Citation Nr: 1306768 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 07-36 277 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for service-connected fibroids and menometrorrhagia, status post uterine ablation, prior to May 21, 2010. 2. Entitlement to an initial disability rating in excess of 20 percent for service-connected fibroids and menometrorrhagia, status post uterine ablation with urinary frequency from May 21, 2010. 3. Entitlement to a compensable rating for costochondritis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran served on active duty from November 2004 to June 2005, with prior periods of Reserve service. These matters come before the Board of Veterans' Appeals (Board) from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The March 2006 rating decision granted service connection for a benign uterine neoplasm, status post endometrial ablation, and assigned a noncompensable initial rating, effective from June 27, 2005, the day following his discharge from service. In this regard, the Board notes that a statement received in July 2006 may reasonably be construed as a notice of disagreement with the March 2006 rating decision. As a substantive appeal was received within 60 days of issuance of the statement of the case, the Board finds that a timely appeal was completed as to the March 2006 rating decision. During the pendency of the appeal, a February 2008 RO Decision Review Officer rating decision granted a 10 percent rating for the disability, effective from June 27, 2005, and re-characterized the disability at issue as uterine fibroids and menometrorrhagia, status post uterine ablation. On May 21, 2010, the Veteran testified at an in-person hearing before a Veterans Law Judge at the RO. In an August 2010 decision, the Board granted a 20 percent disability rating for fibroids and menometrorrhagia, status post uterine ablation based on the symptom of urinary frequency. In a September 2010 rating decision, the RO implemented the Board's decision and granted the 20 percent disability rating for uterine fibroids and menometrorrhagia, status post ablation, effective from May 21, 2010. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2011 memorandum decision, the Court vacated the Board's August 2010 decision to the extent that it denied a rating in excess of 20 percent for urinary frequency due to uterine fibroids and menometrorrhagia, status post uterine ablation. Essentially, the Court concluded that the Board had not provided sufficient reasons and bases for its decision to deny the next higher 40 percent disability rating. The Board remanded the Veteran's case for additional development in April 2012 and the case has been returned to the Board for review. In a February 2012 letter, the Veteran was advised that the Veterans Law Judge who conducted the May 2010 hearing had retired. She was afforded the opportunity to appear at another hearing before a different Veterans Law Judge who would then render a decision on her claim. She responded in March 2012 that she did not want another hearing. The issue of entitlement to a compensable disability rating for service-connected costochondritis 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. FINDINGS OF FACT 1. Throughout the rating period on appeal from June 27, 2005 through June 18, 2009, the service-connected disability at issue was manifested by symptoms of pain and heavy and irregular bleeding, not controlled by medication treatment, but without evidence of lesions involving the bowel or bladder confirmed by laparoscopy, or urinary frequency, leakage, or voiding. 2. From June 19, 2009, the evidence is in equipoise as to whether the Veteran's service-connected fibroids and menometrorrhagia, status post uterine ablation with urinary frequency, resulted in urinary frequency at least 12 times per day. CONCLUSIONS OF LAW 1. For the rating period on appeal from June 27, 2005 through June 18, 2009, the criteria for an initial disability rating of 30 percent, but no higher, for the service-connected fibroids and menometrorrhagia, status post uterine ablation, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.115a, 4.116, Diagnostic Code 7629 (2012). 2. Effective June 19, 2009, the criteria for an initial disability rating of 40 percent for the Veteran's service-connected fibroids and menometrorrhagia, status post uterine ablation with urinary frequency, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.115a, 4.116 (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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required 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, it will assist in substantiating or that is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the Veteran is appealing the initial rating assignment as to her service-connected disability. Once service connection has been granted, the context in which the claim initially arose, the claim has been substantiated; therefore, additional VCAA notice under § 5103(a) is not required because the initial intended purpose of the notice has been fulfilled, so any defect in the notice is not prejudicial. Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, thereafter, once a notice of disagreement (NOD) has been filed, for example contesting a downstream issue such as the initial rating assigned for the disability, only the notice requirements for a rating decision and statement of the case (SOC) described in 38 U.S.C. §§ 5104 and 7105 control as to the further communications with the Veteran, including as to what evidence is necessary to establish a more favorable decision with respect to downstream elements of the claim. 38 C.F.R. § 3.159(b)(3). The RO has provided the Veteran the required SOC discussing the reasons and bases for not assigning a higher initial rating and citing the applicable statutes and regulations. Duty to assist With regard to the duty to assist, the claims file contains the Veteran's service treatment records, VA and private medical treatment and examination reports, and the statements and testimony of the Veteran, in support of her claim. The Board has carefully reviewed the statements and concludes that there has been no identification of further available evidence not already of record. The Board also has perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. The Veteran's case was remanded in April 2012 to allow the Veteran to provide the names and addresses of all medical care providers that have treated her service-connected disability and to submit any lay evidence in her possession regarding her assertions of urinary frequency. The Veteran was sent a notification letter in April 2012 and did not respond. Therefore, the RO substantially complied with the mandates of the April 2012 remand and the Board will proceed to adjudicate the appeal. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). VA examinations were obtained in August 2006 and December 2010. 38 C.F.R. § 3.159(c)(4). 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 VA examinations/opinions obtained in this case are more than adequate, as the reports include examinations of the Veteran and contain findings necessary to evaluate the service-connected disability. The Board notes that the VA examinations do not contain information with respect to the Veteran's symptoms of urinary frequency. However, the Board finds that the Veteran is competent and credible to testify as to her symptoms and the Veteran has been assigned the maximum disability rating under the schedular criteria for her urinary frequency. Therefore, a new VA examination is not required. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to her claim. Essentially, all available evidence that could substantiate the claim has been obtained. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App 505 (2007). The RO rated the Veteran's disability based on pelvic pain and heavy or irregular bleeding under 38 C.F.R. § 4.116, Diagnostic Code 7629. Diagnostic Code 7629, pertaining to endometriosis, provides a 10 percent disability rating for pelvic pain or heavy or irregular bleeding requiring continuous treatment for control, a 30 percent disability rating for pelvic pain or heavy or irregular bleeding not controlled by treatment, and a 50 percent disability rating for lesions involving bowel or bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment, and bowel or bladder symptoms. The note provides that a diagnosis of endometriosis must be substantiated by laparoscopy. In this case, the record reveals a history of endometriosis; however, the Veteran does not have a current diagnosis of endometriosis. Voiding dysfunction is rated by the particular condition as urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a. Continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence warrants a 60 percent rating when it requires the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. If absorbent materials are required which must be changed 2 to 4 times per day, a 40 percent rating is warranted. If absorbent materials are required which must be changed less than 2 times per day, a 20 percent rating is warranted. Id. Daytime voiding interval less than one hour, or; awakening to void five or more times per night warrants a 40 percent rating. Daytime voiding interval between one and two hours, or; awakening to void three to four times per night warrants a 20 percent rating. Daytime voiding interval between two and three hours, or; awakening to void two times per night warrants a 10 percent rating. Id. Analysis The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). An August 2006 VA examination report shows that the Veteran began having painful and irregular periods in February 2005. She was diagnosed with dysfunctional uterine bleeding and underwent an intrauterine ablation in April 2005. There was improvement for two months and then the dysfunctional uterine bleeding recurred. It was noted that the Veteran had been diagnosed with right fundal myoma and a left exophytic myoma on the left ovary by a private examiner. The examiner noted current continued heavy and irregular bleeding. She was diagnosed with uterine fibroids and menometrorrhagia, status post uterine ablation. Transabdominal and transvaginal imaging revealed poor definition of the endometrial stripe towards the uterine fundus and query thickening/separation of the endometrium. There was a fibroid uterus. In an August 2006 preoperative history and physical, the physician noted a history of endometriosis. The operative report showed a submucosal uterine leiomyoma and menometrorrhagia status post endometrial ablation. She underwent a resection of the submucosal myoma. The pathology report was negative for malignancy. The June 19, 2009 VA treatment record shows that the Veteran reported increased urinary frequency for several days. In May 2010, the Veteran testified that her bleeding was irregular, but had minimized since the surgery. She took medication for pain. The Veteran also testified that she had bladder control problems. The Veteran indicated that she constantly had a feeling or urgency. The Veteran testified that at night, she woke up two to three times to void. During the day, she had to void at least on the hour, sometimes two times per hour. The Veteran was provided a VA gynecological examination in December 2010. It was noted that the Veteran had a history of endometrial ablation. She stated that she was diagnosed with uterine fibroids in 2005, secondary to heavy and irregular bleeding. She was treated with dilation and curettage and subsequently with endometrial ablation and advised that her bleeding was secondary to uterine fibroids. She experienced recurrent heavy bleeding in 2006 and was treated with endometrial ablation in 2006. She denied any history of anemia since 2005. She continued to experience menstrual bleeding and described heavy bleeding every other month. Her menses were irregular, possibly secondary to menopause. She recently underwent pelvic examination in October 2010 and was advised that her examination demonstrated uterine fibroids. She has not undergone uterine artery embolization or hysterectomy for uterine fibroids. She has not been treated for uterine fibroids since 2006. Review of the VA outpatient record indicated a pelvic ultrasound from 2006 which described globular uterus 10 cm. by 6.4 cm. by 7.9 cm. with no mention of uterine fibroids. She brought in a copy of her recent examination at Women's Healthcare which described two different uterine measurements (70 mm. by 37 mm. by 53 mm. vs. ?9 mm. by 4.7 mm. by 55 mm.) She also stated that she had a history of endometriosis and did not recall when she was diagnosed with endometriosis or whether any treatment has been prescribed for endometriosis. The diagnosis was listed as uterine fibroids and menometrorrhagia, treated with endometrial ablation in 2005 and 2006. She brought in a copy of a recent evaluation dated October 2010 which indicated uterine fibroids X 6, each approximately 15 mm. each. As will be discussed below, the Board has determined that the Veteran's service-connected fibroids and menometrorrhagia, status post uterine ablation with urinary frequency has met the criteria for the assignment of an initial 40 percent disability rating, effective June 19, 2009. However, prior to June 19, 2009, the Veteran's disability warrants an initial disability rating of 30 percent, but no higher. Prior to June 19, 2009, the Veteran's disability was rated as 10 percent disabling under Diagnostic Code 7629, pertaining to endometriosis. A 10 percent disability rating is warranted for pelvic pain or heavy or irregular bleeding requiring continuous treatment for control. The record shows that the Veteran has reported irregular bleeding beginning in February 2005. The September 2005 general medical examination report noted that she had a negative endometrial biopsy and was diagnosed with leiomyomata and treated with Depo-Lupron and endometrial ablation in 2005 (during active service), which decreased her menstrual flow. The May 2006 VA treatment record noted that the Veteran's periods were heavier and more irregular. The August 2006 VA examination report reveals that the Veteran used Naprosyn for her chest pain and menometrorrhagia. She took Naprosyn as needed for pain and used frequent changes of pads during her menstrual periods. In between periods when she was bleeding; she used pads three times per day, twice per week. The Veteran testified that she took pain medication, Codeine, as needed. In considering the evidence above, the Board finds that the Veteran's disability warrants an initial disability rating of 30 percent prior to June 19, 2009. The Board notes that the RO rated the Veteran's disability under Diagnostic Code 7629 for endometriosis. The record does not reveal a diagnosis of endometriosis. However, the Board finds that due to the Veteran's symptoms of pain and heavy and irregular bleeding, the Veteran's disability was appropriated rated under Diagnostic Code 7629. To warrant a disability rating of 30 percent, the evidence must show pelvic pain or heavy or irregular bleeding not controlled by treatment. Prior to June 19, 2009, the Veteran consistently reported pain and irregular and heavy bleeding. Although the Veteran took pain medication as needed, it does not appear to have controlled all of her symptoms. Therefore, the Board finds that a higher initial disability rating of 30 percent is warranted prior to June 19, 2009. However, an initial disability rating in excess of 30 percent is not warranted prior to June 19, 2009. Under Diagnostic Code 7629, a 50 percent disability rating is warranted for lesions involving bowel or bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment, and bowel or bladder symptoms. The medical evidence reveals that the Veteran had uterine fibroids, located in her uterus, in 2006 and 2010; however, the evidence does not show lesions involving bowel or bladder confirmed by laparoscopy. Therefore, an initial disability rating in excess of 30 percent is not warranted prior to June 19, 2009 under Diagnostic Code 7629. The Board has considered whether a higher initial disability rating is warranted under 38 C.F.R. § 4.115a. The first indication of problems with urinary frequency is noted in the VA treatment record dated on June 19, 2009. Prior to June 19, 2009, the evidence does not establish that the Veteran experienced urine leakage, frequency, or obstructed voiding to the extent that an initial disability rating in excess of 30 percent is warranted. Therefore, prior to June 19, 2009, an initial disability rating in excess of 30 percent is not warranted under 38 C.F.R. § 4.115a. The Board has also considered whether an initial disability rating in excess of 30 percent is warranted under Diagnostic Codes 7610 to 7627. The evidence does not reflect removal of the uterus, ovaries, prolapse of the uterus, or displacement of the uterus, surgical complications of pregnancy with rectocele or cystocele, fistula, recotvaginal, fistula, urethrovaginal, multiple urethrovaginal fistulae, breast surgery, or malignant neoplasms of gynecological system or breast. Therefore, application of these diagnostic codes is not appropriate. Thus, the Veteran is entitled to a 30 percent initial disability rating prior to June 19, 2009, but no higher. The preponderance of the evidence is against the assignment of an initial disability rating in excess of 30 percent and, therefore, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). However, the Board finds that the Veteran's disability warrants an initial disability rating of 40 percent, effective June 19, 2009, pursuant to 38 C.F.R. § 4.115a. As noted above, the Veteran's disability was rated under Diagnostic Code 7629 prior to June 19, 2009. However, during the May 2010 hearing, the Veteran testified that her main symptoms now involved urinary frequency and that her bleeding has abated. Thus, the Board finds that the most prominent symptom since June 19, 2009 is urinary frequency. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993); see also Mittleider v. West, 11 Vet. App. 181 (1998) (finding that when it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, 38 C.F.R. § 3.102, which requires that reasonable doubt on any issue be resolved in the veteran's favor, clearly dictates that such signs and symptoms be attributed to the service-connected condition). One diagnostic code may be more appropriate based on such factors such as the Veteran's relevant medical history, current diagnosis, and demonstrated symptomatology. Any change in diagnostic code must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Here, the Board is not changing the basic diagnosis code, per se; however, the increased rating is based on urinary frequency, rather than endometriosis or a gynecological systems disability. To warrant a 40 percent disability rating for urinary frequency under 38 C.F.R. § 4.115a, the evidence must show daytime voiding interval less than one hour, or; awakening to void five or more times per night. The June 19, 2009 VA treatment record shows that the Veteran reported increasing urinary frequency. The Veteran testified that she needed to use the bathroom on the hour and sometimes twice in one hour. The Board notes that the June 19, 2009 VA treatment record does not specify the urinary frequency and the VA examination reports did not note complaints of urinary frequency. However, the Board finds that the Veteran is competent and credible with respect to her reports of urinary frequency. In a September 2010 statement, the Veteran reported that she was entitled to the higher rating beginning on June 19, 2009, as that was when her urinary frequency was noted by the VA treatment record. Thus, resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran's symptoms warrant an initial 40 percent disability rating under 38 C.F.R. § 4.115a, effective June 19, 2009. See Fenderson v. West, 12 Vet. App. 119 (1999); see also 38 U.S.C.A. § 5107(b). A 40 percent disability rating is the maximum rating allowed under the rating criteria with respect to urinary frequency. The evidence does not establish that the Veteran has experienced urine leakage or obstructed voiding. Therefore, a higher rating is not warranted for urine leakage or obstructed voiding under 38 C.F.R. § 4.115a. The Board has considered whether a higher initial disability rating is warranted under Diagnostic Code 7629. Again, the evidence does not establish lesions involving bowel or bladder confirmed by laparoscopy and, therefore, a higher rating of 50 percent is not warranted under Diagnostic Code 7629. The Board also considered Diagnostic Codes 7610 to 7627. The evidence does not reveal removal of the uterus, ovaries, prolapse of the uterus, or displacement of the uterus, surgical complications of pregnancy with rectocele or cystocele, fistula, recotvaginal, fistula, urethrovaginal, multiple urethrovaginal fistulae, breast surgery, or malignant neoplasms of gynecological system or breast. Therefore, application of these diagnostic codes is not appropriate. In light of the above, the Board finds that the Veteran's disability warrants an initial 40 percent disability rating, effective June 19, 2009. In conclusion, the Board has considered the doctrine of giving the benefit of the doubt, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2012), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Extraschedular Consideration Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the 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. With respect to the first prong of Thun, 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. Here, prior to June 19, 2009, the Veteran's disability was rated as 30 percent disabling under Diagnostic Code 7629 for pelvic pain and bleeding. The rating criteria reasonably described the Veteran's symptoms and provided for consideration of higher disability ratings for symptoms that were not shown by the evidence. From June 19, 2009, the Veteran testified that her main symptoms involved urinary frequency. The Veteran was assigned the maximum disability rating under the pertinent rating criteria and the Board finds that her assigned rating is adequate. Moreover, the evidence does not reveal frequent periods of hospitalization. The Veteran testified that she lost eight days of work in the past year due to her disability. The August 2006 VA examination report showed that the Veteran has to leave early and missed four to five days per month. However, it is critical to note that loss of industrial capacity is the principal factor in assigning schedular disability ratings. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The rating schedule contemplates loss of working time due to exacerbations commensurate with the level of disability. See 38 C.F.R. § 4.1 (2012). The evidence does not show that her industrial impairment is in excess of those contemplated by the assigned ratings. The Board finds that the Veteran is adequately compensated under the rating criteria, and the evidence does not reflect such an exceptional disability picture so as to render the rating criteria inadequate. Thus, referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. TDIU The Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if the disability upon which entitlement to TDIU is based has already been found to be service-connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). However, in the instant case, the evidence shows that the Veteran is employed. Moreover, although the Veteran has reported that her disability has impacted her employment, she has not alleged that she is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability or disabilities. Accordingly, the Board concludes that a claim for a TDIU is not for appellate consideration. ORDER Subject to the law and regulations governing payment of monetary benefits, for the rating period from June 27, 2005 through June 18, 2009, an initial disability rating of 30 percent for service-connected fibroids and menometrorrhagia, status post uterine ablation with urinary frequency, is granted. Subject to the law and regulations governing payment of monetary benefits, effective June 19, 2009, an initial disability rating of 40 percent for service-connected fibroids and menometrorrhagia with urinary frequency, is granted. REMAND The Veteran's representative has contended that the issue of entitlement to a compensable disability rating for costochondritis must be remanded for the issuance of a statement of the case (SOC). In December 2010, the Veteran filed a claim for a compensable disability rating for service-connected costochondritis. A July 2011 rating decision denied the Veteran's claim. The Veteran submitted correspondence in April 2012 with private medical evidence, requesting reconsideration of the claim for a compensable rating for costochondritis. The Board recognizes the Veteran's representative's argument and finds that the Veteran's correspondence dated in April 2012 can be reasonably construed as a timely notice of disagreement (NOD) with the July 2011 rating decision. The Veteran has not been issued a corresponding SOC for the issue. As a timely NOD as to the matter has been received, and the Veteran has not otherwise withdrawn the issue in writing, the Board is required to remand the issue for the issuance of a SOC. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Provide to the Veteran a statement of the case with respect to the issue of entitlement to a compensable disability rating for service-connected costochondritis. The Veteran should be informed that she must file a timely and adequate substantive appeal in order to perfect an appeal of this issue to the Board. See 38 C.F.R. §§ 20.200, 20.202, 20.302(b) (2012). If a timely substantive appeal is filed, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs