Citation Nr: 1045380 Decision Date: 12/06/10 Archive Date: 12/14/10 DOCKET NO. 07-22 118 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for status post hysterectomy with right fallopian tube removal. 2. Entitlement to an initial rating in excess of 30 percent for pelvic adhesive disease, status post laparoscopy and hysterectomy. 3. Entitlement to an initial compensable evaluation for residual scar status post hysterectomy. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty from June 1997 to December 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia (RO). By way of procedural background, a December 2006 rating decision granted service connection for status post hysterectomy with right fallopian tube removal (also claimed as lower pelvic abdominal condition, laparoscopy residuals, pelvic adhesive disease, and pelvic adenomyosis (endometriosis)) and assigned a 30 percent disability evaluation effective December 6, 2006. In her December 2006 Notice of Disagreement, the Veteran indicated that her condition was much more complex than being rated only for a hysterectomy for which she was receiving the maximum rating of 30 percent. She indicated that her severe pelvic adhesive disease and chronic pain should be rated separately from her hysterectomy. On her July 2007 Form 9, she indicated that she was appealing the issue of severe pelvic adhesive disease with chronic pelvic pain as rated as only removal of the uterus and given a 30 percent disability rating. In an October 2007 supplemental statement of the case, implemented by an October 2007 rating decision, the RO assigned a separate 30 percent evaluation for pelvic adhesive disease, status post laparoscopy and hysterectomy, effective December 6, 2006. In October 2007, the Veteran indicated that although she agreed with the decision to separately rate her pelvic adhesive disease outside of and in addition to the 30 percent rating assigned for her hysterectomy, she felt that a higher rating should have been assigned. In order to adequately address the Veteran's contentions, the issue on appeal has been separated into two separate issues as reflected by the separately assigned ratings. The issues of entitlement to an initial rating in excess of 30 percent for status post hysterectomy with right fallopian tube removal and entitlement to an initial rating in excess of 30 percent for pelvic adhesive disease, status post laparoscopy and hysterectomy are addressed in the decision below. The Board notes that the December 2006 rating decision also granted entitlement to special monthly compensation based on anatomical loss of a creative organ, effective December 6, 2006. Furthermore, in May 2008, the RO granted service connection for interstitial cystitis (claimed as urinary incontinence) and assigned a 60 percent evaluation, effective December 6, 2006; service connection for constipation was denied. At the same time, the Veteran was awarded entitlement to total disability based upon individual unemployability, effective December 6, 2006. The claims file does not indicate the Veteran has since expressed a desire to appeal these claims as required pursuant to 38 C.F.R. § 20.1103. Therefore, these issues are not on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009) (noting in a footnote that claims for increased evaluations and TDIU claims may be separately adjudicated). In regards to the issue seeking an initial increased rating for migraine cephalgia, the Board notes that a December 2006 rating decision granted service migraine cephalgia and originally assigned a noncompensable rating. In a July 2007 rating decision, the RO increased the evaluation assigned for migraine cephalgia to 30 percent disabling, effective December 6, 2006. On her July 2007 Form 9, the Veteran indicated that she disagreed with the original noncompensable rating assigned for her migraines, however, she felt that the 30 percent rating was sufficient. As the Veteran is satisfied with the 30 percent rating assigned for migraines as indicated on her Form 9 and in subsequent correspondence, this issue is not before the Board. The issue of entitlement to an initial compensable rating for residual scar status post hysterectomy is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The evidence shows that the Veteran's hysterectomy included removal of the uterus and right fallopian tube; however, the ovaries were not removed. 2. The Veteran's pelvic adhesive disease, status post laparoscopy and hysterectomy, is manifested by symptoms not controlled by continuous treatment. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent for status post hysterectomy with right fallopian tube removal have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.116, Code 7618 (2010). 2. The criteria for an initial rating in excess of 30 percent for pelvic adhesive disease, status post laparoscopy and hysterectomy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.6, 4.116, Diagnostic Codes 7617, 7618, 7629 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Legal Criteria & Analysis Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007) [holding, "staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings"]. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. The Board has thoroughly reviewed all the evidence in the Veteran's claims folders. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate this claim for increase, and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Here, at her September 2006 VA examination, the Veteran reported that she was suffering from total abdominal hysterectomy and laparoscopy for endometriosis. The condition had existed since 2006. She had the following history of pregnancy: gravid 7, para 4. The history of urinary tract infection was described as intermittent acute cystitis. She did not have any heavy bleeding, irregular bleeding or pelvic pain. She did not have any urinary incontinence. She had her uterus completely removed in October 2006. She was treated with ULTRAM. There was no functional impairment. The diagnoses included status post hysterectomy with scar; scars on abdomen from surgery; chronic lower pelvic abdominal condition, resolved; laparoscopy residuals, resolved; pelvic adhesive disease, resolved; pelvic adenomyosis condition/endometriosis, resolved; and removed fallopian tubes. The examiner remarked that the effect of the condition on the Veteran's daily activities was mild. On August 2007 VA examination, the history as related by the Veteran indicated that the Veteran had a c-sections in January 1997 and October 1998, in which she had intermittent pelvic pain following the second procedure. She had a third c-section in June 2000. In May 2002, she underwent an abdominoplasty. In 2005, she had an early c-section. The post-operative pelvic pain was more severe. She underwent a laparoscopy in January 2006, in which she was diagnosed with pelvic adhesion. In March 2006, she had an abdominal hysterectomy and right salpingectomy. Since then, she had persistent abdominal pain that required Hydrocodone and was unable to stand straight. She had urinary frequency, urgency, and occasional incontinence that required night diapers. Another laparoscopic surgery revealed more adhesions to the bowel and bladder wall. She was medically separated from the Navy for this condition. The history of urinary tract infections was described as mostly during pregnancies. She had pelvic pain. She reported that she did not have heavy and irregular bleeding. She did have urinary incontinence that required a pad as often as 11 time(s) per day. After her uterus was removed in 2006, there were complications, including increased pelvic adhesions. She was treated with Neurontin, Miralax, and Metamucil. Her pain medications were comprised of NSAIDS, Percocet, Tramadol, and Lidocaine patches. The above symptoms were not totally relieved. She still required continuous treatment to control the condition because of persistent symptoms. There were no side effects of treatment. From the above condition, the functional impairment was pain with standing upright, prolonged walking, and frequent urination and hesitation. The pelvic examination was painful with all palpation. No uterus was palpated and there were no masses noted. The Veteran was diagnosed with severe pelvic adhesive disease status post multiple surgeries, including a hysterectomy with a residual scar. The subjective factors were chronic pelvic pain, constipation and urinary frequency and urgency. The objective factors were marked tender abdomen and pelvis on examination, medication and medical record documentation, and a well healed scar. Treatment records from Portsmouth Naval Hospital dated from September 2007 through February 2008 revealed treatment for pelvic adhesive disease status post laparoscopy and hysterectomy as well as urinary incontinence, constipation, and abdominal adhesions (intestinal). A review of the Veteran's Social Security Administration (SSA) records indicated that she was receiving Social Security benefits with a primary diagnosis of pelvic adhesive disease and a secondary diagnosis of migraine headaches. She became disabled on October 3, 2006. In a March 2008 statement, the Veteran reported that the diagnosis, treatment, and severity of all of her chronic illnesses not only ended her Navy career, but also prevented her from being able to obtain suitable employment since her discharge. In a March 2008 statement, the Veteran's spouse indicated that the Veteran could not pick up their toddler, prepare big meals for their family, or bend over to tie her shoes. She used a walker to get around and rarely left the house. She could no longer work. She could not stand upright due to pain from the hysterectomy. When she was not in pain, she was extremely drowsy from all of the medications. She also had bladder and constipation issues. In a March 2008 statement, J. M. F., a friend, reported that the Veteran frequently urinated, was not working, was in really bad pain or drugged up, and could barely walk. On March 2008 VA examination, the Veteran was diagnosed with urinary incontinence. As for chronic constipation, the examiner found that there was no diagnosis because there was no pathology to render a diagnosis. There was no anemia and no findings of malnutrition. On March 2010 VA examination, the Veteran reported her past medical history. She indicated that she had a hysterectomy with right fallopian tube removal and her ovaries were spared. She reported that she had no heavy bleeding, irregular bleeding, vaginal discharge and fever(s). She had an Interstim implanted for interstitial cystitis with some relief on incontinence and urgency. She had urinary incontinence, which required a pad as often as 10 time(s) per day. She did not require an appliance. She still required continuous treatment to control the condition due to persistent pain. The side effects of treatment included drowsiness. She had impaired mobility and required a walker to ambulate. She was not working. The examination of the abdomen was abnormal. There was generalized tenderness, especially in the lower quadrant without rebound. On pelvic examination, there were findings of an absent uterus. There were no adhesions, urethrovaginal fistula, rectovaginal fistula, uterine displacement, uterine prolapse, rectocele, cystocele, perineal relaxation, and urinary incontinence. An adnexal examination revealed that they were not palpable. The diagnoses included pelvic adhesive disease that was active and progressive with pain with all activities, and hysterectomy with right fallopian tube removal. The effect on her usual occupation and daily activities was that she had pain with all of her activities. In this case, the Veteran's status post hysterectomy with right fallopian tube removal is rated as 30 percent disabling under Diagnostic Code 7618. Under Diagnostic Code 7618, removal of the uterus, including corpus, is rated as 100 percent disabling for three months after removal and thereafter rated as 30 percent disabling. To warrant a disability rating of 50 percent, under Diagnostic Code 7617, there must be complete removal of uterus and both ovaries. Based upon the evidence of record, the Board finds that a rating in excess of 30 percent for the Veteran's service- connected residuals of hysterectomy with right fallopian tube removal is not warranted. The competent medical evidence of record reflects that the Veteran underwent a total hysterectomy with right fallopian tube removal in 2006, but that her ovaries were spared. The record also shows that the Veteran was awarded and is presently receiving the highest possible rating for status post hysterectomy with right fallopian tube removal. Accordingly, there is no basis for a higher rating. However, there is a basis for a separate rating. A separate 30 percent schedular rating has been assigned for the Veteran's pelvic adhesive disease status post laparoscopy and hysterectomy under Diagnostic Code 7614 that pertains to disease, injury, or adhesions to the fallopian tube. These conditions are to be evaluated utilizing a General Rating Formula for Disease, Injury, or Adhesions of the Female Reproductive Organs. Under this formula, a maximum 30 percent rating corresponds to symptoms that are not controlled by continuous treatment. 38 C.F.R. § 4.116, Code 7614. After consideration of all the evidence, the Board finds that the Veteran's service-connected pelvic adhesive disease status post laparoscopy and hysterectomy has been manifested primarily by gynecological symptoms not controlled by continuous treatment (Code 7614). Based on the evidence of the record, the Veteran has been assigned the maximum rating allowed under Code 7614 (30 percent). To establish entitlement to a rating in excess of 30 percent consideration must be given to other potentially applicable codes. Under Code 7629, endometriosis that is manifested by pelvic pain or heavy or irregular bleeding not controlled by treatment will be assigned a 30 percent evaluation. Endometriosis with lesions involving the bowel or bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment, and bowel and bladder symptoms will be assigned a 50 percent evaluation. 38 C.F.R. § 4.116, Code 7629. Code 7629 encompasses similar symptoms that have been experienced by the Veteran. The Board notes that the Veteran's service treatment records include a May 2006 treatment record that notes a past medical history for endometriosis and a June 2006 laparoscopy report that reveals extensive bowel adhesions, ovaries and omentum adhesions to the abdominal wall. However, on September 2006 VA examination, the examiner has specifically stated that the adenomyosis condition/endometriosis has resolved. Regardless, the Board notes that lesions involving the bowel or bladder are only part of the criteria to warrant a higher (50 percent) rating. The Veteran has specifically stated that she has not had heavy or irregular bleeding. Although the record shows that she has chronic pelvic pain that is not controlled by treatment, she is already being compensated for this under Code 7614. Likewise, a May 2008 rating decision has assigned a separate 60 percent rating for her urinary continence, effective December 6, 2006, under Code 7512. In regards to the Veteran's total disability picture relating to the residuals of her laparoscopy and hysterectomy, as her chronic pelvic pain and her bowel and bladder symptoms have already been accounted for under Codes 7612 and 7614, assignment of a higher rating under Code 7629 would constitute pyramiding (paying the Veteran twice for the same symptoms) and is prohibited under 38 U.S.C.A. § 1155 and 38 C.F.R. § 4.14. Thus, the next higher (50 percent) rating, which requires such symptoms, is not warranted. See Code 7629. The Veteran as a lay person is competent to report as to the nature, severity and frequency of her symptoms. See Layno v. Brown, 6 Vet. App. 465,474 (1994). However, she is already receiving the maximum ratings possible under Codes 7614 and 7618, and other Codes are either not applicable or would violate the rule against pyramiding. Therefore, the Board finds that the preponderance of the competent evidence of record is against a rating in excess of 30 percent for status post hysterectomy with right fallopian tube removal and a rating in excess of 30 percent for pelvic adhesive disease, status post laparoscopy and hysterectomy and there is no basis for staged ratings of the disability pursuant to Fenderson. In reaching this decision the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, the claim for increased ratings for status post hysterectomy with right fallopian tube removal and pelvic adhesive disease status post laparoscopy and hysterectomy must be denied. The Board has also considered whether the Veteran's disabilities present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extra-schedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2009); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria for status post hysterectomy with right fallopian tube removal and pelvic adhesive disease, status post laparoscopy and hysterectomy reasonably describe the Veteran's disability level and symptomatology; thus, her disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. II. Duties to Notify & Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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 seek to provide; and (3) that the claimant is expected to provide. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In the decision above, the Board has granted the Veteran's claim for service connection for status post hysterectomy with right fallopian tube removal (also claimed as chronic lower pelvic abdominal condition, laparoscopy residuals, pelvic adhesive disease, and pelvic adenomyosis condition (endometriosis)), and therefore the benefit sought on appeal has been granted in full. Accordingly, regardless of whether the notice and assistance requirements have been met regarding these claims, no harm or prejudice to the Veteran has resulted. See Conway v. Principi, 353 F.3d 1369, 1375 (Fed. Cir. 2004); Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004); Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. This appeal arises from disagreement with the initial evaluation following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Regardless, in a July 2008 letter, the Veteran was informed about how a disability rating and an effective date for the award of benefits are assigned in cases where service connection is warranted. Id. The claim was readjudicated in a December 2009 supplemental statement of the case. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claim adjudicated in this decision. The RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment for the claimed disorders described by the Veteran, including service treatment records, VA treatment records, and SSA records. Additionally, the Veteran was afforded multiple VA examinations that addressed the severity of her status post hysterectomy with right fallopian tube removal and pelvic adhesive disease, status post laparoscopy and hysterectomy. See Barr v. Nicholson, 21 Vet. App. 303 (2007) Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. ORDER An initial rating in excess of 30 percent for status post hysterectomy with right fallopian tube removal is denied. An initial rating in excess of 30 percent for pelvic adhesive disease, status post laparoscopy and hysterectomy is denied. REMAND The issue of an increased rating for residual scar status post hysterectomy with right fallopian tube removal is remanded for the RO to consider evidence submitted following the July 2007 statement of the case (SOC). 38 C.F.R. § 20.1304(c). These records included examinations of the Veteran's post hysterectomy scar which is relevant to the issue of residual scar status post hysterectomy with right fallopian tube removal. The RO has not reviewed this evidence since its last adjudication in July 2007. The Veteran has not submitted a waiver of the RO/Agency of Original Jurisdiction (AOJ) review of this additional evidence. 38 C.F.R. § 20.1304(c). Since the Veteran has not waived her right to AOJ review of the additional evidence, this issue is remanded for the AOJ to consider the newly submitted evidence and provide a supplemental statement of the case (SSOC) regarding this issue. Accordingly, the case is REMANDED for the following action: 1. Review the VA treatment records, including August 2007 and March 2010 VA examination reports, before issuing a supplemental statement of the case on the issue of a compensable rating for residual scar status post hysterectomy with right fallopian tube removal. 2. To help avoid future remand, the RO/AMC must ensure that all requested action has 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). 3. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the Veteran's claim on appeal. If the benefit sought on appeal remains denied, furnish to the Veteran and her representative an appropriate supplemental statement of the case, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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. 2010). ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs