Citation Nr: 0217916 Decision Date: 12/11/02 Archive Date: 12/18/02 DOCKET NO. 94-34 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a rating in excess of 10 percent for a uterine fibroid tumor with menorrhagia and anemia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The veteran served on active duty from July 1979 to July 1982 and from March 1989 to February 1993. This case was previously before the Board in July 1999. The Board denied the veteran's claims of entitlement to service connection for a skin disorder and a disorder manifested by fatigue, both claimed as undiagnosed illnesses resulting from the veteran's participation in the Persian Gulf War. The Board also denied the veteran's claim of entitlement to a rating in excess of 10 percent for peptic ulcer disease with gastritis. The Board did, however, grant a 10 percent rating for the veteran's service-connected left Bartholin cyst. Finally, the Board remanded the issue of entitlement to a rating in excess of 10 percent for a uterine fibroid tumor with menorrhagia. Following the requested development, the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, confirmed and continued the 10 percent rating for a uterine fibroid tumor with menorrhagia. Thereafter, the case was returned to the Board for further appellate action. In its July 1999 decision, the Board noted that during the course of the appeal, the veteran had raised issues to the effect that service connection was warranted for hypertension and for recurrent yeast infections, secondary to her service-connected Bartholin cyst. The veteran also raised contentions to the effect that she was entitled to recoup money which had been withheld for tax purposes from her severance check, which she had received on her separation from service. It was noted that such issues were not inextricably intertwined with any which were on appeal; and, therefore, they were referred to the RO for appropriate action. In a June 2002 rating action, the RO denied the veteran's claim of entitlement to service connection for hypertension. The veteran was notified of that decision, as well as her appellate rights; however, to date, the VA has not received a Notice of Disagreement from the veteran with which to initiate the appellate process. While the case was undergoing development, the RO received from the veteran another claim of entitlement to a rating in excess of 10 percent for peptic ulcer disease with gastritis. In its July 2002 rating action, the RO raised the veteran's rating for that disability to 40 percent, effective March 14, 2001. In July 2002, the RO received the veteran's statement that she not only disagreed with the amount of that rating, she disagreed with the effective date. Accordingly, the RO should take appropriate action to further develop the veteran's claims of entitlement to an increased rating for peptic ulcer disease and of entitlement to an effective date earlier than March 14, 2001, for the currently assigned 40 percent rating for peptic ulcer disease. To date, no further action has been taken with respect to the question of entitlement to service connection for recurrent yeast infections, secondary to her service- connected Bartholin cyst or to the question of whether the veteran was entitled to recoup money which had been withheld for tax purposes from her severance check, which she had received on her separation from service. FINDINGS OF FACT 1. Prior to March 1, 1995, the veteran's uterine fibroids, manifested primarily by heavy menstrual bleeding and iron deficiency anemia, were productive of severe impairment. 2. Since March 1, 1995, the veteran's heavy menstrual bleeding and iron deficiency anemia associated with her uterine fibroids have been controlled with medication. CONCLUSIONS OF LAW 1. Prior to March 1, 1995, the criteria for a 30 percent rating for a uterine fibroid tumor with menorrhagia and anemia were met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A (West 1991 and Supp. 2001); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.116a, DC 7622 (effective prior to effective May 22, 1995). 2. Since March 1, 1995, the criteria for a rating in excess of 10 percent rating for a uterine fibroid tumor with menorrhagia and anemia have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A (West 1991 and Supp. 2001); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.116a, DC 7622 (effective prior to May 22, 1995); 38 C.F.R. § 4.116, DC 7628-7613 (effective May 22, 1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist During the pendency of this appeal, there was a significant change in the law. On November 9, 2000, the President signed into law 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 Supp. 2001)). That law redefined the obligations of the VA with respect to the duty to assist and included an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A. After reviewing the record, the Board finds that by virtue of the information sent to the veteran in the Board's July 1999 remand; the Statement of the Case; the Supplemental Statements of the Case; and notices of the enactment of the VCAA sent from the RO to the veteran in February 2001 and April 2002, the veteran and her representative were notified of evidence necessary to substantiate the claim of entitlement to an increased rating a uterine fibroid tumor with menorrhagia. Indeed, in the March 2002 SSOC, the RO explicitly set forth the applicable law and enabling regulations associated with the VCAA. The RO has made reasonable efforts to obtain relevant records adequately identified by the veteran; and in fact, it appears that all evidence so identified has been obtained and associated with the claims folder. As noted above, such evidence includes the veteran's service medical records and extensive VA treatment records and reports, dated from May 1994 to March 2002. In this regard, it should be noted that the veteran has not identified any outstanding evidence (which has not been sought by the VA) which could be used to support the issue of entitlement to an increased rating for a uterine fibroid tumor with menorrhagia. In March 2002, the veteran reported that she has not had a complete uterine or gynecologic examination; however, that contention is not supported by the evidence of record. Indeed, during the course of the appeal, veteran underwent gynecologic and/or hemic examinations in April 1993; December 1998; and in March and April 2000. Such examinations have variously included a review of the veteran's claims file; transcription of her complaints; a physical examination; ultrasound; and laboratory tests, including a Pap test and those specifically to evaluate the veteran's iron level. Finally, the Board notes that the veteran has been informed of her right to have a hearing in association with her appeal; however, to date, she has declined to exercise that right. In a letter of April 2002, the RO notified the veteran what evidence and information were still need from her. The letter also included an explanation of what evidence and information would be obtained by VA. Accordingly, the Board concludes that the VA has met its duty to assist the veteran in the development of her claim and that there is no need for further development of the evidence in order to meet the requirements of the VCAA. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Facts At her service separation examination in February 1993, the veteran complained of heavy menses and reported that she had had her last menstrual period approximately one week earlier. She weighed 149 pounds. In April 1993, the veteran underwent a general medical examination. Her multiple complaints included anemia and a fibroid tumor. She had reportedly been told that she was borderline anemic and that she had been prescribed iron supplements in 1990. At the time of the VA examination, she had reportedly been off iron supplements for 2 months. Laboratory studies showed that her hemoglobin and hematocrit were within normal limits. Her serum iron and ferritin were reportedly low. The examiner concluded that the veteran had iron deficiency anemia. The examiner stated that the veteran was not anemic by the results of her hemoglobin or hematocrit but that the low iron studies reflected iron deficiency anemia. In April 1993, the veteran also underwent a VA examination on a fee basis. She complained of a fibroid tumor; heavy bleeding; intermittent anemia; and an intermittent Bartholin cyst. It was noted that she had taken Provera sporadically for heavy bleeding. She was concerned about infertility, noting that she had never been pregnant and that she had never been on birth control. On examination, her uterus was at the upper limits of normal and slightly irregular. The examiner's impression was that in all probability, the veteran had a small uterine fibroid with moderate dysfunction of uterine bleeding and infertility. From May 1994 to March 1995, the veteran was treated by the VA for a fibroid uterus and complaints of heavy, prolonged menstruation. During a May 1994 consultation with the Gynecology Service, it was noted that she had moderately dysfunctional uterine bleeding. Iron therapy was recommended. An ultrasound performed in June 1994 revealed a 7.2 cm solid left ovary and a 5.47 cm cystic left ovary. There was at least one discrete fibroid, which measured 3.9 cm, in the posterior aspect of the uterine body. She was referred to the Gynecology Service to rule out ovarian cancer. During the consultation with the Gynecology Service, which was also performed in June 1994, laboratory testing revealed that the results of the veteran's hemoglobin, hematocrit, and iron testing were low. In July 1994, it was noted that the veteran's last menstrual period had been earlier that month and that she had dysfunctional uterine bleeding type of menorrhagia. A follow-up ultrasound, performed in September 1994, showed resolution of the ovarian cyst and no change in the multiple uterine fibroids. As there was no enlargement of the fibroids, the veteran declined surgery. The treating physician stated that the veteran's iron deficiency anemia was likely due to peptic ulcer disease rather than the amount of menstrual flow described by the veteran. It was noted that the veteran did not have debilitating pelvic pain and that her menstrual flow was manageable in terms of amount and duration. The physician concluded that the uterine fibroids required no intervention at that time. During a Persian Gulf War protocol examination in December 1994, the veteran's hemoglobin and hematocrit were again found to be low. The diagnoses were iron deficiency anemia, bilateral ovarian cysts, and a fibroid uterus. In January 1995, an iron supplement was prescribed for the veteran. In February 1995, during treatment at the VA Medical Center (MC) in Durham, North Carolina, it was noted that the veteran weighed 171.7 pounds. She had reportedly had her last menstrual period earlier that month. She stated that her regular cycle was 28 to 30 days and that it lasted 5 to 7 days. She also stated that it used to be 7 to 10 days but that the bleeding was now heavy. Her iron supplement was to be continued. It was noted that in service, the veteran had used Depo Provera and that it had been successful in decreasing her bleeding and correcting her anemia. She was scheduled to have a Depo Provera injection; however, that was subsequently administered at the VAMC in Fayetteville, North Carolina on March 1, 1995. VA outpatient records, dated from November 1995 to November 1999, show that the veteran was treated for various disabilities including her service-connected fibroid tumor. She continued to receive Depo Provera treatment for a fibroid uterus and an iron supplement. In November 1995, she weighed 151 pounds, and in November 1996, she weighed 145.3 pounds. In December 1998, the veteran underwent various examinations to evaluate her peptic ulcer disease, uterine fibroids, and anemia. She reported that since March 1995, she had lost 14 days from work as a mail carrier. The reasons for time lost were pelvic pain; Bartholin's cyst; abdominal pain and cramps; stress; and high blood pressure. On a report of medical history since her last VA examination, she listed her complaints as headaches; stomach pain and cramps; occasional sharp pain on the left side of her body in the groin area; dizziness; joint aches; tingling in her right hand and fingers; left leg inflammation; sleep problems; generalized itching; an intermittent rash; Bartholin's cyst; and sinus problems. During the December 1998 VA examination to evaluate the veteran's peptic ulcer disease, it was noted that the veteran continue to take an iron supplement and that she had no signs of anemia. It was also noted that she no longer had menstrual periods and that she had not had any heavy bleeding lately. The examiner reported that the veteran had a history of macrocytic anemia, likely due to blood loss and bleeding from uterine fibroids. During a VA gynecologic examination in December 1998, it was noted that the veteran's last menstrual period had occurred approximately 5 years earlier and that she had been taking Depo Provera for that length of time to control heavy vaginal bleeding. It was also noted that although she had basically had no periods for the last 5 years, she had occasionally had some spotting. The gynecologic examination was normal. The assessments were a history of amenorrhea secondary to Depo Provera and a history of a small uterine fibroid, not palpable on examination. A Pap smear was normal. During a VA hemic examination in December 1998, it was noted that the veteran had a history of taking iron supplements due to blood loss associated with bleeding from uterine fibroids. She did not have any excess fatigue and reportedly worked hard all day. She did not have weakness, shortness of breath, or pain, and she had no known exacerbation of her anemia. Laboratory studies showed that the hemoglobin and hematocrit were within normal limits. During a VA hemic examination in March 2000, it was noted that the veteran had had no menstrual cycles until 11 to 12 months earlier. She stated that she then began to experience bloating, cramps, spotting, and premenstrual symptoms. It was noted that she continued to take her iron supplement. Laboratory studies showed that the veteran's iron tests were within normal limits. His hemoglobin and hematocrit were high. The diagnosis was a history of iron deficiency anemia, none at present. The examiner was unable to say whether the veteran would be anemic if she without iron therapy. It was also noted that the veteran did not report heavy menses. In April 2000, the veteran underwent a VA gynecologic examination on a fee basis. It was noted that she continued to take iron supplements. The veteran thought that her treatment with Depo Provera had been successful and reported that she had had no periods for 6 months. She complained of bloating, weight gain, calf pain, and irregular bleeding, heavy on occasion. The veteran stated that the side effects of Depo Provera were excessive and that she wished to consider surgery. On examination, the uterus and adnexa could not be outlined. The external genitalia were normal, and the vulva, vagina, and cervix were healthy. A repeat sonogram and blood count were suggested. In a September 2000 addendum, the examiner reported that a blood count, performed in June 2000, revealed no anemia. It was also noted that an August 2000 sonogram revealed a slightly enlarged uterus containing one to two areas probably representing uterine fibroids. The examiner concluded that the absence of anemia suggested that the veteran's treatment with Depo Provera had been successful. Due to the veteran's complaints of side effects, alternative medical therapy was suggested. The examiner also concluded that since the veteran's fibroids did not appear very large and since she did not complain of pain surgery was not warranted. VA outpatient records, dated from June 2000 to March 2002, show that the veteran continued to receive Depo Provera for her uterine fibroids, as well as an iron supplement. In December 2000, the veteran continued to complain of weight gain, leg cramps, and premenstrual symptoms, such as nausea and vomiting. Oral hormone therapy was prescribed for her breakthrough bleeding. In 2001, that medication was discontinued, as the veteran complained that it made her nauseous. In April 2002, the veteran underwent a VA examination to determine the extent of her service-connected peptic ulcer disease. At that time, she weighed 164.6 pounds and that her maximum weight during the previous year had been 170 pounds. Analysis The veteran seeks a rating in excess of 10 percent for her service-connected uterine fibroid tumor with menorrhagia and anemia. Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the DC's of the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155, 38 C.F.R. Part 4 (2001). The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 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. In accordance with 38 C.F.R. §§ 4.1 and 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The RO's September 1993 decision on appeal, which granted entitlement to service connection for a uterine fibroid (ultimately evaluated as 10 percent disabling, effective February 27, 1993), was an initial rating award. As held in AB v. Brown, 6 Vet. App. 35, 38 (1993), "on a claim for an original or an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation." Thus, when an initial rating award is at issue, a practice known as "staged" ratings may apply. That is, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). The Board notes that the regulations pertaining to gynecological conditions were revised during the pendency of the veteran's appeal. See 60 Fed. Reg. 19851 (April 21, 1995). That revision became effective May 22, 1995. Inasmuch as the veteran's claim was filed before the regulatory change occurred, she is entitled to application of the version most favorable to her. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991); see also VAOPGCPREC 3-00 (opinion of the VA General Counsel that the decision in Karnas is to be implemented by first determining whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the former and current versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C.A. § 5110(g) (West 1991), can be no earlier than the effective date of that change, and that the Board must apply only the earlier version of the regulation for the period prior to the effective date of the change.). In this regard, it should be noted that precedential opinions of VA's General Counsel are binding on the Board. 38 U.S.C.A. § 7104(c) (West 1991); 38 C.F.R. § 14.507 (2001). When service connection was initially granted for service connection for a uterine fibroid, there was no DC specifically applicable to rating such disability. Therefore, the RO rated it by analogy to a benign new growth of the skin. 38 C.F.R. §§ 4.20, 4.118, DC 7819. A benign new growth of the skin was rated as scars, disfigurement, etc. Unless otherwise provide, it was to be rated as eczema, dependent upon the location, extent, and repugnant or otherwise disabling character of the manifestations. A 10 percent rating was warranted for eczema with exfoliation, exudation, or itching, if involving an exposed surface or extensive area. A 30 percent rating was warranted for exudation or constant itching, extensive lesions, or marked disfigurement. A 50 percent rating was warranted for ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or when the disorder was exceptionally repugnant. Also potentially applicable to rating the veteran's uterine fibroid at the time of the initial grant of service connection was 38 C.F.R. § 4.116a, DC 7622, the code used to rate displacement of the uterus. A 10 percent rating was warranted for moderate impairment with adhesions and irregular menstruation. A 30 percent rating was warranted for severe impairment with marked displacement and frequent or continuous menstrual disturbances. In the revised regulations, which became effective on May 22, 1995, benign neoplasms of the gynecological system were rated under a specific code. Therefore, there was no further need to rate them by analogy to a skin disorder. They were to be rated according to the impairment in function of the gynecological function in question. 38 C.F.R. § 4.116, DC 7628. Disease or injury of the vulva (including vulvovaginitis); vagina; cervix; uterus, including adhesions; Fallopian tube, including adhesions and pelvic inflammatory disease (PID); and ovary are rated in accordance with 38 C.F.R. 4.116, DC's 7610 to 7615. A general rating formula has been established in which a 10 percent rating is warranted for symptoms which require continuous treatment. A 30 percent rating is warranted for symptoms which are not controlled by continuous treatment. A review of the record discloses that from the time of the veteran's discharge from service until March 1, 1995, she was treated or examined by the VA on many occasions and that she consistently complained of heavy menstrual bleeding associated with her uterine fibroid. Such bleeding was extensive enough to result in iron deficiency anemia; and until March 1, 1995, was essentially unchecked. Although there was evidence that the veteran's menstrual problems were consistent with moderate impairment, the consistency and frequency of her complaints and the resultant anemia more nearly approximated the criteria productive of severe impairment. Accordingly, from February 27, 1993, through February 28, 1995, a 30 percent rating was warranted for the veteran's fibroid tumor with menorrhagia and anemia. In arriving at this decision, the Board has considered the possibility of a higher schedular evaluation by analogy to 38 C.F.R. § 4.118, DC 7819; however, the record does not reflect ulceration or extensive exfoliation or crusting, or systemic or nervous manifestations associated with the veteran's service-connected fibroid tumor. The record also does not reflect that the disorder was exceptionally repugnant. Accordingly, a higher schedular evaluation was not warranted under 38 C.F.R. § 4.118, DC 7819. On March 1, 1995, the veteran began treatment with Depo Provera and continued on her iron therapy. Since that time, the evidence shows that her menstrual bleeding and anemia have been under control. Indeed, there is no evidence since March 1, 1995, which shows that she has frequent or continuous menstrual disturbances. Although she now complains of side effects from the medication, such as weight gain, bloating, amenorrhea, leg cramps, and premenstrual symptoms such as nausea and vomiting, there is no competent evidence to show that her complaints are related to her medication regimen. For example, as to her complaints of weight gain, the evidence shows that she gained weight between the time of her separation from service and just shortly before she started taking Depo Provera. It also shows that approximately a year and half after she started taking Depo Provera, her weight was below that reported at the time of her discharge from service. In this regard the Board notes that she was on Depo Provera therapy for several years before any of the claimed side effects were recorded. In light of her complaints, her VA health care provider tried the veteran on oral hormone therapy; however, two months after the therapy, the veteran complained that it made her nauseous. Therefore, the medication was discontinued. The veteran, however, remained on Depo Provera, and the evidence tends to show that since March 1, 1995, her therapy has been successful in controlling her service-connected fibroid tumor and associated menorrhagia and anemia. Absent competent evidence to the contrary, a rating in excess of 10 percent is not warranted for the period from March 1, 1995, to the present. In arriving at the foregoing decisions, the Board has considered and applied the concept of staged ratings noted in Fenderson. The Board has also considered the possibility of referring this case to the Director of the VA Compensation and Pension Service for possible approval of an extraschedular rating for the veteran's service-connected fibroid tumor with menorrhagia and anemia. The evidence, however, does not show such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2001). In April 2002, the veteran reported that she was unemployed; however, there is no evidence that her service-connected fibroid tumor is responsible for her unemployment or that it markedly interferes with her employment. Although she has received continuous treatment for her tumor, there is no evidence that she has required frequent hospitalization. Indeed, the record shows that the manifestations of her fibroid tumor with menorrhagia and anemia are those contemplated by the regular schedular standards. It must be emphasized that the disability ratings are not job specific. They represent as far as can practicably be determined the average impairment in earning capacity as a result of diseases or injuries encountered incident to military service and their residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations of illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Absent competent evidence to the contrary, the Board finds no reason for further action under 38 C.F.R. § 3.321(b)(1) (2001). ORDER Entitlement to a 30 percent rating for a fibroid tumor with menorrhagia and anemia, is granted, effective for the period from February 27, 1993, through February 28, 1995, subject to the law and regulations governing the award of monetary benefits. Entitlement to a rating in excess of 10 percent for a fibroid tumor with menorrhagia and anemia, after February 28, 1995, is denied. G. H. SHUFELT Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.