Citation Nr: 1300919 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 08-15 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. What evaluation is warranted for hypertension since May 15, 2008? 2. What evaluation is warranted for gastroesophageal reflux disease since May 15, 2008? 3. What evaluation is warranted for uterine fibroids since April 1, 2006? 4. What evaluation is warranted for hemorrhoids since April 1, 2006? REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD T.S. Willie, Counsel INTRODUCTION The Veteran served on active duty from December 1985 to March 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). The case was forwarded to the Board by the Newark, New Jersey RO. In February 2011, the Board granted 10 percent ratings for hypertension and gastroesophageal reflux disease for the period from April 1, 2006 to May 14, 2008. The Board also remanded the issues listed on the title page of this decision The issues of entitlement to service connection for anemia and urinary incontinence secondary to uterine fibroids, and entitlement to special monthly compensation due to loss of use of creative organ secondary to uterine fibroids have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Since May 15, 2008, hypertension has not been manifested by a diastolic pressure predominantly 110 or more; or systolic pressure predominantly 200 or more. 2. Since May 15, 2008, the Veteran's gastroesophageal reflux disease has not been manifested by two or more of the following: persistently recurrent epigastric distress with dysphasia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. 3. Since April 1, 2006, uterine fibroids are manifested by symptoms that cannot be controlled by continuous treatment. 4. The Veteran's uterine fibroids are not manifested by symptoms which interfere with employment or require frequent hospitalization. 5. Since April 1, 2006, hemorrhoids have not been manifested by persistent bleeding with secondary anemia or fissures. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent for hypertension since May 15, 2008 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp 2012); 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7101 (2012). 2. The criteria for a rating higher than 10 percent for gastroesophageal reflux disease since May 15, 2008 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7346 (2012). 3. The criteria for a rating higher than 30 percent for uterine fibroids since April 1, 2006 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.116, Diagnostic Code 7613 (2012). 4. The criteria for a rating higher than 10 percent for hemorrhoids since April 1, 2006 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7336 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As service connection, initial ratings, and effective dates have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. The Veteran was provided the opportunity to meaningfully participate in the adjudication of her claims and did in fact participate. See Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127; Hart v. Mansfield, 21 Vet. App. 505 (2007). Given that the Veteran has appealed the initial evaluations assigned, the severity of her disability is to be considered during the entire period from the initial assignment of the disability rating to the present. Fenderson. Hypertension In October 2006, service connection was granted for hypertension. A noncompensable rating was assigned effective April 1, 2006, pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7101. In an October 2012 rating decision, a 10 percent rating was granted, effective June 1, 2008. The Veteran expresses disagreement with the 10 percent rating. Diagnostic Code 7101, covering hypertension, provides for a 10 percent rating where diastolic pressure is predominantly 100 or more; systolic pressure is predominantly 160 or more; or where an individual has a history of diastolic pressure that is predominantly 100 or more which requires continuous medication for control. A 20 percent rating is assigned for diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. The Board finds that the criteria for a rating higher than 10 percent disabling for hypertension since May 15, 2008 have not been met. Her blood pressure was within normal limits at a VA women's health clinic visit in August 2010. Likewise, blood pressure reading of 143/90, 127/69 and 130/77 are shown at a May 2011 VA compensation examination. Hypertension with end organ damage of cerebrovascular disease was diagnosed. The examiner noted that the appellant had a history of suffering a stroke, but she had made an excellent recovery. At no time since May 2008 has the Veteran's diastolic pressure readings been predominantly 110 or more with definite symptoms, nor have her systolic pressure readings been predominantly 200 or more. At most, the evidence shows diastolic pressure at 90 and systolic pressure of 143. These findings do not warrant a rating in excess of 10 percent. The appeal is denied. Gastroesophageal reflux disease In October 2006, the RO granted service connection for gastroesophageal reflux disease, and assigned a zero percent rating effective April 1, 2006, pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7346 (hiatal hernia). In an October 2012 rating decision, a 10 percent rating was granted, effective June 1, 2008. The Veteran expresses disagreement with the 10 percent rating. Diagnostic Code 7346 provides a 10 percent rating for hiatal hernia with two or more of the symptoms for the 30 percent evaluation of less severity. 38 C.F.R. § 4.114 , Diagnostic Code 7346. A 30 percent rating is warranted for a hiatal hernia with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Id. When examined in August 2012, the Veteran complained of pyrosis of the lower esophagus which radiated up to the throat, sometimes on a daily basis. There was no showing of stricture, spasm, or diverticula. No other physical findings or scars were found. The examiner noted that the appellant was seeking her master's degree in health care administration and gastroesophageal reflux disease did not affect her studies. Since May 15, 2008, no evidence showing persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health has been presented. Rather, only complaints of pyrosis and epigastric distress are shown. These findings do not warrant a rating in excess of 10 percent. Uterine fibroids In October 2006, the RO granted entitlement to service connection for uterine fibroids. The RO assigned a noncompensable rating effective April 1, 2006, pursuant to 38 C.F.R. § 4.116, Diagnostic Code 7613. In an October 2012 rating decision, a 30 percent rating was granted, effective April 1, 2006. The Veteran expresses disagreement with the 30 percent rating. Diagnostic Code 7613 is designated for disease, injury, or adhesions of the uterus that are rated under the General Rating Formula for Disease, Injury, or Adhesions of the Female Reproductive Organs. Under the formula, symptoms that do not require continuous treatment warrant a noncompensable rating, and a 10 percent rating is assigned for disease, injury, or adhesions of the uterus where symptoms require continuous treatment. Id. A 30 percent rating is warranted where symptoms cannot be controlled by continuous treatment. Id. VA examination in June 2006 reveals a history of fibroid uterus and a myomectomy in December 2005. In May 2007, the Veteran expressed that her fibroids returned despite prescribed medication. She believed continuous treatment was needed. An examination in May 2008 led to a diagnostic impression of multiple fibroid uterus with recurrence of symptomatology probably secondary to regrowth of the fibroids from the time of surgery. The Veteran had complete relief for two years after the surgery but symptoms started again six months prior. The impression was multiple fibroid uterus, recurrence of menorrhagia and dysmenorrhea. She described her cycle as heavy with cramps. Her symptoms were somewhat relieved by Naprosyn. In August 2010, she expressed that she bleeds for almost two weeks monthly when she is on her cycle and that she takes Percocet for pain. When examined in May 2011, it was shown that the Veteran had anemia due to prolonged menstrual cycles of up to two weeks. She continued to take Percocet as needed during her cycles. The 30 percent rating is the maximum rating available for uterine fibroids pursuant to Diagnostic Code 7613. 38 C.F.R. § 4.116. In this case, no other Diagnostic Code is applicable and the Board cannot identify a diagnostic code that would be more appropriate to the Veteran's disability and her symptoms. The Board considered whether this issue warrants referral to the Director of the Compensation and Pension Service for consideration of an extraschedular rating, however, there is no evidence that uterine fibroids cause a marked interference with employment or necessitate frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Indeed, as noted above, the appellant is pursuing a master's degree in health care administration. Such a pursuit shows that the appellant's disorder does not warrant consideration of an extraschedular rating. Hence, an increased evaluation for uterine fibroids is not in order. Hemorrhoids In October 2006, the RO granted service connection for hemorrhoids. The RO assigned a 10 percent rating effective April 1, 2006, pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7336. The Veteran expresses disagreement with the 10 percent rating. External or internal hemorrhoids are evaluated as follows: mild or moderate (0 percent); large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences (10 percent); and with persistent bleeding and with secondary anemia, or with fissures (20 percent). 38 C.F.R. § 4.114, Diagnostic Code 7336. The VA examination in June 2006 noted a history of hemorrhoids diagnosed 10 years prior. They reportedly bled on and off, and were painful. Physical examination revealed hemorrhoids, however, the examiner did not report evidence of secondary anemia or fissures. Hemorrhoids with symptomatology and active on a daily basis were diagnosed. An examination in May 2008 reveals ongoing rectal bleeding that occurs after having bowel movements. The Veteran noted spotty blood on the toilet tissue after a bowel movement. She denied abdominal pain and weight loss. The appellant refused to undergo a rectal examination. Hemorrhoids without evidence of anemia were diagnosed. She was judged to be fully employable. In October 2009, she expressed having enlarging external hemorrhoids associated with rectal pain and large amount of hematochezia over the last six months to one year. She denied weight loss. The appellant reported moving her bowels daily without straining, constipation or diarrhea. Physical examination revealed fleshy colored external hemorrhoids. No internal hemorrhoids were palpated. Rectal tone was normal, and no bleeding was shown on examination. The impression was external hemorrhoids with associated rectal bleeding and pain despite using ointment and psyllium. A diagnosis of external hemorrhoids was given following an August 2012 VA examination. She complained of moderate to severe itching, burning and bleeding. Examination revealed three to four, half inch, protruding, firm hemorrhoids on the right side of the external sphincter. Anemia secondary to uterine fibroids not hemorrhoids was found. There were no fissures and/or scars. As shown above, the Veteran's hemorrhoids have not been associated with persistent bleeding and with secondary anemia, or with fissures during this time frame. At most, the evidence shows complaints of painful and bleeding hemorrhoids. Anemia secondary to hemorrhoids and/or fissures were not shown on examination. These findings do not warrant a rating in excess of 10 percent. All Claims The Board acknowledges the Veteran's assertions that her disabilities are more severe than evaluated. The appellant is competent to report her symptoms and has presented credible testimony. The Board finds, however, that the medical evidence, which is more probative than the appellant's lay statements, demonstrates that the criteria for the next higher evaluations have been met. The Board has considered whether the Veteran's disabilities present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) ; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). There are no exceptional or unusual factors with regard to the Veteran's disabilities. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.") Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence. Thus, her disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to a rating higher than 10 percent disabling for hypertension since May 15, 2008 is denied. Entitlement to a rating higher than 10 percent disabling for gastroesophageal reflux disease since May 15, 2008 is denied. Entitlement to a rating higher than 30 percent disabling for uterine fibroids since April 1, 2006 is denied. Entitlement to a rating higher than 10 percent disabling for hemorrhoids since April 1, 2006 is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs