Citation Nr: 1313609 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 08-13 364A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to an initial compensable rating for endometriosis. 2. Entitlement to a total disability rating due to individual unemployability due to service-connected disabilities (TDIU) prior to August 22, 2007. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Donna D. Ebaugh, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1981 to September 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision issued by the Department of Veterans Affairs (VA) Appeals Management Center (AMC) in Washington, D.C. Jurisdiction of the Veteran's claims file currently resides with the Regional Office (RO) in Baltimore, Maryland. In June 2012, the Veteran appeared at a personal hearing before the undersigned Veterans Law Judge sitting in Washington, D.C. A transcript of the proceeding is of record. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file reveals VA treatment records from the Miami, Florida, VA Medical Center dated from November 1998 to June 2010 and from the Washington, D.C., VA Medical Center dated from November 2009 to November 2011 that were considered by the agency of original jurisdiction (AOJ) in the November 2011 supplemental statement of the case. The Board notes that, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a TDIU is part of an initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. In the instant case, the record reflects that the Veteran has been granted a TDIU effective August 22, 2007; however, as she testified at her June 2012 Board hearing that her endometriosis prevented her from working prior to such date, the Board finds that the issue of entitlement to a TDIU prior to August 22, 2007, is properly before the Board and, therefore, has been included on the first page of this decision. The appeal is REMANDED to the RO via the AMC in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that she is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). By way of background, the Veteran was granted service connection for endometriosis in a February 2007 rating decision and an initial noncompensable rating was assigned, effective September 16, 1992, the day after the Veteran was discharged from military service. At such time, the rating decision noted that, while the Veteran was treated for endometriosis during service, a noncompensable rating was warranted as she was not receiving treatment at the time of her separation from service or at the time of a July 1993 VA examination. In this regard, the Veteran's endometriosis was rated pursuant to 38 C.F.R. § 4.116, Diagnostic Code 7629, and the rating decision noted that, to warrant a compensable rating, the evidence must show pelvic pain or heavy or irregular bleeding requiring continuous treatment. However, Diagnostic Code 7629 was not in existence in September 1992. Rather, such Diagnostic Code was added to the Rating Schedule effective May 22, 1995. Prior to May 1995, endometriosis was not listed in the Rating Schedule. In increased rating cases, where the rating criteria is amended during the course of the appeal, the Board considers both the former and the current schedular criteria but, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). There is no indication that the AOJ has considered any other Diagnostic Code in evaluating the Veteran's endometriosis prior to May 1995. In this regard, where the service-connected disability does not directly correspond to an existing diagnostic code, a diagnostic code which is analogous in functional, anatomical, and symptomatic characteristics will be used. 38 C.F.R. § 4.20. Additionally, under Diagnostic Code 7629 (as in effect as of May 22, 1995), a 10 percent evaluation is warranted for symptoms of pelvic pain or heavy or irregular bleeding requiring continuous treatment for control. A 30 percent evaluation is warranted for symptoms of pelvic pain or heavy or irregular bleeding not controlled by treatment. A maximum 50 percent evaluation is assigned with lesions involving bowel or bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment, and bowel or bladder symptoms. In this regard, the Board notes that the Veteran has been separately service-connected for abdominal adhesions with partial small bowel adhesions and irritable bowel syndrome, evaluated as 30 percent disabling pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7399-7301, effective November 19, 2001. Therefore, a remand is necessary in order for the AOJ to assign an initial rating to the Veteran's endometriosis pursuant to an appropriate Diagnostic Code in existence from September 16, 1992 to May 22, 1995. Moreover, while she has been separately service-connected for her bowel symptomatology related to her adhesions from endometriosis as of November 19, 2001, the AOJ should consider whether a higher or separate rating for such is warranted under the Diagnostic Code used to evaluate her endometriosis prior to such date, to include Diagnostic Code 7629 (in effect as of May 22, 1995), which specifically considers bowel symptoms. Furthermore, a remand is necessary in order to obtain outstanding VA treatment records. In this regard, the Veteran testified to seeking treatment for endometriosis from the Miami VA Medical Center from the time of her discharge until she moved to Washington, D.C., in 2010. While records from such facility dated from November 1998 to June 2010, and from single instances in 1994, 1995, 1996, 1997, and 2000 are contained in the claims file, it is unclear whether all records pertaining to the Veteran's endometriosis dated from September 1992 to November 1998 have been obtained for consideration in her appeal. Additionally, she currently receives treatment from the Washington, D.C., VA Medical Center and records dated through November 2011 from such facility are of record. Therefore, on remand, a complete copy of the Veteran's VA treatment records from the Miami facility dated from September 1992 to November 1998 and from the Washington, D.C., facility dated from November 2011 to the present should be obtained for consideration in her appeal. Additionally, the Board finds that a remand is necessary in order to afford the Veteran a VA examination so as to determine the current nature and severity of her endometriosis during the entire rating period, as well as the impact her service-connected disabilities have on her employability. In this regard, as indicated previously, the record pertaining to the symptoms associated with the Veteran's endometriosis during the 1990's is somewhat scant. Moreover, there remains a question as to whether the Veteran's endometriosis involved bowel symptomatology prior to November 19, 2001, when she was separately service-connected for abdominal adhesions with partial small bowel adhesions and irritable bowel syndrome. Chotta v. Peake, 22 Vet. App. 80 (2008) (noting that a duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated). Additionally, pertaining to the Veteran's claim for a TDIU, the Board finds that a retrospective medical opinion regarding the impact her service-connected disabilities have on her employability prior to August 22, 2007, is necessary to decide the claim. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994); Chotta, supra; Vigil, supra. In this regard, while she has been awarded a TDIU as of August 22, 2007, the record reflects that she reported she last worked in December 2002. Moreover, in her employer's October 2002 letter, her supervisor noted that the Veteran's medical condition was affecting her ability to do her job, in that her condition prevented her from being physically present in the office to perform her job. Further, the Veteran testified in June 2012 that she often missed work due to severe menstruation symptoms associated with endometriosis. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment records from the Miami VA Medical Center dated from September 1992 to November 1998, and from the Washington, D.C., VA Medical Center dated from November 2011 to the present pertaining to the Veteran's endometriosis. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining all outstanding treatment records, the Veteran should be afforded an appropriate VA examination so as to determine the nature and severity of her endometriosis during the entire rating period (September 16, 1992, to the present). The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify the nature and severity of all manifestations of the Veteran's service-connected endometriosis from September 1992 to the present. In this regard, the examiner is requested to review all of the medical records contained in the claims file and Virtual VA, as well as the Veteran's lay statements of record. For the period from September 1992 to the present, the examiner should specifically identify all symptoms associated with the Veteran's endometriosis. He or she should specifically indicate whether the following symptoms were present and, if so, the degree of severity, and whether such required continuous treatment for control or were not controlled by treatment: pelvic pain, heavy bleeding, irregular bleeding, lesions involving bowel or bladder confirmed by laparoscopy, and/or bowel or bladder symptoms. The examiner is specifically requested to render an opinion as to whether the Veteran's endometriosis resulted in bowel symptoms, and the severity of such, prior to November 21, 2001. All opinions expressed should be accompanied by supporting rationale. 3. The claims file should be referred to an appropriate medical professional to offer an opinion as to whether the Veteran's service-connected disabilities render her unemployable prior to August 22, 2007. In proffering an opinion, the examiner should review the claims file, to include the medical and lay evidence of record. The examiner should note that the Veteran reported she last worked in December 2002; her employer's October 2002 letter in which it was noted that the Veteran's medical condition was affecting her ability to do her job in that her condition prevented her from being physically present in the office to perform her job; and the Veteran's June 2012 testimony that she often missed work due to severe menstruation symptoms associated with endometriosis. Thereafter, the examiner should offer an opinion as to whether the Veteran's service-connected disabilities, singularly or jointly, rendered her unable to secure or follow a substantially gainful occupation prior to August 22, 2007, taking into consideration her level of education, special training, and previous work experience, but not her age or any impairment caused by nonservice-connected disabilities. If possible, the examiner should identify the date upon which the Veteran's service-connected disabilities rendered her unemployable. In this regard, the Veteran is service-connected for major depression, effective August 22, 2007; abdominal adhesions with partial small bowel adhesions and irritable bowel syndrome, effective November 19, 2001, surgical scars, effective September 16, 1992; status post left salpinectomy, effective September 16, 1992; fibrocystic breast disease, effective September 16, 1992; and endometriosis, effective September 16, 1992. The examiner is advised that s/he may not consider any disability service-connected prior to the effective date of service connection. All opinions expressed should be accompanied by supporting rationale. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims of entitlement to an initial compensable rating for endometriosis and entitlement to a TDIU prior to August 22, 2007, should be readjudicated based on the entirety of the evidence. In evaluating the issue of entitlement to an initial compensable rating for endometriosis, the AOJ should (1) assign a rating pursuant to an appropriate Diagnostic Code in existence from September 16, 1992 to May 22, 1995, in accordance with 38 C.F.R. § 4.20 and (2) the AOJ should consider whether a higher or separate rating for the Veteran's claimed bowel symptomatology related to her adhesions from endometriosis is warranted under the Diagnostic Code used to evaluate her endometriosis, to include Diagnostic Code 7629 (in effect as of May 22, 1995), which specifically considers bowel symptoms. If the claims remain denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the U.S. 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. 2012). _________________________________________________ A. JAEGER 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) (2012).