Citation Nr: 0813615 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 04-14 860 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating greater than 10 percent for stress incontinence prior to April 12, 2007. 2. Entitlement to an initial rating greater than 40 percent for stress incontinence since April 12, 2007. 3. Entitlement to an initial rating greater than 30 percent for chronic vaginitis with a history of cervicitis and abnormal pap smears prior to October 8, 2002. 4. Entitlement to an initial rating greater than 10 percent for chronic vaginitis with a history of cervicitis and abnormal pap smears since October 8, 2002. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The veteran served on active duty from May 1988 to October 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In that decision, the RO granted service connection for chronic vaginitis with a history of cervicitis and abnormal pap smears as well as service connection for stress incontinence. For each disability, the RO assigned initial noncompensable ratings effective November 13, 2000. The veteran appealed the initial ratings assigned. In January 2003, the veteran moved to the state of Florida. The St. Petersburg, Florida RO currently holds jurisdiction over the claims. In February 2007, the Board remanded the claims to the RO, via the Appeals Management Center (AMC) in Washington, D.C., for additional development. In a rating decision dated September 2007, the RO increased the initial rating for stress incontinence to 10 percent prior to April 12, 2007 and 40 percent thereafter. The RO also increased the initial rating for chronic vaginitis with a history of cervicitis and abnormal pap smears to 30 percent prior to October 8, 2002, and reduced the rating to 10 percent effective October 8, 2002. Since the RO has assigned staged ratings covering the appeal period, the Board has rephrased the issues on the title page to reflect that four separate issues are on appeal. FINDINGS OF FACT 1. For the time period prior to April 12, 2007, the competent evidence, overall, shows that the veteran's urinary incontinence was manifested by a daytime voiding interval of three hours or more and nocturnal voiding times two absent any significant obstructive symptomatology or need to wear absorbent materials. 2. Since April 12, 2007, the veteran's urinary incontinence has not been shown to require the changing of absorbent materials more than 4 times per day. 3. For the time period prior to October 8, 2002, the veteran was in receipt of the maximum available scheduler rating for chronic vaginitis with a history of cervicitis and abnormal pap smears. 4. Since October 8, 2002, the competent evidence, overall, does not show that the veteran's chronic vaginitis with a history of cervicitis and abnormal pap smears has not been controlled by continuous treatment. CONCLUSIONS OF LAW 1. The criteria for an initial rating greater than 10 percent for urinary stress continence prior to April 12, 2007 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7517 (2007). 2. The criteria for an initial rating greater than 40 percent for urinary stress continence since April 12, 2007 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7517 (2007). 3. The criteria for an initial rating greater than 30 percent for chronic vaginitis with a history of cervicitis and abnormal pap smears prior to October 8, 2002 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7611 (2007). 4. The criteria for an initial evaluation greater than 10 percent for chronic vaginitis with a history of cervicitis and abnormal pap smears since October 8, 2002 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7611 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). A. Stress incontinence The RO has rated the veteran's urinary incontinence under the criteria of Diagnostic Code 7517, an injury to the bladder under 38 C.F.R. § 4.115b. The Board agrees that this is the best code to evaluate the veteran's condition. This diagnostic code calls for rating an injury to the bladder as a voiding dysfunction. A voiding dysfunction is rated as either urine leakage, urine frequency, or obstructed voiding. 38 C.F.R. § 4.115a. In evaluating these diagnostic codes, only the predominant area of dysfunction shall be considered for rating purposes. Id. Continual Urine Leakage, Post Surgical Urinary Diversion, Urinary Incontinence, or Stress Incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day is rated 60 percent. If it requires the wearing of absorbent materials which must be changed 2 to 4 times per day, it is rated 40 percent. Requiring the wearing of absorbent materials which must be changed less than 2 times per day, it is rated 20 percent. Id. Urinary Frequency, with daytime voiding interval less than one hour, or awakening to void five or more times per night, is rated 40 percent. Daytime voiding interval between one and two hours, or awakening to void three to four times per night is rated 20 percent. Daytime voiding interval between two and three hours, or awakening to void two times per night is rated 10 percent. Id. Obstructed voiding with urinary retention requiring intermittent or continuous catheterization is rated 30 percent. Marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: 1. Post void residuals greater than 150 cc; 2. Uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec); 3. Recurrent urinary tract infections secondary to obstruction; and 4. Stricture disease requiring periodic dilatation every 2 to 3 months, is rated 10 percent. Obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year, is rated noncompensable (0 percent). Id. The RO has assigned an initial 10 percent rating for the veteran's urinary stress incontinence for the time period prior to April 12, 2007. Applying the criteria to the facts of this case, the Board finds that an initial rating greater than 10 percent for this time period is not warranted. The Board notes that the competent evidence, overall, shows that the veteran's urinary incontinence was manifested by a daytime voiding interval of three hours or more and nocturnal voiding times two absent any significant obstructive symptomatology or need to wear absorbent materials. The evidence shows that the veteran underwent a pubovaginal sling with graft in August 2000 due to stress incontinence. In September 2000, she reported to her private physician a daytime voiding interval of every three hours, and nocturnal voiding times 2. Thereafter, private clinical records in October 2000 and December 2001 essentially noted her concerns of urinary frequency with occasional difficulty with urinary hesitancy. At those times, bladder scans showed emptying of the bladder. She denied any stress incontinence during VA compensation and Pension examinations in March and April 2001. Intravenous pyelograms (IVP) performed in August 2003 and January 2004 found no significant residual urines. A July 2005 bladder screening, performed to investigate her complaint of increased frequency of nocturnal voiding, found no residual urines. At that time, she was prescribed Tofranil and advised to void every 4 hours. The Board finds that the lay and medical evidence described above provides highly probative evidence against an initial rating in excess of 10 percent for the time period prior to April 12, 2007. On VA compensation and pension examination on April 12, 2007, the veteran reported for the first time wearing absorbent materials that were changed 2 to 4 times per day. Notably, there was no lay or medical evidence prior to April 12, 2007 that the veteran used absorbent materials due to urinary leakage. In fact, the April 2007 VA examination did not describe the veteran as wearing absorbent materials. The veteran has never reported changing absorbent material more than 4 times per day. As such, there is no basis for a higher initial rating still based upon urine leakage, urine frequency, or obstructed voiding under 38 C.F.R. § 4.115a. In so deciding, the Board notes that the veteran is competent to describe many of the criteria which would warrant higher scheduler ratings in this claim. Her descriptions regarding the frequency, severity and duration of her symptoms have been relied upon in supporting her currently assigned ratings. She has not introduced lay evidence that would support higher ratings still for any time during the appeal period. The benefit of the doubt rule does not apply as the preponderance of the evidence is against her claim. 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 56. B. Chronic vaginitis The RO has rated the veteran's chronic vaginitis with a history of cervicitis and abnormal pap smears under the criteria of Diagnostic Code 7611, 38 C.F.R. § 4.116. Under a General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs, a 10 percent rating is assigned if symptoms require continuous treatment. A maximum 30 percent rating requires symptoms not controlled by continuous treatment. The RO has assigned the maximum 30 percent rating under Diagnostic Code 7611 for the time period prior to October 8, 2002. The lay and medical evidence of record prior to October 8, 2002 showed a history of recurrent yeast infections and vaginal pain with intercourse, providing the basis for the 30 percent evaluation. As a result of chronic pelvic pain with dyspareunia, she underwent laparoscopic right salpingo-oopherectomy with ablation of endometrial implants and revision of right lower quadrant scar in October 2002. Thereafter, the record reflects that the veteran was treated for candiasis/yeast infections in January, July, August and October 2003 which resolved with treatment. A December 2003 VA compensation and pension examination showed normal vaginal findings, providing evidence against this claim. A Papanicolaou's (PAP) smear in February 2004 demonstrated low- grade squamous intraepithelial lesion (LGSIL) and high-grade squamous intraepithelial lesion (HGSIL) virus (papillovirus infection). In March 2004, she was prescribed Diflucan and Tequin due, in part, to chronic vaginitis. At this time, VA received a statement from the veteran's treating VA clinician describing chronic vaginitis and frequent yeast infections relieved with prophylactic treatment and good personal hygiene. A colcoscope in April 2004 demonstrated human papilloma virus changes in the vagina which had the appearance of mild dysplasia to the cystologist. Otherwise, the vagina was clean. The examiner recommended no treatment other than monitoring as the HPV would likely "burn itself out." Thereafter, the remainder of the veteran's PAP smears has been negative and there is no treatment for yeast infections shown, providing more evidence against this claim. VA compensation and pension examination in July 2005 resulted in an impression of past history of HPV virus with abnormal Pap smears that had resolved. VA compensation and pension examination in April 2007 again noted that the veteran's PAP smears had returned to normal, and her current condition was deemed stable. She described severe vaginal pain and occasional monilia after sexual activity. Her physical examination was significant only for suprapubic tenderness. On this evidence, the Board finds that the lay and medical evidence since October 8, 2002 does not show that the veteran's chronic vaginitis with a history of cervicitis and abnormal pap smears has not been controlled by continuous treatment. As noted by her treating examiner, the veteran's chronic vaginitis and frequent yeast infections were relieved with prophylactic treatment and good personal hygiene. Her HPV lesion resolved without treatment. The VA compensation and pension examinations, as well as VA clinical records, provide highly probative evidence against this claim. In so deciding, the Board finds the veteran's descriptions regarding pelvic pain and the frequency of her yeast infections is competent. The competent medical evidence, however, does not show that her symptoms have not been controlled with medications since October 8, 2002. Simply stated, the post-service medical records provide evidence against this claim, outweighing her contentions that the higher evaluation is warranted. The benefit of the doubt rule does not apply as the preponderance of the evidence is against her claim. 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 56. C. Extraschedular consideration Finally, the Board has considered whether the veteran's claim warrants referral to the Chief Benefits Director of VA's Compensation and Pension Service under 38 C.F.R. § 3.321. The Board is aware of the veteran's complaints as to the effects of her service-connected disabilities on her activities of daily living. However, the VA examiner in April 2007 described the veteran's chronic vaginitis and frequent yeast infections as having no effects on her usual daily activities. The Board finds that there is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to the service-connected disabilities at issue, that would take the veteran's case outside the norm so as to warrant an extraschedular rating. Therefore, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996). D. The Duty to Notify and The Duty to Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to also notify a claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the veteran is challenging the initial evaluations assigned following grants of service connection. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. Nonetheless, the Board notes that the RO issued VCAA notices in April 2004 and February 2007 following the grants of service connection in this case. These letters advised the veteran of multiple forms of evidence which may be capable of substantiating her claims for further compensation. In particular, the February 2007 letter advised her of how VA determines disability ratings according to title 38 Code of Regulations, Part 4. She was advised that the RO considered evidence concerning the nature and symptoms of the condition, severity and duration of the symptoms, and the impact of the condition and symptoms on her employment. Examples of evidence the veteran should provide included information about on-going treatment records; recent Social Security determinations; statements from employers as to job performance, lost time, or other information regarding how her condition affected her ability to work; and a statement discussing her disability symptoms from people who have witnessed their effects. See generally Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The veteran has demonstrated her understanding of the evidentiary requirements by informing the RO of pertinent treatment records that could substantiate her claims, and submitting a doctor statement summarizing her symptoms and treatment. Furthermore, the veteran's statements of record, both written and to VA examiners, speak to the effects that her disabilities have upon her activities of daily living and her other bodily symptoms. Thus, although additional notice was not required per Dingess, the RO did provide additional notice to ensure complete development of the claims. As indicated above, the veteran's statements are found by the Board to demonstrate actual knowledge of the evidentiary requirements so that adjudication of the claims at this time would not be prejudicial to the veteran. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). VA has a duty to assist the veteran in the development of the claims. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the veteran's service medical records and her private and VA medical records. The veteran was afforded VA examinations in March 2001, December 2003, July 2005 and April 2007 to evaluate the nature and severity of her disabilities. There is no lay or medical evidence suggesting an increased severity of symptoms to the extent that a higher rating may still be possible. Thus, there is no duty to provide further medical examination. See VAOPGCPREC 11-95 (Apr. 7, 1995). Significantly, neither the veteran nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist her in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER An initial rating greater than 10 percent for stress incontinence prior to April 12, 2007 is denied. An initial rating greater than 40 percent for stress incontinence since April 12, 2007 is denied. An initial evaluation greater than 30 percent for chronic vaginitis with a history of cervicitis and abnormal pap smears prior to October 8, 2002 is denied. An initial evaluation greater than 10 percent for chronic vaginitis with a history of cervicitis and abnormal pap smears since October 8, 2002 is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs