Citation Nr: 20006723 Decision Date: 01/29/20 Archive Date: 01/27/20 DOCKET NO. 18-09 372 DATE: January 29, 2020 ORDER For the entire period on appeal, an increased evaluation in excess of 10 percent for the Veteran’s service-connected gynecological disability, to include bacterial vaginitis, is denied. FINDING OF FACT For the entire period on appeal, the Veteran’s service-connected gynecological disability, to include bacterial vaginitis, manifests symptoms that require continuous treatment, without manifesting symptoms not controlled by continuous treatment. CONCLUSION OF LAW For the entire period on appeal, the criteria for the assignment of an increased evaluation in excess of 10 percent for the Veteran’s service-connected gynecological disability, to include bacterial vaginitis, have not been satisfied or approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.1, 4.3, 4.7, 4.10, 4.14, 4.31, 4.116, Diagnostic Code 7611. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the U.S. Army from July 2008 to November 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a August 2016 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran’s Form 9 indicates that she did not request a Board hearing. For the entire period on appeal, an increased evaluation in excess of 10 percent for the Veteran’s service-connected gynecological disability, to include bacterial vaginitis, is denied. The Veteran contends that she is entitled to an increased evaluation under Diagnostic Code 7611 for her service-connected gynecological disability, to include bacterial vaginitis, as her symptoms are not controlled by medication. However, for the reasons set forth below, the Board finds that an increased evaluation is not warranted in this case. In March 2013, the Veteran was awarded service connection for bacterial vaginitis and assigned an initial noncompensable evaluation under Diagnostic Code 7611, effective November 26, 2012. Subsequently, an August 2016 rating decision awarded the Veteran an increased evaluation of 10 percent under Diagnostic Code 7611, effective June 14, 2016. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 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 civil occupations. See 38 U.S.C. § 1115; 38 C.F.R. §§ 3.321(a), 4.1, 4.21. Disability evaluations are based upon the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. § 4.27. VA has a duty to acknowledge and to consider all regulations that are potentially applicable to issues raised in the record and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two evaluations shall be applied, 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. See 38 C.F.R. §§ 4.7, 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of the veteran’s disability, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the severity of a disability, the Board is required to consider the potential application of various other VA regulations, regardless of whether they were raised by the Veteran, as well as the entire history of the Veteran’s disability. See 38 C.F.R. §§ 4.1, 4.2; see also Schafrath, 1 Vet. App. at 595. Separate evaluations may be assigned for separate periods of time, or staged, where factual findings show distinct time periods during which the Veteran’s disability exhibits symptoms that warrant the application of different ratings. See Fenderson v. West, 12 Vet. App. 119, 126-28 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). However, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Once the evidence has been assembled in the record, it is the Board’s responsibility to evaluate the evidence. See 38 U.S.C. § 7104(a). The Board shall consider all competent lay and medical evidence of record, analyze the credibility and probative value of the evidence, and provide reasons for rejecting any favorable material evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). In addressing lay evidence and determining its probative value, the Board must assess both its competency, a legal concept determining whether testimony may be heard and considered, and its credibility, a factual determination regarding its probative value. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall afford the claimant the benefit of the doubt, see 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, and where the evidence is in relative equipoise, the claimant shall prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The preponderance of the evidence must weigh against the claim in order to warrant its denial. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). Gynecological conditions are evaluated under Diagnostic Codes 7610 through 7615. Diagnostic Code 7611 governs diseases or injuries of the vagina, subject to the General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs, which provides as follows: (1) a 30 percent evaluation is warranted where the evidence of record reflects symptoms not controlled by continuous treatment; (2) a 10 percent evaluation is warranted where the evidence of record reflects symptoms that require continuous treatment; and (3) a noncompensable evaluation is warranted where the evidence of record reflects symptoms that do not require continuous treatment. See 38 C.F.R. § 4.116. Natural menopause, primary amenorrhea, and pregnancy and childbirth are not disabilities for rating purposes, and chronic residuals of medical or surgical complications of pregnancy may be disabilities for rating purposes. See id., Note 1. Almost any condition in this section might, under certain circumstances, establish entitlement to special monthly compensation, including any claim involving the loss or loss of use of one or more creative organs or anatomical loss of one or both breasts. See id., Note 2; see also 38 C.F.R. § 3.350. The effective date for the grant of service connection, in conjunction with a grant of entitlement to service connection, shall generally be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date the entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400(b)(2)(i); (o)(2). When determining when the entitlement arose, an effective date for benefits can be no earlier than the date the disability at issue first manifested. See DeLisio v. Shinseki, 25 Vet. App. 45, 52 (2011). In this case, the Veteran filed the instant increased rating claim on June 14, 2016; accordingly, the Board has considered whether the manifestations of the Veteran’s service-connected bacterial vaginitis warrant an increased evaluation in excess of 10 percent since June 14, 2015. See 38 C.F.R. § 3.400(o)(2). After careful review, the Board finds that for the entire period on appeal, while the Veteran has been continuously treated for recurring bacterial vaginitis, the preponderance of the competent medical and lay evidence of record demonstrates that her service-connected gynecological disability has manifested symptoms that require continuous treatment, but which have been controlled by such continuous treatment, and therefore the Veteran’s service-connected bacterial vaginitis does not warrant an increased evaluation in excess of 10 percent under Diagnostic Code 7611. In October 2012, just prior to her discharge from service, the Veteran was afforded a VA examination which culminated in a report finding that the Veteran had been treated for vaginitis since 2007, which included multiple antibiotics that effectively resolved her symptoms for one week, but then recurred, presumably once the antibiotic treatment was concluded. In July 2016, the Veteran was afforded a VA gynecological examination which culminated in a report indicating the Veteran’s diagnosis of bacterial vaginitis, an onset of symptoms in 2008, and the Veteran’s report that she has undergone treatment, to include prescription antibiotics, since 2008. The Veteran also reported that her symptoms recur almost as soon as she has completed the prescribed treatment. In October 2018, the Veteran was afforded another VA gynecological examination which culminated in a report indicating the Veteran’s diagnosis of bacterial vaginitis, and the Veteran’s report that she visited her private physician three times in 2018 for treatment related to vaginitis. The Veteran further reported that at each medical visit she was prescribed the treatment, but that within a few days of finishing the treatment the vaginitis returns. The Veteran further reported using boric acid tablets inserted in the vagina which helped alleviate her symptoms, but that upon cessation, the symptoms return within a few days, to include yellow discharge, itching, and an odor. The October 2018 VA examination report further noted that the Veteran’s vaginitis was currently being treated with metronidazole gel. The Veteran has also submitted treatment records from her private obstetrician-gynecologist (Dr. R) which confirm a diagnosis of bacterial vaginosis and reflect treatment with multiple medications, to include prescription antibiotic medication, but that the infection continues to recur. An April 2014 letter from Dr. R further confirms that the Veteran has been treated on multiple occasions for the condition “without successful resolution.” In her September 2016 lay statement, the Veteran reported that she has been “on continuous treatment for the vaginitis/bacterial vaginosis because it helps with the symptoms but does not fix the problem.” The Veteran further reported that she during her pregnancy, she developed an allergic reaction to “metronidazole pills,” and is therefore now limited to using metronidazole gel for treatment. The medical evidence of record reflects that the Veteran gave birth to a daughter in July 2013, and September 2016 private treatment records confirm that her private physician continues to prescribe her metronidazole gel. In addition, April 2016 VA treatment records reflect the Veteran’s report that she is allergic only to the oral formulation of metronidazole, but that she is not allergic to the metronidazole “vaginal cream.” In light of the foregoing evidence, including the Veteran’s lay testimony regarding the effectiveness of her prescription medication in controlling the symptoms of bacterial vaginitis, the Board finds that a preponderance of the evidence of record demonstrates that the Veteran’s symptoms are controlled by her continuous treatment. In so finding, the Board acknowledges that the Veteran’s treatment has thus far been ineffective in curing her underlying condition and in preventing any further recurrence. However, the criteria for an increased evaluation of 30 percent under Diagnostic Code 7611 require evidence of symptoms not controlled by continuous treatment, and the Board finds no evidence of record to support such a finding in this case, particularly because the Veteran has repeatedly acknowledged the effectiveness of prescription medication in controlling her symptoms. The Board has also considered Dr. R’s April 2014 statement noting that despite continuous medical treatment, the Veteran’s vaginitis has continued to recur; however, within the context of the other competent medical and lay evidence of record, the Board interprets Dr. R’s statement to refer to the frequent recurrence of bacterial vaginitis rather than to its manifestation of continuous symptoms unaffected by the prescribed medication. Moreover, the Veteran has conceded that her symptoms are ameliorated with the medication prescribed and that she does not have an allergic reaction to the antibiotic vaginal cream, which her VA treatment records indicate she has continued to use. Accordingly, as all requested testing has been completed, and the record contains no evidence warranting a compensable evaluation under Diagnostic Code 7611, the Board finds that a preponderance of the competent medical evidence of record fails to demonstrate that the Veteran’s service-connected bacterial vaginitis manifests symptoms not controlled by continuous treatment. Therefore, the Board concludes that the Veteran has been appropriately compensated for her service-connected gynecological disability, and that the preponderance of the evidence of record weighs against the assignment of an increased evaluation in excess of 10 percent under Diagnostic Code 7611. See 38 C.F.R. § 4.116. The Veteran has not specifically raised any other issues, nor have any other issues been reasonably raised by the evidence of record. See Doucette v. Shulkin, 28 Vet. App. 366, 370 (2017). (Continued on the next page)   Accordingly, in consideration of the foregoing evidence and resolving all reasonable doubt in the Veteran’s favor, the Board finds that for the entire period on appeal, a preponderance of the evidence of record weighs against the assignment of an increased evaluation in excess of 10 percent under Diagnostic Code 7611 for the Veteran’s service-connected gynecological disability; therefore, the benefit of the doubt doctrine does not apply. See Gilbert, 1 Vet. App. at 53-54; 38 C.F.R. § 3.102. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Marsdale The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.