Citation Nr: 0812942 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 06-31 768 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an effective date earlier than May 19, 1998, for the grant of service connection for uterine fibroid disease and a 30 percent rating for recurrent pelvic inflammatory disease with uterine fibroid disease, status post cryotherapy for cervical dysplasia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Nancy S. Kettelle, Counsel INTRODUCTION The veteran served on active duty from September 1983 to February 1984 and from May 1885 to October 1990. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The case had been transferred from the RO in Seattle, Washington, and in the March 2005 rating decision, the Huntington RO granted service connection for uterine fibroid disease and evaluated it with the veteran's service- connected recurrent pelvic inflammatory disease, status post cryotherapy for cervical dysplasia with a 30 percent rating from May 19, 1998. The veteran's disagreement with that decision led to this appeal. In April 2008, a Deputy Vice-Chairman of the Board granted the veteran's motion to advance the veteran's case on the Board's docket. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. REMAND In a rating decision dated in April 1991, the RO granted service connection for recurrent pelvic inflammatory disease, status post cryotherapy for cervical dysplasia, and assigned a noncompensable rating effective the day following the veteran's separation from service in October 1990. The veteran did not file a notice of disagreement with that decision. In May 1998, the veteran filed a claim, which was interpreted, in pertinent part, as a claim for service connection for endometriosis and uterine myoma. With the claim, the veteran submitted an operation report from a private hospital showing that in March 1997, during bilateral tubal sterilization, findings included uterine myoma and endometriosis. Later, the veteran submitted an operation report from a different private hospital showing she underwent a hysterectomy in July 1998 and preoperative and postoperative diagnoses leiomyomata uterus and pelvic endometriosis. In a rating decision dated in October 1998, the RO denied service connection for endometriosis and uterine myoma. The veteran filed a notice of disagreement with that decision, the RO issued a statement of the case, and the veteran perfected her appeal to the Board. The Board issued a development memo and subsequently remanded the case for additional development. In a March 2005 rating decision, which was issued during the course of the appeal concerning service connection for endometriosis and uterine myoma, the RO in Huntington, West Virginia, granted service connection for uterine fibroid disease. (Fibroid is an "old term for certain types of leiomyoma, especially those occurring in the uterus." STEADMAN'S Medical Dictionary, 27th ed., p. 670.) In the March 2005 rating decision, the RO explained that the fibroid disease would be evaluated with the veteran's pelvic inflammatory disease, status post cryotherapy for cervical dysplasia and a 30 percent rating would be assigned from May 19, 1998, to July 14, 1998. In the same rating decision, the RO granted service connection for post-operative hysterectomy with history of pelvic inflammatory disease and uterine fibroid disease and assigned a 100 percent rating from July 14, 1998, to October 31, 1998, and a 30 percent rating from November 1, 1998. In an April 2005 letter, the RO notified the veteran of the results of the March 2005 rating decision and enclosed a copy of the rating decision along with a VA Form 4107 providing the veteran notice of her appellate rights. In May 2005, the VA AMC provided the veteran with a copy of its March 2005 supplemental statement of the case in which it continued the denial of service connection for endometriosis. Thereafter, the case was returned to the Board, and in a decision dated in September 2005, the Board granted service connection for endometriosis. In a rating decision dated in January 2006, the Seattle RO, in response to the Board's decision, implemented the grant of service connection for endometriosis. In the rating decision, the RO said that endometriosis was discovered during the veteran's July 14, 1998, hysterectomy and was resolved with the removal of the endometrium. The RO determined that the grant of service connection for endometriosis does not result in a higher rating and indicated that the evaluation of post-operative hysterectomy with history of pelvic inflammatory disease and uterine fibroid disease and endometriosis was rated as 100 percent disabling from July 14, 1998, to October 31, 1998, and 30 percent disabling from November 1, 1998. In a January 2006 letter, the RO notified the veteran of its decision and provided her a copy of the January 2006 rating decision along with notice of her appellate rights. In a statement received at the RO in February 2006, the veteran said she would like to appeal the January 2006 decision and asserted that she should be compensated for her hysterectomy with history of pelvic inflammatory disease and uterine fibroid disease and endometriosis from November 1, 1990, to June 1, 1998, the date the increase [from 0 percent to 30 percent] was awarded. The RO accepted the veteran's statement as a notice of disagreement with the March 2005 rating decision that granted service connection for uterine fibroid disease effective May 19, 1998, and evaluated it with the veteran's pelvic inflammatory disease, status post cryotherapy for cervical dysplasia, with a 30 percent rating from May 19, 1998. In its September 2006 statement of the case, the RO stated the date of the grant was from the date of receipt of the veteran's claim for service connection for uterine fibroid disease. The RO explained that the only way to consider review action on an effective date prior to the 1998 date was if the veteran felt there was clear and unmistakable error (CUE) in the April 1991 rating decision. Thereafter, on her VA Form 9, received in September 2006, the veteran asserted the effective date should be back dated to her original claim in 1990 arguing that the RO had overlooked evidence in her service medical records. In a written brief presentation dated in January 2008, the veteran's representative asserted that the veteran is raising a claim of CUE in the April 1991 rating decision and requested that the case be remanded by the Board for adjudication of the veteran's CUE claim prior adjudication of the claim on appeal. On review of the record, the Board agrees that the veteran has raised the issue of CUE in the April 1991 rating decision that granted service connection for recurrent pelvic inflammatory disease, status post cryotherapy for cervical dysplasia, with a noncompensable rating from October 1990. The veteran asserts that in its April 1991 adjudication of her service connection claim, the RO failed to consider all of the evidence in her service medical records [including evidence of uterine fibroid and endometriosis] and is essentially arguing she is entitled to an earlier effective date for service connection and a 30 percent rating for her gynecological disorders. The issue of CUE in the April 1991 rating decision has not been adjudicated by the RO, and the Board does not have jurisdiction to consider that issue in the first instance. See Jerrell v. Nicholson, 20 Vet. App. 326, 332 (2006). Because the veteran's pending claim for an earlier effective date is based, at least in part, on whether there was CUE in the April 1991 rating decision, the two issues are inextricably intertwined. See Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Thus, the Board will remand the pending earlier effective date claim to avoid piecemeal litigation. Accordingly, the case is REMANDED for the following action: 1. Adjudicate the issue of whether there was CUE in the April 1991 rating decision that granted service connection for recurrent pelvic inflammatory disease, status post cryotherapy for cervical dysplasia, with a noncompensable (0 percent) rating. If CUE is not found, and the veteran files a timely notice of disagreement, issue an appropriate statement of the case that addresses all relevant evidence and informs the veteran of the pertinent law and regulations. The veteran and her representative should be advised of the procedures and time limits for filing a timely substantive appeal. 2. Then, readjudicate the veteran's claim for an effective date earlier than May 14, 1998, for the grant of service connection for uterine fibroid disease and a 30 percent rating for recurrent pelvic inflammatory disease with uterine fibroid disease, status post cryotherapy for cervical dysplasia. If the claim currently in appellate status is not granted to the satisfaction of the veteran, issue an appropriate supplemental statement of the case. The veteran and her representative should be provided the opportunity to respond. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).