Citation Nr: 1601269 Decision Date: 01/12/16 Archive Date: 01/21/16 DOCKET NO. 13-09 522 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for uterine fibroids post laparotomy with myomectomy (hereinafter referred to as uterine fibroids). 2. Entitlement to an initial rating in excess of 10 percent for anemia. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Jane R. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1999 to December 2010. This appeal is before the Board of Veterans' Appeals (Board) from a February 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, which, in part, granted service connection for uterine fibroids and anemia. The February 2011 rating decision assigned an initial noncompensable rating for uterine fibroids, effective December 28, 2010. During the pendency of the appeal, in a January 2014 rating decision, the RO granted a higher initial rating of 10 percent, effective December 28, 2010. Then in April 2015, the Veteran underwent a total abdominal hysterectomy. The issue remains in appellate status as the maximum rating has not been assigned for any period. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In March 2015, the Board remanded the case for further development. In accordance with the remand, the record now reflects a new VA examination for uterine fibroids. As such, there has been compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The issue of entitlement to an initial rating in excess of 10 percent for anemia is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. From December 28, 2010, to April 16, 2012, the Veteran had uterine fibroids that were controlled by continuous treatment. 2. From April 17, 2012, to April 7, 2015, the Veteran had uterine fibroids that were not controlled by continuous treatment. 3. On April 8, 2015, the Veteran had a total abdominal hysterectomy that removed the uterus, but did not remove the ovaries. CONCLUSIONS OF LAW 1. From December 28, 2010, to April 16, 2012, the criteria for an initial evaluation in excess of 10 percent for uterine fibroids have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.116, Diagnostic Code 7613 (2015). 2. From April 17, 2012, to April 7, 2015, the criteria for an initial evaluation of 30 percent for uterine fibroids have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.116, Diagnostic Code 7613 (2015). 3. For the period beginning April 8, 2015, the criteria for an evaluation of 30 percent following a temporary 100 percent evaluation for removal of the uterus have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 4.3, 4.116, Diagnostic Code 7618 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With regards to the Veteran's claim for a higher initial evaluation, the Veteran received sufficient Veterans Claims Assistance Act of 2000 (VCAA) notice prior to the grant of service connection and assignment of an initial evaluation and effective date, thereby satisfying the VA's duty to notify in this case. Dingess, supra. The Board has also satisfied its duty to assist. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has obtained service treatment records and VA treatment records for the Veteran. In addition, the Veteran underwent VA examinations during the appeal period in October 2010, May 2013, and August 2015 for her uterine fibroids. The Board finds that the VA examinations are adequate, because they included a review of the Veteran's medical records, an interview of the Veteran, and examination findings supported by rationale. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In light of the foregoing, the Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of her appeal. The Veteran has not identified any outstanding evidence that needs to be obtained. For the above reasons, the Board finds that VA has fulfilled its duties to notify and assist the Veteran. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the increased rating claim. II. Higher Initial Evaluation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran is currently evaluated as 10 percent disabling for her uterine fibroids, effective December 28, 2010, under 38 C.F.R. § 4.116, Diagnostic Code 7613. Diagnostic Code 7613 uses the general rating formula for disease, injury, or adhesions of female reproductive organs. A 30 percent evaluation is warranted for symptoms that are not controlled by continuous treatment. A 10 percent evaluation is warranted for symptoms that require continuous treatment. A noncompensable evaluation is warranted for symptoms that do not require continuous treatment. While the appeal of the initial evaluation was pending, the Veteran had a total abdominal hysterectomy, which is to be evaluated under 38 C.F.R. § 4.116, Diagnostic Code 7618. Diagnostic Code 7618 provides that a 100 percent evaluation is warranted for three months following the removal of the uterus. Thereafter, a 30 percent evaluation is warranted. 38 C.F.R. § 4.116. A note indicates that entitlement to special monthly compensation under 38 C.F.R. § 3.350 should be reviewed. The Veteran filed her claim for uterine fibroids in September 2010. She underwent a VA examination in October 2010. The Veteran reported severe menstrual cramps and heavy menstrual bleeding with clots, along with other menstrual symptoms. However, she reported that her condition was stable since onset in 2002 and that she was not currently receiving any treatment, although she did have surgery to remove fibroids in 2007. Upon objective evaluation, the VA examiner noted that the Veteran did not lose any time from work during the last 12 months and diagnosed her with "residuals, [status post] fibroid removal, surgical," associated with her uterine fibroids and dyspareunia. See Virtual VA, 1/4/11 C&P Exam. VA treatment records do not show any further treatment or complaints related to the Veteran's uterine fibroids until 2012. An April 17, 2012, ultrasound revealed an enlarged uterus and several uterine fibroids. At a February 2013 consultation, the Veteran reported heavy and painful irregular menstrual cycles. An April 2013 magnetic resonance imaging (MRI) revealed multiple uterine fibroids, and in June 2013, she was diagnosed with symptomatic uterine fibroid with moderate anemia, dysmenorrhea, and menorrhagia. A May 2013 VA examiner reviewed the claims file and performed an in-person examination of the Veteran. Upon objective examination and a report of medical history by the Veteran, the examiner found that the Veteran was diagnosed with fibroid uterus, status post myomectomy, in 2007. Although the Veteran stated that she did not have any current symptoms, the examiner stated that the Veteran experienced irregular menstruation. The Veteran also reported that she was not receiving any treatment. The examiner did not find that the Veteran had any other diseases, injuries, adhesions, or other conditions of the uterus. VA treatment records reflect that the Veteran had a bilateral uterine artery embolization (UAE) in August 2013, which resulted in lighter periods with less cramping than before. She also felt the fibroids shrinking and her lower abdomen getting smaller. However, in July 2014, the Veteran again began complaining of heavy menses. In March 2015, she complained of heavy menstrual period that was so painful she could not go to work. The Veteran stated that she believed the August 2013 bilateral UAE helped with her periods for a time but now they "are very bad again." On April 8, 2015, the Veteran had a total abdominal hysterectomy involving the uterus, cervix, and bilateral fallopian tubes. She had a pre-operative diagnosis of symptomatic fibroid uterus and the same post-operative diagnosis along with adhesions. See Virtual VA, 1/23/13 CAPRI, p. 13, 16, 19, 30. See also VBMS, 7/15/15 CAPRI, p. 88, 91, 95, 195, 153, 219, 262, 276, 297, 385, 400, 404. Another VA examination was provided in August 2015 by a physicians assistant. The examiner noted the total abdominal hysterectomy where the ovaries were retained. Not surprisingly, the examiner found that the Veteran did not have any current symptoms and was not receiving any current treatment for her uterine fibroids. Based on a careful review of all of the evidence, the Board finds that an initial rating in excess of 10 percent for the Veteran's uterine fibroids for the period from December 28, 2010, to April 16, 2012, is not warranted. Further, the Board concludes that an initial rating of 30 percent for the period from April 17, 2012, to April 7, 2015, is warranted. For the period from December 28, 2010, to April 16, 2012, the Board finds that the evidence of record reflects that although the Veteran had a history of uterine fibroids, it was controlled by treatment. VA treatment records did not reflect any treatment sought or complaints due to her uterine fibroids during this time. Additionally, the October 2010 VA examination reported the Veteran's condition to be stable with no current treatment. As such, a rating of 10 percent disabling for her uterine fibroids is more appropriate for this period. See 38 C.F.R. § 4.116, Diagnostic Code 7613. For the period from April 17, 2012, to April 7, 2015, the Board finds that the evidence in the record reflects a worsening of her symptoms, specifically heavy and painful menstrual cycles and the return of her uterine fibroids. Although the bilateral UAE temporarily improved her symptoms, they again worsened to the point where the Veteran abandoned conversative treatment, had to take time off of work, and had a total abdominal hysterectomy. As such, the Board finds that the Veteran's uterine fibroids were not controlled by continuous treatment, and that a rating of 30 percent disabling for her uterine fibroids is warranted for this period. See id. Beginning April 8, 2015, the Board finds Diagnostic Code 7618 to be more appropriate for her disability. The Board is free to change the diagnostic code when appropriate and the reason behind the change is explained. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case"); Pernorio v. Derwinski, 2 Vet. App. 625 (1992) (any change in a diagnostic code by VA must be specifically explained). Diagnostic Code 7613 provides the rating criteria for disease, injury, or adhesions of the uterus. Diagnostic Code 7618 provides the rating criteria for the removal of the uterus. As the Veteran's uterus was removed during her hysterectomy, the Board finds that any continued use of a diagnostic code relating to the uterus is inappropriate for the period beginning April 8, 2015. As such, the Board will rate the Veteran following her hysterectomy only under Diagnostic Code 7618. As noted above, Diagnostic Code 7618 provides that an evaluation of 100 percent is warranted for three months after removal of the uterus and, thereafter, an evaluation of 30 percent is warranted. As such, the Veteran shall be granted a temporary 100 percent from April 8, 2015, until July 8, 2015. Thereafter, the Veteran's 30 percent evaluation shall be continued under the new diagnostic code. 38 C.F.R. § 4.116, Diagnostic Code 7618. The Board has considered a higher evaluation under Diagnostic Code 7617 for complete removal of the uterus and both ovaries. However, there is no evidence of record that the Veteran had both ovaries removed. Indeed, the August 2015 VA examiner noted that the ovaries were retained. Thus, a higher evaluation under Diagnostic Code 7617 would be inappropriate. Additionally, the Board has considered whether an extraschedular evaluation is warranted for the issue on appeal. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321(b)(1) (2015). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule. Therefore, the assigned schedular evaluation is adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has 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 for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. at 111. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairments caused by the Veteran's service-connected disability, which are recited in detail above, are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. Thus, the Board finds that the rating schedule is adequate, even in regard to the collective and combined effect of all of the Veteran's service connected disabilities, and that referral for extraschedular consideration is not warranted under the circumstances of this case. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). ORDER From December 28, 2010, to April 16, 2012, entitlement to an initial rating in excess of 10 percent for uterine fibroids is denied. From April 17, 2012, to April 7, 2015, entitlement to an initial rating of 30 percent for uterine fibroids is granted. From April 8, 2015, to July 8, 2015, the Veteran shall be temporarily rated at 100 percent for removal of the uterus. After July 8, 2015, the Veteran shall be rated at 30 percent for removal of the uterus under Diagnostic Code 7618. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that the Veteran is afforded every possible consideration. The Board finds that the medical evidence of record is inadequate for rating purposes for anemia. Disability ratings for anemia are based upon the hemoglobin level measured as "gm/ml." See 38 C.F.R. § 4.117, Diagnostic Code 7700 (2015). However, the Veteran's hemoglobin levels either are reported in terms of "L g/dL" or have no units specified in her VA treatment records and VA examinations. As such, the hemoglobin levels are presented in a manner than cannot be applied to the rating criteria. Thus, it is unclear whether the results reflect an increase in the Veteran's level of disability. The evidence of record does not otherwise reflect that the Veteran exhibits other symptomatology or medication which would warrant an increase in rating in excess of 10 percent. Accordingly, the case is REMANDED for the following action: 1. Obtain any additional medical evidence relevant to the Veteran's claims that may have come into existence in the interim. 2. The AOJ shall make available the claims file, including a copy of this remand and any relevant records contained in the virtual record, to a VA examiner. The examiner shall review the hemoglobin level results in the Veteran's claims file. If possible, the examiner shall interpret these results and convert them into a format that may be applied to the rating criteria, or shall provide an explanation as to how the hemoglobin levels measured in "L g/dL" can be calculated to "gm/ml." 3. Then, the AOJ shall readjudicate the claims on appeal. If the claim is not granted in full, the Veteran must be provided a Supplemental Statement of the Case. The Veteran 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). (CONTINUED ON NEXT PAGE) 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 2014). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs