Citation Nr: 1037212 Decision Date: 09/30/10 Archive Date: 10/05/10 DOCKET NO. 98-01 406 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial compensable evaluation for service- connected amenorrhea and pelvic inflammatory disease. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESSES AT HEARING ON APPEAL Appellant and her mother ATTORNEY FOR THE BOARD Elizabeth Jalley, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1989 to June 1994. This appeal arises before the Board of Veterans' Appeals (Board) from a rating decision rendered in May 1995 by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, in which service connection for amenorrhea and pelvic inflammatory disease was granted and a noncompensable disability rating was assigned. The Veteran appealed the disability rating assigned. The case was subsequently transferred to the jurisdiction of the Atlanta, Georgia RO. The Veteran testified before the undersigned in July 2008. A transcript of the hearing is associated with the claims file. The Board remanded the claim for further development in October 2004 and September 2008. That development having been completed, the case is now again before the Board. FINDING OF FACT The medical evidence establishes that the Veteran's amenorrhea and pelvic inflammatory disease is most appropriately classified as severe, and that the Veteran is on continuous treatment that does not control this disability. CONCLUSION OF LAW The criteria for entitlement to an initial disability evaluation of 30 percent for amenorrhea and pelvic inflammatory disease have been met from the date of service connection. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2009); 38 C.F.R. § 4.116a, Diagnostic Code 7614 (1994); 38 C.F.R. §§ 4.3, 4.7, 4.116, Diagnostic Code 7614 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION In light of the favorable action taken herein, discussion of whether VA has met its duties of notification and assistance is not required, and deciding the appeal at this time is not prejudicial to the Veteran. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2009). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2009). In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). 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 (2009). 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). Staged ratings are, however, appropriate when the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Where a law or regulation changes during the pendency of a claim for an increased rating, VA must consider whether the revised or the old criteria are more favorable to the Veteran. If the revised version of the regulation is more favorable, however, the retroactive reach of the new regulation under 38 U.S.C.A. § 5110(g) can be no earlier than the effective date of the change. See VAOPGCPREC 3-00, 65 Fed. Reg. 33422 (2000); see also 38 C.F.R. §3.114 (2009). Service connection for amenorrhea and pelvic inflammatory disease was granted by a May 1995 rating decision and a noncompensable evaluation was assigned under 38 C.F.R. § 4.116, Diagnostic Code 7614 (1994), effective June 30, 1994. This diagnostic code applied to salpingitis (inflammation of the uterine tube) and assigned ratings pursuant to a general rating schedule. Prior to May 22, 1995, mild salpingitis was assigned a noncompensable evaluation, moderate symptoms warranted a 10 percent evaluation, and severe symptoms, such as chronic residuals of infections, burns, chemicals, foreign bodies, etc., warranted a 30 percent evaluation. 38 C.F.R. § 4.116a, Diagnostic Code 7614 (1994). During the pendency of the appeal, substantive changes were made to the schedule of ratings for gynecological conditions. The changes became effective on May 22, 1995. See 60 Fed. Reg. 19,851 (1995). The current 38 C.F.R. § 4.116, Diagnostic Code 7614 (2009), assigns ratings for disease, injury, or adhesions to the fallopian tube based on a General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs. This formula assigns a noncompensable rating for symptoms that do not require continuous treatment. A 10 percent evaluation is assigned for symptoms that require continuous treatment, and a 30 percent rating is given for symptoms not controlled by continuous treatment. The Veteran's post-service medical records include numerous instances of her having sought treatment for her amenorrhea and pelvic inflammatory disease. Among these, a June 1995 VA medical record reflects that the Veteran was prescribed Provera for ten days for her amenorrhea. An August 1996 notes she was going through Provera withdrawal. An April 1998 record reflects that she was assessed as having secondary amenorrhea, hirsutism and clitoromegaly, and vaginal candidiasis and was prescribed Terconazole and Prempro. A September 2000 record notes that the Veteran was prescribed Spironolactone and another medication following an annual gynecological examination. An October 2000 record notes that the Veteran complained of stomach cramps, tenderness in the breasts, and lower pelvic area cramps with back pain. She was told to take some Naprosyn and could use a heating pad. Records from a December 2003 gynecology appointment show that the Veteran was being given hormones. It noted that she was given Provera to induce her menstrual cycle and was then to follow with Clomid. An April 2004 note indicates the Veteran had also started Metformin but stopped when she was no longer interested in conceiving. A July 2008 record reflects that the Veteran was treated with Terazol 3 for candidiasis of the vulva and vagina. An August 2006 VA examination report states that the Veteran has been treated for amenorrhea with combined oral contraceptives at times when she was not actively trying to conceive. She was started on Metformin in April 2006 for presumed hyperinsulinemia and has also been treated with Aldactone for hirsutism throughout the years. She had undergone infertility treatment with an ovulation induction agent to attempt to get pregnant. At the time of this examination, she had had four unsuccessful attempt to get pregnant and was undergoing a similar treatment. The examiner noted the Veteran's prior diagnosis of pelvic inflammatory disease with positive gonorrhea test in February 1991. There was no obvious evidence of tubal damage. The examiner concluded that the Veteran was suffering from primary infertility from longstanding presumed polycystic ovarian syndrome. It was noted that "She has the classic clinical signs of the disease that include hirsutism, oliogomenorrhea or amenorrhea with lab values that are consistent with significantly elevated LH and all other values [within normal limits]." The Veteran testified at her July 2008 hearing that she sees her doctor for problems related to amenorrhea and inflammation of the fallopian tubes two or three times per year. She stated that the doctor gives her medicine to attempt to cause ovulation so she can have her menstrual cycle. She described her pregnancy and the extremely premature birth of her son due to premature dilation of her cervix. She stated she believes that there is a relationship between this and trauma that was caused to her uterus by in-service sexual assaults. Based on the Veteran's hearing testimony, including the fact that she had not undergone a VA examination since her pregnancy, the Board found it necessary to remand for a new VA examination. The September 2008 Board remand directed that the Veteran be scheduled for an examination to determine the nature and extent of the service-connected amenorrhea with pelvic inflammatory disease. Given the sensitive nature of the issue on appeal and the length of time that the Veteran's appeal had been active, the Board was reluctant to subject the Veteran to any unnecessary development. It ultimately determined that a remand was necessary in order to ensure the most accurate rating of the Veteran's amenorrhea with pelvic inflammatory disease. Unfortunately, the resulting May 2010 VA examination report is patently inadequate for purposes of rating the Veteran's disability. It is unclear whether the VA examiner even examined the Veteran in connection with the May 2010 opinion, as the May 2010 report merely directs the reader to review the August 2006 report. The sentence that may most charitably be interpreted as a description of the Veteran's current symptomatology appears almost word-for-word in the August 2006 report. ("She has the classic clinical signs of the disease that include hirsutism, oliogomenorrhea or amenorrhea with labs values that are consistent with significantly elevated LH and all other values [within normal limits].") This sentence is included toward the beginning of a brief description of the Veteran's recent medical history and does not appear to be describing a new examination. Even if this statement was describing a current examination, it is so cursory that it offers no useful information on which to evaluate the Veteran's disability. Nor is there any indication that the examiner was aware of the pertinent rating criteria, either old or new. With respect to the old criteria, the examiner offered no assessment as to the severity of the Veteran's amenorrhea and pelvic inflammatory disease. With respect to the new criteria, she mentioned that the Veteran is taking an antidepressant but does not discuss whether the Veteran is taking any medication or undergoing any treatment for her amenorrhea and pelvic inflammatory disease. Considering that the Veteran's VA and private medical records reflect she has sought extensive treatment for these conditions, the Board cannot overlook the complete absence of any discussion of the Veteran's medical treatment. Given the faults with the May 2010 VA examination report, the Board finds that the examination does not present an adequate basis for determining this claim. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Barr v. Nicholson, 21 Vet. App. 303 (2007). Rather, the Board finds that, resolving reasonable doubt in favor of the Veteran, the maximum 30 percent rating is warranted for her amenorrhea and pelvic inflammatory disease for the entire period of the appeal. As described above, the Veteran's medical records show an extensive history of the Veteran having been treated for symptoms of the disabilities at issue. The Board cannot find any evidence of record to suggest that these treatments have controlled the Veteran's symptomatology, as, for example, hirsutism has been noted throughout her medical records despite extensive treatment. Because the period from June 30, 1994, through May 21, 1995, cannot technically be evaluated pursuant to the criteria of the new Diagnostic Code 7614, the Board must separately conclude that the Veteran's disability is most accurately characterized as "severe" for that period. The Board considers the Veteran's continued symptomatology as discussed above, despite several attempts at treatment, to be indicative of severe symptomatology. Therefore, the Veteran does satisfy the 30 percent rating criteria for the entire period on appeal. The Board has considered whether the Veteran should be rated under an alternative rating code. (The pertinent old rating criteria are 38 C.F.R. § 4.116a, Diagnostic Codes 7610 through 7627, while the relevant new criteria are 38 C.F.R. § 4.116, Diagnostic Codes 7610 through 7629). The Board finds, however, that the Veteran's disabilities are most properly rated under Diagnostic Code 7614 (salpingitis or disease, injury, or adhesions to the fallopian tube depending on whether the old or the new rating criteria are employed), which most accurately characterizes the Veteran's claim. The other diagnostic codes describe symptomatology that is either not found in the case at hand or would not warrant a rating in excess of 30 percent. The assignment of different evaluations throughout the pendency of the Veteran's appeal has been considered; however, as the Veteran is being assigned the maximum available rating for the entire period on appeal, the assignment of staged ratings is not warranted. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Application of an extraschedular evaluation under 38 C.F.R. Section 3.321(b)(1) has also been considered, but is not here warranted, as the medical evidence does not present exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993); Thun v. Peake, 22 Vet. App. 111, 115 (2008) aff'd., 572 F.3d 1366 (2009). In summary, the Board finds that the Veteran's amenorrhea and pelvic inflammatory disease satisfy the 30 percent rating criteria under both the old and the new Diagnostic Code 7614. Because these criteria are satisfied for the entire period of this appeal, the effective date of the 30 percent disability rating is June 30, 1994. This constitutes the maximum available disability rating and constitutes a full grant of the Veteran's claim. ORDER Entitlement to a disability rating of 30 percent for amenorrhea and pelvic inflammatory disease is granted for the entire appeal period from June 30, 1994. ____________________________________________ L.J. BAKKE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs