Citation Nr: 1623047 Decision Date: 06/08/16 Archive Date: 06/21/16 DOCKET NO. 14-17 223 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial rating in excess of 60 percent for status post pubovaginal bladder sling and transobturator sling with urinary incontinence (claimed as bladder condition). 2. Entitlement to an initial rating in excess of 40 percent for fibromyalgia. 3. Entitlement to an initial compensable rating for stable right and left superior hypophyseal artery (SHA) cerebral aneurysm status post bilateral coil treatment. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Alexander Panio, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1988 to June 1988, February 1993 to May 1993, October 1994 to September 2000, July 2004 to January 2005, and November 2007 to December 2010 with additional periods of Reserve and National Guard service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In November 2015 the Board remanded this case for further development. The case has returned to the Board for appellate review. The issue of entitlement to a compensable evaluation for stable right and left SHA cerebral aneurysm is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's status post pubovaginal bladder sling and transobturator sling with urinary incontinence is manifested by voiding dysfunction requiring the wearing of absorbent materials which must be changed more than 4 times per day. 2. The Veteran is in receipt of the maximum schedular rating for fibromyalgia. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 60 percent for status post pubovaginal bladder sling and transobturator sling with urinary incontinence are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.115a, 4.115b, Diagnostic Code 7517 (2015). 2. The criteria for an initial rating in excess of 40 percent for fibromyalgia are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5025 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran's claims arise from her disagreement with the initial evaluations assigned following grants of service connection. She is currently in receipt of a 60 percent disability rating for status post pubovaginal bladder sling and transobturator sling with urinary incontinence and a 40 percent disability rating for fibromyalgia. The Veteran contends that the severity of her disabilities warrants higher ratings. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 required for that rating. 38 C.F.R. § 4.7. Where, as here, 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 "staged ratings" is required. Fenderson v. West 12 Vet. App. 119, 126 (1999). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and degree of his recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). 1. Status Post Pubovaginal Bladder Sling and Transobturator Sling with Urinary Incontinence The Veteran has reported experiencing urine leakage when doing exercise like jumping rope, running, and sit ups and with sneezing or coughing. She reported being diagnosed with stress incontinence in 2009 and subsequently undergoing 2 surgeries. She has reported using 4-7 mini pads per day for leakage, and has reported having to void anywhere from 8-12 times per day to 3-4 times per hour during the day and from 3 to 8 times per night. Diseases of the genitourinary system generally result in disabilities related to renal or voiding dysfunctions, infections, or a combination of these. Where diagnostic codes refer the decisionmaker to these specific areas of dysfunction, only the predominant area of dysfunction shall be considered for rating purposes. 38 C.F.R. § 4.115a. The Veteran is currently in receipt of the highest schedular evaluation for a bladder injury under Diagnostic Code 7517 for the entire appeal period, based on a voiding dysfunction requiring the wearing of absorbent materials which must be changed more than 4 times per day. 38 C.F.R. § 4.115a, 4.115b. The Veteran's contentions concerning her urinary frequency would not result in a higher rating under the applicable rating criteria and the Veteran does not meet the applicable criteria for a higher rating under alternate Diagnostic Codes, as the record does not indicate renal dysfunction or a bladder fistula. Therefore, a schedular disability rating in excess of 60 percent for status post pubovaginal bladder sling and transobturator sling with urinary incontinence cannot be granted. 38 C.F.R. §§ 3.321, 4.115a, 4.115b, Diagnostic Code 7517. 2. Fibromyalgia The Veteran has been diagnosed with fibromyalgia and has reported experiencing chronic, nearly constant aches and pains including in her neck, shoulders, back, hips, knees, hands, wrists, elbows and ankles for which she has been prescribed medication and physical therapy. The Veteran is currently in receipt of the highest schedular evaluation for fibromyalgia under Diagnostic Code 5025, based on widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms, which are constant or nearly constant, and are refractory to therapy. Therefore, a schedular disability rating in excess of 40 percent for fibromyalgia cannot be granted. 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code 5025. Finally, the Board need not address whether referral for extraschedular consideration is warranted, as that issue has not been reasonably raised by the Veteran or the record. See Yancy v. McDonald, 27 Vet. App. 484 (2016). ORDER An initial rating in excess of 60 percent for status post pubovaginal bladder sling and transobturator sling with urinary incontinence is denied. A initial rating in excess of 40 percent for fibromyalgia is denied. REMAND The Veteran has been service-connected for right and left SHA cerebral aneurysm status post bilateral coil treatment and is currently in receipt of a noncompensable (0 percent) rating. She underwent surgeries for her aneurism in May 2011 in May 2012. The Veteran reports suffering from migraine headaches and experiencing severe tremors in her right hand since her most recent aneurism repair surgery. She has also reported dizziness or light headedness, which she associates with her aneurism. While the Veteran's headaches are the subject of a separate disability rating, the most recent VA examination on the issue of aneurism residuals occurred in April 2012, prior to the Veteran's initial reports of right hand tremors and before her most recent surgery. As such, a new examination is in order to ascertain the level of severity of the Veteran's right hand tremors and any syncope or vertigo symptomatology. An opinion should also be obtained as to whether any such symptomatology is in fact due to her aneurism surgery or to another service-connected condition. 38 C.F.R. § 3.159(c)(4). Updated VA treatment records should also be secured. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. Then schedule the Veteran for an examination by an appropriate VA medical professional to determine the current severity of her right and left SHA cerebral aneurysm status post bilateral coil treatment, to include her right hand tremors and syncope/vertigo symptomatology. The claims file must be reviewed and all necessary tests should be conducted. The examiner should identify all current symptomatology of the Veteran's right and left SHA cerebral aneurysm status post bilateral coil treatment, and should specifically indicate whether any observed right hand tremors and syncope/vertigo symptomatology is related to, or is a residual effect of her SHA cerebral aneurysm. The examiner should report all findings and provide an explanation for all elements of his/her opinion. 3. Then readjudicate the issue on appeal. If the benefit sought on appeal remains denied, furnish the Veteran and her representative with a Supplemental Statement of the Case and afford them the opportunity to respond before the file is returned to the Board. The Veteran 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs