Citation Nr: 1805024 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 10-47 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a compensable rating for Bartholin's cyst, postoperative. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Daus, Associate Counsel INTRODUCTION The Veteran had qualifying service from February 1978 to October 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran was scheduled for an April 2017 Board hearing, for which she did not appear. In June 2017, the Board remanded for further development, including to reschedule the hearing. Substantial compliance was achieved as all development was completed to the extent possible. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran was then scheduled for a July 2017 Board hearing, for which she did not appear. Immediately prior to this hearing, the Veteran telephonically requested to withdraw her appeal; because the request was never submitted in writing, the Board retains jurisdiction. See 38 C.F.R. § 20.204 (2017); July 2017 Report of General Information. Because the Veteran has not submitted good cause for failure to appear, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(e). The issue of whether new and material evidence has been received to reopen the claim for entitlement to service connection for a left knee disability was raised by the record in an October 2009 statement, but has yet to be adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred again to the AOJ for appropriate action. See 38 C.F.R. § 19.9(b) (2017); June 2017 Board remand. FINDINGS OF FACT 1. The Veteran was a licensed vocational nurse from May 1983 to September 2006; she is a competent, medical professional for VA purposes. 2. The Bartholin's cyst, postoperative, is manifested by symptoms not controlled by continuous treatment. CONCLUSION OF LAW The criteria for a 30 percent (maximum schedular) rating have been met. See 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.116, Diagnostic Code (DC) 7628-7615 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran generally contends that the symptoms of her Bartholin's cyst, postoperative, are more severe than contemplated by the current, noncompensable rating. See September 2010 Notice of Disagreement; November 2010 VA Form 9; September 2016 VA Form 646; May 2017 Brief; December 2017 Brief. For the reasons discussed below, the Board finds that an increase to 30 percent (maximum schedular) is warranted under DC 7628-7615. DC 7628 can be rated according to impairment in function of the urinary or gynecological systems, or skin. See 38 C.F.R. § 4.116, DC 7628. Although other diagnostic codes pertaining to gynecological system were considered, the nature of the Bartholin's cyst (obstruction of the Bartholin's gland on the vaginal opening) is most thoroughly encompassed by the criteria for a disease, injury, or adhesion of the female reproductive organs. See 38 C.F.R. § 4.116, DC 7615, General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs (DCs 7610 through 7615); MedlinePlus Medical Encyclopedia, last accessed on January 16, 2018. A noncompensable rating is warranted for symptoms that do not require continuous treatment. Id. A 10 percent rating is warranted for symptoms that require continuous treatment. Id. A 30 percent rating is warranted for symptoms not controlled by continuous treatment. Id. Additionally, although other diagnostic codes pertaining to the urinary system were considered, the nature of the related residual (urinary incontinence) is most thoroughly encompassed by the criteria for voiding dysfunction. See 38 C.F.R. § 4.115a, voiding dysfunction. A 20 percent rating is warranted when the dysfunction requires the wearing of absorbent materials which must be changed less than 2 times per day. Id. A 40 percent rating is warranted when the dysfunction requires the wearing of absorbent materials which must be changed 2 to 4 times per day. Id. A 60 percent rating is warranted when the dysfunction requires the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. Id. Finally, although diagnostic codes pertaining to the skin were considered, the nature of the related residual (flareups causing increased pain/discomfort) is most thoroughly encompassed by the criteria for a benign skin neoplasm, which can be rated as disfigured (of the head, face, or neck), scars, or impairment of function. See 38 C.F.R. § 4.118, DC 7819. Preliminarily, the Board emphasizes that the Veteran was a licensed vocational nurse from May 1983 to September 2006; as such, she is a competent medical professional for VA purposes. See October 2006 SSA Work History Form. In that regard, she is competent to identify whether her cyst has recurred and associated flareups, pain, and discomfort. Although the record (treatment and examinations) does not independently corroborate the Veteran's assessment that her symptoms are uncontrolled by continuous treatment, the April 2010 VA examiner noted that symptoms may be intermittent or transient with sporadic reoccurrence. In light of the Veteran's competency to identify and self-treat recurring cysts/residuals and the examiner's indications that symptoms may only reoccur intermittently, it would be unreasonable to expect the Veteran to have outsourced treatment for which she is competent to self-render. As such, the lack of corroboration by the medical records does not weigh against the Veteran's statements. Additionally, although the representative contended that the Board is required to consider the impact of pain in disability determinations and cited to Spurgeon v. Brown, the Board notes that the impact of pain in inapplicable to this case. See September 2016 VA Form 646; Spurgeon v. Brown, 10 Vet. App. 194 (1997). The Court in Spurgeon focused on the language of 38 C.F.R. § 4.40 (functional loss). See Spurgeon, 10 Vet. App. at 194. However, 38 C.F.R. § 4.40 applies only to disabilities of the musculoskeletal system (and related deformities/adhesions/etc). In this case, the Bartholin's cyst is neither musculoskeletal in nature nor an adhesion to a musculoskeletal structure, as it is located in the Bartholin's gland; therefore, 38 C.F.R. § 4.40 does not apply. See MedlinePlus Medical Encyclopedia, last accessed on January 16, 2018. Nevertheless, as stated above, the Veteran is competent to self-diagnose and self-treat her cyst recurrence/residuals and has stated that her cyst is recurring, does not respond to treatment, and has flareups causing increased pain/discomfort. Rating the disorder under DC 7615 is the most advantageous to the Veteran because the symptoms, uncontrolled by continuous treatment, most nearly approximate the criteria for a 30 percent (maximum schedular) rating. See 38 C.F.R. § 4.116, DC 7615, General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs. Although the Veteran also reported associated urinary incontinence, neither the January 2009 examiner nor the Veteran assessed the requirement for absorbent material, making this symptom noncompensable. See 38 C.F.R. § 4.115a, voiding dysfunction. Similarly, although the cyst may be considered a benign skin neoplasm, the Veteran's reports of functional limitations due to flareups (pain and discomfort) are not severe enough to surpass the 30 percent rating afforded under DC 7615; further, there were no associated scars assessed. See January 2009 VA examination; April 2010 VA examination. As such, it is most advantageous to grant a 30 percent rating under DC 7615. All potentially applicable codes have been considered and there is no basis to assign an evaluation in excess of the currently assigned rating. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Additionally, staged ratings are not warranted, as the Veteran has had a relatively stable level of symptomatology throughout the appeal. See Fenderson v. West, 12 Vet. App. 119, 126-27. ORDER Entitlement to a 30 percent (maximum schedular) rating for Bartholin's cyst, postoperative, is granted. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs