Citation Nr: 1619717 Decision Date: 05/16/16 Archive Date: 05/27/16 DOCKET NO. 10-14 307 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to a rating in excess of 10 percent for menstrual irregularities with pelvic adhesions and infertility. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel INTRODUCTION The Veteran served on active duty from August 1989 to August 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in April 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which continued a 10 percent disability rating for amenorrhea with resulting infertility. The Board has altered the description of the Veteran's disability to more accurately reflect the symptoms which have been manifested since the date of service connection. This case was previously before the Board in October 2013, when it was remanded for further development, to include providing an additional VA examination. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. Prior to November 26, 2012, the symptoms of the Veteran's service-connected disability of menstrual irregularities with pelvic adhesions and infertility were not controlled by the treatment provided. 2. On November 26, 2012, the Veteran underwent a total hysterectomy as necessary treatment for her menstrual irregularities with pelvic adhesions and infertility; the record shows that both ovaries have not been removed. CONCLUSIONS OF LAW 1. The criteria for a 30 percent disability rating for menstrual irregularities with pelvic adhesions and infertility were met for the period from the date of the increased rating claim, November 19, 2008, through November 26, 2012. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.116, Diagnostic Code 7629 (2015). 2. For the period of November 26, 2012 through February 26, 2012, the criteria for a 100 percent disability rating for total hysterectomy were met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.116, Diagnostic Code 7618 (2015). 3. From February 26, 2012, the criteria for a 30 percent disability rating for total hysterectomy have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.116, Diagnostic Code 7618 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). In January 2009, the RO sent the Veteran a letter, prior to adjudication of her claims, providing notice, which satisfied the requirements of the VCAA. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). No additional notice is required. Next, VA has a duty to assist the Veteran in the development of claims. This duty includes assisting her in the procurement of pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159. All pertinent, identified medical records have been obtained and considered. The Veteran was afforded VA examinations in January 2009, November 2009, April 2013, and December 2013. While the earlier examinations were lacking in description of current symptomatology, those deficiencies were cured by the December 2013 VA examination. There is no argument or indication that this examination or opinion is inadequate. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As VA satisfied its duties to notify and assist the Veteran, no further notice or assistance is required. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §3.159. Assigning Disability Ratings A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155. 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In this case, the law provides for a brief period of a higher disability rating for total hysterectomy immediately following surgery which is similar in effect to a staged rating. However, classic staged ratings are not warranted in this case. Characterization of the Disability The Board finds no fault with the rating criteria assigned to evaluate the Veteran's disability. The Veteran's specific gynecological disability of menstrual irregularities with infertility is not specifically listed as a disorder in the rating criteria. As such, it was rated by analogy under Diagnostic Code 7629, endometriosis, based on the similarity of symptoms such as pelvic pain and heavy irregular bleeding, although a diagnosis of endometriosis by laparoscopy had not been made. See 38 C.F.R. § 4.20 (stating that consideration of rating by analogy is required when a condition is unlisted). The Board does, however, find that the characterization of the Veteran's disability in the procedural documents is inaccurate, which has resulted in confusion and in the fact that this matter is on appeal at present. Specifically, the March 1999 rating decision which granted service connection described the Veteran's disability (incorrectly) on the rating code sheet as "amenorrhea with secondary infertility." Amenorrhea refers to an "absence or abnormal stoppage of the menses." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 59 (30th ed. 2003). As the record showed and the language of the March 1999 rating decision discussed, the Veteran's disability was not one of absence or abnormal stoppage of her periods; rather, her periods were sporadic and accompanied by heavy bleeding and clotting. As a result, in order to ensure clarity of the record, the Board has recharacterized the Veteran's disability as menstrual irregularities with pelvic adhesions and infertility. Under Diagnostic Code 7629, endometriosis is assigned an evaluation of 10 percent for pelvic pain or heavy or irregular bleeding requiring continuous treatment for control. An evaluation of 30 percent is warranted for pelvic pain or heavy or irregular bleeding not controlled by treatment. An evaluation of 50 percent 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. 38 C.F.R. § 4.116. Diagnostic Code 7614 addresses diseases, injury, or adhesions of the fallopian tubes, including pelvic inflammatory disease, but does not include any specific percentage ratings or criteria. It is rated using the General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs. So is Diagnostic Code 7615, which applies to diseases, injuries, or adhesions of the ovaries. The general formula provides a 10 percent disability rating for symptoms that require continuous treatment and a 30 percent disability rating for symptoms which are not controlled by continuous treatment. As such, the current service-connected disability would be rated based on the manifested symptomatology which, in this case, is addressed already in the rating under Diagnostic Code 7629. Diagnostic Code 7618 addresses removal of the uterus (hysterectomy). The rating criteria dictate that for three months after removal of the uterus, a 100 percent disability rating is warranted. Thereafter, a 30 percent disability rating should be assigned. 38 C.F.R. § 4.116. Diagnostic code 7617 provides for a 50 percent rating after the 3 month period of 100 percent rating where the hysterectomy includes complete removal of both ovaries. 38 C.F.R. § 4.116. Facts and Analysis The Veteran filed for an increased disability rating for her menstrual irregularities with pelvic adhesions and infertility in November 2008. The record shows that she had given birth to a daughter conceived through in vitro fertilization in October 2008. Lay statements provided by the Veteran's co-workers state that shortly after the birth of her child, the Veteran began experiencing increased difficulties with her menstrual cycle. Her symptoms include severe pelvic pain which caused her to miss work, heavy bleeding which sometimes required her to obtain a change of clothing during the work day, and even some episodes of anemia due to the heavy bleeding. Private medical records also include a history of increased symptomatology after her daughter was born. Medical treatment records and the Veteran's statements show that she was treated on multiple occasions for pelvic pain and heavy and irregular bleeding, without relief of her symptoms. She underwent a surgical procedure to remove a mass from her right ovary in April 2011, but continued to experience pain and menstrual irregularities. In November 2012, the Veteran underwent a hysterectomy to address her severe irregular bleeding and clotting and complaints of pelvic pain. At that time, the surgeon indicated that the Veteran's right ovary had already been removed and her left ovary could not be located and was therefore not removed. During the course of this appeal, the Veteran has been afforded VA examinations and VA opinions have been provided without examination based on review of the record. As noted above, the examinations prior to December 2013 provided little information regarding symptomatology and mostly addressed the question of etiology. The November 2009 VA examination noted that the Veteran had irregular menses with pain and anovulation, infertility, and pelvic adhesive disease, as well as polycystic ovarian syndrome (PCOS). The December 2013 VA examination included a complete review of the Veteran's symptoms, noting that prior to her hysterectomy in November 2012, she had experienced heavy bleeding and clotting, irregular periods, and abdominal cramping. The examiner noted that the Veteran had experienced surgical menopause as a result of her hysterectomy, which included symptoms of excess sweating and mood swings, and she was taking daily estrogen therapy to treat the symptoms. The examiner described the Veteran as having undergone a partial removal of the right ovary prior to hysterectomy and a total removal of both ovaries as part of the November 2012 hysterectomy. Based on the medical evidence of record, including private treatment records and VA examinations, the Board finds that for the appeals period prior to the November 26, 2012 hysterectomy, the Veteran's symptoms warranted the assignment of a 30 percent disability rating. Specifically, the record shows that the Veteran experienced irregular periods with heavy bleeding and clotting and pelvic pain from the time her cycle resumed after the birth of her child. Treatment, including surgery to remove a mass on her right ovary, did not relieve the symptoms, as shown by the fact that she then underwent the hysterectomy. A disability rating higher than 30 percent is not warranted for this time period, although the Veteran did experience bowel and bladder issues. The criteria for a 50 percent disability rating describe bowel and bladder symptoms resulting from pelvic adhesions or endometriosis which has spread to the bowel or bladder. The Veteran's problems of urinary frequency and urinary tract infections were shown to be related to her tubal pregnancy in 2006 and to a reported nicking of her bladder during fertility treatments. The Veteran also complained of constipation, but this was not shown to be due to pelvic adhesions affecting her bowel. As such, the evidence does not more nearly approximate the criteria for a 50 percent disability rating. On November 26, 2012, the Veteran underwent a hysterectomy to address her problems of pelvic pain, heavy bleeding, and clotting. In April 2013, a VA opinion was obtained in relation to her claim for convalescent benefits after her hysterectomy under 38 C.F.R. § 4.30. This opinion noted that the Veteran's service-connected disability was listed as amenorrhea with infertility, meaning that her periods were absent, and that the hysterectomy was performed because of heavy periods. Based on the listing of the disability with the incorrect description of amenorrhea, the VA provider offered the opinion that the Veteran's hysterectomy was not the result of her service-connected disability. As has been discussed above, the labeling of the disability as amenorrhea was incorrect, and the Board therefore cannot accept the opinion that the hysterectomy was not due to the service-connected disability, because it is based on an erroneous factual basis. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (noting that a medical opinion based on an inaccurate factual premise has little probative value). Instead, the pertinent medical and lay evidence of record tends to show that the hysterectomy was performed to treat the menstrual irregularities for which service-connection is in effect. As a result, the rating criteria and applicable Diagnostic Code for the Veteran's service-connected disability should change as of the date of the hysterectomy, November 26, 2012. Specifically, the hysterectomy, or total removal of the uterus, falls under Diagnostic Code 7618. Under these criteria, a 100 percent disability rating is in order for the three month period following the Veteran's hysterectomy, namely, from November 26, 2012, to February 26, 2013. Thereafter, a 30 percent disability rating is appropriate per this diagnostic code. 38 C.F.R. § 4.116. The Board has considered whether Diagnostic Code 7617, covering total removal of the uterus and both ovaries, might be more appropriate in this situation and whether the Veteran should thus be afforded a 50 percent disability rating after February 26, 2013. Notably, the December 2013 VA examination report states that the Veteran had a partial removal of the right ovary (presumably in the April 2012 surgery for the mass on the right ovary) and that the hysterectomy performed in November 2012 included removal of both ovaries. However, a review of the actual surgical report from the hysterectomy shows that the surgeon specifically stated that the right ovary was "previously removed" and the left ovary could not be identified due to the dense adhesions and probable high location in the pelvis. There is no indication that the left ovary was removed during the procedure. Based on this evidence, the Board finds that the assignment of a 30 percent disability rating under Diagnostic Code 7618 is the most appropriate rating. 38 C.F.R. § 4.116. The Board acknowledges that the Veteran filed for convalescent benefits under 38 C.F.R. § 4.30 with respect to her hysterectomy, seeking a temporary total or 100 percent disability rating for the recovery period. These benefits were denied in a rating decision issued in November 2013 and the Veteran did not appeal that denial. That decision denying benefits is final and the Board's decision herein to award a disability rating of 100 percent for three months for hysterectomy is not precluded by the November 2013 rating decision, although the net result is admittedly the same. Rather, the 100 percent rating assigned herein is included in the schedular rating criteria for the disability on appeal and applies to a portion of the rating period on appeal. As such, it falls within the scope of the issue on appeal before the Board and the Board has properly exercised jurisdiction over it. The Board has also considered whether referral of this matter to the Director of Compensation Services for consideration of an extraschedular rating under 38 C.F.R. § 3.321 is warranted. In this instance, the Veteran's specific symptoms of menstrual irregularities with pelvic adhesions and infertility accompanied by infertility prior to the hysterectomy and total removal of the uterus since the hysterectomy are specifically covered by the schedular rating, although the rating was applied based on analogous symptoms to endometriosis. As a result, the schedular evaluations assigned are adequate and no referral for extraschedular consideration is warranted under 38 C.F.R. § 3.321(b)(1). See Thun v. Peake, 22 Vet. App 111 (2008). ORDER Entitlement to a 30 percent disability rating for menstrual irregularities with pelvic adhesions and infertility is granted for the period of prior to November 26, 2012. Entitlement to a 100 percent disability rating for total hysterectomy is granted for the period of November 26, 2012 through February 26, 2013. Entitlement to a 30 percent disability rating for total hysterectomy is granted as of February 26, 2013. ____________________________________________ P. Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs