Citation Nr: 0818522 Decision Date: 06/05/08 Archive Date: 06/12/08 DOCKET NO. 05-26 852 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a higher initial evaluation for fibroid uterus with dysfunctional bleeding, rated as 10 percent disabling from January 18, 1992. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD A. Muhlfeld, Associate Counsel INTRODUCTION The veteran had active military service from January 1988 to January 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The veteran had a hearing before a decision review officer at the Detroit, Michigan regional office in April 2006. The United States Court of Appeals for Veterans Claims (Court) has indicated that a distinction must be made between a veteran's dissatisfaction with an initial rating assigned following a grant of service connection (so-called "original ratings"), and dissatisfaction with determinations on later filed claims for increased ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). When an original rating is appealed, consideration must be given as to whether an increase or decrease is warranted at any time since the award of service connection (in this case, January 18, 1992), a practice known as "staged" ratings. Id. Inasmuch as the rating question currently under consideration was placed in appellate status by a notice of disagreement expressing dissatisfaction with an original rating, the Board has characterized that issue as set forth on the title page. FINDING OF FACT The veteran's uterine fibroids with dysfunctional bleeding is manifested by heavy, and (in the past, irregular) bleeding, requiring continuous treatment for control. There is no evidence of pelvic pain or heavy or irregular bleeding not controlled by treatment. CONCLUSION OF LAW The criteria for entitlement to a higher initial evaluation for uterine fibroids and dysfunctional bleeding have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. § 4.116a, Diagnostic Code 7613 (1992); 38 C.F.R. §§ 3.102, 3.159, 4.116, Diagnostic Code 7629 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will attempt to obtain on behalf of the claimant, and (3) any evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that effective May 30, 2008, VA amended its regulations governing VA's duty to provide notice to a claimant regarding the information necessary to substantiate a claim. The new version of 38 CFR 3.159(b)(1), removes the portion of the regulation which states that VA will request that the claimant provide any evidence in her possession that pertains to the claim. See 73 Fed. Reg., 23353-54 (April 30, 2008). The Board notes that the veteran was apprised of VA's duties to both notify and assist in correspondence dated in March 2001 and March 2006. (Although the complete notice required by the VCAA was not provided until after the RO adjudicated the appellant's claim, "the appellant [was] provided the content-complying notice to which she [was] entitled." Pelegrini, 18 Vet. App. at 122. Consequently, the Board does not find that the late notice under the VCAA requires remand to the RO. Nothing about the evidence or any response to the RO's notification suggests that the case must be re- adjudicated ab initio to satisfy the requirements of the VCAA.) Specifically regarding VA's duty to notify, the notifications to the veteran apprised her of what the evidence must show to establish entitlement to the benefit sought, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the veteran's behalf. The RO also provided a statement of the case (SOC) and a supplemental statement of the case (SSOC) reporting the results of its review of the issue and the text of the relevant portions of the VA regulations. The veteran was apprised of the criteria for assigning an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board has considered the Court's recent holding in Vazquez-Flores v. Peake, No. 05-355 (U.S. Vet. App. Jan. 30, 2008), concerning increased compensation claims and 38 U.S.C. § 5103(a) notice requirements. The Board notes that a claim for increased rating and a claim for a higher initial rating are similar in that the veteran seeks a higher evaluation for a service-connected disability. The Court, however, did not hold in Vazquez-Flores that the VCAA notice requirements set forth in that decision applied to initial rating claims. In this regard, for example, if a veteran files a claim for service connection for a disability, she is provided with VCAA notice as to that claim, the claim is granted, and she files an appeal with respect to the rating assigned and/or effective date of the award, VA is required to follow a procedure different from the VCAA notification. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board notes that after an appellant has filed a notice of disagreement as to the initial effective date or disability rating assigned-thereby initiating the appellate process- different, and in many respects, more detailed notice obligations arise, the requirements of which are set forth in sections 38 U.S.C.A. §§ 7105(d) and 5103A. Id. Here, the veteran's claim for a higher initial rating for service-connected uterine fibroids with dysfunctional bleeding would appear to fall squarely within the fact pattern above. Thus, no further action to comply with Vazquez-Flores is required. Regarding VA's duty to assist, the RO obtained the veteran's service medical records (SMRs), VA and private medical records, and secured examinations in furtherance of her claim. VA has no duty to inform or assist that was unmet. The veteran contends that the symptoms of her service- connected uterine fibroids with irregular bleeding are more severe than the assigned 10-percent rating suggests. Specifically, she stated that her period lasts for 10 days and that she spots before and after her period, and noted that during her menstrual cycle she had very heavy bleeding. She also stated that she experienced pain due to a tumor pressing against her bladder, and noted that this constant pressure on her bladder causes her to have to go to the bathroom all the time. The veteran reported that she had been taking birth control since 2004, however, it had not been effective. She noted that she currently has five very large fibroid tumors, and also experiences pain, bleeding and much discomfort, and noted that her doctor was trying experimental treatment in an effort to avoid surgery, which may be unavoidable. Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (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 (2007). As noted in the introduction above, the Court has indicated that a distinction must be made between a veteran's dissatisfaction with original ratings and dissatisfaction with determinations on later filed claims for increased ratings. Fenderson, supra. Accordingly, the Board will evaluate the veteran's disability to determine if the evidence of record entitles her to a rating higher than 10 percent at any point since the initial award of service connection. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical location and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 CFR § 4.20. Since the effective date of the award of service connection, the criteria for rating gynecological disorders have been changed. 60 Fed. Reg. 19855 (Apr. 21, 1995), as amended at 67 Fed. Reg. 6874 (Feb. 14, 2002); 67 Fed. Reg. 37695 (May 30, 2002). Under the old criteria, a Diagnostic Code specific to the veteran's disability did not exist; however, metritis, along with other gynecological disorders, was to be rated as zero percent disabling for mild disability, as 10 percent disabling for moderate disability, and as 30 percent disabling for severe disability as chronic residuals of infections, burns, chemicals, foreign bodies, etc. 38 C.F.R. § 4.116a (1992). The veteran's uterine fibroids and dysfunctional bleeding has been rated by analogy to diagnostic code 7629 under the newer criteria, which provide that endometriosis is to be evaluated as 10 percent disabling where there is pelvic pain or heavy or irregular bleeding, requiring continuous treatment for control. A 30 percent rating is warranted when there is pelvic pain or heavy or irregular bleeding not controlled by treatment. A 50 percent rating is warranted when there are lesions involving bowel or bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment, and bowel or bladder symptoms. A VA examination was conducted in June 1992. At this examination, the veteran reported mid-cycle bleeding which began in December 1991, and noted that at this time she was taking her oral contraceptive pills regularly. She reported that when she forgot to take her pills, she experienced spotting, but noted that even when taking her pills regularly, she had an increase in her mid-cycle bleeding. The examiner diagnosed the veteran with breakthrough bleeding on oral contraceptive pills. An August 1995 operation report noted that the veteran underwent a hysteroscopy and dilatation and curettage. The examiner noted that the veteran had a three-year history of irregular vaginal bleeding which had been unresponsive to hormone therapy. A June 1996 progress note reported a long history of irregular bleeding and noted that the veteran was status-post hysteroscopy, but continued to have occasional irregular bleeding. At a VA examination conducted in March 1999, the veteran reported spotting for one week prior to her periods since 1991. She reported that she had been on a number of birth control pills since then and also estrogen treatment, but did not remember the names of the birth control pills or the duration. The examiner noted that the spotting prior to her normal periods could be attributed to noncompliance with her birth control pills, and noted that at the present time, the veteran was not on any form of birth control pills or hormonal supplementation. Outpatient treatment records dated from June 1992 through September 2002, contain treatment and complaints related to metrorrhagia. Specifically, a February 2001 entry noted that the oral contraceptive pills (OCPs) controlled the veteran's spotting and increased bleeding, and noted that she was not currently taking them, but that she would take the OCPs again if the metrorrhagia became more of a problem. An October 2001 echogram of the pelvis gave an impression of multiple uterine fibroids, predominately within the fundus, which appeared to be serosal and intramural in location. A July 2002 treatment note shows that she was prescribed estrace for breakthrough bleeding and ortho-cyclen. A September 2002 treatment note reporting a past medical history of metarrhagia, status-post polpectomy from cervix/uterus in the mid 90's with improvement, but noted that she had a return of heavier bleeding/spotting and was placed on OCPs with very good results. The examiner noted that if needed, the veteran would use estrogen for breakthrough bleeding, which had not been a problem in months. A July 2004 VA examination noted that the veteran reported occasional pelvic cramps two times per month for 15-20 seconds, and noted no history of pain with relations or chronic pelvic pain. The veteran had distant past episodes of dysfunctional uterine bleeding (DUB) per medical records; however, the current work-up was not complete to make the diagnosis of DUB. The examiner noted a large uterus, thickened endometrial lining, and possible ovarian mass, and noted that the veteran's pap smear revealed rare atypical glandular cells of undetermined significance which required further work-up. The examiner noted that the veteran's bleeding required further evaluation, and noted that she was not on birth control pills, so this was not likely to be a part of the veteran's condition. Outpatient treatment notes dated in July 2004, noted an enlarged uterus and stated that the veteran had a history of irregular periods, and presently had spotting for ten days prior to the actual period. An MRI of the pelvis dated in August 2004 gave an impression of multiple fibroids in an enlarged uterus, noting at least five large fibroids, all exophytic, and noted numerous small fibroids which distort the endometrial cavity, no adenomyosis, and normal ovaries. An echogram dated in July 2004, noted an enlarged fibroid uterus, and thickened endometrium. An October 2004 entry noted a history of chronic dysfunctional uterine bleeding, and stated that the veteran presented for a discussion of options, which included hormone therapy, observation, myomectomy, and hysterectomy. After discussion, the examiner noted that the veteran would try loestrin for four months and continue with it, if the treatment was successful, and if not successful, they would consider a myomectomy. A VA examination was conducted in February 2006. At this examination the examiner noted that the veteran had a large fibroid uterus measuring approximately 18 weeks in size with multiple fibroids noted. The examiner noted monthly cycles that lasted approximately 10 days with moderate to heavy flow in the middle and spotting in the beginning and toward the end, and noted that the veteran had a history of abnormal, irregular menses in the past; however, it was noted that currently the veteran was of her normal state of health without significant change in the fibroid uterus. On examination, the examiner noted large uterine fibroids, and discussed with the veteran various options and management including conservative therapy, hysterectomy, uterine artery embolization, and myomectomy. The examiner noted that treatment for the fibroids ultimately would need surgical hysterectomy, but noted that this would interfere with the veteran's potential plans for child bearing. The examiner stated that at this time, no change in her current status was noted as far as her menstrual cycle or her symptomatology from the fibroids. Here, the Board finds that the current evidence of record most closely approximates the currently assigned 10 percent rating criteria, and that a higher 30 percent evaluation is not warranted at any point since the initial award of service connection. Specifically, there is no evidence of any current irregular bleeding, as noted in the most recent February 2006 examination, which reported that although the veteran had a history of abnormal, irregular bleeding in the past, she currently was of her normal state of health, with a moderate to heavy flow, and no significant change in the fibroid uterus. Therefore, the Board finds that as of the February 2006 examination, there was no indication that the veteran experienced heavy or irregular bleeding. Regarding pelvic pain, a July 2004 VA examination noted that the veteran reported occasional pelvic cramps two times per month for 15-20 seconds, but noted no history of pain with relations or chronic pelvic pain; nor did the February 2006 examiner mention evidence of pelvic pain. The veteran did not experience irregular or heavy bleeding, but irregular bleeding has been noted in the past. Nevertheless, a higher 30 percent rating is still not warranted because the evidence reveals that the irregular bleeding was controlled by treatment. For example, a February 2001 entry noted that the OCPs controlled the veteran's spotting and increased bleeding, but noted that she was not then taking them, but that she would take the OCPs again if the metrorrhagia became more of a problem. Further, a September 2002 treatment note again showed that the veteran's heavy bleeding was controlled by treatment, noting a past medical history of metarrhagia, status-post polpectomy from cervix/uterus in the mid 90's with improvement; and noted that she had a return of heavier bleeding/spotting, but was placed on OCPs with very good results. This September 2002 treatment record also noted that if needed, the veteran would use estrogen for breakthrough bleeding, which had not been a problem in months. In summary, treatment records show that although the veteran did not experience irregular bleeding as of the February 2006 VA examination, she did in the past; however, these symptoms were controlled by treatment, including OCPs and estrogen, with good results. In other words, even when considering the veteran's problems since 1992, as required by Fenderson, there is no suggestion that her disability has amounted to more than moderate problems as contemplated by the old criteria or more than 10 percent disabling as defined by the new criteria. In short, her difficulties have been controlled over the years by treatment. Despite her contentions, the medical record does not suggest bowel or bladder symptoms as a result of the veteran's uterine fibroids; nor did the examiner mention lesions involving the bowel or bladder confirmed by laparoscopy; therefore a 50 percent rating could not be assigned. In summary, the Board finds that the veteran is not entitled to a higher initial rating for her service-connected uterine fibroids and dysfunctional uterine bleeding, at any point since the initial award of service connection. ORDER Entitlement to a higher initial evaluation for fibroid uterus and dysfunctional uterine bleeding is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs