination, appellant's complaints included knee pain, particularly after prolonged sitting/standing. She reportedly was a training coordinator for victims' rights in the Governor's Office. Clinically, the right knee had tenderness and crepitus. The knee had 0 degrees' extension and 135 degrees' flexion. Normal ranges of motion of the knee are 0 degrees' extension and 140 degrees' flexion. 38 C.F.R. § 4.71 (2002), Plate II. The knee was stable. X-rays of the right knee showed minimal degenerative changes. Mild patellofemoral degenerative joint disease with patellofemoral crepitance and minimal tenderness was diagnosed. In a May 1998 rating decision, the RO assigned an original evaluation of 10 percent for a right knee injury with traumatic arthritis, coded as 5010. On May 2000 VA orthopedic examination, appellant's complaints included right knee pain. She reportedly was able to ambulate one half of a block before resting and a history of the right leg giving way in the past was noted. She reportedly had to miss two days of work recently due to a flare-up of right leg pain. It was also reported that she was employed in the economic division at the Governor's Office. Clinically, the right knee had joint line tenderness, worse on flexion. There was no atrophy. The knee had 0 degrees' extension and 120 degrees' flexion, with "significant" pain on forced hyperflexion. There was knee pain on patellar compression. The knee had no effusion or instability. X-rays of the right knee showed mild medial joint space narrowing. VA outpatient treatment records reveal that in May 2000, the knee had no ligamentous instability. On February 2001 VA orthopedic examination, appellant's complaints included constant right knee pain, mainly with driving. The right knee had occasional clicking and popping. It was reported that the knee would give way when she had "significant pain." Knee extension and flexion were clinically described as full with no effusion or patellofemoral crepitance. There was medial joint line tenderness and a meniscal compression test was positive. Significantly, the knee was stable on anterior/posterior varus and valgus stress with no posterolateral corner problems. X-rays of the right knee were unremarkable. The Board has considered the applicability of all appropriate rating codes in rating the service-connected right knee disability issue on appeal. Arthritis, due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. 38 C.F.R. Part 4, Code 5010. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. Part 4, Code 5003. Limitation of flexion of either leg to 45 degrees will be assigned a 10 percent evaluation. A 20 percent evaluation requires that flexion be limited to 30 degrees. A 30 percent evaluation requires that flexion be limited to 15 degrees. 38 C.F.R. Part 4, Code 5260. Limitation of extension of either leg to 10 degrees will be assigned a 10 percent evaluation. A 20 percent evaluation requires that extension be limited to 15 degrees. A 30 percent evaluation requires that extension be limited to 20 degrees. A 40 percent evaluation requires that extension be limited to 30 degrees. A 50 percent evaluation requires that extension be limited to 45 degrees. 38 C.F.R. Part 4, Code 5261. Since the recent VA orthopedic examinations revealed normal extension of the right knee, the criteria for an evaluation in excess of 10 percent have not been met under Diagnostic Code 5261. An evaluation in excess of 10 percent would not be warranted under Diagnostic Code 5260, since the recent clinical evidence reveals no less than 120 degrees' flexion of the right knee. The Board has considered the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 205-208 (1995), which relate to functional loss due to pain, weakness or other musculoskeletal pathology. The Board has considered appellant's contentions, including that presented at an informal DRO hearing. However, even assuming that she experiences painful right knee motion as alleged, Diagnostic Code 5010 specifically encompasses painful motion, since a compensable rating thereunder for limitation of motion requires that "[l]imitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion (emphasis added)." Thus, any painful right knee motion has been compensated for under the 10 percent rating assigned by the RO for arthritis of that knee. To assign an additional separate rating for painful right knee motion under 38 C.F.R. §§ 4.10, 4.40, and/or 4.45, would constitute pyramiding, since it would compensate for the same right knee pain as associated with the arthritis of that knee. See 38 C.F.R. § 4.14; and Esteban. Slight impairment of either knee, including recurrent subluxation or lateral instability, will be assigned a 10 percent evaluation. A 20 percent evaluation requires moderate impairment. A 30 percent evaluation requires severe impairment. 38 C.F.R. Part 4, Code 5257. Since the recent VA orthopedic examinations revealed no ligamentous laxity or instability of the right knee joint, the criteria for an increased evaluation in excess of 10 percent would not be warranted under Diagnostic Code 5257. The rating is for painful motion which is the sole manifestation currently shown. Although a VA General Council opinion held that a claimant with arthritis and instability of a knee may be rated separately under Diagnostic Code 5003 and Diagnostic Code 5257 based on additional disability, this VA General Council opinion is not applicable here because the clinical evidence clearly reveals that appellant does not have any instability of the right knee. See VA O.G.C. Prec. Op. No. 23-97 (July 1, 1997). See also VA O.G.C. Prec. Op. No. 9-98 (August 14, 1998). A separate evaluation would not be warranted under Diagnostic Code 5257 based on instability, since right knee instability was not clinically shown on said examinations or in other clinical records. The Board has considered the applicability of rating the right knee disability under other appropriate diagnostic codes, such as Diagnostic Code 5256. However, since ankylosis of the right knee has not been clinically shown or even approximated, a higher rating would not be in order under Diagnostic Code 5256. The clinical evidence does not reflect that the service- connected right knee disability presents such an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to warrant consideration of an extraschedular evaluation. 38 C.F.R. § 3.321(b)(1). In particular, the right knee disability does not preclude ambulation or appellant's employment, nor does it require frequent hospitalizations. Since the preponderance of the evidence is against allowance of this appellate issue, the benefit-of-the-doubt doctrine is inapplicable, for the aforestated reasons. ORDER Service connection for Bowen's disease (gynecologic cancer), a cervical spine disability, and a right hip disability is granted. Since additional evidence submitted subsequent to an unappealed May 1998 rating decision, when viewed in the context of all the evidence, indicates the likelihood that the appellant has a back disability related to an in-service injury, the claim is reopened and allowed on the merits. To this extent, the appeal is allowed. Increased ratings for vaginitis and residuals of a right knee injury with traumatic arthritis are denied. To this extent, the appeal is disallowed. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.