Citation Nr: 21026522 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 14-07 476 DATE: May 3, 2021 ORDER Entitlement to an initial rating of 10 percent, and no higher, for service-connected vaginitis is granted. REMANDED Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for a lower back condition, to include as secondary to a left knee condition, is remanded. FINDING OF FACT The Veteran's vaginitis manifests with recurrent yeast infections that are controlled with prescription medication. CONCLUSION OF LAW The criteria for an initial rating of 10 percent, and no higher, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.116, Diagnostic Code (DC) 7611. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1992 to August 1996, with additional periods of service in the Army National. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions, dated July 2012 and March 2015, issued by a Department of Veterans Affairs (VA) regional office. The issues of entitlement to service connection for a left knee condition and a lower back condition were previously remanded by the Board in February 2016 and January 2019. In February 2021, the Veteran testified via video conference before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. See February 2021 Board Hearing Transcript. 1. Entitlement to an initial rating of 10 percent, and no higher, for service-connected vaginitis is granted. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where a claimant timely appeals the rating initially assigned for the service-connected disability, VA must consider whether the claimant is entitled to "staged" ratings to compensate them for times since filing the claim when their disability may have been more severe than at other times during the course of the appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). If two ratings are potentially applicable, the higher rating 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. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3. The Veteran's service-connected vaginitis is rated under DC 7611 for disease or injury of vagina, which is rating using the General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs (General Formula). 38 C.F.R. § 4.116. Under the General Formula, a noncompensable rating is warranted for symptoms that do not require continuous treatment. A 10 percent rating is warranted for symptoms that require continuous treatment. Lastly, a 30 percent rating is warranted for symptoms not controlled by continuous treatment. Id. Procedural and Factual Background. In June 2014, the Veteran submitted a claim seeking, inter alia, service connection for vaginitis. See June 2014 VA Form 21-526EZ. In a March 2015 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for vaginitis, effective June 12, 2014, and assigned a noncompensable rating. Thereafter, in March 2016, the Veteran submitted a Notice of Disagreement (NOD) as to the initial rating assigned. This appeal was ultimately perfected. The Veteran's medical records indicate that her vaginitis has consistently manifested with recurrent yeast infections that are treated with prescription medications, to include metronidazole and fluconazole. See Central Texas VA Healthcare System (VAHCS) records, received August 2016, August 2017, January 2020, and November 2020; Darnall Army Medical Center (AMC) records, received December 2019 and April 2021. In February 2015, the Veteran underwent a VA examination in which she reported that she experiences manifestations of her vaginitis one to two times per month which last until she takes her medication. The examiner noted a diagnosis of recurrent vaginitis. See February 2015 VA Gynecological Conditions Disability Benefits Questionnaire (DBQ). In February 2017, the Veteran was afforded a VA evaluation regarding the severity of vaginitis, based on a review of her medical records and a telephone interview. In this evaluation, the Veteran reported experiencing manifestations of her vaginitis approximately once every two months that are treated with oral antibiotics. The examiner noted that the Veteran has recurrent vaginitis that requires oral medications to treat symptoms. See February 2017 Gynecological Conditions DBQ. In a February 2021 Board hearing, the Veteran testified that, since 1993, she has required continuous treatment for her vaginitis. The Veteran reported that such treatment has included prescriptions for metronidazole, fluconazole, and Terazol cream, as well as over-the-counter treatment such as Monistat. See February 2021 Board Hearing Transcript. Analysis. The Veteran contends that she is entitled to a compensable rating for her service-connected vaginitis. Importantly, as this is an appeal as to the initial rating assigned, the relevant temporal focus is from June 12, 2014, the date of the award of service connection, to present. As discussed above, under the General Formula a 10 percent rating is warranted for symptoms that require continuous treatment. See 38 C.F.R. § 4.116, General Formula. Here, the evidence of record indicates that, throughout the period on appeal, the Veteran has received continuous treatment for her vaginitis, the symptoms of which manifest, at a minimum, approximately once every two months. See Central Texas VAHCS records; Darnall AMC records; February 2015 VA Gynecological Conditions DBQ; February 2017 VA Gynecological Conditions DBQ. Therefore, the Board finds that the Veteran's service-connected vaginitis warrants an initial rating of 10 percent, effective June 12, 2014. However, a rating in excess of 10 percent is not supported by the evidence of record at any point during the period on appeal. As discussed above, under the General Formula a 30 percent rating is warranted when symptoms are not controlled by continuous symptoms. See 38 C.F.R. § 4.116, General Formula. Here, there is no indication in the Veteran's medical records that her service-connected vaginitis manifests with symptoms that are not controlled by continuous medication. See Central Texas VAHCS records; Darnall AMC records; February 2015 VA Gynecological Conditions DBQ; February 2017 VA Gynecological Conditions DBQ. Indeed, the Veteran has specifically reported that her symptoms subside following treatment. See February 2015 VA Gynecological Conditions DBQ; February 2017 VA Gynecological Conditions DBQ. As there is no indication that the Veteran's vaginitis has manifested with symptoms that are not controlled by medication, a 30 percent rating is not warranted at any time during the period on appeal. In sum, the Board finds that the Veteran's service-connected vaginitis warrants an initial rating of 10 percent, but no higher, effective June 12, 2014. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a left knee condition is remanded. 2. Entitlement to service connection for a lower back condition, to include as secondary to a left knee condition, is remanded. The Board regrets the delay associated with this remand, particularly as this matter has been the subject of two prior remands. However, based on a review of the evidence of record, the Board finds that another remand is necessary to allow the AOJ to conduct additional development. First, in January 2019, the Board instructed the AOJ to obtain records from treatment facilities identified by the Veteran. In October 2019, the Veteran submitted a VA Form 21-4142a identifying that she received treatment at, inter alia, Harrison and Harrison. The record indicates that the AOJ attempted to obtain records from Harrison and Harrison, but that the facility was permanently closed. See October 2019 VA Form 21-0820. However, there is no indication that the Veteran was informed that such records could not be secured as required by 38 C.F.R. § 3.159(e). As such, a remand is necessary to allow the AOJ to notify the Veteran that such records are unable to be obtained. Second, a remand is necessary to allow the AOJ to obtain an adequate opinion regarding the etiology of the Veteran's left knee condition. In December 2019, the Veteran underwent a VA examination in which the examiner noted diagnoses of bilateral knee tendonitis, patellofemoral pain syndrome, and instability, as well as left knee chondrocalcinosis and osteoarthritis. Ultimately, the examiner opined that the Veteran's diagnosed left knee conditions were less likely than not related to her active duty service. In support of this opinion, the examiner stated that the Veteran's enlistment examination noted a left knee surgery prior to service with good results. The examiner also noted that the Veteran's service treatment records (STRs) revealed one complaint of a left knee twisting injury during service, but no further complaints. The examiner also noted that the Veteran's STRs did not reflect increases in manifestations of her diagnosed left knee conditions beyond their natural progression. See December 2019 VA Knee and Lower Leg Conditions DBQ; December 2019 VA Direct Medical Opinion DBQ; December 2019 VA Aggravation Medical Opinion DBQ. However, though the Veteran's STRs indicate that the Veteran reported a left knee twisting injury in September 1992, the ultimate diagnosis was lateral collateral ligament (LCL) strain. See STR-Medical. As such, the examiner's opinion appears to be based, in part, on an inaccurate factual premise and, therefore, is inadequate. See Reonal v. Brown, 5 Vet. App. 458 (1993). Additionally, in finding that the Veteran's diagnosed left knee conditions were less likely than not related to her active duty service, the examiner essentially relied on the absence of in-service complaints aside from one complaint of a left knee twisting injury. However, the lack of documented complaints, standing alone, is not an adequate basis for a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Moreover, the examiner appears to imply that the Veteran's currently diagnosed left knee conditions are natural progressions of a pre-service knee surgery. The Board notes that the Veteran's STRs indicate that Veteran underwent arthroscopic knee surgery in 1988 to repair a peripheral tear of meniscus, partial tear of the anterior cruciate ligament (ACL) and radial tear of the lateral meniscus. See STR-Medical. However, there is no indication that the Veteran's current diagnosed knee conditions pre-existed service, nor did the examiner discuss whether such conditions were natural progressions of her pre-service knee injury. For these reasons, the Board finds the January 2020 etiological opinions to be inadequate for adjudication purposes. As such, a remand is necessary to obtain an adequate opinion regarding the etiology of the Veteran's left knee conditions. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Lastly, the Board notes that, in January 2019, the Board instructed the AOJ to obtain an opinion as to whether the Veteran's left knee experienced a permanent increase in disability during a period of ACDUTRA in the National Guard. However, a member of the National Guard serves in the federal military only when formally called into the military service of the United States. At all other times, a member of the National Guard serves solely as a member of the State militia under the command of a state governor. See Allen and Key v. Nicholson, 21 Vet. App. 54 (2007). Hence, for the Veteran's service in the National Guard, only periods of federalized service would qualify for the purpose of VA compensation benefits. Here, there is no indication in the record that the Veteran was ever formally called into the military service of the United States during her National Guard service. See December 2019 Identification Materials; December 2019 DPRIS Response. As such, no opinion regarding aggravation during a period of ACDUTRA is necessary. With respect to the Veteran's claim of entitlement to service connection for a lower back condition, the Veteran has asserted that her lower back condition is secondary to her left knee condition. See January 2019 Board Hearing Transcript. As such, the matter is inextricably intertwined with the Veteran's claim of entitlement to service connection for a left knee condition. Therefore, a remand of the matter is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the matters are REMANDED for the following action: 1. Pursuant to 38 C.F.R. § 3.159(e), notify the Veteran that records relating to treatment at Harrison and Harrison were unable to be obtained. 2. With the Veteran's assistance as appropriate, obtain and associate with the claims file any outstanding pertinent medical records, whether VA or private, including records relating to treatment at Darnall AMC and within the Central Texas VAHCS. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 3. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 4. After completing the development above, and any additional development warranted by the record, return this matter to the January 2019 examiner and obtain an addendum opinion regarding the nature and etiology of the Veteran's left knee and lower back conditions. The entire claims file must be provided to, and reviewed by, the examiner. If the examiner determines it to be necessary, or if the January 2019 examiner is unavailable, an examination should be scheduled and any indicated tests, studies, or evaluations should be conducted. The examiner is asked to: (a.) If an examination is conducted, obtain the Veteran's detailed lay history, including onset and progression of symptomatology and employment. (b.) For each diagnosed left knee condition, address the following: i. Does the evidence clearly and unmistakably show that such condition existed prior to service? THE EXAMINER IS SPECIFICALLY ASKED TO ADDRESS THE DECEMBER 1991 ENLISTMENT EXAMINATION. ii. If such condition did clearly and unmistakably pre-exist the Veteran's service, does the evidence CLEARLY AND UNMISTAKABLY show that the pre-existing condition DID NOT increase in severity beyond the natural progress of the condition (i.e. the condition was not aggravated by service)? iii. If such condition did not clearly and unmistakably pre-exist the Veteran's service, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that it had its onset during, or is otherwise related to, the Veteran's active duty service. (c.) If, and only if, a left knee condition is found to be related to service in subsection (b) above, for each diagnosed lower back condition, provide the following opinions: i. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such lower back condition is caused by the Veteran's service-connected left knee condition(s). ii. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such lower back condition underwent an incremental increase (aggravated), regardless of permanence, due to the Veteran's service-connected left knee condition. The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. THE EXAMINER IS REMINDED THAT THE VETERAN IS COMPETENT TO REPORT SYMPTOMS, TREATMENT, AND INJURIES, AND THAT HIS REPORTS MUST BE TAKEN INTO ACCOUNT IN FORMULATING THE REQUESTED OPINIONS. 5. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report or opinion does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. (continued on the next page) YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, Associate Counsel 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.