Citation Nr: 0512871 Decision Date: 05/11/05 Archive Date: 05/25/05 DOCKET NO. 02-18 276 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a higher evaluation for uterine fibroids, rated as 10 percent disabling from November 1, 2000. 2. Entitlement to a compensable evaluation for microcytic anemia, rated as zero percent disabling from November 1, 2000. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Van Stewart, Associate Counsel INTRODUCTION The veteran had active military service from February 1976 to October 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. During the pendency of this appeal, by a September 2002 rating action, the Chicago, Illinois, RO awarded a 10 percent rating for uterine fibroids with anemia. The Board remanded this case in August 2004. The veteran was service connected for uterine fibroids and for microcytic anemia by the April 2001 rating decision. Each of the two disorders was rated as non-compensably disabling, effective November 1, 2000. On appeal, the veteran averred that both disabilities should be awarded compensable ratings. By the September 2002 action noted above, the RO awarded a single 10 percent disability rating for uterine fibroids with anemia. The RO made this award based on criteria for rating gynecological disabilities-- 38 C.F.R. § 4.116. The veteran contends that the issues of uterine fibroids and anemia should be analyzed separately, and, as will be discussed below, the Board agrees. As a result, the Board has characterized the rating issues on appeal as set forth above. The United States Court of Appeals for Veterans Claims (Court) has indicated that a distinction must be made between a veteran's dissatisfaction with an initial rating assigned following a grant of service connection (so-called "original ratings"), and dissatisfaction with determinations on later filed claims for increased ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Inasmuch as the questions currently before the Board were placed in appellate status by a notice of disagreement expressing dissatisfaction with original ratings, the Board has characterized the rating issues on appeal as set forth above. FINDINGS OF FACT 1. The veteran's uterine fibroids are, and have been since leaving military service, manifested by pelvic pain. 2. Since the veteran's retirement from military service, her microcytic anemia has been asymptomatic. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for uterine fibroids have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.20, 4.116, Diagnostic Codes 7613, 7628-7629 (2004). 2. The criteria for a compensable rating for microcytic anemia have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.117, Diagnostic Code 7700 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran was afforded a VA medical examination in August 2000, shortly before her retirement from service. The examiner noted that the veteran's recent hemoglobin levels had been low, in the vicinity of 10. The examiner diagnosed iron deficiency anemia with poor compliance with iron intake because of side-effects of the iron. Also diagnosed was active uterine fibroids with increased bleeding with periods, leading to the anemia. There was no mention of headaches, pelvic pain, or heavy or irregular bleeding, either controlled by treatment or uncontrolled. The veteran was also seen by a VA physician in February 2001. The physician noted the veteran's history of anemia, and attributed the anemia to uterine myomas. The veteran reported no headaches. The veteran reported she had not had a lot of cramping, and no mention was made of pelvic pain, or heavy or irregular bleeding, either controlled by treatment or uncontrolled. Hemoglobin level, reported later, was 8.9. The veteran was seen for a follow-up appointment with a VA physician in May 2001. The veteran denied any shortness of breath either at rest or on exertion. There was no mention of headaches, pelvic pain, or heavy or irregular bleeding, either controlled by treatment or uncontrolled. The physician noted that recent laboratory work showed the veteran's hemoglobin level was 8.9. Of record is a VA progress note dated in July 2002. The veteran reported she was doing fine, and denied having any problems. She reported she was still taking iron pills, and denied having any bleeding. There was no mention of headaches, pelvic pain, or heavy or irregular bleeding, either controlled by treatment or uncontrolled. Hemoglobin level, from an April 2002 report, was 7.7. Of record are laboratory reports from the VA Medical Center (VAMC) in Danville, Illinois, reporting the veteran's hemoglobin levels as follows: February 2001 - 8.9; December 2001 - 7.7; March 2002 - 7.8; April 2002 - 7.0; and July 2002 - 8.2. The report of a May 2003 hematology-oncology consultation shows the veteran's hemoglobin level the preceding month, April 2003, was 9.0. The veteran reported no shortness of breath at rest. There was no mention of headaches, pelvic pain, or heavy or irregular bleeding, either controlled by treatment or uncontrolled. The examiner noted that microcytosis in the presence of normal iron values raised concern for a thalassemic trait, for which blood was drawn for screening. It was recommended that iron therapy be stopped since iron had been replaced. The veteran was afforded a VA medical examination in September 2004 in conjunction with the Board remand. The examiner noted that the veteran's file and computer records were available and had been reviewed prior to the examination. The examiner noted that the above mentioned screening for thalassemia was negative, and that, on stopping intake of iron supplements, the veteran's iron levels had dropped, and her anemia worsened. As of this examination, however, the veteran was again taking iron supplements, as well as eating green, leafy vegetables to increase her iron levels. This regimen was deemed successful, as her most recent hemoglobin level was reported as normal at 12.7. The veteran reported her current menses as being irregular for the previous year and a half, and that her menstrual flow was currently a little bit heavier than it had been when she was getting her cycles on a regular monthly basis. She reported a cycle every two to three months, each lasting from five to seven days. Menses began light, becoming heavy from days two to five. This was occasionally associated with cramping, but the cramping was reported as not being severe or debilitating. In months without a menstrual cycle, the veteran reported occasionally getting a left upper quadrant abdominal pain which was dull and lasted for a few hours. The veteran reported she was very occasionally lightheaded on standing, but this was described as "not a problem." The examiner diagnosed microcytic anemia, likely iron deficiency, but noted that the veteran was currently not anemic, and appeared to be responding well to her iron supplementation. The examiner noted that it was reasonable to presume that the veteran's anemia was secondary to her heavy menses. II. Analysis As noted above, the veteran was originally service connected, separately, for both uterine fibroids and microcytic anemia. Current VA regulations provide that the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2004). However, the regulations also provide that "the disabilities arising from a single disease entity. . .are to be rated separately." 38 C.F.R. § 4.25 (2004). Here, there is no apparent overlap in rating criteria between the veteran's uterine fibroids and microcytic anemia. The diagnostic code under which the veteran's uterine fibroids are evaluated does not address anemia or its symptoms, and the diagnostic code under which the veteran's microcytic anemia is evaluated does not address gynecological symptoms by which the veteran's uterine fibroids are rated. The fact that physicians have said that the veteran's anemia is secondary to her fibroids does not imply that the former is merely a symptom of the latter. To the contrary, VA regulations allow for awards of service connection and ratings of disabilities which are secondary to service-connected disabilities. 38 C.F.R. § 3.310(a) (2004). The Board therefore finds that the veteran is service connected for both uterine fibroids and microcytic anemia, and will address each separately. Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.7. Further, in cases such as this one, where the original rating assigned has been appealed, consideration must be given as to whether the veteran deserves a higher or lower rating (so-called "staged ratings") at any point during the pendency of the claim. Fenderson, supra. When a specific disability is not listed in the Rating Schedule, rating is done by analogy to a disability that is listed in the Rating Schedule. 38 C.F.R. § 4.20 (2004). Here, the veteran's uterine fibroids disability has been rated by the RO under Diagnostic Code 7629, endometriosis. 38 C.F.R. § 4.116, Diagnostic Code 7628-7629. Under Diagnostic Code 7629, a 10 percent rating is for application when there is pelvic pain or heavy or irregular bleeding requiring continuous treatment for control. A 30 percent rating is for application when there is pelvic pain or heavy or irregular bleeding not controlled by treatment. A 50 percent rating is the highest available under Diagnostic Code 7629, and it is for application when there are lesions involving bowel or bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment, and bowel or bladder symptoms. The Board also notes that disease, injury, or adhesions of the uterus are ratable under 38 C.F.R. § 4.116, Diagnostic Code 7613. This code provides that symptoms due to such disability that do not require continuous treatment are noncompensably disabling. A 10 percent rating is warranted for symptoms that require continuous treatment, and a 30 percent rating is warranted for symptoms that are not controlled by continuous treatment. Here, the medical evidence is that the veteran has, at least occasionally, some pelvic pain. A higher rating is not warranted because none of the criteria for a higher rating has been met. While she has heavy menstrual bleeding, there is no indication that it is not controlled by treatment, or even that it requires continuous treatment for control. The September 2004 VA examiner reported that the veteran's menstrual flow was currently only a little bit heavier than it had been when she was getting her cycles on a regular monthly basis. Also, there is no mention in the medical records of any bleeding other than that associated with the veteran's menses. The VA progress note dated in July 2002 specifically reported that the veteran denied having any bleeding. Further, there is no medical evidence of record to indicate that the veteran has any lesions involving bowel or bladder confirmed by laparoscopy, and bowel or bladder symptoms. Taking into account all the evidence of record, the Board finds that a higher evaluation for her service- connected uterine fibroids is not warranted. The preponderance of the evidence is against the claim. Further, the Board finds no evidence warranting a higher award at any time from the effective date of this award to the present. Fenderson, supra. Anemia is rated utilizing Diagnostic Code 7700. 38 C.F.R. § 4.117. Under Diagnostic Code 7700, a zero percent (non- compensable) rating is for application when hemoglobin is 10gm/100ml or less, and the veteran is asymptomatic. A 10 percent rating is for application when hemoglobin is 10gm/100ml or less, with findings such as weakness, easy fatigability, or headaches. A 30 percent rating is for application when hemoglobin is 8gm/100ml or less, with findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath. A 70 percent rating is for application when hemoglobin is 7gm/100ml or less, with findings such as dyspnea on mild exertion, cardiomegaly, tachycardia (100 to 120 beats per minute), or syncope (three episodes in the last six months). A 100 percent rating is for application when hemoglobin is 5gm/100ml or less, with findings such as high output congestive heart failure or dyspnea at rest. Here, while the veteran's hemoglobin levels have often been recorded as being 10gm/100ml or less, and even as low as 7gm/100ml, there is no evidence of record indicating findings such as weakness, easy fatigability, or headaches, which would warrant a 10 percent evaluation. Also, there is of record no report of shortness of breath, dyspnea, cardiomegaly, tachycardia, or problems such as congestive heart failure. The veteran mentioned once, in the course of her September 2004 VA examination, that she was very occasionally lightheaded on standing, but this was described as "not a problem." That examination report also noted that she was not anemic at the time, with hemoglobin reported as normal at 12.7. She was reported to be able to walk two to three miles without difficulty and without any shortness of breath. Taking into account all the facts in evidence, the Board finds no basis on which to award a compensable rating for the veteran's anemia. Her anemia is best described as being "asymptomatic," which does not warrant a compensable rating. Additionally, the Board finds no evidence warranting a compensable rating at any time from the effective date of this award to the present. Fenderson, supra. III. Veterans Claims Assistance Act of 2000 On November 9, 2000 the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) was signed into law, changing the standard for processing veterans' claims. In adjudicating this veteran's claims, the Board has considered the provisions of the VCAA. Among other things, the VCAA and implementing regulations require VA to notify the claimant and the claimant's representative of any information and any medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). As noted above, the Board remanded in order that the veteran be apprised of VA's duties to both notify and assist. The veteran was so notified in correspondence dated in August 2004. (Although the notice required by the VCAA was not provided until after the RO originally adjudicated the appellant's claim, "the appellant [was] provided the content-complying notice to which [s]he [was] entitled." Pelegrini v. Principi, 18 Vet. App. 112, 122 (2004). Consequently, the Board does not find that the late notice under the VCAA requires remand to the RO. Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA.) Specifically regarding VA's duty to notify, the August 2004 notification to the veteran apprised her of what the evidence must show to establish entitlement to the benefits sought, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the veteran, what information VA would assist in obtaining on the veteran's behalf, and where the veteran was to send the information sought. The veteran was told which evidence VA was responsible for obtaining, and which information she was responsible for obtaining. See Quartuccio, supra. Additionally, the RO informed the veteran of the results of its rating decisions, and the procedural steps necessary to appeal. The RO also provided a SOC and a supplemental statement of the case (SSOC) reporting the results of the RO's reviews, and the text of the relevant portions of the VA regulations. Regarding VA's duty to assist, the Board notes that the RO obtained and incorporated into the record the veteran's service medical records (SMRs) and VA treatment records. Also as noted above, the veteran was afforded a VA medical examination in connection with this appeal. Given the standard of the regulation, the Board finds that VA has no duty to inform or assist that was unmet. ORDER Entitlement to a higher evaluation for uterine fibroids, rated as 10 percent disabling from November 1, 2000, is denied. Entitlement to a compensable evaluation for microcytic anemia, rated as 0 percent disabling from November 1, 2000, is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs