Citation Nr: 0525220 Decision Date: 09/15/05 Archive Date: 09/29/05 DOCKET NO. 96-40 308 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for bladder/kidney disability. 2. Evaluation of residuals of excision of bilateral breast fibroadenomas, currently rated as noncompensable. 3. Evaluation of uterine fibroids, currently rated as noncompensable. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The veteran served on active duty from August 1982 to September 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1994 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In November 2000, the Board remanded matters to the RO. Claims for service connection for stomach, right ankle, foot, and respiratory tract disabilities which the Board had remanded to the RO in November 2000 were granted by the RO. FINDINGS OF FACT 1. The veteran does not have current bladder or kidney disabilities. 2. Her breast fibroadenoma excision scars are well healed, superficial, do not exceed an area of 144 square inches (929 sq. cm), are not tender or painful on objective demonstration or examination, and do not limit function of the breasts. 3. Uterine fibroids are no more than mild and do not require continuous treatment or cause displacement of the uterus. CONCLUSIONS OF LAW 1. Bladder/kidney conditions were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2004). 2. The criteria for a compensable evaluation for residuals of excision of bilateral breast fibroadenomas are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, Diagnostic Code 7699-7805 (1994); 38 C.F.R. Part 4, Diagnostic Code 7699-7805 (2004). 3. The criteria for a compensable evaluation for uterine fibroids are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.116a, Diagnostic Code 7699-7613 (1994); 38 C.F.R. §§ 3.321, 4.116, 7613 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). To implement the provisions of the law, the VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2004). The amendments became effective November 9, 2000, except for the amendment to 38 C.F.R. § 3.156(b) which became effective August 29, 2001. Except for the amendment to 38 C.F.R. § 3.156(a), the second sentence of 38 C.F.R. § 3.159(c), and 38 C.F.R. § 3.159(c)(4)(iii), VA stated that "the provisions of this rule merely implement the VCAA and do not provide any rights other than those provided in the VCAA." 66 Fed. Reg. 45,629. Accordingly, in general where the record demonstrates that the statutory mandates have been satisfied, the regulatory provisions likewise are satisfied. The Act and implementing regulations eliminate the concept of a well- grounded claim and redefine the obligations of VA with respect to the duty to assist. First, VA has a duty to notify the claimant and his or her representative, if represented, of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that the claimant is expected to provide. In what can be considered a fourth element of the requisite notice, VA must "also request that the claimant provide any evidence in the claimant's possession that pertains to the claim." 38 C.F.R. § 3.159(b)(1); see 38 U.S.C.A. § 5103A(g). VA has satisfied its duty to notify by means of a July 2003 letter from the RO to the claimant. In this case, the claimant was informed of the duty to notify, the duty to assist, to obtain records, and examinations or opinions. The claimant was specifically advised of the type of evidence which would establish the claim and the claimant was afforded additional time to submit such evidence. Thus, the claimant has been provided notice of what VA was doing to develop the claim, notice of what the claimant could do to help the claim and notice of how the claim was still deficient. The claimant was also provided notice that she should submit pertinent evidence in her possession. The claimant was advised of how and where to send this evidence and how to ensure that it was associated with her claim. Thus, in sum, the claimant was informed of the duty to notify, the duty to assist, to obtain records, and opinions. The claimant was specifically advised of the type of evidence that would establish the claim. The claimant has been provided notice of what VA was doing to develop the claim, notice of what the claimant could do to help the claim and notice of how the claim was still deficient. However, only after the June 1993 rating decision was promulgated did the AOJ, in July 2003, provide explicit notice to the claimant regarding what information and evidence is needed to substantiate the claim, as well as what information and evidence must be submitted by the claimant, and what information and evidence will be obtained by VA. Specifically, the claimant was notified that VA has a duty to assist her in obtaining evidence necessary to substantiate her claims. The claimant was notified that she must give VA enough information about her records so that VA could request them and that VA would request necessary records held by Federal agencies and make reasonable efforts to help her get private records. Here, the Board finds there could not have been a VCAA letter before the June 1993 adjudication since the VCAA was not in effect at that time. While the notice provided to the claimant in July 2003 was not given prior to the first AOJ adjudication of the claim, the claimant was afforded the opportunity to identify medical evidence that VA would attempt to obtain. In that regard, the AOJ obtained additional VA medical records after the July 2003 letter was sent. The claimant was also afforded VA examinations in 2004 after the letter was sent. The process carried out during the course of the claim provided the claimant with a meaningful opportunity to participate effectively in the processing of the claim by VA. Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice after the initial adjudication did not affect the essential fairness of the adjudication. Id. Second, VA has a duty to assist the claimant in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A. In the instant case, VA has made efforts to develop the record. Service medical records and VA and private treatment records have been obtained, and VA examinations were conducted in 1994 and 2004. The records satisfy 38 C.F.R. § 3.326. The Board finds that VA has done everything reasonably possible to assist the claimant. Accordingly, the Board concludes it should proceed, as specific notice as to what evidence the claimant could or should obtain has been provided in effect and no additional pertinent evidence was submitted. There is no indication that there is any additional relevant competent evidence to be obtained either by the VA or by the claimant, and there is no other specific evidence to advise him/her to obtain. See Quartuccio v. Principi, 16 Vet. App. 183 (2002) (holding that both the statute, 38 U.S.C. § 5103(a), and the regulation, 38 C.F.R. § 3.159, clearly require the Secretary to notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the Secretary). The claimant has had sufficient notice of the type of information needed to support the claim and the evidence necessary to complete the application. Therefore, the duty to assist and notify as contemplated by applicable provisions, including VCAA, has been satisfied. As such, the Board finds that the development requirements of the VCAA have also been met. VA has done everything reasonably possible to assist the claimant. Accordingly, appellate review may proceed. Service connection for bladder/kidney disability The veteran has appealed the denial of service connection for bladder/kidney conditions. She does not claim that bladder or kidney conditions were incurred in combat. Accordingly, the provisions of 38 U.S.C.A. § 1154(b) (West 2002) do not apply. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2004). Service connection may be established for any disease diagnosed after discharge when all of the evidence including that pertinent to service establishes that it was incurred in service. 38 C.F.R. § 3.303. Service medical records show treatment for urinary symptoms. There were complaints of frequent urination with dysuria, and of burning on urination, in February 1988. An intravenous pyelogram in June 1989 revealed a right ureterocele. The pyelogram was otherwise normal. The veteran denied a history of kidney problems on service evaluations in April and December 1991. On service separation examination in August 1992, she denied having painful urination. Clinical evaluation of her genitourinary system was normal. A post-service October 1992 service medical record notes a urinary tract infection and acute pyelonephritis. In April 1994, she had a urinary tract infection. In May 1994, she was feeling well after a course of doxycycline. Lab results reviewed were all negative and the assessment was resolved pelvic inflammatory disease. She reported in October 1994 that she had problems in service with her bladder and kidneys and had had bladder and kidney infections since service and she has pain in these areas. In March 2002, a urinary tract infection was assessed. Symptoms had occurred after she had changed medication for depression. On VA examination in February 2004, the veteran reported a history of uterine adhesions which had adhered to her bladder. She indicated that they had been lysed. She denied having any current complaints regarding her bladder. She denied dysuria, polyuria, and hematuria. Examination revealed her abdomen was nontender. The examiner stated that no urologic disorders at all were notable at the time of the examination and that there was no disability. An incidentally noted right ureterocele which was likely congenital and which was not giving her any symptoms and which was not associated with disability was reported. The March 2004 VA examiner reviewed the veteran's claims folder and considered history she provided and examined the veteran and indicated that she had a history of urinary tract infections, which were resolved, and which had no apparent sequelae. Although the veteran had a urinary tract infection and acute pyelonephritis in October 1992, and a urinary tract infection in April 1994 and in March 2002, we are denying the claim on the basis of an absence of chronic disability. There are no treatment records or other probative evidence between service and present, demonstrating a chronic disabling bladder or kidney condition. At the time of the February 2004 VA examination, the veteran denied having any urologic disorder. She had no complaints or problems with regard to her bladder, and no dysuria, polyuria, or hematuria. The examiner reported that there were no urologic disorders at all notable at that time and no disability. Physical examination revealed her abdomen to be soft and nontender. In the section following the examination findings, the examiner stated that she had urologic disorder without significant disability. He stated that she had a right ureterocele which was likely a congenital abnormality, not caused by service and not associated with disability currently. That examiner prepared another report in May 2004. In his May 2004 report, he indicated that the veteran reported that she developed urinary tract infections and eventually kidney infections in service. She reported that she had had frequent kidney infections since the 1980's, and that they occurred about once a year. She stated that the last one was in 1992 and that she had had none since then. She had had no further bladder infections since 1992, no incontinence, and no difficulty with urination. She had been found to have a right ureterocele which was a developmental problem of congenital problem development, and not caused by service. Examination of the abdomen was unremarkable. The examiner indicated that most likely the veteran's ureterocele was developmental and not related to kidney infections per se. She had had pyelonephritis in the past, which had been treated, and she had not had recurrence of it since 1992 and has no residuals at this time. In the interim between those 2 examination reports, urea nitrogen, creatinine, and albumin were not reported as high or low on VA lab testing in April 2004. Additionally in the interim, another VA examiner reviewed the veteran's claims folder, considered her history, examined her in March 2004, and indicated that she had a history of urinary tract infections which had resolved and which had no apparent sequela. We conclude that there is no current bladder or kidney disability, based on a preponderance of the evidence. It fails to show current bladder or kidney disability. The veteran has a right ureterocele, but there is no disability. In the absence of a current disability, granting service connection for any kidney/bladder or ureter conditions is not warranted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (maintaining that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability," and holding that "in the absence of proof of a present disability[,] there can be no valid claim"). The veteran, being a layperson, is not competent to indicate that she has chronic bladder or kidney disability, as these are the type of assertions which require medical expertise. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Grottveit v. Derwinski, 5 Vet. App. 91, 93 (1993). The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). Evaluation rating criteria Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2004). Separate diagnostic codes identify the various disabilities. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The veteran is contesting the disability evaluations that were assigned following the grant of service connection for residuals of excision of bilateral breast fibroadenomas, and for uterine fibroids. In Fenderson v. West, 12 Vet. App. 119, 126-8 (1999), the Court discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. We conclude that the disabilities have not significantly changed and that uniform ratings are warranted. Evaluation of breast fibroadenoma excision residuals The veteran has appealed the denial of an initial compensable evaluation for residuals of excision of bilateral breast fibroadenomas. She contends that her right breast scar becomes tender and painful before her menses. After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the grant of a compensable rating. During the course of the claim, there have been amendments to the rating schedule. All applicable versions are being considered, and none are more favorable in this case. She is currently rated under Diagnostic Code 7805, other scars. Old Diagnostic Code 7805 states to rate other scars on limitation of function of the part affected. New Diagnostic Code 7805 states to rate other scars on limitation of function of the affected part. On VA breast examination in February 2004, clinical evaluation revealed that there was no limitation of motion or function caused by the scar of either breast. She told an examiner in February 2004 that she could do about 20 pushups. No functional limitation is claimed or identified. The evidence indicates that there is no limitation of function caused by the scar of either breast. Accordingly, the Board will consider other Diagnostic Codes. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc). Old Code 7626 (1994) provides for a 30 percent rating for removal of mammary glands of one breast without removal of axillary glands, and a 50 percent rating for removal of mammary glands of both breasts without removal of axillary glands. The veteran had a 1.5 centimeter adenoma removed from each breast during service. She has not claimed, and no evidence shows, that she had removal of mammary glands of either breast. Accordingly, a compensable rating under old Diagnostic Code 7626 is not warranted. New Diagnostic Code 7626 (2004) provides for ratings of 40 percent and higher in cases of radical mastectomies. It provides for a 30 percent rating when there has been breast surgery of one breast with a simple mastectomy or wide local excision with significant alteration of size or form, and a 50 percent evaluation when there has been breast surgery of both breasts with a simple mastectomy or wide local excision with significant alteration of size or form. The veteran had a 1.5 centimeter nodular adenoma removed from each breast in service in between September and October 1987. In July 1992, clinical evaluation revealed large breasts. On VA examination in May 2004, the breasts were symmetrical with no dimpling or retraction. The scars were not elevated or depressed and the scars were superficial and the examiner indicated that any soft tissue loss or damage was negligible. There was not any induration or inflexibility of the skin in the area of the scars and there was no limitation of motion or function caused by the scars. Neither a mastectomy of either breast, nor significant alteration of size or form of either breast, is claimed or shown. We conclude that the veteran does not have a mastectomy of either breast, and that there has not been significant alteration of size or form of either breast. A compensable rating under old or new Diagnostic Code 7626 is not warranted. Old Diagnostic Code 7804 provides for a 10 percent rating for scars which are tender and painful on objective demonstration. New Diagnostic Code 7804 provides for a 10 percent rating for scars which are superficial and painful on examination. The veteran contends that she has mild breast tenderness on the right just before her menstrual periods, at the site of the breast scar. On examination in March 2004, the veteran stated that she had no breast pain. The diagnosis was status post breast biopsies with no apparent sequela. On VA examination in May 2004, her right breast scar was nonpainful and superficial on examination. The left breast scar was nontender and superficial. There was no inflammation or edema. We conclude that neither scar is painful on objective demonstration or examination and that a compensable rating under old or new Diagnostic Code 7804 is not warranted. Furthermore, the Board finds that the objective examination reports are more probative than her unsupported statements regarding tenderness. New Diagnostic Code 7802 provides for a 10 percent rating when there are scars, other than on the head, face, or neck, that are superficial and do not cause limited motion, but are in area or areas of 144 square inches (929 sq. cm.) or greater. The veteran's scars are superficial and do not cause limited motion. The examiner in May 2004 reported that the right breast scar was 3 cm by 0.4 cm and that the left breast scar was 4 cm by 0.5 cm. Multiplying their reported lengths times their reported widths and adding the products together shows that their areas are less than 144 square inches (929 sq. cm.). A compensable rating under new Diagnostic Code 7802 is not warranted. Old Diagnostic Code 7803 requires superficial scars which are poorly nourished with repeated ulceration for a 10 percent rating. New Diagnostic Code 7803 requires superficial scars which are unstable for a 10 percent rating. The May 2004 VA examination shows that the veteran's scars were well healed, did not have induration, dimpling, or depressions, and were not unstable, and that there was no edema or inflammation. The veteran, furthermore, has not alleged that her scars are poorly nourished, repeatedly ulcerate, or are unstable, and no evidence indicates that they are. We conclude that a compensable rating under old or new Diagnostic Code 7803 is not warranted. New Diagnostic Code 7628 indicates that benign neoplasms of the breast are to be rated according to impairment of function of the urinary or gynecological systems or skin. The May 2004 VA examination found the existence of 3 cysts in the right breast. No impairment of function is shown and we conclude that a compensable rating under new Diagnostic Code 7628 is not warranted. The Board has reviewed the rating schedule and can find no other Diagnostic Code which is favorable. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc). For the reasons stated above, the Board finds that the preponderance of the evidence is against a compensable rating for residuals of excision of breast fibroadenomas and there is no doubt to be resolved. See Gilbert, 1 Vet. App. at 55. Evaluation of uterine fibroids The veteran has appealed the denial of an initial compensable evaluation for uterine fibroids. She claims that a compensable rating is warranted because she has mild to severe pain, irregular periods, and probably some scar tissues. Her doctor had put her on progesterone which she was on at the time of the March 1995 hearing. After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the grant of a compensable rating. During the course of the claim, there have been amendments to the rating schedule. All applicable versions are being considered, and none is more favorable in this case. Uterine fibroid was noted during service. A myomectomy and lysis of adhesions were performed in service in June 1989 after a 3-4 cm mass on top of the uterus was reported. The veteran is rated under Diagnostic Code 7699-7613. Old Diagnostic Code 7613, metritis, provides for a noncompensable rating for metritis when it is mild, a 10 percent rating when it is moderate, and a 30 percent rating when it is severe. The veteran had a urinary tract infection in April 1994 and she had pelvic inflammatory disease which resolved by May 1994. She was doing well in May 1994. On VA examination in July 1994, the veteran's uterus was nontender. She testified in October 1994 that she had mild to severe pain and irregular periods. In September 2001, Naprosyn was working well for dysmenorrhea. On examination in March 2004, the uterus was nontender. The May 2004 VA examiner reported that the veteran had slight enlargement of the uterus. The symptoms reported by the veteran were dysmenorrhea during the first 2 days of menses, which she would treat with aspirin or Panadol and heating pad with adequate relief. She reported no heavy bleeding. The examiner indicated that the veteran's dysmenorrhea was likely related to recurrent fibroids. The veteran's abdomen was unremarkable on VA examination in May 2004. We conclude that more than mild metritis is not present. She has reported mild to severe pain, but since the resolution of pelvic inflammatory disease in April 1994, clinical evaluations have revealed the uterus to be nontender. Dysmenorrhea reportedly occurs only during the first 2 days of menses and is adequately relieved with treatment. Accordingly, under old Diagnostic Code 7613, a compensable rating is not warranted. New Diagnostic Code 7613 is designated for disease, injury, or adhesions of the uterus. They are rated under the new General Rating Formula for Disease, Injury, or Adhesions of the Female Reproductive Organs. Under the formula, with symptoms not controlled by continuous treatment, a 30 percent rating is assigned. With symptoms that require continuous treatment, a 10 percent rating is assigned. With symptoms that do not require continuous treatment, a noncompensable rating is assigned. We conclude that the veteran's symptoms do not require continuous treatment. The veteran had a urinary tract infection in April 1994 and she had pelvic inflammatory disease which was resolved by May 1994. In March 2000, she reported that she had previously been on cycled Provera 10 days a month for irregular menses, and that she now had regular menses. In September 2001 she was on Naprosyn as needed for cramping. The examiner in May 2004 identified her uterine fibroid symptom as dysmenorrhea and stated that she had it during the first 2 days of menses. She reported treatment of it with aspirin or Panadol and heating pad with adequate relief. We accept this information as probative evidence that her symptoms do not require continuous treatment, and conclude that a compensable rating under new Diagnostic Code 7613 is not warranted. We find that her March 1995 hearing testimony does not assist the claim. She stated then that she was on hormone treatment. However, she did not indicate that she was on continuous treatment and no evidence shows she has been at any time since 1995 which is when the regulation changed to provide a 10 percent rating for continuous treatment. Additionally, the VA examiner in May 2004, specifically addressing fibroid residuals, reported dysmenorrhea that she treated with aspirin or Panadol and heating pad with adequate relief. We find that such report is probative since the examiner was asked to identify her fibroid symptoms. Old Diagnostic Code 7622 is for displacement of the uterus. It provides for a 10 percent rating when displacement is moderate, with adhesions and irregular menstruation. New Diagnostic Code 7622 provides for a 10 percent rating for displacement of the uterus when there are adhesions and irregular menstruation. The Board concludes that the veteran does not have displacement of the uterus. The veteran's uterus was retroverted and she had a urinary tract infection and pelvic inflammatory disease in April 1994. In May 1994, she was feeling well and a pelvic sonogram was negative and lab results were all negative. Since then, her uterus has been examined a number of times without retroversion or displacement being reported. Her uterus was described as not appreciably enlarged on VA examination in July 1994. It was reported to be mobile on evaluation in June 2003. It was determined to be mobile, anteverted, and well supported on VA examination in March 2004. Ultrasound findings were described in May 1994 and May 2004. There was no mention of displacement of the uterus. We find that the retroversion which she had in April 1994 resolved, and that there is no current displacement. We conclude that a compensable rating under either version of Diagnostic Code 7622 is not warranted. The Board has reviewed the rating schedule and finds that no other Diagnostic Code is applicable. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc). After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the grant of a compensable evaluation for uterine fibroids. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Entitlement to service connection for bladder/kidney conditions is denied. Entitlement to a compensable evaluation for residuals of excision of bilateral breast fibroadenomas is denied. Entitlement to a compensable evaluation of uterine fibroids is denied. ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs