Citation Nr: 1315566	
Decision Date: 05/10/13    Archive Date: 05/15/13

DOCKET NO.  07-10 814	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to an initial disability rating in excess of 10 percent for abdominal adhesions, secondary to a reoperative caesarean section (c-section).


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and her witness.


ATTORNEY FOR THE BOARD

Michael Wilson, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 2002 to August 2005.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia granted service connection for abdominal adhesions, secondary to a reoperative c-section, and assigned a noncompensable disability rating, effective August 13, 2005.  Jurisdiction over the Veteran's claim has remained with the RO in Roanoke, Virginia.  

The Veteran and her witness, R. S., testified at a hearing before the undersigned in February 2010.  A transcript of that hearing is of record.  

The Board remanded the Veteran's claim for further development in June 2010 and October 2012.  

In a July 2011 rating decision, the Appeals Management Center (AMC) increased the initial rating for abdominal adhesions to 10 percent, effective August 13, 2005.  


FINDING OF FACT

The Veteran's abdominal adhesions are manifested by sporadic, severe pain on at least a weekly basis which does not respond well to regular pain relievers, and residual abdominal adhesions that will likely require future surgical intervention, thereby equating to symptoms not controlled by continuous treatment.


CONCLUSION OF LAW

The criteria for a 30 percent disability rating for service-connected abdominal adhesions, secondary to a reoperative c-section, have been met since August 13, 2005.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.116, Diagnostic Code (DC) 7613 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).   

The Veteran is challenging the initial evaluation assigned 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.  See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlop v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, the duty to notify has been met to the extent necessary in this case.

Regarding the duty to assist, the RO has obtained the Veteran's VA treatment records and identified private treatment records.  Although the Veteran indicated during her February 2010 hearing that she received additional private treatment for pain from Sentara Hospital, she further indicated that she did not believe the records were important for her claim and she has not provided authorization for VA to obtain these records on her behalf.  

The Veteran has additionally been afforded multiple VA examinations.  As discussed below, the examinations, taken together, provide sufficient information to rate her service-connected disability on appeal.  

The RO/AMC substantially complied with the Board's October 2012 remand directives.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998).  The Board specifically instructed the RO/AMC to obtain all records of the Veteran's VA treatment for her service-connected disability dated since September 2010.  If such records showed any changes in her abdominal adhesions since her prior June 2010 VA examination, the RO/AMC was additionally instructed to afford her a new VA examination.  While the Veteran's VA treatment records dated through March 2013 were obtained, the RO/AMC apparently determined that the medical evidence did not show sufficient changes in the Veteran's service-connected disability to warrant scheduling her for a new VA examination.  

The Veteran was afforded her most recent VA examination to assess the severity of her service-connected abdominal adhesions in June 2010, in compliance with the Board's prior June 2010 remand directives.  The medical and lay evidence of record does not indicate that the severity of her disability has changed since that examination.  Accordingly, VA's duty to provide a thorough and contemporaneous VA examination has been met.  See Palczewski v. Nicholson, 21 Vet. App. 174 (2007).  

The Veteran testified at a hearing in support of her claim before the undersigned in February 2010.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeal for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that VA employees, including Board personnel, have two duties in conducting hearings.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.

Here, during the hearing, the issues were identified.  The VLJ and the Veteran's representative asked specific questions, directed at identifying outstanding evidence that could substantiate the Veteran's claim.  She was specifically asked about treatment and was asked questions aimed at eliciting evidence whether she had symptoms that would meet the criteria for higher ratings.  Information provided at the hearing lead to the Boards remand to get additional treatment records and afford her a new VA examination.  As such, the Bryant duties were met.  

Accordingly, the duty to assist has been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating her claim.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Because VA's duties to notify and assist have been met, the Board finds that no prejudice results to the Veteran in adjudicating this claim on the evidence of record, as the evidence adequately addresses the pertinent rating criteria and is sufficient for the Board to consider the functional effects of her service-connected abdominal adhesions.  

II.  Initial Ratings

      A.  Governing Law and Regulations

Disability ratings are based on the average impairment of earning capacity resulting from a disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012).  An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10 (2012).  Separate diagnostic codes identify the various disabilities.  

Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating.  38 C.F.R. § 4.7 (2012).  Otherwise, the lower rating will be assigned.  Id.

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21 (2012). 

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  See 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012).  Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present.  See 38 C.F.R. §§ 4.2 (2012); Peyton v. Derwinski, 1 Vet. App. 282 (1991).

In Fenderson v. West, 12 Vet. App 119 (1999), the Court held that where a veteran expresses dissatisfaction with the assignment of an initial disability evaluation; VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating."  Id.  Here, however, the Board finds that staged ratings are not warranted as the reported symptoms associated with the Veteran's service-connected abdominal adhesions have been relatively stable throughout the appellate period.  

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed.  See 38 C.F.R. § 4.14 (2012).

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, and the diagnosis and demonstrated symptomatology.  Any change in a diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

The Veteran bears the burden of presenting and supporting her claim for benefits.  38 U.S.C.A. § 5107(a) (West 2002).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b) (West 2002).  

      B.  Rating Criteria and Analysis

The Veteran's service-connected abdominal adhesions disability has been rated under Diagnostic Code 7613 for disease, injury, or adhesions of the uterus.  Disabilities rated under Diagnostic Codes 7610 through 7615 are all rated under the General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs.  

Under the General Rating Formula for Disease, Injury, or Adhesions of the Female Reproductive Organs, a noncompensable (0 percent) rating is to be assigned for symptoms that do not require continuous treatment.  A 10 percent rating is to be assigned for symptoms that require continuous treatment.  A 30 percent rating is to be assigned for symptoms not controlled by continuous treatment.  See 38 C.F.R. § 4.116, DCs 7610 to 7615 (2012).

      Background

A review of the medical evidence of record reveals that the Veteran has been suffering from symptoms associated with service-connected abdominal adhesions, secondary to her reoperative in-service c-section, since prior to her separation from service.  The severity of these symptoms has remained fairly consistent throughout the pendency of her appeal.  

A July 2005 outpatient treatment report from Blanchfield Army Community Hospital, dated just prior to the Veteran's separation from service, noted her continuing complaints of pain at the right lateral aspect of her caesarean incision site.  Her pain was noted to be worse with menses and with sexual intercourse.  The Veteran reported that she did not experience pelvic pain prior to her c-section.  

The Veteran was afforded a VA general examination, which also considered her abdominal adhesions, in October 2005.  The examiner noted that she suffered from abdominal adhesions following her reoperative c-section.  The examiner noted the Veteran's reported symptoms of experiencing pain when her bladder was beginning to fill and of having pain with movement.  

The Veteran began receiving VA treatment for abdominal pain in November 2005.  A November 2005 clinical outpatient note again revealed her complaints of suffering from pain associated with her adhesions whenever her bladder was beginning to fill.  She also reported having pain on movement.  

During a May 2006 VA outpatient clinic consultation, the Veteran reported having abdominal pain on the lower, left side.  She reported that the pain was sharp and intermittent, coming on every one to two days and lasting for hours at a time.  She reported that the pain was worse when her bladder was full.  She treated her pain with 700 milligrams of Tylenol every 12 hours.  She additionally reported having a constant, low grade background pain in the same area.  She noted that her pain was worse with prolonged standing, and that she sometimes experienced the same with sexual intercourse.  In August 2006, the Veteran reported to the emergency department for lower left quadrant pain associated with her c-section incision; however it appears that she left before being treated.  In September 2006, she reported a lower left quadrant shooting type pain three to four times per week.  She again indicated that she experienced the same pain when standing for long periods, when her bladder was full, and when she would get menstrual cramping.  

The Veteran consistently reported similar symptoms associated with abdominal adhesions through September 2007, at which time she underwent a surgical procedure to remove her abdominal adhesions.  At a July 2007 physical examination prior to her surgery, she continued to report pain since the time of her reoperative c-section during service.  The September 2007 operative report indicated that her uterus was found to be adhesed the anterior abdominal wall with her left ovary adhesed to the bowel.  She was noted to have a normal right tube and ovary.  The report indicated that the anterior uterine wall adhesion was taken down, but that since her left ovary adhesions were so close to her bowel, no lysis of adhesions was performed on the left side.  

Although subsequent treatment records reveal that the surgical lysis procedure somewhat improved the Veteran's pain, later records show that she began to experience chronic left lower quadrant pain once again.  Treatment records from the Veteran's private obstetrician/gynecologist, Richard Valentine, MD, reveal that in February 2010, the Veteran indicated that she continued to suffer from pain associated with her abdominal adhesions, but that the pain was not bad enough for a scope procedure.  

During her February 2010 Board hearing, the Veteran reported that she continued to experience pain associated with her abdominal adhesions on a daily basis.  She indicated that she would take over-the-counter Tylenol and Advil to help with her pain, but that these pain medications did not really control the pain.  She reported that she was not prescribed stronger pain medications because of fears of her becoming dependent on pain medications.  She specifically indicated that she was prescribed Vicodin at one point, but that her prescription was not subsequently refilled.  

The Veteran further indicated that following her surgery in 2007, her pain was relieved to some extent but that it had more recently become more severe.  She noted that she began experiencing pain about five months after her surgery.  She indicated that she continued to experience pain when her bladder was full.  She reported that her pain was very severe, and that she has had to report to the emergency room at times because of severe pain and in order to get stronger pain medication.  R. S. also testified that the Veteran suffered from episodes of severe pain two to three times per week, with the most severe pain occurring about one time per week. 

The Veteran additionally testified that she was told she would likely need to undergo additional surgeries every two to three years to continue to treat her abdominal adhesions.  She further indicated that she had an upcoming appointment with her private physician to determine whether she was going to be scheduled for another surgery.  She indicated however, that the adhesions on her ovary would likely remain, unless the ovary was removed.  

The record contains further treatment records from the Veteran's private physician, Dr. Valentine, including a March 2010 treatment report which noted her complaints of ongoing pain in the right and left lower quadrants with positional dyspareunia.  The report indicated that the Veteran's pain likely came from her adhesions as noted in the previous laparoscopy.  The report concluded that if the pain became any worse, further laparoscopy may be considered.  

At her most recent VA examination in June 2010, it was noted that the Veteran continued to have adhesions to her right ovary and bowel.  She additionally had minimal adhesions to her left ovary.  

The report noted that she had been advised that she would need additional surgery every three years to resolve this problem.  At the time of her examination, she reported abdominal pain reaching a level seven out of ten.  She reported pain with prolonged standing, when her bladder was full, and during sexual intercourse.  She described the pain as a throbbing and stabbing pain.  She also reported taking Tylenol for pain two times per day with fair relief of symptoms.  She indicated that she experienced pain in her abdomen for a total of one hour during the day, but that the pain was very sporadic.

Upon examination, the Veteran was noted to have tenderness to the right lower quadrant near the suprapubic area.  The examiner indicated that the Veteran had abdominal disability secondary to her in-service c-section.  The examiner also indicated that this disability had significant effects on the Veteran's usual occupation, including causing decreased mobility, and problems with lifting and carrying.  The examiner further noted a residual scar from the c-section surgery, but that the scar was very narrow and did not show signs of drainage or discharge.  

Continuing VA treatment records note the Veteran's ongoing pain associated with her abdominal adhesions.  Notably, a March 2012 VA treatment report noted that she experience chronic lower left quadrant pain, but that the pain was improved after the lysis of her adhesions in September 2007.  


      Analysis

The Veteran is currently assigned a 10 percent disability rating for her service-connected abdominal adhesions.  In order for an increased, 30 percent rating, to be assigned, the evidence of record would need to show that the Veteran's service-connected abdominal adhesions, secondary to a reoperative c-section, resulted in symptoms not controlled by continuous treatment.  The evidence is basically in a state of equipoise, as to whether the Veteran is entitled to a higher, 30 percent, disability rating.  See 38 U.S.C.A. § 5107(b) (2012).  

While the Veteran clearly has ongoing abdominal pain and clearly has remaining abdominal adhesions, some of the evidence of record has indicated that her pain was somewhat alleviated following her September 2007 surgery to remove these adhesions.  The record also indicates some success with managing pain through certain pain medications.  

Nonetheless, the Veteran has credibly testified that she continues to experience severe pain, even with current medications, with the most severe pain occurring at least one time per week, and she has noted that she cannot take stronger pain medications on a regular basis for fear of her becoming dependent on such medications.  Moreover, the Veteran's testimony and her June 2010 VA examination report note that she had been informed that she will likely need additional surgeries to continue to treat her abdominal adhesions.  

Based on the foregoing evidence, the Board has determined that a finding can be made that the symptoms associated with the Veteran's service-connected abdominal adhesions, including pain and remaining adhesions, are not controlled by continuous treatment.  

The Board notes that a 30 percent rating is the highest available under DC 7613 as well as the General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs.  A rating in excess of 30 percent would require rating under another diagnostic code, for which symptoms must include one of the following: the removal or prolapse of the uterus or ovary(ies) (DCs 7617, 7618, 7619, 7621), surgical complications of pregnancy (DC 7623), or fistula (see DC 7624 for rectovaginal or DC 7625 for urethrovaginal).  At no point in the record, however, has the Veteran been noted or found to have any of the above-cited symptoms or diagnoses related to her service-connected abdominal adhesions.  Accordingly, as the Veteran has not shown to have any of those symptoms, a rating in excess of 30 percent is not warranted.

      C.  Extraschedular Consideration and TDIU

The rating schedule represents as far as is practicable, the average impairment of earning capacity.  Ratings will generally be based on average impairment.  See 38 C.F.R. § 3.321(a), (b) (2012).  In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321 (2012).  

The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  

The symptoms associated with the Veteran's service-connected abdominal adhesions (i.e., remaining abdominal adhesions and chronic abdominal pain not controlled by treatment) are contemplated by the rating criteria set forth above, and reasonably describe her service-connected disability.  The applied rating criteria are, therefore, adequate to evaluate the Veteran's service-connected abdominal adhesions and referral for consideration of an extraschedular rating is not warranted in this case.

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disability 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 evidence of record indicates that the Veteran is employed, and although her service-connected abdominal adhesions reportedly have a significant impact on her usual occupation, she has not been found to be precluded from securing or following a substantially gainful occupation due to her service-connected disability.  Thus, a TDIU claim is not raised by the Veteran or by the record within the instant appeal, and therefore, further consideration is not warranted.



ORDER

Entitlement to an initial 30 percent disability rating for abdominal adhesions, secondary to a reoperative c-section, is granted.



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs