Citation Nr: 1220232 Decision Date: 06/08/12 Archive Date: 06/20/12 DOCKET NO. 10-10 397 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a compensable disability rating for left oophorectomy with partial right oophorectomy. 2. Entitlement to a disability rating greater than 10 percent for cervical strain. ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from March 1990 to November 1998, including in the southwest Asia theater of operations during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, in which the RO denied, in pertinent part, the Veteran's claim for a compensable disability rating for left oophorectomy with partial right oophorectomy. The RO also granted a higher 10 percent rating effective March 22, 2007, for the Veteran's service-connected cervical strain. Because the Veteran currently resides within the jurisdiction of the RO in St. Petersburg, Florida, that facility retains jurisdiction. This matter also is on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, in which the RO denied the Veteran's claim for a disability rating greater than 10 percent for cervical strain. The Board notes that, in Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability. The Court also found in Rice that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. The record in this case indicates that the Veteran has not asserted and the record does not show that she is not employable by reason of his service-connected disabilities. She specifically reported that she was employed full-time at her most recent VA examination in September 2009. Accordingly, the Board finds that this case can be distinguished from Rice. The Board also finds that entitlement to a TDIU has not been raised during the pendency of this appeal and is not part of the Veteran's currently appealed increased rating claim for left oophorectomy with partial right oophorectomy. The issues of entitlement to a disability rating greater than 10 percent for a lumbosacral spine disability has been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Veteran expressed an intent to file an increased rating claim for a lumbosacral spine disability in statements on a March 2010 VA Form 21-4138. Therefore, the Board does not have jurisdiction over this claim and it is referred to the AOJ for appropriate action. Unfortunately, as is explained below in greater detail, the issue of entitlement to a disability rating greater than 10 percent for cervical strain 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. VA will notify the Veteran if further action is required on her part. FINDINGS OF FACT 1. The Veteran had a partial hysterectomy involving removal of the left ovary during active service. 2. The Veteran had a total laparoscopic hysterectomy involving removal of the remaining right ovary on July 15, 2011. CONCLUSION OF LAW The criteria for a 100 percent rating effective from July 15, 2011, to October 15, 2011, and to a 30 percent rating thereafter, for left oophorectomy with partial right oophorectomy have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.116, Diagnostic Code (DC) 7619 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify the appellant of information and evidence necessary to substantiate the claim and redefined its duty to assist him in obtaining such evidence. 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326 (2011). With respect to the Veteran's increased rating claim for left oophorectomy with partial right oophorectomy, given the favorable disposition of the action here, which is not prejudicial to her, the Board need not assess VA's compliance with the VCAA. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). The Veteran contends that her service-connected left oophorectomy with partial right oophorectomy is more disabling than currently evaluated. She specifically contends that both of her ovaries were removed during surgery, entitling her to an increased rating for this disability. In general, disability evaluations are assigned by applying a schedule of ratings that represent, as far as can be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria that must be met for specific ratings. The regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history. 38 C.F.R. § 4.2; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that "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. The Veteran's service-connected left oophorectomy with partial right oophorectomy currently is evaluated as zero percent disabling by analogy to 38 C.F.R. § 4.116, DC 7619 (removal of ovary). See 38 C.F.R. § 4.116, DC 7619 (2011). A 100 percent is assigned under DC 7619 for 3 months after ovary removal. Thereafter, a 30 percent rating is assigned for complete removal of both ovaries. A zero percent rating is assigned after 3 months for removal of 1 ovary with or without partial removal of the other. Id. A footnote to DC 7619 indicates that disabilities rated under this DC should be reviewed for consideration of entitlement to special monthly compensation under 38 C.F.R. § 3.350. Id. See 38 C.F.R. § 3.350 (2011). The Board notes in this regard that the Veteran already is in receipt of special monthly compensation under 38 U.S.C.A. § 1114(k) and 38 C.F.R. § 3.350(a) for anatomical loss of a creative organ (the left ovary) effective November 29, 1998. VA's Office of General Counsel has held that special monthly compensation can be awarded either for anatomical loss or for loss of use. See VAOPGCPREC 93-90 (Sept. 25, 1990 and VAOPGCPREC 5-89 (Mar. 23, 1989). Accordingly, because the Veteran already is in receipt of special monthly compensation for anatomical loss of a creative organ, the Board will not consider the argument that she is entitled to additional special monthly compensation based on loss of use of a creative organ. The Board finds that the evidence supports assigning a 100 percent rating effective from July 15, 2011, to October 15, 2011, and a 30 percent rating thereafter for the Veteran's service-connected left oophorectomy with partial right oophorectomy. The Board notes initially that the Veteran's service treatment records show that her left ovary was removed surgically during active service. The competent post-service evidence suggests that the Veteran has not been compensated appropriately for the level of disability that she experienced following the removal of her remaining right ovary in July 2011. This evidence shows that, on VA gynecological examination in April 2007, the Veteran's complaints included heavy bleeding and pain during menses since service. A history of left ovary removal in July 1990 due to a dermoid cyst and partial removal of the right ovary in May 1993 was noted. The Veteran also reported "extremely heavy and painful menses that occur every 15-17 days, lasting about 6 days. She states that she uses an ultra sized tampon and a pad which she changes every one and one-half hours." She experienced occasional sharp pain with intercourse but had "little abdominal pain other than when she is on her menstrual cycle." The VA examiner stated that because "the last issue regarding the ovaries was back in 1993 and there has been no mention of issues with the ovaries since, it appears that this issue is very stable and likely not contributing to her current situation regarding her menses." The diagnoses included a history of cystic lesions to the ovaries, status-post left oophorectomy and partial right oophorectomy with extremely heavy periods "which are also very frequent and painful." Following private pelvic ultrasound in October 2007, the impressions were small cervical cyst and small endometrial cyst, thickened endometrium, multiple right ovarian cysts, and a surgically absent left ovary. On VA outpatient treatment in October 2007, the Veteran complained of menorrhagia "with cycles occurring every 15-20 days for the past 2 years [and the] presence of clots and episodes of bleeding that require [the] use of 2 pads at once." It was noted that the Veteran had tried multiple oral contraceptive pills "without resolution of symptoms." She was asking to see a gynecologist for a hysterectomy. Objective examination showed normal external genitalia, minimal blood in the vagina, no masses palpated, and otherwise was unremarkable. The assessment was menorrhagia. In April 2008, the Veteran's complaints included abnormal bleeding. A history of menometrorrhagia and recent presumptive treatment for pelvic inflammatory disease at an emergency room (ER) was noted. The Veteran reported that every menstrual cycle was "heavy with clots," occurred every 18 days, and resulted in very unusual bleeding in February 2008. Physical examination showed normal external female genitalia except for an elongated left labia minora, pink and healthy vaginal mucosa, no abnormal vaginal discharge, a cervix without lesions, discharge, or tenderness, a normal uterus in size, shape, and contour without tenderness, a non-tender adnexa with no masses, and a palpably normal right ovary. An October 2007 ultrasound showed a 10x5x6 uterus with a 7 millimeter (mm) endometrial cyst, a 2 centimeter (cm) fibroid, and a 6 cm ovary with multiple cysts. The assessment included an enlarged right ovary by prior sonogram. The Veteran had a hysteroscopy at a VA Medical Center on May 9, 2008. The surgical report indicates that the pre-operative diagnoses were endometrial cyst, menometrorrhagia, and an elongated left labium menora. The surgical procedures performed included a hysteroscopy. The post-operative diagnoses were endometrial cyst, menometrorrhagia, an elongated left labium menora, and probable endometrial polyp. Following private pelvic ultrasound in June 2008, the impressions were that the Veteran's right ovary "has changed appearance and measures slightly less in overall length than it did previously and has fewer cysts." The private radiologist also stated that there could be a "more solid appearing area of hemorrhagic cyst" within the right ovary. Following private pelvic ultrasound in July 2008, the impressions were simple ovarian cyst on the right side and endometrial thickening "which is nonspecific." On VA gynecological examination in September 2009, the Veteran complained of heavy menstrual cycles which she attributed to her service-connected left oophorectomy with partial right oopherectomy. The Veteran's medical records were reviewed although the claims file was not available for review. The Veteran reported a left oopherectomy in 1990 and a partial right oopherectomy in 1993 during active service "due to dermoid cyst." Her service-connected left oopherectomy with partial right oopherectomy was getting progressively worse. There were 25 days between menstrual cycles. Each menstrual cycle lasted 7 days and consisted of severe menstrual cramps and heavy menstrual bleeding with clots. The Veteran had 2 pregnancies (1 live birth and 1 abortion). She experienced bleeding between her periods and occasional spotting. A pelvic ultrasound was normal. A pap smear showed reactive squamous cells. The Veteran stated that she had lost 3 weeks of work in the previous 12 months due to heavy bleeding and cramping and neck pain. The diagnoses included status-post left oopherectomy due to dermoid cyst and partial right oopherectomy due to dermoid cyst. In a September 2009 statement, the Veteran contended that she had experienced "irregular, heavy, and painful periods since I entered the military. The reason my ovary was removed was due to painful menstrual cycles due to [a] cyst." She also contended that she had experienced more cysts and polyps in the previous year. The Veteran had a total laparoscopic hysterectomy involving removal of her remaining right ovary at a VA Medical Center in July 2011. The surgical report indicates that the Veteran had a history of menometrorrhagia and dysmenorrhea which had been managed unsuccessfully with hormonal therapy and continued heavy bleeding for 2-3 weeks at a time. She also had been treated for anemia secondary to the bleeding and wanted a hysterectomy. A previous ultrasound showed a normal-sized uterus which was unremarkable. It was noted during surgery that the Veteran's fallopian tube and ovary "were already absent on the left." The right ovary and fallopian tube were removed surgically. There were no complications. The Board acknowledges the Veteran's assertions that her service-connected left oophorectomy with partial right oophorectomy is more disabling than currently evaluated. The competent evidence supports these assertions. It shows that the Veteran's left ovary was removed surgically during service and her remaining right ovary was removed surgically in a total hysterectomy performed at a VA Medical Center on July 15, 2011. DC 7619 provides for a 100 percent rating for 3 months after surgical removal of an ovary. DC 7619 also provides for a 30 percent rating thereafter where complete removal of both ovaries has occurred. See 38 C.F.R. § 4.116, DC 7619 (2011). In this case, it is not disputed that, at the Veteran's total hysterectomy on July 15, 2011, her remaining right ovary was removed surgically and she had complete removal of both ovaries thereafter. Thus, the Board finds that the criteria for a 100 percent rating effective from July 15, 2011, to October 15, 2011, and to a 30 percent rating thereafter for the Veteran's service-connected left oophorectomy with partial right oophorectomy have been met. Id. The Board finally finds that consideration of additional staged ratings for the Veteran's service-connected left oophorectomy with partial right oophorectomy is not warranted. This is especially true because the Board has assigned the maximum 100 percent rating effective July 15, 2011, to October 15, 2011, and a 30 percent rating effective thereafter, for the Veteran's service-connected left oophorectomy with partial right oophorectomy in this decision. See Hart, 21 Vet. App. at 505. Extraschedular The Board must consider whether the Veteran is entitled to consideration for referral for the assignment of an extraschedular rating for her service-connected left oophorectomy with partial right oophorectomy. 38 C.F.R. § 3.321; Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record). The Board notes in this regard that this decision assigns the maximum 100 percent rating available for her service-connected left oophorectomy with partial right oophorectomy effective July 15, 2011, to October 15, 2011. See 38 C.F.R. § 4.116, DC 7619 (2011). An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). 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 and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, 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. The Board finds that schedular evaluations assigned for the Veteran's service-connected left oophorectomy with partial right oophorectomy are not inadequate in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of this service-connected disability. This is especially true because the 100 percent rating assigned effective July 15, 2011, to October 15, 2011, in this decision contemplates surgical removal of 1 ovary. The 30 percent rating assigned effective October 15, 2011, in this decision also contemplates surgical removal of both ovaries. Moreover, the evidence does not demonstrate other related factors such as marked interference with employment and frequent hospitalization. As noted in the Introduction, the Veteran reported at her most recent VA examination in September 2009 that she was employed full-time. She did not indicate, and the medical evidence does not show, that she was hospitalized frequently for her service-connected left oophorectomy with partial right oophorectomy at any time during the pendency of this appeal. In light of the above, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to a 100 percent rating effective from July 15, 2011, to October 15, 2011, and to a 30 percent rating thereafter, for left oophorectomy with partial right oophorectomy is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND Inasmuch as the Board sincerely regrets the additional delay of the adjudication of this matter, a remand is necessary before the Veteran's increased rating claim for cervical strain can be adjudicated. The Veteran essentially contends that her service-connected cervical strain is more disabling than currently evaluated. She submitted additional private treatment records directly to the Board in May 2012 without a waiver of RO jurisdiction in the first instance. A review of this evidence indicates that it includes a magnetic resonance imaging (MRI) scan of the Veteran's cervical spine taken in March 2011. This suggests that there may be additional private treatment records that have not yet been associated with the claims file. Given the foregoing, the Board finds that this claim must be remanded for RO/AMC review of the newly submitted evidence in the first instance. See 38 C.F.R. § 20.1304(c) (2011). The Board also observes that, in addition to the newly submitted evidence received in May 2012, there may be additional private treatment records relevant to the Veteran's increased rating claim for cervical strain that have not been obtained and associated with the claims file. The Veteran identified a private treating neurologist who had treated her for neck pain (or cervical strain) in statements on a VA Form 21-4142 dated on September 15, 2009, and date-stamped as received by the RO on September 24, 2009. It does not appear, however, that the RO attempted to obtain these private treatment records after they had been identified properly by the Veteran. Thus, on remand, the Board finds that the RO/AMC must attempt to obtain the Veteran's up-to-date VA and private treatment records, to include the records specifically identified on the September 2009 VA Form 21-4142. The Board notes that VA's duty to assist includes providing Veterans with examinations where necessary. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. A review of the claims file shows that the Veteran's most recent VA spine examination occurred in September 2009. Given the foregoing, and because the Veteran essentially has contended that her service-connected cervical strain is more disabling than currently evaluated, the Board finds that, on remand, she should be scheduled for updated VA examination to determine the current nature and severity of her service-connected cervical strain. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask her to identify all VA and non-VA clinicians who have treated her for cervical strain in recent years. Advise the Veteran not to submit duplicate copies of records already submitted to VA. Obtain all VA treatment records which have not been obtained already. Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already, to include all records identified on the Veteran's September 2009 VA Form 21-4138. A copy of any records obtained, to include a negative reply, should be included in the claims file. 2. Schedule the Veteran for appropriate examination to determine the current nature and severity of her service-connected cervical strain. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. The examiner is asked to identify all manifestations of service-connected cervical strain currently experienced by the Veteran. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of her claimed disorder, the examiner should state whether the Veteran's service-connected cervical strain is manifested by forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees or the combined range of motion of the cervical spine not greater than 170 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. The examiner also should state whether the Veteran's service-connected cervical strain is manifested by forward flexion of the cervical spine 15 degrees or less or favorable ankylosis of the cervical spine. The examiner finally should state whether the Veteran's service-connected cervical strain is manifested by unfavorable ankylosis of the entire cervical spine or the entire spine. A complete rationale must be provided for any opinions expressed. 3. The Veteran should be given adequate notice of the requested examination, which includes advising her of the consequences of her failure to report to the examination. If she fails to report to the examination, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 4. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claim. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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. 2011). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs