Citation Nr: 1318077 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 99-09 370 ) DATE ) ) Received from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to an initial, compensable rating for right ovarian cysts, prior to March 12, 2007. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from December 1989 to September 1996. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a March 1999 rating decision in which the RO in St. Petersburg, Florida, inter alia, denied the Veteran's claim for service connection for a right ovarian cyst. During the pendency of the appeal, the Veteran's claims file was transferred to the jurisdiction of the RO in Chicago, Illinois, which certified the appeal to the Board. The Veteran testified during two Board hearings before the undersigned Veterans Law Judge: in July 2002 at the RO, and in April 2005 in Washington, DC. Transcripts of both hearings are of record. In December 2003 and July 2005, the Board, inter alia, remanded the then claim for service connection for right ovarian cysts to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further development. In a June 2006 rating decision, the AMC granted service connection and an initial zero percent (noncompensable) rating for right ovarian cysts, effective September 14, 1996. This rating decision constituted a full grant of the benefit sought regarding the claim for service connection. In February 2007, the Veteran filed a notice of disagreement (NOD) with the initial rating assigned for right ovarian cysts. A statement of the case (SOC) was issued in April 2007, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in June 2007. As this appeal involves a request for a higher initial rating following the grant of service connection, the Board characterized this matter in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disabilities). In February 2008, the Board remanded the claim for a higher initial rating to the RO, via the AMC, for additional development. After taking further action, in an August 2008 rating decision, the AMC granted a 100 percent rating for the Veteran's right ovarian cysts, effective March 12, 2007, and assigned a 30 percent rating from July 1, 2007. In September 2008, the RO issued a supplemental SOC (SSOC) denying further increases and returned these matters to the Board for further appellate consideration. In February 2009, the Board denied an initial, compensable rating for right ovarian cysts, prior to March 12, 2007. The Veteran's claim for a rating in excess of 30 percent for right ovarian cysts, since July 1, 2007, was remanded to the RO, via the AMC, for further action, to include adjudication of an inextricably intertwined claim for service connection for residuals of hysterectomy. After taking further action, the RO, in a March 2010 rating decision, granted a 50 percent rating for residuals of removal of right ovarian cysts with total hysterectomy, effective July 1, 2007. The Veteran appealed the February 2009 Board decision to the United States Court of Appeals for Veterans Claims (Court). In March 2010, the Court granted a joint motion for remand filed by representatives for both parties, vacating the Board's decision, and remanding the claim to the Board for further proceedings consistent with the joint motion. The Board notes that, while the Veteran previously was represented by Disabled American Veterans, in February 2009, the Veteran granted a power-of-attorney in favor of a private attorney with regard to this matter. In May 2010, that attorney withdrew from representation with the Veteran's authorization. Later that month, the Veteran granted a power-of-attorney in favor of another private attorney affiliated with the same organization. In August 2010, the Veteran's then-current representative submitted a brief to the Board, together with additional evidence. In January 2011, the representative indicated that the Veteran wished to waive initial RO consideration of the evidence. Thus, the evidence has been accepted for inclusion in the record on appeal. See 38 C.F.R. §§ 20.800, 20.1304 (2012). In March 2011, the Board requested a specialist's medical opinion in this case from the Veterans Health Administration (VHA). The opinion was received in June 2011, and in July 2011, the appellant and her representative at that time were sent a copy of the opinion and allowed 60 days to submit additional evidence and/or argument. In November 2011, the Veteran's then representative submitted additional evidence and argument to the Board, along with a waiver of initial RO consideration of the evidence. This evidence had also been accepted for inclusion in the record on appeal. In March 2012, the Veteran's private attorney withdrew from representation with the Veteran's authorization. In August 2012, the Veteran granted a power-of-attorney in favor of Veterans of Foreign Wars of the United States with regard to this matter. The Veteran's current representative submitted additional written argument on her behalf in March 2013. The Board recognizes the change in representation. Finally, the Board notes that, in addition to the paper claims file, there is an electronic (Virtual VA) file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim herein decided has been accomplished. 2. For the period from September 14, 1996 through March 11, 2007; the Veteran was awarded a maximum 30 percent schedular rating under Diagnostic Code 7615 for residuals of laparotomy with small bowel adhesion to the distal end of the right ovary and partial loss of the left ovary, that rating was assigned based on symptoms of dyspareunia and recurring complaints of abdominal pain. 3. To assign a second, compensable rating for pain and dyspareunia due to right ovarian cysts under Diagnostic Code 7615, for the same period, would have the impermissible effect of compensating the Veteran twice for the same symptomatology. 4. For the period prior to March 12, 2007 (from September 14, 1996 through March 11, 2007), the Veteran's right ovarian cysts were not manifested by symptoms that required continuous treatment. CONCLUSION OF LAW The criteria for an initial, compensable rating for right ovarian cysts, prior to March 12, 2007, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.116, Diagnostic Codes 7615 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, a March 2008 post-rating letter provided notice to the Veteran regarding what information and evidence was needed to substantiate a claim for a higher rating, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations (consistent with Dingess/Hartman); she was also asked her to submit any evidence in her possession pertinent to the claim on appeal (consistent with Pelegrini and the version of 38 C.F.R. § 3.159 then in effect). After issuance of this letter, and opportunity for the Veteran to respond, the August 2008 SSOC reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of the above-described notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of the Veteran's post-service private medical records, as well VA outpatient treatment records, reports of VA examinations, and the VHA specialist's medical opinion. Also of record and considered in connection with the appeal are the transcripts of the Veteran's Board hearings, as well as various written statements provided by the Veteran, and by her current and former representatives, on her behalf. The Board finds that no further RO action on this claim, prior to appellate consideration, is required. As for the July 2002 and April 2005 Board hearings, the Board points out that the Veteran appeared, along with her then authorized representative, and provided testimony on the matter(s) then before the Board. The transcript of each hearing reflects that the Veteran was afforded the opportunity to present hearing testimony, argument and evidence. The transcripts also reflect appropriate exchanges between the Veteran, her then representative, and the undersigned Veterans Law Judge, in accordance with Stuckey v. West, 13 Vet. App. 163 (1999) and Constantino v. West, 12 Vet. App. 517 (1999). The transcripts further reflect that the Veterans Law Judge identified and explained the material issues then before the Board, and suggested or discussed with the appellant and her then representative the submission of evidence that would support the claim(s). See 38 C.F.R. § 3.103(c)(2) (2012); Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Board hearings are, thus, legally sufficient. In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126. As noted previously, in a June 2006 rating decision, the AMC granted service connection and an initial zero percent (noncompensable) rating for right ovarian cysts, effective September 14, 1996. The rating was assigned under 38 C.F.R. § 4.116, Diagnostic Code 7615. In an August 2008 SSOC, the AMC listed both Diagnostic Codes 7615 and 7619 as pertinent rating schedule provisions. In its February 2009 decision, the Board denied an initial, compensable rating for right ovarian cysts, prior to March 12, 2007, under 38 C.F.R. § 4.116, Diagnostic Code 7619. However, in the joint motion filed with the Court, the parties to the appeal agreed that Diagnostic Code 7615 appeared to be a more appropriate diagnostic code for rating the Veteran's disability during the period here in question. The parties stated: [Diagnostic Code] 7615, which is used to rate disease, injury, or adhesions of the ovary, rather than [Diagnostic Code] 7619, which is used to rate removal of an ovary, appears to be a more appropriate diagnostic code to rate [the Veteran's] claim for the period prior to March 12, 2007, due to the fact that the right ovary had not been removed during that period. Additionally, [Diagnostic Code] 7615 is the only diagnostic code which relates to symptoms and treatment of conditions affecting the ovaries. Under Diagnostic Code 7615, disease, injury, or adhesions of the ovary are assigned a noncompensable rating if the condition is manifested by symptoms that do not require continuous treatment. A 10 percent rating is warranted when the condition is manifested by symptoms that require continuous treatment, and a 30 percent rating is warranted if the condition is manifested by symptoms not controlled by continuous treatment. 38 C.F.R. § 4.116, Diagnostic Code 7615. The Board points out that the evaluation of the same manifestations under different diagnoses, or "pyramiding," is precluded by 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). Separate ratings may be granted only when "none of the symptomatology for any one of [the claimed conditions] is duplicative of or overlapping with the symptomatology of the other . . . conditions." Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Considering the pertinent evidence of record in light of the governing legal authority, the Board finds that the criteria for an initial, compensable rating for right ovarian cysts, prior to March 12, 2007, are not met. Service treatment records reflect that, in August 1991, the Veteran underwent laparotomy with resection of a cyst from the left ovary and resuturing of the right ovary. It was noted that the right ovary appeared clinically to have multiple cysts. Bivalving of the right ovary was performed, and there was one corpus luteum and multiple follicle cysts seen, but nothing suggestive of a dermoid. Deep mattress sutures were placed to close the defect with a running locking suture to the edge of the ovary closing the capsule. In August 1996, the Veteran was seen with complaints of right lateral abdomen and flank pain of uncertain etiology. She was treated with Tylenol No. 3 with codeine. Post service, private treatment records include a December 1996 report which reflects the Veteran's complaint of pelvic pain and secondary infertility. She indicated that she had some mid-cycle discomfort on the left side with recent onset of associated dyspareunia. It was noted that she was disabled secondary to disc disease. A diagnostic laparoscopy was discussed. A January 1997 report reflects that the Veteran was seen with complaints of pelvic pain. A laparoscopy was performed, with lysis of adhesions and chromopertubation. An endometrial biopsy was also performed. The associated operative report reflects, among other things, that there was a small bowel adhesion to the distal right ovary, which could not be safely subjected to lysis, and that there was only a very small ovarian "stump" on the left from previous dermoid excision. The report of a June 1997 VA general medical examination shows that, in 1991, the Veteran had a cyst excised from the left ovary and, apparently, left oophorectomy at that time. It was noted that in 1997, because of gynecological symptoms, she underwent abdominal laparoscopy and was told that she had scar tissue around the left ovary area. She complained that she had been getting intermittent, left lower abdominal quadrant pain, described as sharp, piercing pains that could last from one to two hours and had been occurring almost daily over the past month. It was noted that she took Naprosyn. The pertinent diagnostic assessment was previous excision left ovarian cyst and oophorectomy. Private treatment records include an October 1997 report which reflects the Veteran's complaint of sharp pains in the bilateral lower quadrant, not associated with her menstrual cycle or physical activity, other than intercourse. She was advised to continue use of nonsteroidals in conjunction with her discomfort, since she had received some relief in the past. A November 2007 ultrasound report reflects a finding that the right ovary had two sonolucent cystic structures within the parenchyma of the ovary. In December 1997, the Veteran complained of gross hematuria with suprapubic pain. It was noted that the Veteran had slight discomfort to deep palpation in the right adnexa. The assessment was gross hematuria by patient history, rule out hemorrhagic cystitis. On ultrasound examination in January 1998, it was noted that the Veteran's right ovary was somewhat enlarged and had a large complex mass lying within the parenchyma, and that the overall volume of the ovary had increased since November 1997. On ultrasound examination in March 1998, it was noted that the right ovary was enlarged, once again, and that within the right ovary was a single, three-centimeter, purely sonolucent cystic structure. VA outpatient treatment records include a December 1998 report which shows that the Veteran sought emergency room care earlier that month for complaints of pelvic pain. A March 1999 ultrasound report reflects additional complaints of pelvic pain and an impression of hemorrhagic right ovarian cyst and minimally enlarged globular uterus with endometrial hyperplasia consistent with proliferative phase. No fibroids were noted. By a March 1999 rating decision, the St. Petersburg RO granted service connection for "residuals laparotomy, with small bowel adhesion to distal end right ovary, and partial loss left ovary." The RO assigned a zero percent evaluation under Diagnostic Code 7615, effective September 14, 1996. (As noted previously, service connection for cysts of the right ovary was denied.) VA outpatient treatment records dated in August 1999 show that the Veteran complained of abdominal pain. In September 1999, the Veteran complained of increased abdominal pain and underwent surgery for an ectopic pregnancy. On VA gynecological conditions examination in September 1999, the Veteran presented with complaints of recurring pain since January 1997. It was noted that she had had abdominal pain in August 1999, and was found to have an ectopic pregnancy in the right tube. She reported that she got mild, either right- or left-sided, pain for maybe one to two days per month, at any time during her cycle, which she had always attributed to ovarian cyst pain. She indicated that it was not interfering with her activities. The examiner diagnosed cholecystectomy; ectopic pregnancy; left ovarian dermoid cyst, post laparotomy, with removal of ovary; bivalve and resectioning of right ovary; lysis of adhesion to the right ovary; and irritable bowel disease. The examiner opined that the Veteran's cramping and abdominal pain were due to irritable bowel disease and not due to gallbladder removal, laparotomy, or small bowel adhesion. Private treatment records include a June 2000 surgery report which reflects a preoperative diagnosis of chronic pelvic pain; infertility. The Veteran underwent an operative laparoscopy, fimbrioplasty, and chromopertubation. The post-operative diagnoses were chronic pelvic pain; infertility; evidence of Fitz-Hugh-Curtis syndrome; and evidence of endometriosis. By a September 2000 rating decision, the Chicago RO granted special monthly compensation for loss or loss of use of a creative organ, effective September 14, 1996. On VA gynecological examination in February 2001, the Veteran complained of dyspareunia and spontaneous episodes of low abdominal or pelvic pain at least twice per month that lasted from thirty minutes to four hours. The examiner diagnosed past pelvic inflammatory disease, as well as endometriosis and extensive adhesional disease related to multiple surgical procedures including cholecystectomy; recurrent abdominal pain, secondary to adhesional disease due to multiple surgical procedures, and also due to endometriosis; cholecystectomy in the past, without clinical residuals; and ovarian cyst. It was noted that her medications included ibuprofen, as needed. The examiner opined that the Veteran's current pelvic pain was related to her gynecological conditions in service. By a March 2001 rating decision, the Chicago RO increased the rating for residuals of laparotomy with small bowel adhesion to the distal end of the right ovary, and partial loss of the left ovary, from zero to 30 percent under Diagnostic Code 7615, effective September 14, 1996. In so doing, the RO noted the Veteran's dyspareunia, recurring complaints of abdominal pain since 1998, and the February 2001 examiner's opinion to the effect that the Veteran's current pelvic pain was related to gynecological conditions in service. In May 2002, the Veteran underwent removal of an ectopic pregnancy. A three-centimeter right corpus luteum cyst was described. During the Board hearing in July 2002, the Veteran testified that she had pelvic pain that could last up to a period of days. She testified that her pain had increased in severity since service and that her right ovarian cyst was the source of the pain. On VA gynecological examination in August 2002, the Veteran complained of increased abdominal pain in both the left and right lower abdomen, as compared to two years earlier. On palpation, there was discomfort. The diagnostic assessment was that she had had a left oophorectomy in the past, with no residuals. In October 2002, the Board denied the Veteran's claim for an initial rating in excess of 30 percent for residuals of laparotomy with small bowel adhesion to the distal end of the right ovary and partial loss of the left ovary. In so doing, the Board noted, inter alia, the Veteran's complaints of pelvic pain and the February 2001 examiner's opinion to the effect that the Veteran's current pelvic pain was related to gynecological conditions in service. Pursuant to an internal case development memorandum issued by the Board in October 2002, in connection with her claim for service connection for a right ovarian cyst, the Veteran underwent a VA gynecological examination in March 2003. It was noted, inter alia, that she had a history of gynecological difficulties; that she had irritable bowel symptoms that had worsened over the years; and that she had a recent diagnosis of peptic ulcer disease. The examiner indicated that the Veteran's pain pattern, which she had had for years, consisted primarily of one to two episodes a day of epigastric pain, more so than lower abdominal sharp pains. The Veteran indicated that generally her pain was in the lower abdomen, but recently, with the ulcers, she had had more epigastric pain pattern. The Veteran also related that she believed her lower abdominal pain was likely related to adhesions because she also had symptoms of dyspareunia. It was the examiner's opinion that the Veteran's pelvic pain was not related to having a bivalve right ovary. An April 2003 ultrasound was interpreted to reveal a prominent right ovary and presence of a left adnexal solid structure. A computed tomography (CT) scan in May 2003 was interpreted to reveal mild enlargement of the uterus, a right ovarian cyst, and small amount of free fluid in the pelvis that might have been secondary to a ruptured ovarian cyst. VA outpatient treatment records include a July 2005 report which reflects the Veteran's complaint of lower abdominal pain of more than 10 years duration. It was noted that the pain had recently become worse, that it was dull when it was continuous, and that it could become episodic with much more severe pain. It was further noted that the severe pain occurred at least one to two times a week, that it prevented her from performing her usual duties, and that her medications included Vicodin and Midrin. The impression was chronic pelvic pain with a history of pelvic endometriosis. In September 2005, the assessment was chronic pelvic pain. Pursuant to a July 2005 remand pertaining to her claim for service connection for a right ovarian cyst, the Veteran underwent VA gynecological examination in February 2006. The examiner was asked to opine as to whether any currently demonstrated right ovarian cyst was incurred in service, and to address the relationship, if any, between the current right ovarian complaints and symptoms related to bivalve of the right ovary performed in August 1991. On examination, the Veteran complained of pelvic pain six or seven days a month, lasting four or five hours, that she treated with nonsteroidal anti-inflammatories. A transvaginal ultrasound revealed a few small follicular cysts in the right ovary, with the largest cyst measuring 8.1 millimeters in diameter. The examiner opined that it was at least as likely as not that there was a relationship between the current right ovarian complaints and symptoms related to a bivalve of the right ovary performed in August 1991. The rationale provided was that there were still cysts present in the right ovary. The examiner did not state what the Veteran's current right ovarian symptoms were. A May 2006 report reflects a diagnosis of pelvic endometriosis for which the Veteran had multiple surgical procedures and medical therapies. In a June 2006 rating decision, the AMC granted service connection and an initial zero percent rating for right ovarian cysts, effective September 14, 1996. A July 2006 report reflects complaints of pelvic pain, and that the Veteran underwent biopsy of her endometrium. The report of a February 2007 ultrasound reflects an absent left ovary and an abnormal right ovary. Private treatment records include a March 2007 surgical pathology report which reflects pre-operative diagnoses of metromenorrhagia and uterine myoma and post-operative diagnoses of metromenorrhagia, uterine myoma, and pelvic adhesions. On March 12, 2007, the Veteran underwent a total abdominal hysterectomy, right salpingo-oophorectomy, and adhesiolysis. A post-surgical pathology report indicated that the Veteran's right ovary was multilobated and partially cystic appearing, and that sectioning revealed a recent corpus luteum, as well as multiple apparent cystic follicles. In a June 2010 statement, the Veteran stated that she had ongoing pelvic pain on the right side from 1996 until several months after her March 2007 hysterectomy. She stated that she repeatedly sought treatment for right-sided pelvic pain during that time, but continued to experience pain despite doctors' efforts. She added that her pain had since ended. In April 2011, the Board requested a VHA specialist opinion from a gynecologist as to what symptoms from September 14, 1996, to March 12, 2007, were specifically due to the Veteran's service-connected right ovarian cysts, as opposed to other gynecological or medical disorders. The Board noted that the medical record detailed treatment for numerous problems that were, or might be related to the Veteran's reproductive system, including chronic pelvic pain, abdominal pain, Fitz-Hugh-Curtis syndrome, pelvic endometriosis, an absent left ovary, irregular periods, lesions of the uterus, cervix and ovary, multiple ectopic pregnancies, multiple urinary tract infections, pelvic adhesive disease, dyspareunia, and heavy menstrual bleeding. The physician was asked whether identified symptoms of the Veteran's right ovarian cysts (1) did not require continuous treatment, (2) required continuous treatment, or (3) were not able to be controlled by continuous treatment. If the Veteran's right ovarian cysts symptoms were found to have either required continuous treatment or not to have been able to be controlled by continuous treatment during the period of September 14, 1996 to March 12, 2007, the physician was to state any time period or periods that such right ovarian cysts symptoms required continuous treatment, and any time period or periods that right ovarian cysts symptoms were not able to be controlled by continuous treatment. In a May 2011 opinion, the reviewing physician noted that conditions other than ovarian cysts that could cause pelvic pain-including irritable bowel syndrome and adhesive disease-were well documented during the period from 1996 to 2007, and that, while the source of the Veteran's pain was not clear, it was possible that at least some of the pain was from the cysts. The physician opined that the symptoms which were most likely to be related to ovarian cysts were pain and dyspareunia. The physician observed that the Veteran had been given many diagnoses relating to cysts, including functional, follicular, corpus luteum, and hemorrhagic. The physician explained that follicular, functional, and corpus luteum cysts are all normal findings in an ovulatory female, are not associated with significant symptoms, and are self-limited. She also explained that hemorrhagic cysts are usually self-limited, and would need documented persistence by a practitioner over several months to document its persistence and perhaps the need for surgical therapy. She explained that, because of the fragmented nature of the Veteran's care (i.e., care by multiple practitioners), that was never documented. With regard to whether the Veteran had symptoms specifically due to right ovarian cysts, the physician opined, in effect, that such symptoms did not require continuous treatment. Following a review of the record, the physician offered that the Veteran "was never given medications or surgery for the cysts." In this case, the Board finds, initially, that assigning a separate rating for right ovarian cysts pursuant to Diagnostic Code 7615 would violate the anti-pyramiding provisions of 38 C.F.R. § 4.14. As outlined above, the Veteran is already in receipt of a maximum 30 percent evaluation under Diagnostic Code 7615 for residuals of laparotomy with small bowel adhesion to the distal end of the right ovary and partial loss of the left ovary, for the period September 14, 1996 to March 12, 2007. It is clear from the RO's March 2001 rating decision that the 30 percent rating then assigned was based on symptoms of dyspareunia and recurring complaints of abdominal pain. To assign a second, compensable rating for right ovarian cysts under the same diagnostic code, for the same period, and for the same symptoms (dyspareunia and complaints of abdominal pain) would have the impermissible effect of compensating the Veteran twice for the same symptomatology. Her appeal must therefore be denied. Even assuming, for sake of argument, that the assignment of a separate rating was permissible under 38 C.F.R. § 4.14, the Board would still find that the preponderance of the evidence weighs against the assignment of a separate, initial, compensable rating for right ovarian cysts, prior to March 12, 2007. Although the Veteran and her former and current representatives have advanced argument to the effect that the Veteran required continuous treatment for symptoms associated with her right ovarian cysts prior to March 12, 2007, following review of all medical and lay evidence, the VHA specialist opined that, from a medical standpoint, the evidence does not reflect that the Veteran was ever given medications or surgery for the cysts. Such indicates, consistent with the objective evidence, that, for the period in question, the symptoms associated with the Veteran's ovarian cysts did not require continuous treatment, and the Board accepts this opinion as persuasive evidence on this point. In the Board's view, given the complexities associated with the Veteran's disability picture, questions pertaining to the Veteran's symptoms and treatment, and their relationship to the service-connected cysts of her right ovary, are matters that must be considered within the province of trained medical professionals, not subject to lay observation. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the Veteran nor any of her representatives is shown to be other than a layperson without appropriate training and expertise, none is competent to render a probative (i.e., persuasive) opinions on the medical matters upon which this claim turns. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Accordingly, and because the relevant rating criteria require, at a minimum, a showing that, during the period in question, the Veteran's condition required continuous treatment, the Board finds that the greater weight of the evidence is against the assignment of a separate, initial, compensable rating under Diagnostic Code 7615. The Board also finds that no other diagnostic code provides a basis for any higher or additional rating. As there is no evidence of atrophy or removal of the right ovary, prolapse, displacement, or removal of the uterus, rectovaginalor urethrovaginal fistula, or malignant neoplasm of the gynecological system prior to March 12, 2007, there is no basis for evaluating the Veteran's disability during that period under Diagnostic Codes 7618, 7619, 7620, 7621, 7622, 7624, 7625, or 7627, respectively. See 38 C.F.R. § 4.116. Moreover, the disability was not shown to involve any other factor(s) that would warrant evaluation of the disability under any other provision(s) of the rating schedule. The above-noted determinations are based upon consideration of various provisions of VA's rating schedule. Additionally, the Board finds that at no pertinent point during the period under consideration was the disability under consideration shown to be so exceptional or unusual as to warrant the assignment of a compensable rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (cited in the August 2008 SSOC). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability at issue is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996); Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. In this case, the Board finds that the applicable schedular criteria are adequate to rate the disability under consideration at all points pertinent to this appeal. The rating schedule fully contemplates all symptomatology and treatment associated disease, injury, or adhesions of the ovary, and provides for ratings higher than that assigned based on more significant functional impairment. Significantly, there is no medical indication or argument that the applicable criteria are otherwise inadequate to rate the disability. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For all the foregoing reasons, the Board finds that there is no basis for staged rating of the Veteran's right ovarian cysts prior to March 12, 2007, pursuant to Fenderson, and that the claim for an initial, compensable rating must be denied. 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 compensable rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An initial, compensable rating for right ovarian cysts, prior to March 12, 2007, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs