Citation Nr: 0905754 Decision Date: 02/17/09 Archive Date: 02/24/09 DOCKET NO. 99-09 370 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUES 1. Entitlement to an initial, compensable rating for right ovarian cysts, prior to March 12, 2007. 2. Entitlement to a rating in excess of 30 percent for right ovarian cysts, since July 1, 2007. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran had active military service from December 1989 to September 1996. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a March 1999 rating decision in which the RO, inter alia, denied the Veteran's claim for service connection for a right ovarian cyst. The Veteran testified during two hearings before the undersigned Veterans Law Judge: in July 2002 at the RO, and in April 2005 in Washington, DC; transcripts of both hearings are of record. In July 2005, the Board, inter alia, remanded the then claim for service connection for right ovarian cysts to the RO, via the Appeals Management Center (AMC) in Washington, DC for further development. In a June 2006 rating decision, the AMC granted service connection and an initial 0 percent rating for right ovarian cysts, effective September 14, 1996. This rating decision constituted a full grant of the benefit sought regarding the claim for service connection. In February 2007, the Veteran filed a notice of disagreement (NOD) with the initial rating assigned for right ovarian cysts. A statement of the case (SOC) was issued in April 2007 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in June 2007. In August 2008, the Board remanded the claim for a higher initial rating to the RO, via the AMC, for additional development. After completing the requested actions, in an August 2008 rating decision, the AMC granted a 100 percent for the Veteran's right ovarian cysts, effective March 12, 2007 and assigned a 30 percent rating from July 1, 2007. In October 2008, the RO issued a supplemental SOC (SSOC) denying further increases and returned these matters to the Board for further appellate consideration. As this appeal involves a request for a higher initial rating following the grant of service connection, the Board has characterized this matter in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disabilities). Moreover, as higher ratings for the Veteran's right ovarian cysts are assignable before March 12, 2007 and after June 30, 2007, and the Veteran is presumed to seek the maximum available benefit for a disability, the Board has characterized the appeal as encompassing the two matters set forth on the title page. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board's decision on the claim for an initial, compensable rating for right ovarian cysts, prior to March 12, 2007 is set forth below. The claim for a rating in excess of 30 percent for right ovarian cysts, since July 1, 2007, is addressed in the remand following the order; this matter is being remanded to the RO via the AMC in Washington, DC. VA will notify the Veteran when further action, on her part, is required. As a final preliminary matter, the Board notes that, in December 2008 correspondence, the Veteran referenced claims for service connection for loss of a creative organ, sexual dysfunction, depression/anxiety secondary to service- connected conditions, and for post-traumatic stress disorder due to sexual assault. The Veteran also requested retroactive pay for her ovarian cyst condition. As the RO has not adjudicated these matters, they are not properly before the Board, and are referred to the RO for appropriate action. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim herein decided has been accomplished. 2. For the period prior to March 12, 2007 (from September 14, 1996 to March 11, 2007), the Veteran's right ovarian cysts were manifested by removal of one ovary with partial removal of the other. CONCLUSION OF LAW For the period prior to March 12, 2007 (from September 14, 1996 to March 11, 2007), the criteria for a compensable rating for right ovarian cysts have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.27, 4.116, Diagnostic Code 7619 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2008)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2008). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353- 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, a March 2008 post-rating letter provided notice to the Veteran regarding what information and evidence was needed to substantiate a claim for a higher rating, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determination (consistent with Dingess/Hartman), and asked her to submit any evidence in her possession pertinent to the claims. After issuance of this letter, and opportunity for the Veteran to respond, the August 2008 SSOC reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of the above-described notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of the Veteran's post-service private medical records, as well VA outpatient treatment records, and reports of VA examinations. Also of record and considered in connection with the appeal are the transcripts of the Veteran's Board hearings, as well as various written statements provided by the Veteran and by her representative, on her behalf. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate the claim herein decided, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim herein decided. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on this aspect of the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error and affirming that the provision of adequate notice followed by a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Higher Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which provides for ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is or primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in Fenderson, the United States Court of Appeals for Veterans Claims noted an important distinction between an appeal involving a veteran's disagreement with the initial rating assigned at the time a disability is service connected. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson, 12 Vet. App. at 126. For the period prior to March 12, 2007, the Veteran's right ovarian cysts have been assigned a 0 percent rating pursuant to 38 C.F.R. § 4.116, Diagnostic Code 7619. Under this code, removal of an ovary warrants a 100 percent rating for three months after removal. Thereafter, complete removal of both ovaries will result in a 30 percent rating, and removal of one ovary with or without partial removal of the other warrants a noncompensable rating. Considering the pertinent evidence of record in light of the above, the Board finds that the criteria for an initial, compensable rating for right ovarian cysts prior to March 12, 2007 (from September 14, 1996 to March 11, 2007) are not met. The Veteran's service treatment records reflect a laporotomy, resection of a cyst from the left ovary, and resuturing of the right ovary in August 1991. Post service, a January 1997 private medical record reflects another laporotomy, which found that the left ovary was absent. The report of a February 2007 private ultrasound reflects that the left ovary was absent and the right ovary was abnormal. A private operative report reflects that the Veteran's right ovary was removed on March 12, 2007. The above-described evidence shows that, prior to March 12, 2007, the Veteran's disability was manifested by removal of the left ovary and possibly a partial removal of the right ovary, which is consistent with a noncompensable rating under Diagnostic Code 7619. The record simply presents s no basis for assignment of a higher schedular rating under the applicable rating criteria for the period prior to March 12, 2007. The Board also has considered the applicability of alternative diagnostic codes for evaluating the Veteran's right ovarian cysts for this period, but finds that no higher rating is assignable. As there is no evidence of removal of the uterus, prolapse of the uterus, displacement of the uterus, rectovaginal fistula, urethrovaginal fistula, or malignant neoplasm of the gynecological system, there is no basis for evaluating the Veteran's disability under Diagnostic Code 7618, 7621, 7622, 7624, 7625, or 7627 respectively. See 38 C.F.R. § 4.116. Additionally, the Board finds that there is no showing that, at any point prior to March 12, 2007, the disability under consideration has reflected so exceptional or so unusual a disability picture as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b) (cited in the August 2008 SSOC). In this regard, the Board notes that the disability has not objectively been shown to markedly interfere with employment (i.e., beyond that contemplated in the assigned rating for the period). There also is no evidence that the disability has necessitated frequent periods of hospitalization, or has otherwise rendered inadequate the regular schedular standards. In the absence of evidence of any of the factors outlined above, the criteria for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) have not been met. 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). For all the foregoing reasons, the Board finds that there is no basis for staged rating for the period prior to March 12, 2007, and the claim for an initial, compensable rating for right ovarian cysts for this period must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against assignment of any higher rating for he time frame in question, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An initial, compensable rating for right ovarian cysts, prior to March 12, 2007, is denied. REMAND Unfortunately, the Board's review of the claims file reveals that further RO action on the remaining claim on appeal, again, is warranted. For the period since July 1, 2007, the Veteran's right ovarian cysts are rated 30 percent disabling under Diagnostic Code 7619 for complete removal of both ovaries. A private operative report reflects that the Veteran's uterus and right ovary were removed on March 12, 2007. Thus, the Veteran's condition now reflects a complete removal of both ovaries as well as the removal of the uterus. Under Diagnostic Code 7617, complete removal of the uterus and both ovaries warrants a 100 percent rating for three months after removal, and a 50 percent rating thereafter. 38 C.F.R. § 4.116. The removal of the uterus (hysterectomy), however, has not been associated with the right ovarian cysts or with the removal of the right ovary. However, as indicated in the introduction, the Veteran has filed a claim for service connection for residuals of a hysterectomy. The Board notes that any decision with respect to the as yet unadjudicated claim for service connection for residuals of a hysterectomy may affect the outcome of the claim for a rating in excess of 30 percent for right ovarian cysts since July 1, 2007; hence, the claims are inextricably intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As the claim for higher rating and the unadjudicated claim for service connection should be considered together, it follows that, any Board action on the claim on appeal, at this juncture, would be premature. Hence, a remand of this matter is warranted. While the matter is on remand, the RO should give the Veteran another opportunity to present information/evidence pertinent to the claim on appeal. The RO's notice letter to the Veteran should explain that she has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2008) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). After providing the appropriate notice, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the remaining claim on appeal. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following actions: 1. The RO should send to the Veteran and her representative a letter requesting that the Veteran provide sufficient information, and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the remaining claim on appeal. The RO should also explain the type of evidence that is her ultimate responsibility to submit. 2. If the Veteran responds, the RO should assist her in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and her representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing the requested actions, and any additional notification and development deemed warranted, the RO should adjudicate the claim for service connection for residuals of hysterectomy and readjudicate the claim for a rating in excess of 30 percent for right ovarian cysts, since July 1, 2007, in light of all pertinent evidence and legal authority. 5. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran and her representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but she may furnish additional evidence and argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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. 2008). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs