Citation Nr: 1320814 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 00-23 676 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for post operative residuals of a hysterectomy and left ovary removal, with a history of uterine fibroids, currently rated as 30 percent disabling. 2. Entitlement to an increased (compensable) rating for right eye retinal pigment epithelial hyperplasia with vitreous condensation. 3. Whether the March 1995 rating decision that assigned a noncompensable rating for right eye retinal pigment epithelial hyperplasia with vitreous condensation contained clear and unmistakable error. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T.S. Willie, Counsel INTRODUCTION The Veteran served on active duty from August 1990 to December 1994. She also served on active duty for training (ADT) from January to December 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina which increased to 30 percent the rating assigned to the Veteran's service-connected uterine fibroids now claimed as post operative residuals of a uterus and left ovary removal. The case was forwarded to the Board by the St. Petersburg, Florida RO. The Veteran was afforded a hearing before a Veterans Law Judge in December 2001. A transcript of the hearing testimony is associated with the claims file. The Veterans Law Judge, however, who conducted the December 2001 hearing is no longer with the Board. The Veteran was offered and accepted another hearing before the undersigned Veterans Law Judge in November 2005. A transcript of this hearing is also of record. In January 2006, the Board denied entitlement to an increased rating for post operative residuals of a hysterectomy and a left ovary removal with a history of uterine fibroids. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In 2008, the Veteran's representative and VA General Counsel filed a joint motion to vacate and remand the Board's January 2006 decision. In a March 2008 Order, the Court remanded the Board's January 2006 decision and remanded the case for further action. In July 2008, March 2010, and September 2010 the Board remanded the issue of entitlement to an increased rating for post operative residuals of a hysterectomy and left ovary removal, with a history of uterine fibroids for further development. The issues of entitlement to an increased (compensable) rating for right eye retinal pigment epithelial hyperplasia with vitreous condensation, and whether a March 1995 rating decision that assigned a noncompensable rating for right eye retinal pigment epithelial hyperplasia with vitreous condensation contained clear and unmistakable error are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDING OF FACT Post operative residuals of a uterus and left ovary removal do not include the removal of both ovaries. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for residuals of a uterus and left ovary removal have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.116 Diagnostic Codes 7613-7618 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or the completeness of the application. VA notified the Veteran in August 2001 and March 2006 of the information and evidence needed to substantiate and complete the claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claims, and as warranted by law, affording VA examinations. For the reasons discussed below, the Board finds that the examinations are adequate to make a determination on the issues on appeal. This matter was last remanded by the Board in September 2010 to obtain and associate with the file records from Dr. Johnson from April 1999 to March 2000. In February 2011, the RO informed the Veteran that they sent a records request letter to Dr. Johnson for records pertaining to her from 1995 to present. To date, he has not responded. As the RO attempted to obtain the above records, the Board finds that the instructions set forth in its September 2010 remand were complied with, and that VA fulfilled its duty to assist. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), the United States Court of Appeals for Veterans Claims (Court) held that staged ratings are appropriate for an increased rating claim that is not on appeal from the assignment of an initial rating when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. The Veteran is currently assigned a 30 percent disability rating for her service-connected uterine fibroids, status post hysterectomy. See 38 C.F.R. § 4.116, Diagnostic Code 7613-7618. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 7613 pertains to disease, injury, or adhesions of the uterus. Pursuant to the General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs (diagnostic codes 7610 through 7615): Symptoms not controlled by continuous treatment warrant a 30 percent rating. Symptoms that require continuous treatment warrant a 10 percent rating. Symptoms that do not require continuous treatment are assigned a noncompensable rating. 38 C.F.R. § 4.116 , Diagnostic Code 7613. Diagnostic Code 7618 provides ratings for removal of the uterus, including corpus, for three months after removal (100 percent), and thereafter (30 percent). Under Code 7617, complete removal of the uterus and both ovaries is assigned a 100 percent rating for three months after removal, and a 50 percent rating is assigned thereafter. The Veteran appeals the denial of a rating in excess of 30 percent for post operative residuals of a hysterectomy and left ovary removal. The evidence shows a preoperative diagnosis of pelvic mass in June 1995. The Veteran underwent exploratory laparotomy surgery at which time the procedures included a left salpingo-oophorectomy (removal of the left ovary and fallopian tube), and right cystectomy (removal of cyst). A November 1995 ultrasound report noted findings of a large right ovarian cyst and multiple uterine fibroids. 38 C.F.R. § 4.116. In the January 1996 VA gynecological examination the Veteran complained of recurrent pelvic pain which was worse during her menstrual cycle. The diagnoses were a history of a left salpingo-oophorectomy with chronic pelvic pain, and history of fibroid tumors of the uterus which were not palpable on examination. Service connection for uterine fibroids, right ovarian cyst, and for residuals of a left salpingo-oophorectomy was granted in an April 1996 rating decision. Noncompensable ratings were assigned to all three disorders. In April 2000, the Veteran claimed entitlement to an increased rating for her service-connected gynecological disorders. During the May 2000 VA gynecological examination, she complained of cramps with her menses, heavy menses, and left lower quadrant pain. She also described pain with intercourse. Examination revealed normal external female genitalia, pink vaginal mucosa without lesions, and a mobile cervix without lesions. Status post left oophorectomy secondary to a dermoid cyst, menorrhalgia, and fibroids were diagnosed. A May 2000 private operative note shows that the Veteran underwent a laparoscopic-assisted vaginal hysterectomy and electrocautery of endometriosis. In a June 2000 rating decision, a 30 percent rating was assigned for the Veteran's service-connected uterine fibroids, essentially based on the medical findings concerning the removal of her uterus and left ovary. The 30 percent rating has since remained in effect. Special monthly compensation based on a loss of use of a creative organ was also granted. In August 2000, the Veteran stated that she continued to have menopausal symptoms and that her right ovary was not functioning as it should post surgery. An August 2001 letter submitted by a private treating physician, Dr. Johnson, stated that while still having one ovary, the Veteran developed symptoms of estrogen deficiency, including hot flashes, irritability, mood swings and "night sweats." The appellant noted that she was continuing estrogen treatment. In the course of a December 2001 video conference hearing with a now-retired Veterans Law Judge the Veteran essentially argued that her right ovary no longer functioned, and, therefore, both ovaries should be considered to be service-connected. At a September 2004 VA gynecologic examination the Veteran complained of frequent right lower quadrant pelvic pain with occasional left lower quadrant pain that was worse with intercourse. She denied any abnormal vaginal bleeding or discharge, fever, or bowel or bladder symptoms. Examination showed, in part, findings of no uterus, minimal tenderness to palpation over the right adnexa, with no masses being palpated. The left adnexa was also noted to be minimally tender to palpation, less so than the right. The diagnoses were status post total abdominal hysterectomy and left-sided salpingo-oophorectomy. The residuals were described as including residual pelvic pain and dyspareunia, requiring hormone replacement therapy due to menopause symptoms. Review of the report of a November 2004 VA gynecological examination shows that examination showed no palpable uterus or ovaries on manual examination. A VA nurse practitioner reviewed the Veteran's claims file in May 2005. Menopausal symptoms were noted to include hot flashes, irritability, vaginal dryness, and night sweats. The Veteran's disorder did not have an effect on either her daily activities or usual occupation. Estrogen deficiency secondary to vaginal hysterectomy 2000 and left salpingo-oophorectomy 1995 was diagnosed. Estrogen deficiency was listed as a problem associated with the diagnosis. During the course of her video conference hearing conducted by the undersigned in November 2005, the Veteran testified that her gynecological disorder has caused her to increase the dosage of her hormone patch. She complained of headaches, breast tenderness, trouble with urination, trouble focusing, and painful intercourse. She added that her private physician suspected that she had endometritis of her remaining (right) ovary. The Veteran testified that her symptoms impacted her ability to stay focused while performing her job as a nurse. She essentially asserted that the level of disability she was currently experiencing was the equivalent of having had both of her ovaries removed. In a November 2005 letter submitted by Dr. Johnson, it was stated the Veteran began to develop problems associated with estrogen deficiency shortly after her 2000 hysterectomy. Dr. Johnson opined that the Veteran's estrogen deficiency was most likely related to the Veteran's previous ovary removal. He stated that it is well known that in reducing total volume of ovarian tissue, the symptoms of menopause may come on prematurely. Following an August 2008 VA examination the Veteran was diagnosed with a uterine fibroid and left ovarian cyst, with subsequent left salpingo-oophorectomy; total vaginal hysterectomy, and right ovarian failure requiring hormone replacement therapy. In January 2009, the VA examiner opined that for her to state that the Veteran's premature ovarian failure occurred secondary to the cyst of the right ovary would be resorting to mere speculation. The examiner noted that premature ovarian failure occurs spontaneously in a small number of the general population. The Veteran, she stated, had a surgical procedure of the right ovary in 1995, however, that surgical procedure did not cause right ovarian failure. The examiner further stated that the cyst disorder was not equivalent to functional loss/removal of the right ovary. In November 2009, the VA examiner opined the Veteran's right ovarian failure was less likely than not caused by an in service cyst and that the cyst disorder was not equivalent to a functional loss/removal of the right ovary. The examiner reasoned that although the left ovary was removed, the right ovary was fully functional. She stated that there was evidence in the Veteran's chart that she had continued problems with heavy menses and evidently was ovulating during the five year period from 1995 until her abdominal hysterectomy in 2000. Such would indicate, she stated, that there was no ovarian failure from the cystectomy which occurred in 1995. Based on the evidence presented, the Board finds that the evidence preponderates against entitlement to a higher rating for post operative residuals of a hysterectomy and left ovary removal, with a history of uterine fibroids. In this regard, the highest schedular rating assignable under Diagnostic Code 7613 is 30 percent with the showing of symptoms not controlled by continuous treatment. The Veteran is in receipt of the highest rating under this code. Furthermore, 30 percent is the highest rating assignable under Diagnostic Code 7618, with the exception of three months after removal of the uterus. The evidence shows that the Veteran was granted a 100 percent rating from May 19 to September 1, 2000 for such, and thereafter she was assigned a rating of 30 percent, the maximum rating under Diagnostic Code 7618. As such, the Veteran is receiving the highest rating assignable under Diagnostic Codes 7613-7618. The Board has considered whether the Veteran's disability warrants a higher rating under other gynecological rating codes. The Board finds no such entitlement. The Board is mindful of the Veteran's assertions that her remaining right ovary is essentially non-functioning, and, as such, her disability should be considered as if both of her ovaries had been removed and a higher rating should be granted under Diagnostic Code 7617. The Board also acknowledges her training as a nurse. While the appellant is competent to offer a medical opinion, the Board finds that the probative value of her opinions is outweighed by the weight properly assigned to the reports of the VA examiners who provided the August 2008 and January 2009 statements. Those examiners, both trained physicians, found that the appellant's right cyst disorder was not equivalent to functional loss/removal of the right ovary. The November 2009 VA physician examiner also found the cyst disorder was not equivalent to a functional loss/removal of the right ovary. These corroborating opinions, rendered by different medical professionals, were provided by individuals who had greater knowledge and expertise to address the issue presented. The opinions were rendered after review of the claims file. To the extent that private treatment records and statements from Dr. Johnson have been submitted for consideration, Dr. Johnson has not stated and/or implied that the Veteran's remaining right ovary is essentially non-functioning. The Board has considered the Veteran's sincerely held belief that her remaining right ovary is essentially non-functioning. As note, as a nurse, she is competent to offer a medical opinion. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). As noted above, however, her opinion as to whether her remaining right ovary is essentially non-functioning is outweighed by the opinions provided by the VA physicians. Simply put, their advanced training, expertise, and consideration of all of the evidence is of greater probative value. In sum, the Veteran has undergone a hysterectomy and the removal of one of her ovaries. In order to receive a rating in excess of 30 percent for her service-connected uterus and left ovary removal under Diagnostic Code 7617 the evidence must show the removal of the uterus and both ovaries. As she has not had removal of both ovaries and the uterus, a higher rating under this diagnostic code is not warranted. 38 C.F.R. § 4.116, Code 7617. The Board notes that special monthly compensation based on a loss of use of a creative organ pursuant to 38 U.S.C.A. § 1114(k) and 38 C.F.R. § 3.350(a) has been granted from December 16, 1995. Also, service connection is in effect for right ovarian cyst under 38 C.F.R. § 4.116, Diagnostic Code 7615 from December 16, 1995. In March 2010, the Board directed the RO to adjudicate the issues of entitlement to an increased evaluation for a right ovarian cyst, and entitlement to additional special monthly compensation pursuant to 38 C.F.R. § 3.350, or additional compensation under 38 C.F.R. § 4.116, Code 7615 for diseased or injured ovary symptoms. The RO denied these claims in a May 2010 rating decision. The Veteran did not express disagreement with the rating decision, much less perfect an appeal. The Board does not have jurisdiction over these issues and, therefore, they will not be discussed any further. The Board has considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). There are no exceptional or unusual factors with regard to the Veteran's disability. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.") Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology, and other codes provide for consideration of greater disability and symptoms than currently shown by the evidence. Thus, her disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. In reaching this decision, 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 higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to a rating higher than 30 percent for post operative residuals of a uterus and left ovary removal is denied. REMAND The Veteran appeals the denial of entitlement to an increased rating for right eye retinal pigment epithelial hyperplasia with vitreous condensation, and whether the March 1995 rating decision that assigned a noncompensable rating for right eye retinal pigment epithelial hyperplasia with vitreous condensation contained clear and unmistakable error. In her VA Form-9, received in May 2011, the Veteran requested a videoconference hearing before a Veterans Law Judge. The Veteran has not been afforded a videoconference hearing and has not withdrawn her request for a hearing. As such, a remand is warranted so that the Veteran can be scheduled for a hearing as requested. Accordingly, the case is REMANDED for the following action: The RO should schedule the Veteran for a Board hearing at the RO in accordance with her request. The RO should notify the Veteran and her representative of the date and time of the hearing. See 38 C.F.R. § 20.704(b) (2012). After the hearing, the claims file should be returned to the Board in accordance with current appellate procedures. 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). ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs