Citation Nr: 1318868 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 08-09 578 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for fibroids (claimed as cervical cone, uterus biopsy, ovarian cyst, and fibroids) prior to November 23, 2012. 2. Entitlement to an initial evaluation in excess of 30 percent for fibroids (claimed as cervical cone, uterus biopsy, ovarian cyst, and fibroids) on or after March 1, 2013. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran had active service from September 1986 to September 2006. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In that decision, the RO granted service connection for fibroids and assigned a noncompensable evaluation effective on October 1, 2006. Jurisdiction was subsequently transferred to the RO in Roanoke, Virginia. The Board issued a decision in August 2011 that granted a 10 percent initial evaluation for fibroids, but denied an evaluation in excess thereof. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court). In a June 2012 Order, the Court vacated the portion of the August 2011 Board decision that denied a rating in excess of 10 percent for fibroids and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). In an October 2011 rating decision, the RO effectuated the portion of the Board's decision that was undisturbed by the Court's Order. Specifically, the RO increased the initial evaluation for the Veteran's service-connected fibroids to 10 percent effective on October 1, 2006. In December 2012, the Board remanded the claim for further development. In an April 2013 rating decision, the Appeals Management Center (AMC) granted a temporary evaluation of 100 percent for the service-connected fibroids based on surgical or other treatment necessitating convalescence, effective on November 23, 2012. Thereafter, a 30 percent evaluation was assigned effective from March 1, 2013. The AMC also granted special monthly compensation based on the loss of use of a creative organ effective on November 23, 2012. Applicable law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the claim remains on appeal as to the periods prior to November 23, 2012, and beginning on March 1, 2013. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in the paperless claims file reveals documents that are either duplicative of the evidence in the paper claims file or irrelevant to the issue on appeal. FINDINGS OF FACT 1. For the period prior to November 23, 2012, the symptoms associated with the Veteran's service-connected fibroid disability were not controlled by continuous treatment. 2. On November 23, 2012, the Veteran underwent a total laparoscopic hysterectomy, bilateral salpingo-oophorectomy, and cystoscopy. Her uterus, cervix, bilateral fallopian tubes, and bilateral ovaries were removed during the procedures. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, the criteria for an initial evaluation of 30 percent for fibroids have been approximated for the period prior to November 23, 2012. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.116, Diagnostic Code 7699-7615 (2012). 2. The criteria for an initial evaluation of 50 percent for fibroids, status-post hysterectomy, have been met as of March 1, 2013. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.116, Diagnostic Code 7699-7617 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and, (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With respect to the claim for an increased evaluation, the Veteran in this case is challenging the initial evaluation assigned following the grant of service connection for fibroids. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. See also VAOPGCPREC 8- 2003 (December 22, 2003). Thus, VA's duty to notify has been satisfied with respect to the issue of entitlement to a higher initial evaluation for her fibroids. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records and all identified and available post-service medical records are in the claims file and were reviewed by both the RO and the Board in connection with the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran was afforded VA examinations in February 2007, April 2009, and March 2013 in connection with her claim. The Board notes that the Veteran declined an abdominal and pelvic examination during her February 2007 and April 2009 VA examinations. She indicated that she wanted VA to obtain information from her private physician instead. She also provided the contact information for her private physician during the April 2009 VA examination. The claims file contains some treatment records from that physician that were submitted before the VA examinations. Following the April 2009 VA examination, in May 2009, the RO sent the Veteran a letter asking her to complete, sign, and return a VA Form 21-4142, Authorization for Release of Information, in order for the RO to obtain any additional private treatment records from that provider; however, the Veteran did not respond. The Board notes that the duty to assist in the development and adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). If a veteran wishes help, he or she cannot passively wait for it in circumstances where he or she may or should have evidence that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193, reconsideration denied, 1 Vet. App. 406 (1991) (per curiam). The Veteran never indicated that she would be willing to have a pelvic examination performed. Moreover, during the March 2013 VA examination, the examiner noted that a pelvic examination was unnecessary at the time of the examination because the Veteran's uterus was removed in a hysterectomy documented in November 2012. Therefore, there is no reason to delay the consideration of the claim on this basis. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to an appellant are to be avoided). See also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (observing circumstances as to when a remand would not result in any significant benefit to the claimant). In the June 2012 Joint Motion, the parties noted that the Board primarily relied on the February 2007 and April 2009 VA examination reports in the August 2011 decision. The parties agreed that there appeared to be a conflict between the Veteran's testimony suggesting a worsening of symptoms and the medical conclusions provided by both VA examiners, specifically that her symptoms were either controlled by treatment or "responsive to therapy or treatment." In the December 2012 remand, the Board remanded the claim for development, to include affording the Veteran a VA examination to ascertain the severity and manifestations of her service-connected fibroids. The examiner was requested to report all signs and symptoms necessary for rating the Veteran's fibroids under the rating criteria. In particular, the examiner was requested to "note the Veteran's reported symptomatology, identify the current manifestations of the disorder, describe the current treatment, and state whether her symptoms are controlled by continuous treatment." When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the March 2013 VA examination is adequate to decide the case because, as shown below, it was based upon consideration of the Veteran's pertinent medical history, as well as her lay assertions and current complaints, and it describes the service-connected disability picture in detail sufficient to allow the Board to make a fully informed determination. Id. The Board acknowledges that the VA examiner did not discuss whether the Veteran's symptoms are currently controlled by continuous treatment; however, before the examination, the Veteran underwent a total laparoscopic hysterectomy, a bilateral salpingo-oophorectomy, and cystoscopy, which eliminated her need for continuous treatment, as she reported that she no longer had fibroids and she denied any post-operative complications. There is also no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected fibroids since she was last examined. 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Therefore, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012). VA has further assisted the Veteran and her representative throughout the course of this appeal by providing them with a Statement of the Case (SOC) and Supplemental Statements of the Case (SSOC), which informed them of the laws and regulations relevant to the Veteran's claim. The Board concludes that the Veteran was provided the opportunity to meaningfully participate in the adjudication of her claim, and she did, in fact, participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the particular claim on appeal. She has been given ample opportunity to present evidence and argument in support of her claim. All relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained, and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Laws and Regulations Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as in this case, the question for consideration is a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the Veteran is currently assigned a 10 percent evaluation prior to November 23, 2013, and a 30 percent evaluation effective from March 1, 2013, for fibroids pursuant to 38 C.F.R. § 4.116, Diagnostic Codes 7699-7615. When an unlisted disease, injury, or residual is encountered, requiring rating by analogy, the diagnostic code number will be "built-up" as follows: The first two digits will be selected from that part of the schedule most closely identifying the part or system of the body involved, and the last two digits will be "99" for all unlisted conditions. 38 C.F.R. §§ 4.20, 4.27. Under Diagnostic Code 7615, diseases, injuries, and adhesions of the ovaries are assigned a 10 percent evaluation when there are symptoms that require continuous treatment, and a 30 percent disability evaluation is warranted for symptoms not controlled by continuous treatment. 38 C.F.R. § 4.116, Diagnostic Code 7615 (2012). Under Diagnostic Code 7617, the complete removal of the uterus and both ovaries warrants a 100 percent rating for three months after removal and 50 percent thereafter. 38 C.F.R. § 4.116, Diagnostic Code 7617 (2012). Under Diagnostic Code 7618, the removal of the uterus, including the corpus, warrants a 100 percent rating for three months after removal and 30 percent thereafter. 38 C.F.R. § 4.116, Diagnostic Code 7618 (2012). Under Diagnostic Code 7619, the removal of an ovary warrants a 100 percent rating for three months after removal. A 30 percent rating is assigned thereafter if there is a complete removal of both ovaries, and a noncompensable rating is provided three months after removal in the case of the removal of one ovary with or without partial removal of the other ovary. 38 C.F.R. § 4.116, Diagnostic Code 7619 (2012). After a careful review of the Veteran's claims file, the Board finds that the Veteran's fibroids more nearly approximate the criteria for a 30 percent evaluation for the period prior November 23, 2012 (the effective date of the temporary total evaluation based on surgical or other treatment necessitating convalescence) and a 50 percent evaluation as of March 1, 2013 (the date following the temporary total evaluation). Radiologic examination reports from the 633rd Medical Group at Langley Air Force Base and Portsmouth Naval Medical Center dated from June 2005 to November 2011 show that the Veteran had uterine fibroids and ovarian cysts. In a February 2007 VA examination report, the examiner noted diagnoses of ovarian cysts, fibroids, and cervical dysplasia. The Veteran reported that she was not in menopause and that she had regular menses every 28 days. Her past medical history included heavy bleeding in 1986 that was controlled by birth control pills. Her current symptoms included heavy bleeding, serious cramping, clotting, and pelvic pain that had worsened over the past few years. She reported using birth control to control her heavy bleeding and indicated that she had ultrasounds every three months since May 2006 to monitor the cysts and fibroids. It was also noted that she had not had her uterus or ovaries removed and that her cervical dysplasia was last treated in 1995. During an April 2009 VA examination, the Veteran reported that she had been diagnosed with cervical cancer in 1995. She indicated that she had regular menstruation with a 20 day cycle. She reported having heavy bleeding for five years that was uncontrolled by treatment; however, she then stated that she had no irregular bleeding, vaginal discharge, pelvic pain, fever, or urinary incontinence. The Veteran noted that her current symptoms included increased menses with more blood clumps and menstrual cramps. She indicated that she had not had her ovaries or uterus removed. She reported that she had a cervical biopsy in the past and that she received no treatment at the time of the examination, but she stated that she required continuous treatment to control her condition, specifically noting that she had check-ups every six to 12 months to track the size of the fibroids and cysts. The examiner further commented that all of her symptoms were responsive to therapy or treatment. A December 2009 Portsmouth Naval Medical Center treatment note revealed that the Veteran underwent a bilateral uterine artery embolization. The findings showed increased vasculature of the uterus consistent with fibroids. A November 2012 Portsmouth Naval Medical Center operative report indicates that the Veteran underwent a total laparoscopic hysterectomy (removal of the uterus), bilateral salpingo-oopherectomy (removal of the ovaries and fallopian tubes), and cystoscopy. The postoperative diagnoses were symptomatic fibroid uterus and menorrhagia. During a March 2013 VA examination, the Veteran reported that she had multiple ultrasounds and magnetic resonance imaging (MRI) studies to track the size of her uterine fibroids, but she denied any specific treatment for her fibroids before 2010. She reported that, after her uterine artery embolization in 2009, she felt "better" and had no heavy bleeding, but her symptoms returned six months after the procedure. The examiner noted that the Veteran had a laparoscopic hysterectomy and surgical removal of her ovaries due to fibroids and heavy menstrual bleeding in November 2012. Prior to the procedure, she described a sensation of pressure from the fibroids on her bladder that caused urinary frequency and discomfort during intercourse. She also stated that she required approximately 10 pads per day during the initial two days of menstruation before she had the hysterectomy. Following her hysterectomy, she reported that the fibroids were no longer a problem and she had no post-operative problems. The examiner noted that an examination was not necessary because the Veteran underwent a hysterectomy and her uterus was removed. As discussed above, following the Veteran's hysterectomy, a total disability rating of 100 percent was assigned effective from November 23, 2012, and a 30 percent rating was assigned as of March 1, 2013. Additionally, in the April 2013 rating decision, the AMC granted special monthly compensation based upon loss of a creative organ. With respect to the period prior to November 23, 2012, the Board finds that the Veteran warrants an initial 30 percent evaluation for her service-connected fibroids under Diagnostic Code 7615. Under that diagnostic code, a 30 percent disability evaluation is warranted for symptoms not controlled by continuous treatment. Based on the February 2007 and April 2009 VA examinations, it appears that the Veteran was continuously on birth control to treat her fibroids and heavy bleeding and had ultrasounds at a minimum of twice per year. However, the evidence of record shows that the Veteran's symptoms were not controlled by such treatment. During the February 2007 VA examination, the Veteran reported that her symptoms of heavy bleeding, serious cramping, clotting, and pelvic pain that had worsened over the past few years, and during the April 2009 VA examination, she reported heavy bleeding for five years that was uncontrolled by treatment. Moreover, during the March 2013 VA examination, the Veteran reported that she underwent a uterine artery embolization in 2009 and a laparoscopic hysterectomy, oophorectomy, and cystoscopy in 2012 "due to fibroids and heavy menstrual bleeding." Prior to the hysterectomy, she described experiencing a sensation of pressure from the fibroids on her bladder that caused urinary frequency and discomfort during intercourse, and she also stated that she required approximately 10 pads per day during the initial two days of menstruation. The Board notes that the April 2009 VA examiner commented that all of the Veteran's symptoms were responsive to therapy or treatment; however, the Board finds that the examiner did not address the Veteran's contentions that her symptoms had worsened and were uncontrolled by treatment. The Veteran is certainly competent to report that her symptoms worsened. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Based on the foregoing, and resolving all reasonable doubt in favor of the Veteran, the Board concludes that he is entitled to an initial 30 percent disability evaluation for her service-connected fibroid disability prior to November 23, 2012. The Board has also considered whether the Veteran is entitled to an initial evaluation in excess of 30 percent prior to November 23, 2012. However, the Board notes that a 30 percent disability is the maximum rating available under the General Rating Formula for Disease, Injury, or Adhesions of the Female Reproductive Organs (Diagnostic Code 7610 through 7615). Consequently, the Veteran is not entitled to a higher initial evaluation during this time period. With respect to the period beginning March 1, 2013, the Board finds that the Veteran is entitled to a 50 percent evaluation. Under Diagnostic Code 7617, removal of the uterus and both ovaries warrants a 100 percent rating for the three months after removal and a 50 percent rating thereafter. The November 2012 Portsmouth Naval Medical Center operative note clearly indicates that the Veteran's uterus, cervix, bilateral fallopian tubes, and bilateral ovaries were removed during the hysterectomy and oophorectomy. As such, she is entitled to a 50 percent evaluation following the temporary 100 percent evaluation that has been assigned from November 23, 2012, to March 1, 2013. The Board also notes that Diagnostic Codes 7615 and 7617 do not provide for a rating higher than 50 percent after the three-month period following surgery. Nor is there any evidence, opinion, or assertion indicating that the 100 percent post-operative rating should be extended. In fact, the Veteran told the March 2013 VA examiner that the fibroids were no longer a problem and that she had no post-operative problems following her hysterectomy. Additionally, there are no other appropriate diagnostic codes for rating the Veteran's service-connected fibroid disability. Thus, in summary, the Veteran is entitled to a 30 percent evaluation for the period prior to November 23, 2012, and a 50 percent evaluation for the period beginning on March 1, 2013, for her service-connected fibroid disability. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, which primarily consisted of heavy bleeding, cramping, clotting, and pelvic pain. In fact, prior to November 23, 2012, the Veteran's 30 percent evaluation contemplated her symptoms not controlled by treatment. Moreover, the 50 percent evaluation has been assigned for the complete removal of the uterus and both ovaries, and the Veteran told the March 2013 VA examiner that she had no fibroids or residual problems following her November 2012 hysterectomy. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected fibroids under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER An initial evaluation of 30 percent for fibroids is granted for the period before November 23, 2012, subject to the controlling regulations applicable to the payment of monetary benefits. An evaluation of 50 percent for fibroids, status-post hysterectomy, for the period beginning March 1, 2013, is granted, subject to the controlling regulations applicable to the payment of monetary benefits. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs