Citation Nr: 1804618 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 06-35 963 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased rating for status post Bartholin's gland incision rated as noncompensably disabling prior to July 11, 2007, and as 10 percent disabling since that date. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran had active service from October 1997 to July 2001. This matter comes before the Board of Veteran' Appeals (Board) from a November 2005 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a Travel Board hearing in October 2009. The Board remanded the Veteran's claim in January 2011, July 2013, and January 2017. FINDINGS OF FACT 1. Prior to July 11, 2007, the Veteran's status post Bartholin's gland incision is not productive of symptoms that require continuous treatment 2. Since July 11, 2007, the Veteran's status post Bartholin's gland incision is not productive of symptoms that are not controlled by continuous treatment. CONCLUSIONS OF LAW 1. Prior to July 11, 2007, the criteria for a compensable rating for status post Bartholin's gland incision have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.116, Diagnostic Codes 7699-7611 (2017). 2. Since July 11, 2007, the criteria for a rating in excess of 10 percent for status post Bartholin's gland incision have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.116, Diagnostic Codes 7699-7611 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided. Additionally, neither the Veteran, nor her representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of her claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records and VA treatment records have been obtained. The Board last remanded the claim to obtain additional treatment records and the Veteran's vocational rehabilitation records. Additional VA treatment records and the Veteran's vocational rehabilitation records were obtained. As such, because the Board's order was fully complied with, there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). During the course of the appeal, several examinations and opinions were obtained (the reports of which have been associated with the claims file), which the Board finds to be adequate for rating purposes, as the VA examiners had a full and accurate knowledge of the Veteran's disability and contentions, and grounded the findings on objective testing and the evidence of record. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, neither the Veteran nor her representative has objected to the adequacy of the opinions obtained during this appeal. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540 (1991); Sabonis v. Brown, 6 Vet. App. 426 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. For historical purposes, the Veteran submitted a claim of entitlement to a compensable rating for status post Bartholin's gland incision in April 2005. The claim was denied in a November 2005 rating decision. The Veteran disagreed with the denial of her claim and this appeal ensued. In a July 2007 rating decision, the rating assigned for status post Bartholin's gland incision was increased to 10 percent effective July 11, 2007. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Prior to July 11, 2007, the Veteran's status post Bartholin's gland incision was rated as noncompensably disabling; since July 11, 2007, the status post Bartholin's gland incision was rated as 10 percent disabling pursuant to Diagnostic Codes 7699-7611. 38 C.F.R. § 4.116. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. §4.27 (2017). Thus, in this case, Diagnostic Code 7699 denotes an unlisted condition of the gynecological system, and the RO determined that the rating criteria most analogous to the Veteran's service-connected status post Bartholin's gland incision is encompassed under Diagnostic Code 7611 for the entire appeal period. Diagnostic Code 7611 pertains to disease or injury of the vagina. Under the General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs (Diagnostic Codes 7610 through 7615), a noncompensable rating is warranted for symptoms that do not require continuous treatment; a 10 percent disability rating is appropriate for symptoms that require continuous treatment; and, a 30 percent disability rating is awarded for symptoms not controlled by continuous treatment. 38 C.F.R. § 4.116. At a VA gynecological examination in October 2005, the Veteran reported pain and dyspareunia in the region of the excised Bartholin's gland. Following a physical examination, the examiner indicated that the Bartholin's gland excision was well-healed and without any evidence of a mass. The examiner stated that she saw no evidence on physical examination that supported the Veteran's complaints of pain at the site of excision. The examiner concluded that the Veteran's healing was completely normal. At a VA gynecological examination in July 2007, the Veteran reported residual localized pain at the site of the excision. Following a physical examination, the examiner assessed the Veteran with a tender nodule at the site Bartholin's gland excision. At a VA gynecological examination in March 2016, the Veteran reported that she has sharp, tearing pain during sexual intercourse in the area where the Bartholin's gland was removed. During a physical examination including pelvic examination with extensive palpation of the labia, the Veteran gave no indication of discomfort. The examiner indicated that the Veteran had a well-healed scar from previous Bartholin's gland excision but upon palpation, the labium was not thicker and no remaining gland was palpable. The examiner indicated that no treatment was necessary for the service-connected disability. Having reviewed the evidence as reported above, the Board has determined that the Veteran's service-connected status post Bartholin's gland incision does not warrant a compensable rating prior to July 11, 2007, or a rating in excess of 10 percent since that date. Prior to July 11, 2007, the Veteran's symptoms associated with the service-connected status post Bartholin's gland incision are not consistent with symptoms that require continuous treatment. As noted above, the examiner at the time of the 2005 VA examination indicated that the Bartholin's gland excision was well-healed and without any evidence of a mass and there was no evidence on physical examination that supported the Veteran's complaints of pain at the site of excision. As such, the Veteran's service connected status post Bartholin's gland incision is not consistent with a compensable rating during the relevant time period at issue. Since July 11, 2007, the Veteran's symptoms associated with the service-connected status post Bartholin's gland incision are not consisted with symptoms that are not controlled by continuous treatment. At the 2007 VA examination, physical examination revealed a tender nodule at the site Bartholin's gland excision. However, at the 2016 VA examination, physical examination revealed a well-healed scar from previous Bartholin's gland excision but no remaining gland was palpable and the examiner indicated that no treatment was necessary for the service-connected disability. As such, the Veteran's service-connected status post Bartholin's gland incision is not consistent with a rating in excess of 10 percent during the relevant time period at issue. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Entitlement to an increased rating for status post Bartholin's gland incision rated as noncompensably disabling prior to July 11, 2007, and as 10 percent disabling since that date is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs