Citation Nr: 1127948 Decision Date: 07/27/11 Archive Date: 08/02/11 DOCKET NO. 07-32 369 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for migraine headaches. 2. Entitlement to an initial disability rating in excess of 10 percent for a low back disability. 3. Entitlement to an initial compensable disability rating for pelvic adhesions, with uterine prolapse, prior to May 9, 2008. 4. Entitlement to a compensable disability rating for pelvic adhesion, with uterine prolapsed, from May 9, 2008, to the present. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Whitehead, Associate Counsel INTRODUCTION The Veteran had active service from December 1994 to February 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. FINDINGS OF FACT 1. The Veteran's migraine headaches more closely approximate very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. The Veteran's low back disability was manifested by pain; tenderness; spams; and flexion generally ranging from 0 to 90 degrees, with pain observed at 60 degrees. 3. The preponderance of the evidence dated prior to May 9, 2008, shows that the Veteran's pelvic adhesions disability more closely approximated symptoms that required continuous treatment. 4. The preponderance of the evidence dated from May 9, 2008, to the present, shows that the Veteran's pelvic adhesions disability more closely approximates symptoms that do not require continuous treatment. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 50 percent for migraine headaches have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1- 4.3, 4.6, 4.7, 4.124a, Diagnostic Code 8100 (2010). 2. The criteria for an initial disability rating of 20 percent for a low back disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.321, 4.1- 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5243 (2010). 3. Prior to May 9, 2008, the criteria for an initial disability rating of 10 percent for pelvic adhesions disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1- 4.3, 4.6, 4.7, 4.116, Diagnostic Code 7613 (2010). 4. From May 9, 2008, to the present, the criteria for a compensable disability rating for pelvic adhesions disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1- 4.3, 4.6, 4.7, 4.116, Diagnostic Code 7613 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist The Veterans Claims Assistance Act of 2000 (VCCA), 38 U.S.C.A. §§ 5100, 5102- 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010) requires VA to assist a claimant at the time he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the information and evidence necessary to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Specifically, VA 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 provide; and (3) that the claimant is expected to provide. Beverly v. Nicholson, 9 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) the degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The U.S. Court of Appeals for the Federal Circuit previously held that any errors in notice required under the VCAA should be presumed to be prejudicial to the claimant unless VA shows that the error did not affect the essential fairness of the adjudication. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Under Sanders, VA bore the burden of proving that such an error did not cause harm. Id. However, in Shinseki v. Sanders, 129 S.Ct. 1696 (2009), the United States Supreme Court held that the Federal Circuit's blanket presumption of prejudicial error in all cases imposed an unreasonable evidentiary burden upon VA. Rather, in Shinseki v. Sanders, the Supreme Court suggested that determinations concerning prejudicial error and harmless error should be made on a case-by-case basis. Id. As such, in conformance with the precedents set forth above, on appellate review the Board must consider, on a case-by-case basis, whether any potential VCAA notice errors are prejudicial to the claimant. By letters dated in November 2004 and May 2005, the Veteran was notified of the information and evidence necessary to substantiate her claims. VA told the Veteran what information she needed to provide, and what information and evidence that VA would attempt to obtain. Under these circumstances, the Board finds that VA has satisfied the requirements of the VCAA. As to the issue of a higher initial disability rating for the now service-connected migraine headaches, low back disability, and pelvic adhesions disability, an increased rating is a "downstream" issue. Once a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated. See Sutton v. Nicholson, 20 Vet. App. 419 (2006) (citing Dingess). Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. She was provided appropriate VA medical examinations. There is no indication of any additional, relevant records that the RO failed to obtain. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Legal Criteria for Initial Increased Disability Ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to evaluate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the Veteran's disability, 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. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, in the present case, the Board notes that the Veteran is appealing the initial assignment of a disability rating, and as such, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. It is possible for a Veteran to have separate and distinct manifestations from the same injury that 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. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). See also 38 C.F.R. § 4.14 (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare- ups. The guidance provided under DeLuca must be followed in adjudicating claims where a rating under the diagnostic code provisions governing limitation of motion should be considered. However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the diagnostic code provisions predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The Secretary shall give the benefit of the doubt to the Veteran when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the rating period on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the instant claims. Migraine Headaches The Veteran asserts that an initial increased disability rating is warranted for her migraine headaches. At the outset, the Board observes that service connection for migraine headaches was awarded by rating decision dated in July 2005. A 30 percent rating was granted effective October 14, 2004. Migraine headaches are rated in accordance with 38 C.F.R. § 4.124a, Diagnostic Code 8100. A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average once a month over the last several months. A maximum, 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Diagnostic Code 8100. According to Webster's New World Dictionary of American English, Third College Edition (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." A similar definition is found in Dorland's Illustrated Medical Dictionary (26th ed., 1985), p. 1079, in which "prostration" is defined as "extreme exhaustion or powerlessness". Turning to the merits of the claim, the Veteran's service treatment records show that she was treated for migraine headaches. Overall, these records show that the Veteran experienced headaches intermittently, with some having a duration of two to three days. The Veteran underwent a VA examination in June 2005 to assess her migraine headaches. She reported having prodrome with pain in the right temple. Her headaches were either alleviated or reduced in severity with the use of prescription medication. Her headaches were associated with nausea, vomiting, photophobia, and aura-phobia. The Veteran reported having two to three headaches per month and denied that her symptoms interfered with her work. The clinical examination was negative for any neurological impairments and the Veteran was diagnosed with migraine headaches. The examiner commented that the Veteran's migraines were quite typical and well-controlled with prescription medication. VA treatment records associated with the claims file reflect that the Veteran underwent treatment for her migraine headaches. Overall, these records show that she was prescribed medication to treat her symptoms. In April 2006, the Veteran reported having headaches with an increased frequency of two to three times per week, with a duration of up to three days. She denied having any preceeding aura but reported experiencing mild nausea during a headache. A May 2006 neurology consult record documents the Veteran's report of having unilateral, throbbing headaches, associated with photophobia, phonophobia, nausea, and occasional emesis. She reported that her headaches were disabling and required that she pull her car over to the side of the road and call home during an attack. She stated that her headaches had hampered her studies as a college student. Following a clinical examination, the medication to treat her migraines was increased. Later in May 2006, she reported that her migraines were improving and were less frequent; she reported the frequency of her headaches as twice a week. A June 2006 treatment record shows that the Veteran reported improved in the severity of her headaches and that the frequency of the attacks had decreased to one per week. The Veteran reported that her migraines were less severe in August 2006, at which time she was noted to only have headaches two to three times per month. In September 2006, she reported having headaches approximately twice per month; she stated that she was pleased with the results of her use of prescription medication in reducing the frequency of her headaches. The Veteran underwent a VA neurological examination in June 2009. She described her headaches as bilateral, temporal tenderness, associated with sound and light sensitivity. The Veteran reported that the frequency of her headaches had increased and that she had to lie down during an attack. She was noted to use prescription medication to treat her symptoms with fair results. She denied a history of hospitalization or surgery due to her disability. The clinical examination revealed normal motor and sensory functioning. The diagnosis was migraine headaches. The examiner noted the Veteran's report that she was in school and that her headaches were interfering with her school performance. Associated with the claims file are the Veteran's private medical treatment records, which show treatment for her migraine disability. The Veteran described the severity of her migraines as moderate to severe in November 2008. In July 2009, she reported that the frequency of her headaches had increased to approximately two a week; she described her headaches as a left-sided temporal throbbing pain, associated with nausea, phonophobia, and photophobia. Her symptoms were usually relieved by lying down and sleeping. She was also noted to use prescription medication to treat her disability. A November 2009 private treatment record documents her report of having migraines approximately three to four times per week. She reported that her headaches started suddenly and that they were so debilitating that she had to stop attending school. The Veteran stated that she used prescription medication to treat her symptoms, without much improvement. In February 2010, the Veteran underwent a general VA medical examination, at which time she reported having migraine headaches approximately three times, lasting approximately five to eight hours. She reported that her headaches were prostrating and were associated with nausea, dizziness, photophobia, and phonophobia. The examiner noted that the medication prescribed for the Veteran's migraines was changed the week prior. The Veteran stated that the previously prescribed migraine medication caused drowsiness and that she had trouble focusing. She reported that she had re-enrolled in school. The associated neurological examination revealed normal coordination, orientation, memory, and speech. A MRI of the brain was normal. Following the clinical examination, the Veteran was diagnosed with migraine headaches. The examiner noted that the Veteran was currently a full-time student and that her migraines resulted in decreased concentration. He noted that the Veteran had to lie down during a migraine episode and that she could continue her activities once her headache subsided. In numerous statements submitted in support of her claim, the Veteran described the nature of her migraine headaches. In October 2007, she reported that she was a full-time college student and that she missed several days of class due to her migraines. She stated that her the frequency of her attacks had increased. She also reported that her symptoms had interfered with her ability to drive. Taken all together and giving the Veteran the benefit of the doubt, the Board finds the evidence of record to indicate that the Veteran's migraine headaches more closely approximate the criteria for a 50 percent disability rating. The medical and lay evidence, overall, indicate that her headaches occur more than once a month and are of a prostrating nature that interfere with her daily activities and her college education. The medical evidence is consistent with the Veteran's statements and lay evidence of record. The Board observes there has been some degree of variance in the frequency of the Veteran's migraine headaches. Nevertheless, Board finds that resolving the benefit of all reasonable doubt in her favor, the probative, i.e., competent and credible, medical and other evidence of record establishes the Veteran's service-connected headaches have been manifest by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability since the grant of service connection. Therefore, she is entitled to an initial disability rating of 50 percent, the maximum schedular rating under 38 C.F.R. § 4.124a, Diagnostic Code 8100. In regards to whether a disability rating in excess of 50 percent is warranted for the Veteran's migraine headaches, the Board notes that under Diagnostic Code 8100 a 50 percent rating is the maximum schedular rating possible. No other diagnostic codes are applicable for rating her migraines. Thus, a disability rating in excess of 50 percent is not assignable for the Veteran's migraine headaches under VA regulations. Low Back Disability Here, the Veteran claims that her low back disability is more severe than what is reflected by the currently assigned 10 percent disability rating. She asserts that her low back symptomatology is aggravated by prolonged sitting or standing. The Veteran also asserts that she has radiating pain down her right leg associated with her low back disability. Throughout the appeal, the Veteran's low back disability has been rated under Diagnostic Code 5237. See 38. C.F.R. § 4.71a, Diagnostic Code 5237. The Schedule for Rating Criteria indicates that disabilities of the spine under Diagnostic Codes 5235 to 5243 will be evaluated under a General Rating Formula for Diseases and Injuries of the Spine. Diagnostic Code 5237 is used for the evaluation of lumbosacral strain. The General Rating Formula assigns evaluations with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. Under this formula, a 20 percent evaluation is for assignment when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or with a combined range of motion not greater than 120 degrees or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is for assignment when forward flexion of the thoracolumbar spine is 30 degrees or less or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is for assignment upon a showing of unfavorable ankylosis of the entire thoracolumbar spine. A note after the General Rating Formula for Diseases and Injuries of the Spine specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate Diagnostic Code. Note (2) to the General Rating Formula explains that for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Also applicable to the Veteran's disability is Diagnostic Code 5243. This diagnostic provides that the Formula for Rating Intervertebral Disc Syndrome Based upon Incapacitating Episodes (Diagnostic Code 5243) should be applied if this would result in a higher disability rating. The Formula for Rating Intervertebral Disc Syndrome provides for a 20 percent evaluation was assigned for incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past twelve months; a 40 percent evaluation was assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past twelve months; and a 60 percent evaluation was assigned for incapacitating episodes having a total duration of at least six weeks during the past 12 months. A note following the Diagnostic Code defines an incapacitating episode as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, note 1. Note 2 provides for separate evaluations if intervertebral disc syndrome is present in more than one spinal segment if the effects are distinct. Turning to the merits of the claim, the Veteran underwent a VA joints and spine examination in June 2005. She reported having low back pain following a motor vehicle accident that occurred during her military service. In addition to her back pain, she reported having significant radiation down her right leg into her right buttock; she denied any bowel or bladder loss or any weakness down her legs. She reported an exacerbation of her symptoms with any prolonged activity and that her symptoms were relieved with medications. Her back pain occurred on a daily basis, without any flare ups. The Veteran reported having missed approximately two weeks from work in aggregate over the previous eight years due to her low back disability; she denied any significant exacerbations resulting in any prolonged hospitalization or prolonged bed rest as a result of her back pain. On the physical examination, the Veteran walked with a normal gait. There were no abnormal curvatures of the spine or areas of tenderness. The Veteran demonstrated forward flexion from 0 to 80 degrees and extension from 0 to 20 degrees. Following repetitive motion, her flexion was limited to 60 degrees before the onset of pain. She demonstrated 30 degrees of right and left lateral flexion and 30 degrees of right and left lateral rotation; there were no limitations of these motions with repetitive testing. Straight leg raises were positive at 80 degrees, bilaterally. On the neurological examination, strength was 5/5 in the bilateral lower extremities. Sensation was intact and deep tendon reflexes were 2+ in the bilateral lower extremities. Following the examination, the impression was low back strain. The examiner concluded that the Veteran had a mild disability secondary to pain with some loss of function. The Veteran's VA and private medical treatment records show treatment for her low back symptomatology. Private treatment records dated from August 2005 to December 2005 reflect that the Veteran received lumbar epidural steroid injections following her reports of low back pain with radiation to her right leg; she was diagnosed with lumbar radiculopathy. An April 2006 VA treatment record documents her report of low back pain with occasional radiation to her right leg. In November 2009, she reported having constant low back pain with a tingling and burning sensation in her right leg for two months; she reported having a history of sciatica. The associated clinical examination revealed localized tenderness to palpation at the mid right S-1 area of her spine; the neurological examination revealed normal sensation and reflexes. The Veteran was diagnosed with a back strain and sciatica. Private treatment records dated from November 2009 to January 2010 show that the Veteran underwent physical therapy for her low back disability. These records document her report of low back pain with intermittent radiation down her right leg. In June 2009, the Veteran underwent a VA spine examination. She reported that her back pain radiated down her right leg, but she denied any bowel or bladder symptomatology or any weakness down her legs. She continued to report an exacerbation of her symptoms with any type of prolonged activity. She denied any significant exacerbations resulting in any prolonged hospitalizations or bed rest due to her low back pain. The Veteran reported that she did use a back brace with good results. However, she stated that her pain occurred daily, with occasional radiation down her right leg. Her symptoms were also reported to include stiffness, weakness, spasms, and moderate pain. She reported having flare ups of her low back symptomatology approximately every one to two months, lasting one to two days. During periods of flare ups, she stated that she could not ambulate from her bed or a seat; this was reported to occur approximately 15 percent of the time. She denied having any incapacitating episodes due to her spinal disability and stated that she was able to walk 1/4 of a mile. The physical examination revealed that the Veteran had a normal posture and gait. The inspection of the spine was negative for evidence of abnormal spinal curvatures. The examination of the thoracolumbar spine was negative for objective evidence of atrophy, guarding, or weakness; spams, pain with motion, and tenderness were noted. There was no evidence of muscle spasms, tenderness, or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Range of motion of the thoracolumbar spine was reported as follows: flexion from 0 to 90 degrees; extension from 0 to 30 degrees; left and right lateral flexion from 0 to 30 degrees; and left and right lateral rotation from 0 to 30 degrees. There was no objective evidence of pain with active range of motion testing or following repetitive motion. There were no additional limitations on the Veteran's range of motion after three repetitions. The motor examination was negative for any abnormalities of the bilateral lower extremities, deficiencies in muscle tone, or evidence of muscle atrophy. The associated sensory and reflex examinations were normal. An associated radiological imaging study was negative for evidence of ankylosis; minimal degenerative changes were noted in a tiny marginal osteophyte at the L4 level. Following the examination, the diagnosis was mild degenerative lumbar disease. The examiner noted that the Veteran was a full-time student. The effect of her low back disability on her daily activities ranged from none to severe. During the February 2010 VA general medical examination, the Veteran reported having intermittent severe low back pain and stiffness and radiation down her right leg. She reported experiencing flare ups of her low back symptomatology and that her range of motion was additionally limited by 50 percent. She denied the use of any assistive devices, reported that she could only stand for 30 minutes, and stated that she could walk up to one mile. The course of her low back symptomatology was described as intermittent with remissions. The Veteran reported that she use medication to treat her symptoms, with fair results. She stated that her back symptoms occurred weekly. The physical examination revealed that the Veteran presented with an erect posture and a normal gait. Range of motion of the thoracolumbar spine was reported as follows: flexion from 0 to 80 degrees; extension from 0 to 20 degrees; left and right lateral flexion from 0 to 25 degrees; and left and right lateral rotation from 0 to 25 degrees. There was objective evidence of pain following repetitive motion. However, there were no additional limitations after three repetitions of range of motion of the thoracolumbar spine. The examination revealed 5/5 muscle strength in the upper and lower extremities, bilaterally. There were no abnormalities of the spinal muscles, such as guarding, spasm, or tenderness. The examination was negative for evidence of spinal ankylosis. Straight leg raise test was negative. An associated radiological examination of the lumbar spine revealed minimal degenerative changes. The Veteran was diagnosed with lumbar spine degenerative disc disease following the clinical examination. The examiner concluded that the disability had no effect on her usual occupation, which was noted to be as a student. Problems associated with the Veteran's usual daily activities were determined to be intermittent pain with prolonged sitting or walking. Based on the foregoing, and resolving all reasonable doubt in the Veteran's favor, the Board finds that a 20 percent disability rating is warranted for the low back disability. The preponderance of the evidence shows that the Veteran's low back symptomatology is most significant for pain; tenderness; spams; flexion generally ranging from 0 to 90 degrees, with pain observed at 60 degrees; and extension generally ranging from 0 to 30 degrees. While, the Veteran was also noted to demonstrate forward flexion to 90 degrees during the period on appeal, the Board must give consideration to any additional limitations caused by such things as pain or excess fatigability when determining the level of functional loss due to the Veteran's lumbar spine disability. See DeLuca, 8 Vet. App. 202. Moreover, the June 2005 VA examination showed that the Veteran's lumbar spine forward flexion was limited to 60 degrees prior to the onset of pain. Also, she was noted to have pain following repetitive range of motion testing during the February 2010 VA examination. Additionally, the Veteran has reported that her low back disability had significant effects on her daily functioning, as her symptoms are exacerbated by prolonged sitting or standing. Given this, the Board finds that the Veteran's low back disability more closely approximates flexion of the thoracolumbar spine not greater than 60 degrees, with muscle spasms and tenderness. Thus, resolving all reasonable doubt in the Veteran's favor, the next higher 20 percent disability rating for the Veteran's low back spine disability is warranted since the effective date of service connection. See 38 C.F.R. § 4.71a, Diagnostic Code 5237. However, the preponderance of the evidence of record of the Veteran's manifestations of her low back disability reveals that at no time during the period on appeal does the Veteran's back condition warrant a disability rating in excess of 20 percent. The preponderance of the evidence reveals that at no time during the period on appeal does the Veteran's back disability manifest forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine at any time covered by the appeal. As described above, the medical evidence shows thoracolumbar spine flexion to 90 degrees, including pain, and is negative for evidence of ankylosis. Therefore, the next-higher, 40 percent disability rating is not warranted. Also pertinent in this case is whether an increased disability rating is warranted under the criteria for intervertebral disc syndrome used for evaluating incapacitating episodes. However, the Veteran's low back disability has not been shown to have resulted in incapacitating episodes (requiring bed rest/treatment prescribed by a physician) having a total duration of two to four weeks, or at least four weeks, but less than six weeks during the past twelve months. In this regard, the Veteran denied incapacitating episodes. As such, an increased evaluation for incapacitating episodes under Diagnostic Code 5243 is not warranted. The Board has also considered whether an increased disability rating is warranted based upon the granting of a separate neurologic disability rating related to the lumbar spine. In this regard, the Veteran had denied experiencing any bladder or bowel symptomatology throughout the period on appeal. With regards to her report of intermittent radiation of her low back pain to her right leg, the Board acknowledges that the Veteran was diagnosed with radiculopathy in 2005 and sciatica in November 2009. However, the Board highlights that the November 2009 neurological examination associated with this diagnosis revealed that the Veteran's sensation and reflexes were normal. The Board also notes that the Veteran's sensation and other neurological findings were found to be generally intact during the June 2009 and February 2010 VA examinations. In light of the these findings and the absence of a currently diagnosed radiculopathy disorder associated with her low back disability, the Board finds that a separate disability rating is not warranted for the Veteran's report of radiating back pain. The Board is not able to identify any further evidence of neurological symptomatology associated with the service-connected low back disability. Therefore, a separate rating is not warranted for neurological impairment, as no such impairment is shown. Pelvic Adhesions Disability With respect to the this claim, the Veteran contends that an initial, compensable disability rating is warranted for her pelvic adhesions disability. The Veteran was granted service connection for her disability by way of the July 2005 rating decision, wherein a noncompensable rating was assigned, effective from October 14, 2004. Throughout the pendency of the appeal, the Veteran's pelvic adhesions disability has been rated under Diagnostic Code 7613, which pertains to disease, injury, or adhesions of the uterus. Under the General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs, symptoms that do not require continuous treatment are assigned a noncompensable rating, symptoms that require continuous treatment are assigned a 10 percent rating, and symptoms that are not controlled by continuous treatment are assigned a 30 percent rating. 38 C.F.R. § 4.116 Diagnostic Codes 7610-7615. As an initial matter, the claims file reflects that the Veteran was granted service connection for a total hysterectomy with bilateral oophorectomy by way of a December 2008 rating decision. An initial 100 percent rating was assigned from May 9, 2008, the date of the operation. Thereafter, a 50 percent rating was assigned from September 1, 2008, under Diagnostic Code 7617 (Complete removal of the uterus and both ovaries). The Veteran's service treatment records and private medical records dated during her military service show that treatment for gynecological symptomatology. Generally, the service treatment records document her reports of chronic pelvic pain. A September 2002 private treatment record documents her reports of chronic pelvic pain and endometriosis. She underwent a pelvic laparoscopy and was diagnosed with minimal adhesion of the left pelvis. A September 2002 post-operative note reflects that following her pelvic surgery, the Veteran reported that her pain was absolutely gone. In June 2005, the Veteran underwent a VA gynecological examination, during which she reported having irregular menstrual cycles. Her symptoms were reported as midline, lower abdominal pain that was intermittent; her pain mainly occurred with menses, but sometime occurred with spotting consistent with dysmenorrheal. At that time, she had no other complaints referable to the pelvis or abdomen. The physical examination revealed normal external gentalia, vagina, and cervix. Her uterus was of a normal size. Adnexae were negative and the bimanual examination revealed no masses. Following the examination, the impression was irregular menses secondary to anovulation with possible history of endometriosis. The examiner recommended that the Veteran take hormone medication ten days per month. The Veteran's VA treatment record show intermittent treatment of her gynecological symptomatology. A May 2006 treatment record shows that the Veteran was assessed has having polycystic ovary syndrome (PCOS) with secondary infertility, and that she was prescribed hormone medication ten days each month to assist with monthly menses. A September 2006 treatment record includes her report of left lower quadrant pain, originating from her ovaries. She reported that the pain was new in onset, was constant in nature, and had lasted for approximately five days. She was noted to have a history of PCOS and documented endometriosis, for which she took medication ten days out of the month. The examiner noted that a September 2006 computed tomography scan showed that the Veteran's ovaries were grossly normal. She was prescribed anti-depressive medication to assist with her pain, giving the normal imaging study and clinical examination. Private treatment records dated in May 2008 reflect that the Veteran underwent a total hysterectomy. She was noted to have ongoing polycystic ovaries and chronic pelvic pain, which were refractory to medical management. Additional treatment records reflect that the Veteran was prescribed the use of a daily hormonal mist following her hysterectomy. The Veteran underwent a second VA gynecological examination in October 2008. She was noted to have experienced chronic pelvic pain since 2002, at which time she was found to have pelvic adhesions to her appendix and left descending colon. She was known to have undergone surgical treatment for her condition, to include total oophorectomies, total hysterectomy, and lysis of the adhesions. The examiner noted that the Veteran's total hysterectomy required continuous treatment and that she was using estrogen therapy with a daily hormonal mist for hot flashes. During the clinical examination, the Veteran reported having frequent pelvic pain. The pelvic examination was negative for any abnormalities, absent mild vaginal dryness. There were no abnormalities noted on the abdominal examination. Following the examination, the Veteran was diagnosed with pelvic adhesions and the examiner opined that the diagnosis had no significant effect on the Veteran's usual daily activities. In February 2010, the Veteran underwent a VA general medical examination, at which time her gynecological disability was assessed. She reported having a history of PCOS and stated that she was treated with hormone therapy due to pain and dysmenorrheal. She was noted to have undergone a hysterectomy. She reported that since her hysterectomy, she had mild, intermittent lower abdominal pain several times a month. She reported that she used a hormone spray to treat her symptoms. On the clinical examination, the Veteran was again noted to have undergone a hysterectomy. The Veteran reported that she had undergone a pap smear in 2009, which was reportedly normal. Following the examination, the diagnosis was uterine prolapsed, ovarian cysts with chronic pelvic pain with adhesions, surgically treated with hysterectomy but with residual, intermittent pelvic pain. The problem associated with this diagnosis was listed as endometriosis. Disability Rating Prior to May 9, 2008 Given the foregoing, and resolving all doubt in the Veteran's favor, the Board finds that a 10 percent rating is warranted for the Veteran's pelvic adhesions disability from the effective date of service connection prior to May 9, 2008. Overall, the medical evidence of record reflects that the Veteran has been associated with irregular menses and periods of chronic pelvic pain. Since the June 2005 VA examination, she required the use of prescription hormone medication to regulate her menstrual cycles. While she was not prescribed the use of this medication on a daily basis, the Board finds that the frequency of her use of the hormone medication (in this case ten days out of the month) more closely approximates the criteria contemplated by a 10 percent disability rating. Accordingly, all doubt is resolved in the Veteran's favor and a 10 percent rating is assigned for her pelvic adhesions disability prior to May 9, 2008. However, the medical evidence does not support a rating is excess of 10 percent for this time period. Indeed, the medical evidence for this time period shows limited treatment for the Veteran's disability. While she reported having pain associated with her menstrual cycle in September 2006, there is no indication from the associated medical record, or the additional medical evidence for this time period, that the symptoms associated with the Veteran's disability were not controlled by continuous treatment. Essentially, the preponderance of the evidence does not show that a disability rating in excess of 10 percent is warranted for this time period. Disability Rating From May 9, 2008, to the Present As noted above, the medical evidence shows that the Veteran underwent a total hysterectomy on May 9, 2008. The Board again highlights that the Veteran is service-connected for the residual symptomatology associated with her hysterectomy. However, the medical evidence does not show that a compensable disability rating is warranted for her service-connected pelvic adhesion disability since the date of her hysterectomy. In this regard, the medical evidence during this time period does not show that the Veteran required treatment for her pelvic adhesions disability. Indeed, the medical evidence dated from May 9, 2008, does not show that the Veteran underwent treatment for her pelvic adhesions. While she reported during the October 2008 and February 2010 VA examinations, and the medical evidence shows, she requires the daily use of a hormonal spray to treat her gynecological symptoms, this treatment has been associated with her hysterectomy, for which the Veteran is currently receiving compensation. Although her use of this medication likely affects her pelvic adhesion disability, the Veteran cannot receive additional compensation for treatment as such action would amount to impermissible pyramiding. 38 C.F.R. § 4.14. As there is no medical evidence dated from May 9, 2008, showing that the Veteran requires treatment for her service-connected pelvic adhesion disability, a compensable rating is not warranted for this time period. The Board has also considered whether higher disability ratings are assignable under any other diagnostic code relevant to gynecological disorders. However, the Board has not identified any other diagnostic codes that are applicable to the Veteran's claim and that would provide disability ratings higher than what has been assigned and upheld herein. Additional Considerations In making the foregoing determinations, the Board has considered the Veteran's statements as to the nature and severity of her migraine headaches, low back, and pelvic adhesions disabilities. The Veteran is certainly competent to report that her symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating a claim for an increased schedular rating, VA must only consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Massey v. Brown, 7 Vet. App. 204, 208 (1994). To the extent that the Veteran argues or suggests that the clinical data supports an increased evaluation in excess of what has been assigned or upheld herein, or that the rating criteria should not be employed, she is not competent to make such an assertion. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (holding that a witness must be competent in order for his statements or testimony to be probative as to the facts under consideration). Additionally, the Board has considered whether the Veteran's claims warrant referral to the Chief Benefits Director of VA's Compensation and Pension Service under 38 C.F.R. § 3.321. In Thun v. Peake, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. As has been explained fully herein, the Board finds that the disability ratings assigned and upheld herein for the migraine headaches, low back disability, and pelvic adhesions disability contemplate the level of impairment reported by the Veteran, and there is no aspect of the Veteran's disabilities that is not contemplated by the schedular criteria. Indeed, while a higher rating is available for the Veteran's disabilities, her symptomatology simply does not meet the criteria for higher ratings at any time during the period currently on appeal. For these reasons, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.21 is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996). In deciding the Veteran's increased initial rating claims, the Board has considered the determination in Fenderson v. West, 12 Vet. App. 119 (199), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. The evidence of record supports the conclusion that the Veteran is not entitled to additional increased compensation at any time within the appeal periods. The Board therefore finds that the evidence is insufficient to show that the Veteran had a worsening of the disabilities in issue, such that disability rating higher than what has been assigned or upheld herein are warranted. In reaching these decisions, the Board has considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial disability rating of 50 percent for migraine headaches is granted, subject to the laws and regulations governing monetary awards. An initial disability rating of 20 percent for low back disability is granted, subject to the laws and regulations governing monetary awards. An initial disability rating of 10 percent for pelvic adhesions disability prior to May 9, 2008, is granted, subject to the laws and regulations governing monetary awards. A compensable disability rating for pelvic adhesions disability from May 9, 2008, to the present, is denied. ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs