Citation Nr: 1320703 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 05-37 486 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a rating in excess of 50 percent for the service-connected status post total abdominal hysterectomy and bilateral salpingoophorectomy (formerly status-post myomectomy for leiomyoma), effective from January 1, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran served on active duty from February 1985 to February 1993. This matter comes before the Board of Veterans' Appeals (Board) from a July 2004 rating decision of the Detroit, Michigan Regional Office (RO) of the Department of Veterans Affairs (VA), which, in pertinent part, denied the Veteran's claim for an increased disability rating for a service-connected myomectomy for leiomyoma. In April 2005, the Veteran testified at a hearing, at the RO, before a local hearing officer. In March 2008, the Board issued a decision denying an increased disability rating for the service-connected myomectomy for leiomyoma. In an August 2008 rating decision, after the Veteran underwent a hysterectomy, the RO recharacterized the issue as status post total abdominal hysterectomy for leiomyoma. The disability rating was temporarily increased to 100 percent, effective from September 26, 2007, and was rated as 50 percent disabling, effective from January 1, 2008. The Veteran appealed the Board's March 2008 decision to the United States Court of Appeals for Veterans Claims (Court). In December 2009, the Court issued a Judgment in this matter. The case was then returned to the Board for readjudication. In November 2010, the Board remanded the issue of entitlement to a rating in excess of 10 percent for post-myomectomy for leiomyoma for further development. In light of the Court's November 2009 memorandum decision which, in pertinent part, vacated the portion of the Board's March 2008 decision which denied a rating in excess of 10 percent for post-myomectomy for leiomyoma, and remanded that issue to the Board for further proceedings consistent with the Court's decision, the Board, in a June 2012 decision, separated that issue from the claim for a rating in excess of 50 percent, subsequent to January 1, 2008 (the date following the assignment of a temporary total rating for the hysterectomy). Moreover, in June 2012, the Board awarded a 30 percent disability evaluation for the Veteran's status post-myomectomy for leiomyoma and remanded the issue of a rating in excess of 50 percent for the service-connected status post total abdominal hysterectomy and bilateral salpingoophorectomy for further development. The issue of entitlement to a separate rating for urinary incontinence associated with the service-connected total abdominal hysterectomy and bilateral salpingoophorectomy is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran has undergone a total abdominal hysterectomy and bilateral salpingoophorectomy, and she already has received the temporary 100 percent rating for the three months immediately following the surgical procedure. CONCLUSION OF LAW The criteria are not met for a rating higher than 50 percent for the status post total abdominal hysterectomy and bilateral salpingoophorectomy, effective from January 1, 2008. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.116, Diagnostic Code 7617 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service connection claim: (1) Veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that any error in VCAA notice should be presumed prejudicial, and that VA bears the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). However, the U.S. Supreme Court (Sup. Ct.) reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2). The Supreme Court held that - except for cases in which VA failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error rests with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In a claim for increase, the VCAA requirement is for generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed.Cir. 2009). In this case, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in March 2004 that fully addressed the notice elements and was sent prior to the initial RO decision in this matter. This letter informed the Veteran of what evidence was required to substantiate the claim, and of her and VA's respective duties for obtaining evidence. The Board also notes that in a letter dated in March 2006, the Veteran was sent a letter, from the RO, informing her of how disability ratings and effective dates are assigned. See Dingess v. Nicholson, supra. Moreover, she has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders v. Nicholson, supra. Thus, the Board concludes that all required notice has been given to the Veteran. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim. The RO has obtained all identified and available treatment records for the Veteran. In addition, the Veteran has undergone VA examinations in December 2007 and March 2011 to assess the severity of her condition. In that regard, the Board finds that the VA examinations in December 2007 and March 2011 are adequate. Both examination reports included a review of the claims folder and a history obtained from the Veteran, and examination findings were reported, along with diagnoses/opinions, which were supported in the record. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). It appears that all obtainable evidence identified by the Veteran relative to her claim has been obtained and associated with the claims folder, and that neither she nor her representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist her in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra. Moreover, the Board notes that in its June 2012 remand, the RO was directed to obtain additional private and VA treatment records and to readjudicate the Veteran's appeal, to include extraschedular consideration. The RO obtained additional VA medical records and informed the Veteran in a June 2012 letter that she may submit authorization and release forms for any private medical evidence pertinent to her case. In an April 2013 supplemental statement the case, the RO readjudicate the Veteran's claim on appeal with consideration given to an extra-schedular evaluation. Accordingly, the RO complied with the remand directive with respect to these matters. Stegall v. West, 11 Vet. App. 268 (1998). The Board concludes that VA has satisfied its duty to assist the Veteran in apprising her as to the evidence needed, and in obtaining evidence pertinent to her claim under the VCAA. No useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Analysis Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1, Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, which requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2, which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the Veteran working or seeking work. In general, when 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). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is currently in receipt of a 50 percent disability evaluation for the postoperative residuals of a hysterectomy and bilateral salpingoophorectomy, evaluated under 38 C.F.R. § 4.116, Diagnostic Code 7617. Diagnostic Code 7617 provides a 100 percent rating for three months after the removal of the uterus and both ovaries. A 50 percent rating is warranted thereafter. 38 C.F.R. § 4.116, Diagnostic Code 7617 (2012). The Veteran essentially asserts that her postoperative residuals of a hysterectomy are more disabling than the current disability evaluation indicates. The record shows that in September 2007, the Veteran underwent a total abdominal hysterectomy and bilateral salpingoophorectomy. She was assigned a 100 percent temporary rating from September 26, 2007 and then the maximum allowable rating of 50 percent subsequent to the three-month 100 percent temporary total rating beginning January 1, 2008. A VA gynecological examination in December 2007 revealed no significant residuals, post surgery. On VA gynecological examination in March 2011, the Veteran primarily complained of urinary incontinence following the surgery. The diagnosis indicated symptoms of surgical menopause, sexual aversion and urinary incontinence. The Veteran receives special monthly compensation based on the anatomical loss of a creative organ. The Veteran's complaints of urinary incontinence are the subject of the remand following this decision. The Veteran is currently in receipt of the maximum disability evaluation available for a total abdominal hysterectomy and bilateral salpingoophorectomy under Diagnostic Code 7617. A rating in excess of 50 percent is not available under any other provision of the rating schedule that is relevant to the postoperative residuals of a hysterectomy. In essence, the Veteran currently has the highest possible schedular rating provided for a hysterectomy and removal of both ovaries, and where more than three months have elapsed since the surgical procedure. 38 C.F.R. § 4.116, Diagnostic Code 7617. The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court set forth a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the Veteran's disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the Veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The evidence of record does not reflect that the Veteran's disability picture is so exceptional as to not be contemplated by the rating schedule. There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria. The rating criteria for the Veteran's currently assigned 50 percent disability rating contemplates her gynecological symptoms. As such, the threshold issue under Thun is not met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary. In short, the evidence does not support the proposition that the Veteran's service-connected hysterectomy disability present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2012). Thus, referral for the assignment of an extraschedular rating is not warranted. ORDER A rating in excess of 50 percent for the status post total abdominal hysterectomy and bilateral salpingoophorectomy (formerly status post myomectomy for leiomyoma), effective from January 1, 2008, is denied. REMAND As noted above, on VA gynecological examination in March 2011, the Veteran primarily complained of urinary incontinence following her hysterectomy surgery. The diagnosis included urinary incontinence. In light of the Veteran's complaints, the Board, in June 2012, directed the RO to determine whether a separate rating was warranted for any associated bladder impairment but the RO failed to do. This matter is considered to be a part of the Veteran's claim for an increased rating for her status pot abdominal hysterectomy and bilateral salpingoophorectomy. RO compliance with a remand is not discretionary. If an RO fails to comply with the terms of a remand, another remand for corrective action is required. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: The RO should adjudicate the issue of a separate rating for urinary incontinence as part and parcel of the Veteran's service-connected status post abdominal hysterectomy and bilateral salpingoophorectomy. If the benefit sought on appeal is not granted to the Veteran's satisfaction, she and her representative should be provided with a Supplemental Statement of the Case and be afforded the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs