Citation Nr: 0800122 Decision Date: 01/03/08 Archive Date: 01/22/08 DOCKET NO. 05-09 757 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to an initial disability rating in excess of 30 percent for uterine fibroids and history of ovarian cysts, postoperative hysterectomy. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The veteran served on active duty from February 1982 to March 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina (RO). In that decision, the RO granted service connection for residuals of hysterectomy, and assigned that disability a 30 percent disability rating effective from April 1, 2004. The veteran appealed as to the rating assigned. In that rating decision, the RO also made a number of other decisions from which the veteran submitted a notice of disagreement to initiate appeals. However, after the RO issued a statement of the case on those claims, she stated in her March 2005 substantive appeal that she was only appealing the claim regarding the propriety of the 30 percent rating for the residuals of hysterectomy. At that time she also raised a claim of entitlement to service connection for an associated disorder of bladder incontinence. The RO subsequently granted service connection for urinary incontinence in a March 2006 rating decision. In sum, the veteran did not perfect an appeal as to the other claims denied in the May 2004 rating decision. The RO granted service connection for urinary incontinence. The veteran has not appealed as to the rating assigned for that disability. Therefore, the only issue on appeal here pertains to the claim of entitlement to an initial disability rating in excess of 30 percent for uterine fibroids and history of ovarian cysts, postoperative hysterectomy (the residuals of hysterectomy). FINDING OF FACT The veteran's service-connected uterine fibroids and history of ovarian cysts, postoperative hysterectomy, is manifested by normal postoperative gynecological examination, status post abdominal hysterectomy; and menopause with nonfunctioning ovaries. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 30 percent for uterine fibroids and history of ovarian cysts, postoperative hysterectomy, are not met. 38 U.S.C.A. §§ 1155, 5103 (West 2002); 38 C.F.R. §§ 3.159, 4.116, Diagnostic Code 7618 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence VA will seek to provide and which information and evidence the claimant is expected to provide. In compliance with 38 C.F.R. § 3.159(b), the notification should also include the request that the claimant provide any evidence in the claimant's possession that pertains to the claim. In this case, VA essentially satisfied the notification requirements of the VCAA by means of letters dated in April and June 2005. In those letters the RO informed the veteran of the types of evidence needed in order to substantiate her claim on appeal for an initial disability rating in excess of 30 percent for uterine fibroids and history of ovarian cysts, postoperative hysterectomy. VA has also informed the veteran of the division of responsibility between the veteran and VA for obtaining that evidence, and VA requested that the veteran provide any information or evidence in her possession that pertained to such claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess v. Nicholson. In regard to the present claim adjudicated below for service connection, the Board finds that the veteran is not prejudiced by a decision at this time. Any question of appropriate notice pursuant to Dingess is mooted by the denial of the claim decided below. The Board also finds that VA has made reasonable efforts to obtain relevant records adequately identified by the veteran. The information and evidence that have been associated with the claims file consist of service and post-service medical records, and statements made in support of the veteran's claim, and other materials. In sum, the veteran has been provided with every opportunity to submit evidence and argument in support of her claim, and to respond to VA notices. Also, the actions taken by VA have essentially cured any defect in the VCAA notice. The purpose behind the notice requirement has been satisfied, because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of her appealed claim. II. Analysis The present appeal involves the veteran's claim that the severity of her service-connected uterine fibroids and history of ovarian cysts, postoperative hysterectomy, warrants an initial disability rating in excess of 30 percent. Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002). VA regulations require that disability evaluations be based upon the most complete evaluation of the condition that can be feasibility constructed with interpretation of examination reports, in light of the whole history, so as to reflect all elements of the disability. Medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2 (2007). 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 order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In cases such as this in which the veteran has appealed the initial rating assigned after service connection is established, the Board must consider the initial rating, and, if indicated, the propriety of a staged rating from the initial effective date forward. See Fenderson v. West, 12 Vet. App. 119, 126-7 (1999). See also Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007) (finding staged ratings appropriate also in cases where the appeal was not as to the initial rating assigned after service connection is established). The veteran's statements describing the symptoms of her service-connected disorder are deemed competent evidence. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). However, these statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2007); see also Esteban v. Brown, 6 Vet. App. 259, 261(1994). However, the evaluation of the same disability under various diagnoses is to be avoided. See 38 C.F.R. § 4.14 (2006); Fanning v. Brown, 4 Vet. App. 225 (1993). The veteran's service-connected disability of uterine fibroids and history of ovarian cysts, postoperative hysterectomy, is currently evaluated as 30 percent disabling pursuant to rating criteria under 38 C.F.R. § 4.116, Diagnostic Code 7618 (2007). Under that code, removal of the uterus, including corpus warrants a 100 percent disability rating for the first three months after removal, after which, a 30 percent disability rating is assigned. Because of the service-connected uterine fibroids and history of ovarian cysts, postoperative hysterectomy, the RO also granted special monthly compensation under 38 U.S.C.A. §1114(k) and 38 C.F.R. § 3.350(a), on account of anatomical loss of a creative organ. See 38 C.F.R. § 4.116, Note 2 and Footnote 1. The veteran underwent a hysterectomy in 1997 during service. In the May 2004 rating decision, the RO assigned the service- connected residuals of hysterectomy (uterine fibroids and history of ovarian cysts, postoperative hysterectomy), a 30 percent disability rating effective from April 1, 2004. Based on the foregoing, a 30 percent disability rating is appropriate under Diagnostic Code 7618. The Board has reviewed the medical evidence of record to determine whether a higher rating may be assigned pursuant to other diagnostic criteria pertaining to ratings for gynecological conditions. See 38 C.F.R. § 4.116, Diagnostic Codes 7610-7625 (there is no suggestion of any involvement of the breast to involve diagnostic criteria under Diagnostic Code 7626). During the period service connection has been in effect, the applicable evidence of record most material to the veteran's claim includes reports of VA examinations in January 2004, June 2005, and September 2006. There are also VA treatment records dated in 2004 showing that in November 2004 physical examination was normal and test findings from a Pap smear were normal. The assessment at that time was "annual gynecological examination, history of ovarian cyst. The report of the January 2004 VA examination shows that the veteran had a history of a hysterectomy in May 1997 in which the uterus was completely removed. During that examination, the veteran reported that since that hysterectomy, she could not menstruate. She further reported that she had not suffered from any heavy or irregular bleeding, or pelvic pain. She reported having no urine incontinence; and she was not receiving any treatment for her condition. The examiner found that there was no functional impairment resulting from the condition, and that the condition did not result in any time lost from work. After examination, the report contains a diagnosis for the claimed condition of hysterectomy, of "there is no diagnosis because the condition is resolved." The report of a June 2005 VA examination for gynecological conditions shows that the veteran reported complaints of incontinence since her 1997 total abdominal hysterectomy for large uterine fibroids, and Marshall-Marchetti-Kranz procedure for stress incontinence. She reported that this had been worse until recently and was requiring the use of pads on a regular basis. She reported that she had been told that she still has cysts on her ovaries. She reported that she had no symptoms related to this, and the examiner opined that this would seem doubtful since she is obviously menopausal. On physical examination, the examiner made no abnormal findings. After examination, the report contains diagnoses of (1) normal postoperative gynecological examination, status post abdominal hysterectomy and Marshall- Marchetti-Kranz procedure; and (2) occasional stress incontinence with no current treatment. The report of a September 2006 VA examination for gynecological conditions records that in 1997 the veteran underwent abdominal hysterectomy for large symptomatic uterine fibroids, and Marshall-Marchetti-Kranz procedure for stress incontinence. The examiner noted that the 1997 operative report stated that the veteran's ovaries were normal at the time of that surgery. The examiner noted a history that subsequently in 2004, the veteran complained of abdominal pain and bloating; for which she underwent an ultrasound examination. That examination showed that the left ovary was not visualized; and the right ovary was normal in size, with three tiny cysts. The largest cyst was 4 by 6 mm in size. SSH testing was performed at that time and it showed the veteran to be menopausal. A subsequent ultrasound examination in March 2005 showed that findings were unchanged. The veteran reported complaints that she has occasional hot flashes now, but these are not as severe as she had had in the past. She had some incontinence symptoms. On examination, the examiner made findings that there was a well-healed Pfannenstiel incision of the abdomen. External genitalia was normal; vaginal mucosa was flat; cuffs were clean; and bimanual examination was negative. There were no masses, pain, tenderness, or thickening. After examination, the report contains diagnoses of (1) normal postoperative gynecological examination status post abdominal hysterectomy for uterine fibroids, and (2) menopause with non-functioning ovaries. Note first that in an unappealed rating decision in March 2006, the RO granted service connection for urinary incontinence and assigned that disability a 40 percent disability rating. As the veteran has not appealed that rating, consideration of an evaluation for incontinence as a separate service-connected residual of the hysterectomy is not appropriate here. Also, special monthly compensation is in effect at the rate provided under 38 U.S.C.A. §1114(k) and 38 C.F.R. § 3.350(a), on account of anatomical loss of a creative organ. The veteran has not appealed as to that rate of special monthly compensation. In sum, in order for the veteran's claim to be granted, the case must fit some other criterion under a diagnostic code used for evaluating gynecological conditions other than Diagnostic Code 7618. See 38 C.F.R. § 4.116. However, the veteran's symptomatology meets none of the potentially relevant criteria that would entitle an evaluation in excess of the 30 percent now in effect. The medical evidence does not show that the condition of the veteran's ovaries requires continuous treatment, so as to warrant a separate compensable evaluation under 38 C.F.R. § 4.116, Diagnostic Code 7615. Though there is evidence that the right ovary is normal in size, with three tiny cysts, there is no evidence that this results in any condition requiring any treatment. Nor is there medical evidence of any abnormal condition of the vagina, cervix, or fallopian tube, so as to consider evaluation under 38 C.F.R. § 4.116, Diagnostic Codes 7611, 7612, or 7614, respectively. The medical evidence also does not show that either ovary has been removed. Therefore, an evaluation in excess of 30 percent under Diagnostic Codes 7617, or a separate rating under Diagnostic Code 7619, is not warranted. 38 C.F.R. § 4.116. Nor is there medical evidence of complete atrophy of both ovaries to warrant a separate rating under 38 C.F.R. § 4.116, Diagnostic Code 7620. There is also no medical evidence of any rectovaginal or urethrovaginal fistula, so as to warrant a separate rating under 38 C.F.R. § 4.116, Diagnostic Codes 7624 or 7625. In summary, based on the evidence of record, the Board finds that the preponderance of evidence is against an initial evaluation in excess of 30 percent for uterine fibroids and history of ovarian cysts, postoperative hysterectomy. The Board concludes that there was no period since the award of service connection that a rating greater than 30 percent was warranted for that disability. Fenderson, supra. The above determination is based on application of pertinent provisions of the VA's Schedule for Rating Disabilities. There is no showing that the veteran's uterine fibroids and history of ovarian cysts, postoperative hysterectomy reflects so exceptional or unusual a disability picture as to warrant the assignment of an initial evaluation higher than 30 percent on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1). There is no indication that the service- connected uterine fibroids and history of ovarian cysts, postoperative hysterectomy results in marked interference with employment (i.e., beyond that contemplated in the assigned evaluation) for any period since the grant of service connection. Moreover, the condition is not shown to warrant frequent periods of hospitalization, or to otherwise render impractical the application of the regular schedular standards. In the absence of evidence of such factors, the Board is not required to remand the claim to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to an initial disability rating in excess of 30 percent for uterine fibroids and history of ovarian cysts, postoperative hysterectomy is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs