Citation Nr: 1139773	
Decision Date: 10/26/11    Archive Date: 11/07/11

DOCKET NO.  09-14 713	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES

1.  Entitlement to extraschedular consideration for service-connected residuals of pelvic inflammatory disease (PID), status post-total hysterectomy and right unilateral salpingo oophorectomy.

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Veteran represented by:	Oregon Department of Veterans' Affairs


ATTORNEY FOR THE BOARD

Jennifer R. White, Associate Counsel


INTRODUCTION

The Veteran had active service from March 1943 until October 1945.

These matters come before the Board of Veterans' Appeals (Board) from a March 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.

The Veteran's claim of entitlement to an initial rating in excess of 30 percent for PID was denied in an April 2010 Board decision.  At that time, it was determined that the issues of entitlement to an extraschedular rating, and to TDIU, required additional development.  Accordingly, a remand as to those issues was ordered at that time.  Those issues were again remanded by the Board in April 2011.  The development indicated by the prior Board remands has now been completed and the claims have been returned for further adjudication.

The issue of service connection for depression, claimed as secondary to the Veteran's service-connected hysterectomy residuals, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The Veteran submitted letters dated in April 2011 and May 2011 to the Board without waiver of RO adjudication.  However, such waiver is not necessary, as for former communication is non-substantive in nature and the latter addresses only medical complaints that are not relevant to the instant appeal.  Indeed, the April 2011 statement merely expresses her contention that she should receive a 100 percent disability evaluation.  The May 2011 statement refers to symptoms in her left hand.  However, a left hand disability is not on appeal and the Veteran is not service-connected for any left hand disability and thus the statement has no bearing on the TDIU issue.  

The issue of entitlement to TDIU is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action is required.


FINDINGS OF FACT

1.  The Veteran's uterus and one ovary were removed following a hysterectomy in May 1946; she complains of pain, vaginal bleeding, and vaginal dryness as residuals of that procedure.

2.  An extraschedular rating is not warranted in this case as the preponderance of the evidence is against a finding that the disability presents an exceptional or unusual disability picture together with such related factors as marked interference with employment or frequent periods of hospitalization.


CONCLUSION OF LAW

The criteria for entitlement to an extraschedular evaluation for residuals of pelvic inflammatory disease, status post subtotal hysterectomy and right unilateral salpingo oophorectomy have not been met.  38 U.S.C.A. §§ 1155, 5107(b)(West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 4.116, Diagnostic Codes (DCs) 7619-7618 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VCAA

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011).  

Proper notice from VA must inform the claimant of any information and medical or lay 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.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim.  Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The Veteran's claim here arises from an appeal of the initial evaluation following the grant of service connection.  Courts have held that once service connection is granted the claim is substantiated, additional 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).  Therefore, no further notice is needed under VCAA.

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting her in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  Moreover, her statements in support of the claim are of record.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.  

For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the Veteran in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

Analysis

Service connection for pelvic inflammatory disease (PID), status post subtotal hysterectomy and right unilateral salpingo oophorectomy was established in March 2008, and the RO assigned a 30 percent disability rating pursuant to 38 C.F.R. § 4.116, Diagnostic Code (DC) 7619-7618.

The specific disability at issue here is not listed in the Rating Schedule.  However, it appears that the RO determined DC 7618 to be the most appropriate and beneficial  diagnostic code for consideration, as it affords the Veteran the highest possible disability rating.  See 38 C.F.R. § 4.116, DCs 7618 and 7619.

The Board again notes that the issue of entitlement to a higher rating on a schedular basis was already finally adjudicated by the Board in April 2010.  Thus, the question for consideration is whether an extraschedular evaluation is warranted to adequately compensate the Veteran's disability picture.  Regarding her symptomatology, she has asserted that she suffers from constant pain, which prevents her from even engaging in part-time work, and that a 30 percent disability rating does not adequately compensate her for the pain and suffering she has endured due to her inability to have children and grandchildren.  Furthermore, a review of the evidence shows that, in addition to complaints of pain, the Veteran has also complained of vaginal dryness and bleeding in conjunction with her service-connected residual PID disability.  Indeed, such complaints were reflected in a February 2008 VA examination report and in VA outpatient treatment records dated in January and February 2009.

At present, the Veteran is receiving the highest possible disability rating that can be assigned three or more months after removal of the uterus.  Indeed, DC 7618 provides that a 100 percent disability rating will be assigned for three months after removal of the uterus and that a 30 percent rating will be assigned thereafter.  See 38 C.F.R. § 4.116, DC 7618.  Moreover, there are no other relevant alternate code sections for consideration that could afford a higher evaluation.  Indeed, DC 7616 affords a 50 percent rating but only if both ovaries had been removed, which is not the case here.

Thus, the Board has determined that the schedular evaluation could be inadequate, requiring the referral of the claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities."  38 C.F.R. § 3.321(b)(1) (2011).

An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture.  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008). 

If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization.  Id. at 115-116.  When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating.  Otherwise, the schedular evaluation is adequate, and referral is not required.  38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116.

In this case, an extraschedular evaluation was conducted pursuant to 38 C.F.R. §3.321(b).  The findings are detailed in a July 2011 memorandum signed by the Director of the Compensation Service.  In that memorandum, the examiner described the Veteran's relevant history as found in the claims file, as well as a Social and Industrial Survey performed in April 2010.  That survey indicated that the Veteran remained active and although she had recently become "too tired" to engage in volunteer activities, she continued to be active in her church and that she regularly attended community events.  Certain hobbies, such as sewing, knitting, gardening, and baking had become too difficult due to arthritis.

Based on the above evidence, he then concluded as follows: "(t)he evidence does not establish that the Veteran's service-connected PID is more disabling than anticipated by the 30 percent evaluation currently assigned."  

As noted above, the Director of the Compensation Service concluded in the July 2011 memorandum that the rating schedule adequately contemplated the Veteran's disability picture associated with her service-connected residuals of PID.  

The July 2011 memorandum further concluded that the Veteran's PID residuals did not present an exceptional or unusual disability picture together with factors such as marked interference with employment or frequent periods of hospitalization as to render impractical the application of regular schedular standards.  As a rationale, the memorandum indicated that the Veteran's post-service employment career consisted of teaching for a number of school districts, to include more than twenty years in one specific district.  She had earned two masters degrees and a Ph.D., and that the evidence did not establish that she was unemployed or unemployable due to a service-connected disability.  

The findings of the Director of the Compensation Service are found to be highly probative, as they were based on a review of the record and were supported by a clear rationale.  Moreover, no other opinions of record refute such findings.

The Board additionally notes that the April 2010 Social and Industrial Survey supports the conclusions of the Director, as it indicated that the Veteran was able to remain active in community events.  To the extent that she had to limit her hobbies and activities, this was attributed to being tired and to arthritis, rather than to pain or other symptoms specific to the service-connected PID residuals.  

With respect to the Veteran's assertion that her schedular rating does not contemplate her pain and suffering related to her inability to have children, such emotional anguish is addressed in the rating schedule, under mental health disorders.  In this regard, the Board notes that a claim of secondary service connection for a psychiatric disability is being referred back to the RO.  

In sum, while the Board acknowledges the Veteran's complaints of pain, bleeding, and dryness, there is simply no basis for an extraschedular rating here as indicated by the July 2011 memorandum from the Director of the Compensation Service.  As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).


ORDER

Entitlement to an increased rating for an additional extraschedular evaluation for service-connected residuals of pelvic PID, status post-total hysterectomy and right unilateral salpingo oophorectomy is denied.



REMAND

The Board notes that the Veteran has not received notice consistent with the VCAA concerning how to substantiate a claim for TDIU.  Such must be accomplished on remand.

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  Expedited handling is requested.)

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be provided with notice of how to substantiate a claim for TDIU.

2.  When the development requested has been completed, and the RO/AMC has ensured compliance with the requested action, this case should again be reviewed by the RO/AMC on the basis of the additional evidence.  If the benefits sought are not granted, the Veteran and her representative should be furnished a supplemental statement of the case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

					(CONTINUED ON NEXT PAGE)



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).




____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2010).

Department of Veterans Affairs