Citation Nr: 21046435 Decision Date: 07/29/21 Archive Date: 07/29/21 DOCKET NO. 14-39 513 DATE: July 29, 2021 ORDER Entitlement to an initial 30 percent rating for vaginitis, the maximum schedular rating, is granted, subject to controlling regulations governing the payment of monetary awards. FINDING OF FACT The Veteran's vaginitis symptoms more nearly approximate symptoms not controlled by continuous treatment. CONCLUSION OF LAW The criteria for an initial 30 percent rating for vaginitis have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.3, 4.6, 4.7, 4.116, Diagnostic Code 7699-7610. REASONS AND BASES FOR FINDING AND CONCLUSION This case initially came to the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted service connection for vaginitis and assigned an initial 10 percent rating. The Veteran timely appealed the initial rating assigned. In May 2018, the Board, inter alia, denied an increased rating for vaginitis. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In March 2019, the Court granted a Joint Motion for Partial Remand (JMPR), which, inter alia, vacated the part of the Board's May 2018 decision which denied entitlement to an increased rating for vaginitis, and remanded the matter to the Board for action consistent with the terms of the JMPR. In September 2019 and March 2021, the Board remanded the matter for further evidentiary development. As the maximum schedular 30 percent rating is being granted and there is no higher rating available under any other potentially applicable diagnostic code as discussed below, the benefit sought is being granted in full and discussion of remand compliance is unnecessary. Higher Initial Ratings Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § § 1155; 38 C.F.R. § Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is 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. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § § 4.10. Where there is a question as to which of two disability ratings shall be applied, 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where the Veteran is appealing the initial assignment of a disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Where VA's adjudication of the claim is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or staged ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). 1. Vaginitis The Veteran contends that she is entitled to an initial rating in excess of 10 percent for vaginitis. The Veteran is currently rated under Diagnostic Codes 7699-7610 for her vaginitis disability. As indicated by the hyphenated diagnostic code, the Veteran's vaginitis has been rated by analogy Vulva or clitoris, disease, or injury of (including vulvovaginitis). 38 C.F.R. §§ 4.20, 4.27 (when an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be built-up by using the first two digits of that part of the rating schedule which most closely identifies the part, or system, of the body involved and adding 99 for the unlisted condition). 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 vaginitis is encompassed under Diagnostic Code 7610 for the entire appeal period. The general rating formula for diseases, injury, or adhesions of female reproductive organs applies to Diagnostic Code 7610. Under the general rating formula, a noncompensable rating is assigned for symptoms that do not require continuous treatment. A 10 percent rating is assigned for symptoms that require continuous treatment, and the maximum 30 percent rating is assigned for symptoms not controlled by continuous treatment. For the following reasons, the maximum 30 percent schedular rating is warranted for the Veteran's service-connected vaginitis. The evidence of record demonstrate that the Veteran's vaginitis symptoms more nearly approximate the criteria for a 30 percent rating. For example, in a March 2013 statement, the Veteran indicated the she began having chronic vaginitis and yeast infections during service and the symptoms have remained the same despite treatment of various forms that have not worked. The Veteran noted that over the years she has requested antibiotics and Monistat, and that the records reflect that from 1974 to present, her symptoms have not improved with these treatments. She further noted that her chronic vaginitis is not controlled. A September 2014 VA examination report shows a diagnosis of chronic vaginitis, with of severe constant pain, burning sensation, vaginal discharge, and vaginal odor. The Veteran's prescribed treatment was estrogens conjugated, metronidazole, and fluconazole. The examiner indicated that her symptoms do not require continuous treatment. A November 2014 VA clinical record shows the Veteran was prescribed Flagyl for her chronic vaginitis infections. The physician noted that it appears that Flagyl is a temporary fix for the Veteran and will not completely resolve the problem. A March 2015 VA examination report noted diagnoses of bacterial vaginitis, and vulva vaginitis and desquamative inflammatory vaginitis. The Veteran exhibited symptoms of vaginal burning. The Veteran's treatment included estrogen cream, clindamycin cream, and ospemifene. The Veteran's symptoms required continuous treatment. Her symptoms are not controlled by continuous treatment. The examiner noted that the Veteran was noncompliant with the treatment. In her May 2015 substantive appeal (VA Form-9), the Veteran asserted that she has chronic vaginitis as diagnosed by her VA physician, that is not controlled. She reported that for the last two months she had vulva tears, and labia and minora inflammation that were so bad that a biopsy was taken to rule out cancer. The Veteran further reported having recurrent Gardnerella, inflammation and positive culture in last test. She indicated there was never a time when she has not been compliant, and her VA physician stated that he never said that occurred. The Veteran further indicated that she was told to go off ospemifene when she had reoccurring sinus infections and was taking antibiotics. She noted that her VA physician stated she had chronic vaginitis and it is not controlled. The Veteran underwent a VA examination in November 2020. She reported symptoms of pain, burning, no sexual activity for years, and infections a couple of times. The Veteran had moderate pain intermittently. Under Section IV, which addresses treatment, the examiner indicated that the Veteran currently requires treatment for symptoms related to reproductive tract conditions; however, it is unclear if the treatment was for symptoms related to vaginitis. The examiner did not complete section 4C of the VA examination report by checking the box to indicate the effectiveness of treatment in controlling symptoms, specifically whether the vaginitis symptoms do/do not require continuous treatment or are not controlled by continuous treatment. However, in the accompanying November 2020 VA medical opinion, the examiner indicated that the symptoms attributable to the Veteran's vaginitis do not require continuous treatment. The examiner explained that the Veteran has recurrent complaints of vaginal discharge over the years, with most tests revealing normal results. The examiner noted that the records do reveal the Veteran has vaginal changes associated with menopause. The examiner concluded that a nexus could not be established for service connection for vaginitis. In a May 2021 VA examination report, the VA examiner who performed the November 2020 examination, completed section 4C by selecting whether the Veteran's symptoms do not require continuous treatment, or the Veteran's symptoms require continuous treatment, or the Veteran's symptoms are not controlled by continuous treatment. The examiner noted that the Veteran continued to report symptoms of moderate pain and vaginal discharge/infections and dyspareunia up to the present. The examiner opined that it is least as likely as not that the Veteran's vaginitis requires continuous estrogen vaginal cream treatment. The examiner also completed section 4C of the VA examination report and noted that the Veteran's symptoms do require continuous treatment for conditions of the vagina. In a May 2021 statement, the Veteran reported that she is prescribed an estrogen vaginal cream, but her symptoms have not gotten better since she began using it. She stated that the cream does not take away the greenish-yellowish discharge or the constant itching and burning pain in the vaginal area. The Veteran indicated that she cannot go to the doctor every day, so she has to just put up with it. She noted that sometimes it gets so bad that she has to soak in the tub for relief. The above evidence, including the competent and credible lay statements from the Veteran and the medical records, reflects that the evidence is at least evenly balanced as to whether the Veteran's vaginitis symptoms are not controlled by continuous treatment and therefore more nearly approximate the criteria for a 30 percent rating. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to the maximum 30 percent schedular rating for vaginitis is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. As there is no other potentially applicable diagnostic code under which a higher rating is warranted, further discussion is not warranted. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Walker, 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.