Citation Nr: 9918110 Decision Date: 06/30/99 Archive Date: 07/07/99 DOCKET NO. 97-23 748A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial increased evaluation for total vaginal hysterectomy currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD R. Cain, Associate Counsel INTRODUCTION The appellant had active service from July 1982 to July 1986. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 1996 rating decision of the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for a total vaginal hysterectomy and assigned a rating of 30 percent disabling. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. The appellant underwent a total vaginal hysterectomy in June 1986; the surgery did not involve removal of an ovary or ovaries. 3. A March 1998 VA gynecological exam revealed that the appellant's ovaries were palpable upon examination. CONCLUSION OF LAW The criteria for the assignment of an evaluation in excess of 30 percent for a total vaginal hysterectomy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b), Part 4, Diagnostic Codes 7617-7619 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the appellant's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim, which is plausible. See Proscelle v. Derwinski, 2 Vet. App. 629, 631 (1992). Furthermore, the appellant has undergone VA examinations and has been involved in VA outpatient care for her total vaginal hysterectomy. Those records do not reveal additional sources of relevant information that may be available concerning the present claim. The Board accordingly finds the duty to assist him, mandated by 38 U.S.C.A. § 5107, has been satisfied. The Board must determine whether the weight of the evidence supports the appellant's claims or is in relative equipoise, with him prevailing in either event. However, if the weight of the evidence is against his claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 4.3(1998); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1998). Separate diagnostic codes identify the various disabilities. The determination of whether an increased evaluation is warranted to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The rating schedule contains three diagnostic codes that are applicable in cases that involve hysterectomies. Under 38 C.F.R. § 4.116, Diagnostic Code 7617 (1998), which relates to a complete removal of the uterus and both ovaries, a 100 percent disability evaluation is assigned for a period of three months following the removal. Thereafter, a 50 percent evaluation is assigned. Under 38 C.F.R. § 4.116, Diagnostic Code 7618 (1998), which relates to the removal of the uterus including corpus, a 100 percent disability evaluation is assigned for a period of three months following the removal. Thereafter, a 30 percent disability evaluation is assigned. Under 38 C.F.R. § 4.116, Diagnostic Code 7619 (1998), which relates to the removal of ovaries, a 100 percent disability evaluation is assigned for a period of three months following the removal. Thereafter, a 30 percent disability evaluation is assigned for the complete removal of both ovaries, and a noncompensable disability evaluation is assigned for the removal of one ovary with or without partial removal of the other. Service medical records reflect that in June 1986, while the appellant was still in service, she underwent a total hysterectomy. The service medical records do not indicate that she had an oophorectomy. The disability has been rated as 30 percent disabling as of August 1996. The appellant contends that during her June 1986 total vaginal hysterectomy both of her ovaries were removed. A July 1997 VA gynecological outpatient treatment record indicates the examiner noted that he doubted that both of the appellant's ovaries were removed. Her left ovary was palpable. A July 1997 radiology profile indicates that the ovaries were not visualized. A March 1998 radiology profile indicates that a sonographic evaluation of the pelvis was performed using both transabdominal and transvaginal technique. Upon transvaginal examination, a structure that was most compatible with the right ovary was identified. The left ovary was not visualized either on transabdominal or transvaginal examination. A March 1998 VA gynecological examination notes that the appellant reported that she had a total hysterectomy, and she presumed she had a bilateral oophorectomy for cancer of the cervix in 1986. However, upon physical examination her ovaries were palpable and movable on each of the right and left adnexa. Her ovaries were slightly subjectively sensitive to bimanual palpation, but not tender. After a careful review of all of the evidence of record, the Board must conclude that the appellant appropriately has been assigned a 30 percent evaluation under Diagnostic Code 7618. Despite the contentions advanced in the appellant's statements, the evidence is not in her favor or in relative equipoise that either or both of her ovaries were removed in connection to her 1986 hysterectomy. Indeed, the surgery records state that only total vaginal hysterectomy, and not oophorectomy, was performed. These records also reflect that during surgery, both ovaries were described as appearing normal. Finally, specimens removed and sent for pathology examination did not include an ovary or ovaries. Also, the Board notes that a March 1998 VA gynecological examination indicates that there were palpable movable ovaries on the right and left adnexa. Although various diagnostic studies did not indicate the existence of both ovaries, the surgery records and findings on physical examination make it clear that both ovaries are present. After looking at all of the evidence, it is clear to the Board that the appellant has both of her ovaries. As the veteran's hysterectomy is medically shown to have involved a total vaginal hysterectomy and not an oophorectomy, neither Diagnostic Code 7617 nor 7619, both of which are predicated upon removal of the ovaries, is applicable. Thus, Diagnostic Code 7618, which pertains to the removal of the uterus with corpus, is applicable. However, as the more than three months have passed since her total vaginal hysterectomy, the criteria for a 100 percent schedular evaluation under Diagnostic Code 7618, the only higher evaluation assignable under the diagnostic code, are not met. In this decision, the Board is cognizant of the fact that this appeal arises from the appellant's dissatisfaction with her initial rating following the grant of service connection for a total vaginal hysterectomy. In such a case, the Court of Appeals for Veterans Claims has held that separate or "staged" ratings must be assigned where the evidence shows varying levels of disability for separate periods of time. Fenderson v. West, 12 Vet. App. 131 (1999). In this case, the Board finds that the preponderance of the evidence of record during the appeal period is against separate disability ratings in excess of 30 percent for her total vaginal hysterectomy. The Board notes that, under Diagnostic Code 7618, the appellant is not entitled to an increased schedular rating. The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102, 4.3 (1998). ORDER An initial increased evaluation for a total vaginal hysterectomy currently evaluated as 30 percent disabling, is denied. NANCY I. PHILLIPS Member, Board of Veterans' Appeals