Citation Nr: 1322956 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 08-36 010 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an increased rating for cervical herniated nucleus pulposis, currently rated as 20 percent disabling. 2. Entitlement to greater than a 10 percent rating for fibroid tumors, prior to November 14, 2011. 3. Entitlement to a total disability rating for compensation on the basis of individual unemployability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from February 1999 to September 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified at a May 2010 hearing by the undersigned held by videoconference from the RO. A transcript of that hearing is associated with the claims file. As to the Veteran's claim for an increased rating for her gynecological issue, the Board's June 2010 remand directed that a new VA examination be conducted. The examination was completed in July 2010 and an addendum opinion obtained in January 2012. The claim was readjudicated in the February 2012 supplemental statement of the case. Accordingly, the Board finds that there has been substantial compliance with the remand directives with respect to this issue, and an additional remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998). While the Veteran's appeal was in remand status, service connection for total abdominal hysterectomy was granted in a February 2012 rating decision, with a 100 percent rating assigned from the date of the Veteran's November 2011 surgery, and a 50 percent rating assigned from March 1, 2012, as contemplated by Diagnostic Code 7617. See 38 C.F.R. § 4.116, Diagnostic Code 7617 (2012). Because a total abdominal hysterectomy involves removal of the uterus, there is no basis for a rating of uterine fibroids on or after the date of surgery; additionally, to do so would be tantamount to pyramiding. See 38 C.F.R. § 4.116 (2012). Accordingly, the issue on appeal has been recharacterized as stated on the title page of this decision. The issues of entitlement to an increased rating for cervical herniated nucleus pulposus and entitlement to a total disability rating for compensation on the basis of individual unemployability (TDIU) are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center, in Washington, D.C. FINDING OF FACT Prior to November 14, 2011, the Veteran's uterine fibroids were manifested by pelvic pain, heavy periods, and bowel and bladder symptoms. CONCLUSION OF LAW The criteria for the maximum 50 percent schedular rating for uterine fibroids, prior to November 14, 2011, have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.10, 4.116, Diagnostic Code 7628-7629 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A July 2007 letter satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). The December 2007, January 2008, and July 2010 VA examinations with respect to the Veteran's gynecologic condition were adequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Veteran's reports of her symptoms, and their duration and severity were recorded; a physical examination was conducted; an opinion offered and a rationale included. The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which she presented oral argument in support of her claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c) (2) (2012) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted that basis of the prior determination and noted the element of the claim that was lacking to substantiate the claim for an increased rating. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the Veteran's claim for increase. Moreover, neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c) (2) nor has identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the element necessary to substantiate the claim and the Veteran, through her testimony, demonstrated that she had actual knowledge of the element necessary to substantiate her claim for increase. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c) (2) and that the Board can adjudicate the claim based on the current record. Review of the record does not indicate that additional evidence pertinent to the issue adjudicated in this decision is available, but not associated with the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication VA did not provide sufficient notice or assistance, such that it reasonably affects the outcome of the case, the Board finds that any such lack of sufficient notice is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012). Although the evaluation of a service-connected disability requires a review of a veteran's medical history with regard to that disorder, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. VA is directed to review the recorded history of a disability in order to make a more accurate evaluation; however, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). A January 2005 rating action granted service connection for the Veteran's gynecological condition, and assigned a 10 percent disability rating. Within one year of this determination, the Veteran did not express disagreement with this initial disability evaluation, nor was any relevant new and material evidence, medical or lay, physically or constructively received by VA prior to the expiration of the appellate period. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156(b); 20.201 (2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011). As such, the January 2005 rating action is final. The February 2008 rating decision continued the 10 percent rating in effect for uterine fibroids under the provisions of 38 C.F.R. § 4.116, Diagnostic Code 7628-7629. As noted in the Introduction above, consideration of this disability is only required before November 14, 2011, on which date the Veteran underwent a total abdominal hysterectomy which included removal of her uterus. Diagnostic Code 7628 directs that the service-connected disability be rated according to impairment of function of the gynecological system affected. Diagnostic Code 7629 provides a 10 percent rating where there is pelvic pain or heavy or irregular bleeding requiring continuous treatment for control, a 30 percent rating when there is pelvic pain or heavy or irregular bleeding not controlled by treatment, and the maximum 50 percent rating when there are lesions involving bowel or bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment, and bowel or bladder symptoms. 38 C.F.R. § 4.116, Diagnostic Code 7629. After review of the record, the Board finds that the evidence supports the maximum 50 percent schedular rating for the Veteran's service-connected gynecological condition. Initially, it is clear from the record that the Veteran's pelvic pain and heavy bleeding were not controlled by treatment. Although there are several records showing that the Veteran refused to undergo a hysterectomy until November 2011, favoring more conservative treatment, the record reflects that she underwent thermal ablation of the uterus in December 2007 in an attempt to mitigate the extent of the bleeding and removal of an ovarian cyst in May 2009. However, at the May 2010 Board hearing, the Veteran testified that the bleeding still occurred, such that her symptoms had not changed despite the surgery; at a January 2009 VA visit, the Veteran reported that her menstrual cycles were long and heavy, similar to how they had been prior to the endometrial ablation. Similarly, the evidence reflects the Veteran's ongoing trouble with bladder and bowel symptoms. The December 2007 VA spine examination report reflects the Veteran's report that she had bladder problems, with control, when she sneezed; the December 2007 gynecological examination noted that the Veteran had experienced bladder urgency, stress incontinence, and constipation. Further, the Veteran reported at an April 2010 VA outpatient visit that she had been experiencing urinary urgency. While no doctor specifically stated that the Veteran's bladder and bowel conditions were the result of her gynecologic condition, there is also no evidence in the record that suggests an alternative cause such as a spine disability, and the Veteran reported after her November 2011 hysterectomy that her symptomatology had wholly resolved. Thus, the Board finds that the evidence as a whole supports the award of a 50 percent rating for the period prior to November 14, 2011. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplated the Veteran's disability prior to November 14, 2011; the Veteran's pain, bleeding, and bowel/bladder symptoms were enumerated symptoms of the disability as noted in the Diagnostic Code; the Veteran has not alleged and the record does not show symptomatology during the appeal period relating to the service-connected condition which is not compensated by this rating. The rating criteria were therefore adequate to evaluate the Veteran's gynecological disability prior to November 14, 2011, and referral for consideration of extraschedular rating is not warranted. ORDER A 50 percent rating for fibroid tumors, prior to November 14, 2011, is granted, subject to the applicable regulations concerning the payment of monetary benefits. REMAND The Board's June 2010 remand requested that reconsideration be given to the issue of entitlement to TDIU, to include obtaining an opinion as to the Veteran's unemployability in light of her service-connected disabilities. Review of the record does not reflect that the opinion was obtained or that reconsideration of the issue in general was accomplished. Accordingly, remand of this issue is again required. In this regard, the Board notes that unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Additionally, the July 2010 VA spine examination noted the Veteran's subjective complaints concerning neurologic impairment, but did not document objective neurologic clinical findings or opine as to the extent or severity of any related neurologic impairment. Although the Veteran failed to report for a scheduled November 2011 VA peripheral nerves examination, that does not eliminate the need for VA to ensure that examinations provided are adequate. 38 C.F.R. § 3.655 (2012); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate). Because the July 2010 VA examination was not adequate due to the reasons stated above, remand is required for an additional examination to be conducted. Finally, the Veteran indicated in a July 2008 statement that as a result of the pain caused by her service-connected conditions, she often felt depressed. She also indicated that as a result of the wool beret she wore during service, she developed dermatitis in her scalp, and hair loss. The Board finds these statements to be informal claims for service connection for an acquired psychiatric disability, a skin disability, and hair loss. The disposition of these issues is inextricably intertwined with VA's consideration of the Veteran's TDIU claim and they must likewise be remanded. Accordingly, the case is REMANDED for the following action: 1. Issue a VCAA notice letter for the claims for service connection for a psychiatric disability, skin disability, and hair loss in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002 & Supp. 2012), 38 C.F.R. § 3.159 (2012), and applicable legal precedent. Notify the Veteran that she may submit lay statements from individuals who have first-hand knowledge, and/or were contemporaneously informed, of her psychiatric, skin, and hair loss symptomatology. Provide an appropriate amount of time to submit this lay evidence. 2. After physically or electronically associating any pertinent, outstanding records with the claims file, schedule the Veteran for a VA examination to determine the current severity of her cervical spine disability. Physical examination should be conducted, as well as any testing required to adequately document the Veteran's cervical spine symptomatology as well as any related neurologic impairment (including EMG or NCS as appropriate). The examiner should explain any clinical findings or opinions thoroughly. It is imperative that the RO notify the Veteran of the scheduled date and time of the examination, and associate a memorandum with the record if the Veteran does not report for the examination. 3. Schedule the Veteran for a psychiatric examination to determine the nature, onset and etiology of any acquired psychiatric disability found. The claims folder should be made available to and reviewed by the examiner, who should record the full history of the disability, including the Veteran's report of her symptoms. All indicated studies should be performed and all findings should be reported in detail. Thereafter, the examiner must opine as to whether it is at least as likely as not that the Veteran has a psychiatric disability that is related to or had its onset in service. The examiner must also opine as to whether it is at least as likely as not that any psychiatric disability found to be present was caused or aggravated by her service-connected physical disabilities. The examination report should reflect consideration and analysis of all evidence of record, medical and lay. All findings and conclusions should be supported by a complete rationale and should be set forth in a legible report. 4. Schedule the Veteran for a VA examination to determine the nature and severity of her skin disability and hair loss. The entire claims file, including a copy of this remand, must be made available to the examiner for review. The examiner should review the pertinent evidence, including the Veteran's lay assertions. Then, the examiner should provide an assessment of the current nature and severity of the Veteran's skin disability and hair loss. In doing so, the examiner must identify all body areas affected and estimate the percentage of the Veteran's body affected during flare-ups. In addition, the examiner must discuss the Veteran's current treatment regimen. In doing so, the examiner must specifically address whether the Veteran's skin disability has required systemic therapy, such as corticosteroids or other immunosuppressive drugs, and if so, how frequently. Specific references to the Veteran's claims file, including all pertinent medical records, and the Veteran's lay assertions should be provided, as appropriate. All examination findings plus a complete rationale for all opinions and conclusions reached should be set forth in a legible report. 5. Schedule the Veteran for an appropriate VA examination, to be conducted, if possible, by a vocational specialist. The claims folder should be made available to and reviewed by the examiner. All appropriate tests should be conducted. Thereafter, the examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that her service-connected disabilities renders her unable to secure or follow a substantially gainful occupation. The examiner should take into consideration the Veteran's level of education, special training, and previous work experience. A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report. 6. After undertaking the development above, adjudicate the Veteran's claims for psychiatric, skin, and hair loss disabilities, and readjudicate the Veteran's cervical spine and TDIU claims. If any benefit sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and her representative, and an appropriate period of time in which to respond. Then, return the appeal to the Board. No action is required by the Veteran until she receives further notice; however, she may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs