Citation Nr: 1633238	
Decision Date: 08/22/16    Archive Date: 08/26/16

DOCKET NO.  05-07 466	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1.  Entitlement to service connection for cystitis.

2.  Entitlement to a separate rating for endometriosis.  

3.  Entitlement to a rating in excess of 30 percent for herniated surgical scarring, status post recurrent surgical intervention for adhesions of the small bowel and umbilicus.  

4.  Entitlement to an effective date prior to August 3, 2000, for herniated surgical scarring, status post recurrent surgical intervention for adhesions of the small bowel and umbilicus.  

5.  Entitlement to a higher combined rating in excess of 60 percent, effective February 10, 1980; in excess of 80 percent, effective December 2, 1980; in excess of 60 percent, effective May 1, 1981; in excess of 70 percent, effective August 3, 2000; in excess of 90 percent, effective February 27, 2002, through November 17, 2002; and in excess of 90 percent, effective January 1, 2003.


REPRESENTATION

Appellant represented by:	Harold H. Hoffmann III, Attorney


WITNESSES AT HEARING ON APPEAL

Veteran and Spouse


ATTORNEY FOR THE BOARD

Harold A. Beach, Counsel


INTRODUCTION

The Veteran served on active duty from June 1975 to February 1979.

This case was last before the Board of Veterans' Appeals (Board) in January 2014, when it was remanded for further development.  Following the requested development, the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado denied service connection for cystitis; a rating in excess of 30 percent for herniated surgical scarring; an effective date earlier than August 3, 2000 for a 30 percent rating for herniated surgical scarring; and an increased combined service-connected rating.  

After reviewing the record, including a Joint Motion for Remand, which was granted by the United States Court of Appeals for Veteran's Claims in September 2011, the Board has revised the issues on appeal.  



FINDINGS OF FACT

1.  The presence of cystitis has not been established.

2.  From February 27, 2001, through November 17, 2002, the Veteran had endometriosis with adhesions of the bowel, but adhesions of the bowel were not shown after November 17, 2002.  

3.  Since service the Veteran's service-connected surgical scarring, status post recurrent surgical intervention for adhesions of the small bowel and umbilicus, has not been productive of any type of hernia, including a post-operative ventral hernia.  

4.  There is no medical evidence of record dated earlier than August 3, 2000, which shows that the Veteran would be entitled to a 30 percent disability rating for service-connected herniated surgical scarring with recurrent surgical intervention for adhesions of small bowel and umbilicus. 

5.  Effective February 10, 1980, service connection was in effect for a postoperative hysterectomy and bilateral oophorectomies with a history of endometriosis with secondary dysmenorrhea and lysis of adhesions, pelvic inflammatory disease, and a bladder disorder, rated as 50 percent; a herniated surgical scar, rated 20 percent; a tender surgical scar with inflammation, the residual of an oophorectomy, rated 10 percent.  

6.  Effective December 2, 1980, service connection was in effect for a postoperative hysterectomy and bilateral oophorectomies with a history of endometriosis with secondary dysmenorrhea and lysis of adhesions, pelvic inflammatory disease, and a bladder disorder, rated 50 percent; a right pelvic cystic mass in the right adnexa, status post right oophorectomy, rated 30 percent; herniated surgical scarring with recurrent surgical intervention for adhesions of the small bowel and umbilicus, rated 20 percent; a tender surgical scar with inflammation, the residual of an oophorectomy, rated 10 percent.  

7.  Effective May 1, 1981, service connection was in effect for a postoperative hysterectomy and bilateral oophorectomies with a history of endometriosis with secondary dysmenorrhea and lysis of adhesions, pelvic inflammatory disease, and a bladder disorder, rated 50 percent; herniated surgical scarring with recurrent surgical intervention for adhesions of the small bowel and umbilicus, rated 20 percent; a tender surgical scar with inflammation, the residual of an oophorectomy, rated 10 percent; and a right pelvic cystic mass in the right adnexa, status post right oophorectomy, rated 0 percent.  

8.  Effective August 3, 2000, service connection was in effect for a postoperative hysterectomy and bilateral oophorectomies with a history of endometriosis with secondary dysmenorrhea and lysis of adhesions, pelvic inflammatory disease, and a bladder disorder, rated 50 percent; a herniated surgical scarring with recurrent surgical intervention for adhesions of the small bowel and umbilicus, rated 30 percent; a tender surgical scar with inflammation, the residual of an oophorectomy, rated 10 percent; and a right pelvic cystic mass in the right adnexa, status post right oophorectomy, rated 0 percent.  

9.  For the period from February 27, 2001, through February 26, 2002, service connection was in effect for a postoperative hysterectomy and bilateral oophorectomies with a history of dysmenorrhea, pelvic inflammatory disease, and incidental appendectomy, rated 50 percent; endometriosis, status post lysis of adhesions, rated 50 percent; a tender surgical scar with inflammation, rated as 10 percent; and a pelvic cystic mass in the right adnexa, rated 0 percent.  

10.  For the period from February 27, 2002, through November 17, 2002, service connection was in effect for a postoperative hysterectomy and bilateral oophorectomies with a history of dysmenorrhea, pelvic inflammatory disease, and incidental appendectomy, rated 50 percent; endometriosis, status post lysis of adhesions, rated 50 percent; a mood disorder with depressed features rated 50 percent; surgically induced menopause with vaginal dryness, atrophic vaginitis, and myofascial pain syndrome, rated 30 percent; urinary incontinence, rated 20 percent; a tender surgical scar with inflammation, rated as 10 percent; and a pelvic cystic mass in the right adnexa, rated 0 percent.  
11.  Since January 1, 2003, service connection has been in effect for a postoperative hysterectomy and bilateral oophorectomies with a history of dysmenorrhea, pelvic inflammatory disease, and incidental appendectomy, rated 50 percent; a mood disorder with depressed features rated 50 percent; surgical scarring with recurrent surgical intervention for adhesions of the small bowel and umbilicus, rated 30 percent; surgically induced menopause with vaginal dryness, atrophic vaginitis, and myofascial pain syndrome, rated 30 percent; urinary incontinence, rated 20 percent; a tender surgical scar with inflammation, rated as 10 percent; and a pelvic cystic mass in the right adnexa, rated 0 percent.  


CONCLUSIONS OF LAW

1.  The claimed cystitis is not the result of disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1131, 5103, 5103A (West 2014); 38 C.F.R. § 3.159, 3.303 (2015).  

2.  From February 27, 2001, through November 17, 2002, the criteria were met for a separate rating for service-connected endometriosis.  38 U.S.C.A. § 1131, 5103, 5103A (West 2014); 38 C.F.R. § 3.159, 3.303 (2015).  

3.  The criteria have not been met for a rating in excess of 30 percent for herniated surgical scarring, status post recurrent surgical intervention for adhesions of the small bowel and umbilicus.  38 U.S.C.A. § 1155, 5103, 5103A (West 2014); 38 C.F.R. § 3.159, 4.1, 4.7, 4.114, Diagnostic Codes 7301, 7339 (2015).  

4.  The criteria have not been met for an effective date prior to August 3, 2000, for a 30 percent rating for herniated surgical scarring, status post recurrent surgical intervention for adhesions of the small bowel and umbilicus.  38 U.S.C.A. § 1155, 5103, 5103A, 5110 (West 2014); 38 C.F.R. § 3.159, 3.400 (2015).  

5.  The criteria for a combined rating in excess of 60 percent were not from February 10, 1980, through December 1, 1980.  38 U.S.C.A. §§ 1155, 5103, 5103A (West 2014); 38 C.F.R. § 3.159, 4.25 (2015).  
6.  The criteria for a combined rating in excess of 80 percent were not met from December 2, 1980, through February 22, 1981.  38 U.S.C.A. §§ 1155, 5103, 5103A (West 2014); 38 C.F.R. § 3.159, 4.25 (2015).  

7.  The criteria for a combined rating in excess of 60 percent were not met from May 1, 1981, through August 2, 2000.  38 U.S.C.A. §§ 1155, 5103, 5103A (West 2014); 38 C.F.R. § 3.159, 4.25 (2015).  

8.  The criteria for a combined rating in excess of 70 percent were not met from August 3, 2000, through February 26, 2001.  38 U.S.C.A. §§ 1155, 5103, 5103A (West 2014); 38 C.F.R. § 3.159, 4.25 (2015).  

9.  The criteria for a combined rating of 80 percent were met from February 27, 2001, through February 26, 2002.  38 U.S.C.A. §§ 1155, 5103, 5103A (West 2014); 38 C.F.R. § 3.159, 4.25 (2015).  

10.  The criteria for a combined rating of 100 percent were met from February 27, 2002, through November 17, 2002.  38 U.S.C.A. §§ 1155, 5103, 5103A (West 2014); 38 C.F.R. § 3.159, 4.25 (2015).  

11.  Since January 1, 2003, the criteria for a combined rating in excess of 90 percent have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A (West 2014); 38 C.F.R. § 3.159, 4.25 (2015).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Cystitis

The Veteran contends that she is entitled to service connection for cystitis primarily because the disability is due to or was aggravated by service-connected herniated surgical scarring with recurrent surgical intervention for adhesions of small bowel and umbilicus.  However, after carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against that claim.  Accordingly, the appeal will be denied.  

The Veteran's service medical records are negative for any complaints or treatment for cystitis or any bladder infections.  During the service separation examination in December 1978, the Veteran made no complaints regarding her bladder, and her genitourinary system was found to be within normal limits.  Since there were no recorded complaints of cystitis during approximately four years of service and the Veteran's genitourinary system was found to have no abnormalities on examination at separation, the Board finds that the weight of the evidence demonstrates that chronicity in service is not established in this case.  38 C.F.R. § 3.303(b) (2015).   

As chronicity in service has not been established, a showing of continuity of symptoms after discharge is required to support the Veteran's claim for service connection for cystitis.  38 C.F.R. § 3.303 (2015).  

In July 1988, the Veteran was treated by M. H., M.D. for complaints of bladder irritability symptoms after suffering injuries in a work-related accident three months previously.  She reported urinary incontinence, increased daytime urinary frequency, nocturia, burning sensations with urination, and urgency to void.  She stated that she voided eight to ten times during the day and two to three times during the night.

An August 1988 cystoscopy revealed slight shift of cystometry curve to the right side, decreased bladder contractile ability with evidence of spasticity, decreased external urethral sphincter pressure with evidence of spasticity, and increased residual urine.  An August 1988 voiding cystourethrogram indicated normal voiding study with posterior urethral angle of 110 degrees and urethral angulation of 20 degrees.  There was complete bladder emptying following micturition and no evidence of cystocele. In October 1988, the Veteran underwent another cystoscopy that showed grade I to grade II trabeculation and moderate trigonitis, pseudomembranous type.  

Post-service VA and private medical records dated from November 1995 to August 2008 show that the Veteran received intermittent treatment for urinary tract infections, dysuria, nocturia, irritable bladder syndrome, urinary frequency, and stress incontinence.  At no time did any treating provider find that the Veteran had cystitis.  

The Veteran submitted a June 2004 lay statement from her husband in support of her claim.  He stated that he had been married to the Veteran for 14 years.  He reported that the Veteran had chronic urinary tract infections and bladder infections through the years and that VA had been testing and treating her for irritable bladder syndrome for over 10 years.  He stated that the Veteran's urine sometimes smelled bad and was accompanied with a burning sensation.  He also maintained that she often experienced non-specific low back pains with and without other urinary and renal symptoms.  The Veteran's husband additionally reported an incident where the Veteran became completely unable to urinate and was in debilitating pain.  She was treated for the problem, and it was suspected that she had kidney dysfunction.  

In June 2008, the Veteran was examined by a VA specialist in women's health medicine to determine the nature and etiology of claimed cystitis.  The Veteran complained that she felt like she had always had a urinary tract infection.  The examiner noted that the Veteran's claims file showed multiple evaluations for urinary tract infections but that she had not been found to have any problems with cystitis.  The Veteran reported urinary frequency and incontinence.  She stated that she used one to two absorbent pads per day.  She also maintained that she had problems with urinary urgency, incomplete voiding, and intermittent dysuria.  She denied hematuria.  A laboratory analysis of the Veteran's urine was negative.  The examiner diagnosed urinary incontinence, incomplete voiding, and urge incontinence with insufficient evidence to diagnose a chronic condition.  The examiner did not find evidence of any active inflammation of the Veteran's bladder, such as cystitis.  

The Board notes that in the June 2008 VA examination, the examiner found that the Veteran's urinary incontinence, frequency, and other urinary complaints were the result of the service-connected herniated surgical scarring with recurrent surgical intervention for adhesions of small bowel and umbilicus.  

An August 2008 rating decision granted service connection and assigned a 20 percent rating for urinary incontinence, previously rated as urinary tract impairment, effective February 27, 2002.   

Regarding the claimed cystitis, the June 2008 VA examiner reviewed the record and noted that the Veteran had multiple evaluations for urinary tract infections.  The examiner also noted that the Veteran had not been found to have any problems with cystitis.  On examination, the VA examiner did not find evidence of any active bladder inflammation, or cystitis.  The VA examiner did not offer an opinion as to whether the claimed cystitis was due to service or whether it was due to or aggravated by service-connected herniated surgical scarring with recurrent surgical intervention for adhesions of small bowel and umbilicus. 

The Veteran and her spouse testified before the Board at a hearing in April 2010.  They testified that the Veteran started having a frequent bladder infections while she was in service.  She testified that after service, she often went to the doctor thinking that she had a bladder infection but would instead had a normal urinalysis that did not require antibiotics.  She reported that she conducted some research and discovered that most women that have pelvic inflammatory disease or endometriosis also have interstitial cystitis or interstitial bladder syndrome.  She stated that interstitial cystitis and interstitial bladder syndrome caused burning in urination and in the urethra, but that they did not necessarily cause any infections. The Veteran also testified that she had to wear absorbent pads and that she took a bladder pill to help with urinary urgency.  She reported that she had been diagnosed with both urgency incontinence and stress incontinence.  She stated that she had been prescribed with a urinary device to wear in her vagina to help strengthen her muscles but that her muscle walls were too thin for her to wear it.  The Veteran's husband testified that when the Veteran was leaking urine, it caused irritation and rashes.  He reported that the Veteran's cystitis had been ongoing for twenty years.   

The Veteran has also submitted medical treatises regarding interstitial cystitis and how it is often found in patients with chronic pelvic pain.  The documentation further shows the difference between interstitial cystitis and bladder endometriosis.  

Following a January 2014 remand, the Board received additional records of the Veteran's VA treatment through September 2015.  Although the Veteran continued to report dysuria, frequency, urgency, and incontinence, those records remained negative for any findings of cystitis.  

In September 2015, the Veteran was examined by a VA board-certified nephrologist.  The examiner reviewed the Veteran's medical history from, citing specific instances of treatment since November 1974 for genitourinary complaints.  They included abdominal pain, frequency, urgency, and incontinence.  There was no evidence of treatment for cystitis.  Following the examination of the Veteran, the diagnoses were mixed incontinence, stress and urge and pseudomembranous trigonitis.  The VA examiner stated that a diagnosis of cystitis could not be made.  Consequently, the examiner could not provide an opinion as to the etiology of that disorder. 

Service connection may be granted when all the evidence establishes a medical nexus between military service and current complaints.  38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (2015); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).  Service connection may also be granted when the evidence shows that a particular disability is proximately due to or the result of a disability for which service connection has already been established.  38 C.F.R. § 3.310 (2015).  

In this case, the Board finds that the evidence is against a finding of a nexus between the claimed cystitis and military service.  The evidence is also against a finding that the claimed cystitis is a result of the Veteran's service-connected herniated surgical scarring with recurrent surgical intervention for adhesions of small bowel and umbilicus.  

The Veteran and her husband contend that her current cystitis is related to active service.  As laypersons, they are competent to report what they experienced or observed in and after service.  Layno v. Brown, 6 Vet. App. 465 (1994).  However, they are not competent to give a medical opinion on diagnosis, causation, or aggravation of a medical condition.  Bostain v. West, 11 Vet. App. 124 (1998); Routen v. West, 142 F.3d. 1434 (Fed. Cir. 1998).  Therefore, the Veteran and her husband can testify to that which they observe, such as a foul urine odor.  They are not competent to provide a medical diagnosis for any cystitis or to relate any cystitis, medically, to her service.  Similarly, they are not competent by training or experience to interpret medical articles or to apply them to the Veteran's claimed disorder.  There is no evidence that the medical articles submitted by the Veteran apply to her case, specifically.  The Veteran does not allege that she is the subject of any of the articles, nor do the articles contain any information which would permit lay identification of the Veteran.  Accordingly, the medical articles are of no probative value in establishing the Veteran's claim.  

Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence.  Rucker v. Brown, 10 Vet. App. 67 (1997).  The Veteran contends that the evidence shows continuity of symptoms after discharge and supports her claim for service connection.  However, there is no competent evidence by history or current examination that the Veteran now has, or has ever had, cystitis.  Not only are the Veteran's extensive treatment records negative for a diagnosis of cystitis, the two most recent VA examiners concur that the Veteran does not have cystitis.  Absent the requisite findings in or after service, the Veteran does not meet the criteria for service connection on any basis.  

Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability.  In the absence of proof of a present disability, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223 (1992).

Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for cystitis, and the appeal is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015).

Endometriosis

Service connection has been established for endometriosis and is currently characterized as a postoperative hysterectomy and bilateral oophorectomies with a history of endometriosis, secondary dysmenorrhea, and lysis of adhesions, and pelvic inflammatory disease; incidental appendicitis.  The Veteran contends that she should have a separate rating for endometriosis.  To the extent indicated, the Board agrees.  

The evidence shows that in service, the Veteran underwent a hysterectomy for endometriosis.  In May 1979, shortly after separation from service, she underwent a bilateral oophorectomy.  

In May 1993, the RO granted the Veteran's claim of entitlement to service connection for endometriosis, post-operative hysterectomy and bilateral oophorectomy.  That was the Veteran's sole service-connected disability.  The RO assigned a rating of 50 percent rating for the removal of the uterus and both ovaries.  38 C.F.R. § 4.116. Diagnostic Code 7617 (1992).  At the time, there was no diagnostic code specifically applicable to rating endometriosis.  

Effective May 22, 1995, VA revised the Rating Schedule with respect to gynecological disabilities and added such a diagnostic code.  Schedule for Rating Disabilities; Gynecological Conditions and Disorders of the Breast, 60 Fed. Reg. 19855 (April 21, 1995); 38 C.F.R. § 4.116, Diagnostic Code 7629 (2015).  A 10 percent rating was warranted for pelvic pain or heavy or irregular bleeding requiring continuous treatment for control.  A 30 percent rating was warranted for pelvic pain or heavy or irregular bleeding not controlled by treatment.  A 50 percent rating was warranted for lesions involving the bowel or bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment, and bowel or bladder symptoms.  The diagnosis of endometriosis had to be confirmed by laparoscopy.  38 C.F.R. § 4.116. Diagnostic Code 7629, Note (1996).  

In June 1998, the Board determined that the effective date for service connection for the Veteran's endometriosis, post-operative hysterectomy and bilateral oophorectomy, should be February 10, 1979, the day following separation from service.  

In February 1999, the RO assigned a temporary 100 percent rating for endometriosis, post-operative hysterectomy and bilateral oophorectomy, effective February 10, 1979, as a prestabilization rating.  38 C.F.R. § 4.116. Diagnostic Code 7617 (1998).  The 50 percent, previously assigned, was reinstated effective February 10, 1980.  38 C.F.R. § 4.116. Diagnostic Code 7617 (1998).  

In May 1999, the RO granted entitlement to service connection for herniated surgical scarring and assigned a 20 percent schedular rating, effective February 10, 1980.  In September 2003, the RO raised that rating to 30 percent, effective August 3, 2000.  

The RO stated that it had been unable to establish entitlement to a separate compensable rating for endometriosis at the end of the prestabilization period.  The RO found that the Veteran had not had recurring endometriosis following the May 1979 surgery, so as to warrant a separate rating for that disability at the end of the prestabilization period.  The RO further noted that in a September 9, 1998, statement, the Veteran appeared to believe that her endometriosis should be rated based on how disabling it was in service or in the period after separation, prior to the May 1979 surgery and that rating should be carried forward thereafter.  The RO stated that ratings were assigned in accordance with the facts found for the periods to which they applied.  The RO observed that it would not normally be appropriate to assign a compensable rating for endometriosis more than four to six months after the removal of the uterus and ovaries as any endometrial tissue remaining should disappear in that time frame. 

The RO noted that the rating of the same disability under various diagnoses was to be avoided.  In addition, the RO noted that the use of manifestations not resulting from service connected disease or injury in establishing the service connected evaluation and the evaluation of the same manifestation under different diagnoses was to be avoided.  38 CFR § 4.14 (1998).

The foregoing evidence shows that the Veteran had endometriosis manifested by endometrial implants in service for which she underwent a hysterectomy and bilateral oophorectomies.  Service connection was established for that disability effective the day after the Veteran's separation from service February 10, 1979.  It is currently characterized as postoperative hysterectomy and bilateral oophorectomies with a history of endometriosis, secondary dysmenorrhea, and lysis of adhesions, and pelvic inflammatory disease; incidental appendicitis.  The residuals of the hysterectomy are currently rated 50 percent.  38 C.F.R. § 4.114, Diagnostic Code 7617 (2015).  That rating became effective February 10, 1980.  Because it has been in effect for more than 20 years, it is protected and cannot be reduced absent a showing that the assignment of that rating was based on fraud.  38 U.S.C.A. § 110 (West 2014); 38 C.F.R. § 3.951 (2015).  Service connection has also been established for herniated surgical scarring with recurrent interventions for adhesions of the small bowel and umbilicus.  38 C.F.R. § 4.114, Diagnostic Code 7301 (2015).  That 30 percent rating has been in effect since August 3, 2000.  Prior to that, a 20 percent rating was in effect, effective February10, 1980.  That 20 percent rating is also protected and cannot be reduced.  

The Veteran now maintains that a separate rating is warranted for endometriosis based on the liberalizing legislation under 38 C.F.R. § 4.114, Diagnostic Code 7629 (2015).  

In order for a claimant to be eligible for a retroactive payment pursuant to liberalizing legislation, the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that eligibility existed continuously from that date to the date of claim or administrative determination of entitlement.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.114 (2015).  The Veteran's appeal is based on a claim she filed on February 27, 2002.  Because the claim is being reviewed at the request of the Veteran more than one year after the effective date of the liberalizing law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of that request.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.114 (2015). 

The evidence shows that on November 18, 2002, the Veteran underwent a laparoscopy for lysis of adhesions with small bowel involvement.  Under Diagnostic Code 7629, a 50 percent rating was warranted for endometriosis with lesions of the bowel or bladder.  The Board finds that from February 27, 2001, one year prior to the Veteran's claim, through November 17, 2002, the day before the 100 percent rating for hospitalization, she was entitled to a 50 percent rating.  38 C.F.R. § 4.119. Diagnostic Code 7629 (1998).  Effective November 18, 2002 through December 31, 2002, a 100 percent rating was assigned following the Veteran's hospitalization.  38 C.F.R. §§ 4.29 (2002).  

Since the hospitalization, the Veteran's endometriosis has been manifested primarily by complaints of pelvic pain which is controlled by regular treatment.  She is followed by the VA and takes hormone replacement and pain medication.  At times, such as in 2004 and 2006, she has required series of trigger point injections for the pain.  However, she has not had additional adhesions or surgery nor has she had bowel or bladder involvement.  The Board finds that the evidence shows that her endometriosis has not been active since December 31, 2002.  

For example, during a June 2008 VA genitourinary examination, there was no evidence of recurrent endometriosis.  The VA examiner set forth a history of endometriosis back to service.  In December 2007, the Veteran reported burning pain across the umbilical area.  The examiner stated that pain was not typical of endometriosis.  Moreover, an MRI/ultrasound did not comment on endometriosis.  Following the June 2008 VA examination, the examiner opined that it was less likely than not that Veteran's endometriosis had remained active.  

In sum, pursuant to the liberalizing legislation under 38 C.F.R. § 4.116, Diagnostic Code 7629, and on the specific facts of this case, the Board finds that for the limited period of time from February 27, 2001, through November 17, 2002, the Veteran met the criteria for a 50 percent rating for endometriosis, but not higher.  For that period of time only, that rating will replace the Veteran's 30 percent rating under 38 C.F.R. § 4.114, Diagnostic Code 7301 with the 50 percent rating under 38 C.F.R. § 4.116, Diagnostic Code 7629, as the 50 percent rating under Diagnostic Code 7629 is the higher benefit and those ratings rate the same symptomatology.  Thereafter, the 30 percent rating in effect under 38 C.F.R. § 4.114, Diagnostic Code 7301 will be in effect.  The Board has considered the possibility of a higher rating after January 1, 2003 under Diagnostic Code 7301.  However, the Veteran has not demonstrated severe adhesions of the peritoneum with definite partial obstruction shown by X-ray, with frequent and prolonged episodes of severe colic distension, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage.  Accordingly, the Veteran does not meet or more nearly approximate the criteria for a rating in excess of 30 percent after January 1, 2003.  Whether rated under Diagnostic Code 7301 or 7629, a separate rating for endometriosis will not result in a reduction in the combined level of compensation the Veteran received when she filed her claim in February 2002.  The Board finds that the separate rating for endometriosis does not have a detrimental effect on the Veteran's level of compensation.  

Accordingly, the Board finds that from February 27, 2001, to November 17, 2002, a 50 percent rating for endometriosis is assigned under Diagnostic Code 7629, to replace the currently assigned 30 percent rating under Diagnostic Code 7301 which rates the same symptomatology, and the higher rating under Diagnostic Code 7629 represents a higher benefit for that period of time.  The preponderance of the evidence is against the assignment of any higher rating.  As of November 18, 2002, that rating shall revert to the 30 percent rating under Diagnostic Code 7301, as the criteria for the higher rating under Diagnostic Code 7629 were no longer met.  The preponderance of the evidence is against the assignment of any higher rating as of November 18, 2002.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015).

Herniated Scarring

The Veteran also seeks a rating in excess of 30 percent for service-connected herniated surgical scarring with recurrent interventions for adhesions of the small bowel and umbilicus.  However, after carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against that claim.  Accordingly, the appeal will be denied.  

Ratings for service-connected disabilities are determined by comparing the symptoms the Veteran is presently experiencing with criteria set forth in VA's Schedule for Rating Disabilities which is based, as far as practically can be determined, on average impairment in earning capacity.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015).  Separate diagnostic codes identify the various disabilities.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2015).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2015).  When making determinations as to the appropriate rating to be assigned, the VA must take into account the Veteran's entire medical history and circumstances.  38 C.F.R. § 4.1 (2015); Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Fenderson v. West, 12 Vet App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 

The Veteran is currently in receipt of a 30 percent rating for her herniated surgical scarring with recurrent surgical intervention for adhesions of small bowel and umbilicus under Diagnostic Code 7301, which pertains to adhesions of the peritoneum.  She contends that her disability should also be rated under Diagnostic Codes 7307 (hypertrophic gastritis), 7319 (irritable colon syndrome), 7323 (ulcerative colitis), 7325 (chronic enteritis), 7327 (diverticulitis), 7331 (active or inactive tuberculous peritonitis), 7346 (hiatal hernia), 7611 (disease or injury of the vagina), 7614 (disease, injury, or adhesions of the fallopian tube, including pelvic inflammatory disease), and 7615 (disease, injury, or adhesions of the ovary). 

There are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition.  Consequently, certain coexisting digestive disabilities, as indicated in the instruction under the title Diseases of the Digestive System, do not lend themselves to distinct and separate ratings without violating the fundamental principle relating to pyramiding.  38 C.F.R. §§ 4.14, 4.113 (2015).  

Ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other.  A single rating will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation.  38 C.F.R. §§ 4.114 (2015).  Although the Veteran argues that she should be given separate ratings for her herniated surgical scarring with recurrent surgical intervention for adhesions of small bowel and umbilicus under Diagnostic Codes 7301, 7307, 7319, 7323, 7325, 7327, 7331, and 7346, that is strictly prohibited by VA regulations.  The Board will therefore proceed to evaluate the Veteran's disability under all of the applicable digestive system diagnostic codes, but will assign only a single rating pursuant to VA regulations.  

The Veteran further alleges that her herniated surgical scarring with recurrent surgical intervention for adhesions of small bowel and umbilicus should be rated under the gynecological Diagnostic Codes of 7611 (disease or injury of the vagina), 7614 (disease, injury, or adhesions of the fallopian tube, including pelvic inflammatory disease), and 7615 (disease, injury, or adhesions of the ovary). However, the Board notes that the Veteran is already in receipt of a 30 percent rating for surgically induced menopause with vaginal dryness, atrophic vaginitis, and myofascial pain syndrome and a 50 percent rating for post-operative hysterectomy and bilateral oophorectomies with history of endometriosis, secondary dysmenorrhea, lysis of adhesions, pelvic inflammatory disease, and incidental appendectomy.  Since the Veteran is already being compensated for her gynecological symptoms, to separately assign a rating for the herniated surgical scarring with recurrent surgical intervention for adhesions of small bowel and umbilicus under the gynecological diagnostic codes of 38 C.F.R. §§ 4.116 (2015) would constitute impermissible pyramiding.  38 C.F.R. §§ 4.14 (2015).  Therefore, the Board will not rate the Veteran's herniated surgical scarring with recurrent surgical intervention for adhesions of small bowel and umbilicus under Diagnostic Code 7611, 7614, or 7615 because the symptoms covered by those diagnostic codes are already rated in the Veteran's other disability ratings.  

The Board also notes that the Veteran's claim for service connection for cystitis has been denied in this decision.  However, the Board recognizes that the Veteran's symptoms of the bowels could either be manifestations of nonservice-connected cystitis or manifestations of service-connected herniated surgical scarring with recurrent surgical intervention for adhesions of small bowel and umbilicus.  When it is not possible to medically separate the effects of one condition from another, VA regulations require that reasonable doubt be resolved in the Veteran's favor. 38 C.F.R. § 3.102 (2015); Mittleider v. West, 11 Vet. App. 181 (1998).  Thus, the Board will consider the Veteran's bowel symptoms when evaluating her claim for increased rating for herniated surgical scarring with recurrent surgical intervention for adhesions of small bowel and umbilicus.  

Post-service VA and private medical records dated from August 2000 to October 2007 show that the Veteran received intermittent treatment for herniated surgical scarring with recurrent surgical intervention for adhesions of small bowel and umbilicus.  The Veteran had irritable bowel syndrome, constipation with lower abdominal cramps and bloating, minimal rectal bleeding presumed from hemorrhoids, diarrhea, hematochezia, melena, mild nausea, and bowel gas distention.  She also experienced bilateral lower quadrant pain, paraumbilical pain, supraumbilical pain, infraumbilical pain, pelvic myofascial pain, abdominal adhesions, gastroesophageal reflux disease, hiatal hernia, and possible gastritis or duodenitis.  The Veteran's internal abdominal pain was found to typically occur for two to three days before resolving for about a week and then returning.  She underwent periodic trigger point injections for her abdominal and pelvic pain.  

On VA examination in June 2008, the Veteran complained of getting cramping when eating certain foods such as yogurt and meat.  She reported having lost 20 pounds in January 2008.  She stated that she had painful bowel movements with constipation alternating with diarrhea.  She denied any hemorrhoids but complained of about three annual episodes of bright red blood from the rectum.  The Veteran additionally complained that she still experienced burning pain across her epigastric, umbilical, and pelvic areas.  The examiner noted that the Veteran began having trigger point injections in March 2004 that brought good pain relief.  The Veteran was observed to have undergone trigger point injections every three to four weeks before spreading out the injections to every three months.  The examiner noted that the Veteran had functioned well for approximately a year without any problems but began suffering from pelvic pain again when she fell on the ice in 2006.  Examination revealed an obese, soft, nondistended, and nontender abdomen.  There were no organomegaly or masses appreciated.  There was also no evidence of hemorrhoids or adenexal masses or fullness.  The Veteran had some mild adnexal tenderness and suprapubic pain with bimanual examination.

The examiner diagnosed intermittent diarrhea alternating with constipation.  There was insufficient evidence to diagnose a chronic condition, and the examiner found the condition to be suggestive of irritable bowels.  There was no evidence of diverticulitis, as there were few diverticula found on colonoscopy.  There was also no evidence of recurrent endometriosis or pelvic inflammatory disease.  The examiner also diagnosed myofascial pelvic pain from multiple surgeries, status post history of peritonitis with no recurrence or residual sequelae, chronic internal pelvic pain with insufficient evidence to diagnose a chronic condition, status post history of ventral hernia with no current evidence of recurrence, and no residuals from incidental appendectomy during pelvic surgeries.  

In September 2015, the Veteran was examined to determine the severity of herniated surgical scarring, status post recurrent surgical intervention for adhesions of the small bowel and umbilicus.  It was noted that she last had lysis of adhesions in November 2002.  The VA examiner also noted that a scar revision had also been performed at that time.  The examiner found that since the Veteran's June 2008 VA examination, she had not had any further surgical procedures for lysis of adhesions.  The examiner reported that there were no evident complications of adhesions documented in the Veteran's chart since the last examination.  Her pelvic pain, diagnosed as myofascial pain, had reportedly been managed by repeated trigger point injections.  

On examination, there was diffuse tenderness to mild-to-moderate palpation of the abdomen.  No incisional hernias were appreciated.  The examiner modified the previous diagnosis of herniated surgical scarring with recurrent surgical intervention for adhesions of small bowel and umbilicus to omit "herniated."  The examiner stated that the diagnosis had been incorrect.  The examiner noted that herniated scarring had been reported in a May 1999 rating decision.  That diagnosis had been based on an April 1999 VA examination in which the examiner documented "slight" herniation with valsalva.  However, a CT of the abdomen and pelvis in July 2002 had found no evidence for abdominal wall hernias, dehiscence, or other defects.  In addition, the surgeon who performed the November 2002 lysis of adhesions stated that at no point was there any evidence of a hernia through any of the prior incisions.  

Diagnostic Code 7331 pertains to tuberculous peritonitis that is active or inactive. A 100 percent rating is assigned for active peritonitis.  38 C.F.R. § 4.114, Diagnostic Code 7331 (2015).  Inactive peritonitis is rated under the diagnostic codes for infectious diseases, immune disorders, and nutritional deficiencies. 38 C.F.R. §§ 4.88b, 4.89 (2015).  The evidence does not show that the Veteran has active peritonitis.  In fact, at the June 2008 VA examination, the Veteran was found to have status post history of peritonitis with no recurrence or residual sequelae.  The evidence also does not indicate that the Veteran's inactive peritonitis was due to an infectious disease, immune disorder, or nutritional deficiency, and therefore the diagnostic codes under 38 C.F.R. §§ 4.88b, 4.89 are not applicable.  Therefore, an increased rating is not warranted under Diagnostic Code 7331 for the Veteran's disability.  Chronic enteritis is rated as irritable colon syndrome. 38 C.F.R. § 4.114, Diagnostic Code 7325 (2015).  Diverticulitis is rated as irritable colon syndrome, peritoneal adhesions, or ulcerative colitis, depending on the predominant disability picture.  38 C.F.R. § 4.114, Diagnostic Code 7327 (2015).  

The criteria for rating irritable colon syndrome provide a maximum 30 percent rating for severe irritable colon syndrome with diarrhea, or alternating diarrhea and constipation, and more or less constant abdominal distress.  38 C.F.R. § 4.114, Diagnostic Code 7319 (2015).  The Veteran is already in receipt of a 30 percent rating for her herniated surgical scarring with recurrent surgical intervention for adhesions of small bowel and umbilicus.  Because the Veteran is already in receipt of the maximum rating available under the diagnostic code, she is not entitled to an increased rating under Diagnostic Code 7319.  

The criteria for rating adhesions of the peritoneum provide a 30 percent rating for moderately severe adhesions of peritoneum, partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain.  A maximum 50 percent rating is assigned for severe adhesions of peritoneum, definite partial obstruction shown by x-ray, with frequent and prolonged episodes of severe colic distension, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage.  38 C.F.R. § 4.114, Diagnostic Code 7301 (2015).  Ratings for adhesions will be considered when there is history of operative or other traumatic or infectious (intraabdominal) process, and at least two of the following:  disturbance of motility, actual partial obstruction, reflex disturbances, or presence of pain.  38 C.F.R. § 4.114, Diagnostic Code 7301, Note (2015).  

The medical evidence does not show severe adhesions of the peritoneum.  No definite partial obstructions were shown on x-ray.  Although the June 2008 VA examiner noted that the Veteran had undergone an incidental appendectomy during pelvic surgeries, she had not suffered from a ruptured appendix.  There is also no evidence of perforated ulcer or operation with drainage.  The Veteran's peritonitis was not severe, as no recurrence or residual sequelae of peritonitis were found on VA examination in June 2008.  Additionally, the evidence does not show frequent or prolonged episodes of severe colic distension, nausea, or vomiting.  In fact, the Veteran was only found to suffer from periodic mild nausea and bowel gas distention.  Her internal abdominal pain occurred for three to four days before resolving for about a week and then returning.  The Veteran underwent periodic trigger point injections that provided good abdominal and pelvic pain relief that helped her to function pretty well without any problems before she suffered an injury when she fell on the ice.  Therefore, the Board finds that an increased 50 percent rating is not warranted under Diagnostic Code 7301.  

The criteria for rating ulcerative colitis provide a 30 percent rating for moderately severe ulcerative colitis with frequent exacerbations.  A 60 percent rating is assigned for severe ulcerative colitis with numerous attacks a year and malnutrition, with health only fair during remissions.  A 100 percent rating is assigned for pronounced ulcerative colitis, resulting in marked malnutrition, anemia, and general debility, or with some serious complication as liver abscess.  38 C.F.R. § 4.114, Diagnostic Code 7323 (2015).  

The Board finds that the Veteran's disability is moderately severe with frequent exacerbations but that it does not rise to the level of being severe with numerous attacks a year and malnutrition.  The June 2008 VA examiner diagnosed the Veteran with intermittent diarrhea alternating with constipation and found insufficient evidence to diagnose a chronic condition.  The examiner instead found that the Veteran's condition was suggestive of irritable bowels. The evidence shows that the Veteran had about three annual episodes of bright red blood from the rectum and in her stools.  While there is some evidence of malnutrition in the form of weight loss, the overall evidence does not indicate that the Veteran's disability was severe with numerous attacks a year and her health being only fair during remissions.  Rather, the evidence tends to show that the Veteran had periodic exacerbations of her disability.  Malnutrition is not shown.  Thus, the Board finds that an increased rating under Diagnostic Code 7323 is not warranted.

Under the criteria for rating hypertrophic gastritis, a 30 percent rating is assigned for chronic gastritis with multiple small eroded or ulcerated areas and symptoms.  A maximum 60 percent rating is warranted for chronic gastritis identified by a gastroscope with severe hemorrhages or large ulcerated or eroded areas.  38 C.F.R. § 4.114, Diagnostic Code 7307 (2015).  In this case, the medical evidence merely shows that the Veteran experienced periodic gastroesophageal reflux disease and possible gastritis or duodenitis.  She had intermittent abdominal pain and bloating, mild nausea, and bowel gas distention.  There is no evidence that the Veteran's disability was productive of severe hemorrhages or large ulcerated or eroded areas.  Therefore, an increased 60 percent rating under Diagnostic Code 7307 is not warranted.  

The criteria for rating hiatal hernias provide a 30 percent rating for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  A maximum 60 percent rating is warranted for symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health.  38 C.F.R. § 4.114, Diagnostic Code 7346 (2015).  The Board finds that the symptom combinations of the Veteran's disability were not productive of severe health impairment.  The Veteran received intermittent treatment for hiatal hernia, and the June 2008 VA examiner diagnosed status post history of ventral hernia with no current evidence of recurrence.  Although the Veteran did have abdominal and pelvic pain, and weight loss, the evidence does not show that she experienced any vomiting, hematemesis, or melena with moderate anemia as required by the criteria for a higher rating.  The criteria under Diagnostic Code 7346 are conjunctive, not disjunctive.  Thus, all criteria must be met.  Melson v. Derwinski, 1 Vet. App. 334 (June 1991) (use of the conjunctive means that all conditions listed in the provision must be met).  The Veteran's disability did not manifest in symptoms of vomiting or hematemesis, and although she experienced periodic melena, the melena was not accompanied with moderate anemia.  Therefore, the Veteran is not entitled to an increased rating under Diagnostic Code 7346 for her disability.   

The criteria for rating multiple digestive disorders provide for elevation to the next higher rating where the severity of the overall disability warrants elevation.  38 C.F.R. § 4.114 (2015).  However, the Board finds that no elevation is warranted here because the Veteran's disability picture is adequately compensated by the 30 percent rating assigned.  The Board finds that the evidence does not show severity that would warrant elevation to the next higher rating because her overall condition does not more nearly approximate a higher rating, even when manifestations of multiple disabilities are considered.  

In the Joint Motion for Remand, issued in September 2011, it was noted that the Board had not considered the possibility of a separate rating for the Veteran's surgical scarring as a post-operative ventral hernia.  38 C.F.R. § 4.114, Diagnostic Code 7339 (2015).  The assignment of a separate rating requires separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code.  Esteban v. Brown, 6 Vet. App. 259 (1994).

A 0 percent rating is warranted for a post-operative ventral hernia, when there are postoperative, wounds which have healed and are productive of no disability; a belt is not indicated.  A 20 percent rating is warranted for a healed ventral hernia or small ventral hernia which is not well supported by belt under ordinary conditions.  In such cases, there are post-operative wounds with weakening of the abdominal wall and indication for a supporting belt.  A 40 percent rating is warranted for a large, postoperative ventral which is not well supported by a belt under ordinary conditions.  A 100 percent rating is warranted when a post-operative ventral hernia is manifested by massive, persistent, severe diastasis of recti muscles or extensive diffuse destruction or weakening of muscular and fascial support of abdominal wall so as to be inoperable.  38 C.F.R. § 4.114, Diagnostic Code 7339 (2015).

In this case, slight herniated scarring was reported during VA treatment in April 2002.  However, subsequent treatment records and examinations, including a CT scan of the abdomen and a report from the surgeon who had performed the lysis of adhesions in November 2002, were negative for any evidence of a hernia associated with the Veteran's prior surgeries.  Not only was there no evidence of a hernia, the evidence dated since April 2002 shows that the Veteran never actually had a hernia associated with the abdominal scarring.  The surgeon stated that no point was there any evidence of hernia through any of the prior incisions.  Moreover, the most recent VA examiner found the evidence so compelling that examiner omitted the word "herniated" from the diagnosis and explained the removal of that finding as a previous error in diagnosis.  Absent evidence of separate and distinct symptomatology of a post-operative ventral hernia, a separate rating for a post-operative ventral hernia is not warranted.  

Accordingly, the Board finds that the weight of the credible evidence demonstrates that the Veteran's surgical scarring with recurrent surgical intervention for adhesions of small bowel and umbilicus does not warrant a rating in excess of 30 percent under Diagnostic Codes 7301, 7307, 7319, 7323, 7325, 7327, 7331, 7339, or 7346 for all periods under consideration.  As the preponderance of the evidence is against the claim for an increased rating, the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Earlier Effective Date

The Veteran contends that she is entitled to an effective date earlier than August 3, 2000, for the assignment of a 30 percent rating for surgical scarring with recurrent surgical intervention for adhesions of small bowel and umbilicus. 

The effective date of a grant of an increased rating is the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within a year from that date.  Otherwise, the effective date is the later of the date of increase in disability or the date of receipt of the claim.  38 U.S.C.A. § 5110(b)(2) (West 2014); 38 C.F.R. § 3.400(o)(2) (2015); Harper v. Brown, 10 Vet. App. 125 (1997).  

A claim is a formal or informal communication, in writing, requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit.  38 C.F.R. § 3.1(p) (2015).  

However, 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where the increase precedes the claim, provided also that the claim is received within one year after the increase.  In those cases, the Board must determine under the evidence of record the earliest date that the increased rating was ascertainable. Hazan v. Gober, 10 Vet. App. 511 (1997); Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98 (1998), 63 Fed. Reg. 56705 (1998).  

A May 1999 rating decision granted service connection for herniated surgical scarring with recurrent surgical intervention for adhesions of small bowel and umbilicus and assigned a 20 percent rating, effective February 10, 1980.  A September 2003 rating decision increased the rating from 20 percent to 30 percent, effective August 3, 2000, the date that the Veteran's disability was objectively shown to have worsened.  

In determining whether the Veteran is entitled to an earlier effective date for the increased rating of 30 percent, the pertinent question is whether there is an earlier date as of which entitlement to an increased rating of 30 percent was factually ascertainable.  The question then is whether, based upon the evidence of record, it was factually ascertainable that the Veteran's herniated surgical scarring with recurrent surgical intervention for adhesions of small bowel and umbilicus met the criteria for a 30 percent rating prior to August 3, 2000, and after her effective date of service connection.  Therefore, the Board may consider the period from February 10, 1980, to August 3, 2000, to determine if a 30 percent rating was warranted prior to the August 3, 2000 date of increase.  The pertinent evidence for consideration includes treatment records dated from July 1981 to August 2000 and a VA examination dated in April 1999.  

Post-service VA medical records dated from July 1981 to August 2000 show that the Veteran received intermittent treatment for herniated surgical scarring with recurrent surgical intervention for adhesions of small bowel and umbilicus.  She had such symptoms as moderate abdominal cramping about five to ten minutes after eating, weight gain despite not eating much, occasional dyspepsia, and minimal incisional tenderness.  The Veteran denied experiencing any nausea, vomiting, or diarrhea. 

On VA examination in April 1999, the Veteran complained of pain at the belt line and reported that her clothing rubbed over the scar tissue just below the navel.  She stated that area frequently became inflamed, up to three or four times a week.  She also complained of pain above the pelvis area, more on the left side.  The Veteran questioned whether she had any hernia associated with that area.  She maintained that when she strained, she felt a pulling sensation and bulging of both sides.  Examination of the Veteran's scars found that there were several nodules that were well-connected to the left side of the scar tissue that was located about 6 centimeters distal to the umbilicus.  The scar tissue was a bit adherent around that area.  Regarding the Veteran's lateral scar just above the pubic bone about 7 centimeters left of midline, the examiner noted that when the scar was palpated using Valsalva's maneuver when the Veteran strained, there was slight herniation.  There was also some slight herniation with Valsalva's maneuver in the central right area of the other scar.  The examiner found that the Veteran had some depression of the hysterectomy scar bilaterally with some slight herniation with straining associated with the scar. 

There are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition.  Consequently, certain coexisting digestive diseases, as indicated in the instruction under the title Diseases of the Digestive System, do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding.  38 C.F.R. § 14, 4.113 (2015). 

Ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7339, 7342, and 7345 to 7348, inclusive, will not be combined with each other.  A single rating will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation.  38 C.F.R. § 4.114 (2015).

Diagnostic Code 7331 pertains to tuberculous peritonitis that is active or inactive.  38 C.F.R. § 4.114, Diagnostic Code 7331 (2015).  As the evidence does not show that the Veteran had peritonitis prior to August 3, 2000, that code is not applicable to the instant case.  

Chronic enteritis is rated as irritable colon syndrome.  38 C.F.R. § 4.114, Diagnostic Code 7325 (2015).  Diverticulitis is rated as irritable colon syndrome, peritoneal adhesions, or ulcerative colitis, depending on the predominant disability picture.  38 C.F.R. § 4.114, Diagnostic Code 7327 (2015).  

The criteria for rating irritable colon syndrome provide a maximum 30 percent rating for severe irritable colon syndrome with diarrhea, or alternating diarrhea and constipation, and more or less constant abdominal distress.  38 C.F.R. § 4.114, Diagnostic Code 7319 (2015).  The medical evidence does not show that the Veteran experienced any diarrhea or constipation after February 10, 1980, and prior to August 3, 2000.  Additionally, the Veteran had only intermittent abdominal cramping and incisional tenderness.  The evidence did not show constant abdominal distress.  

The criteria for rating adhesions of the peritoneum provide a 30 percent rating for moderately severe adhesions of peritoneum, partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain.  A maximum 50 percent rating is assigned for severe adhesions of peritoneum, definite partial obstruction shown by x-ray, with frequent and prolonged episodes of severe colic distension, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage.  38 C.F.R. § 4.114, Diagnostic Code 7301 (2009). Ratings for adhesions will be considered when there is history of operative or other traumatic or infectious (intraabdominal) process, and at least two of the following: disturbance of motility, actual partial obstruction, reflex disturbances, presence of pain.  38 C.F.R. § 4.114, Diagnostic Code 7301 (2015).  The Board finds that the evidence does not show that the Veteran's adhesions of the peritoneum were moderately severe.  While the Veteran experienced periodic episodes of abdominal cramping and pain, the evidence did not show partial obstruction manifested by delayed motility of barium meal as required by the criteria for a 30 percent rating.  The criteria under Diagnostic Code 7301 are conjunctive, not disjunctive.  Thus, all criteria must be met.  Melson v. Derwinski, 1 Vet. App. 334 (June 1991) (use of conjunctive and in provision meant that all conditions listed must be met).  

The criteria for rating ulcerative colitis provide a 30 percent rating for moderately severe ulcerative colitis with frequent exacerbations.  A 60 percent rating is assigned for severe ulcerative colitis with numerous attacks a year and malnutrition, the health only fair during remissions.  A 100 percent rating is assigned for pronounced ulcerative colitis, pronounced, resulting in marked malnutrition, anemia, and general debility, or with some serious complication as liver abscess.  38 C.F.R. § 4.114, Diagnostic Code 7323 (2015).  The criteria for rating hypertrophic gastritis provide a 30 percent rating for chronic gastritis with multiple small eroded or ulcerated areas and symptoms.  A maximum 60 percent rating is warranted for chronic gastritis identified by a gastroscope with severe hemorrhages or large ulcerated or eroded areas.  38 C.F.R. § 4.114, Diagnostic Code 7307 (2015).  The evidence does not show that the Veteran had moderately severe ulcerative colitis with frequent exacerbations after February 10, 1980, and prior to August 3, 2000, nor did she have chronic gastritis with multiple small eroded or ulcerated areas and symptoms during that time period.  She had only moderate abdominal cramping after eating and occasional dyspepsia and experienced no nausea or vomiting.  Her abdominal pain was intermittent.  There was no evidence of frequent exacerbations of the Veteran's herniated surgical scarring with recurrent surgical intervention for adhesions of small bowel and umbilicus.  Similarly, there was no evidence that the Veteran's disability was productive of multiple small eroded or ulcerated areas.  

The criteria for rating hiatal hernias provide a 30 percent rating for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  A maximum 60 percent rating is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health.  38 C.F.R. § 4.114, Diagnostic Code 7346 (2015).  On VA examination in April 1999, the Veteran complained of pain at the belt line and above the pelvis area.  She reported feeling a pulling sensation and bulging of both sides when she strained.  However, upon examination, the Veteran was found to only have slight herniation with straining associated with the hysterectomy scar.  Treatment records show that the Veteran experienced only moderate abdominal cramping after eating and occasional dyspepsia and experienced no nausea or vomiting.  The Board finds that the evidence does not show that after February 10, 1980, and prior to August 3, 2000, the Veteran's hiatal hernia was productive of considerable impairment of health.  The Veteran did not have persistently recurrent epigastric distress that was accompanied by substernal or arm or shoulder pain.  She experienced only slight herniation and mild epigastric symptoms.  

The Board finds that at no time after February 10, 1980, and prior to August 3, 2000, was an increase in disability commensurate with a 30 percent rating factually ascertainable.  The evidence did not show severe irritable colon syndrome, moderately severe adhesions of peritoneum, moderately severe ulcerative colitis with frequent exacerbations, chronic gastritis with multiple small eroded or ulcerated areas and symptoms, or hiatal hernias with persistently recurrent epigastric distress accompanied by substernal or arm or shoulder pain that were productive of considerable impairment of health.  While the criteria for rating multiple digestive disorders provide for elevation to the next higher rating where the severity of the overall disability warrants such elevation, the Board finds no such elevation was warranted.  38 C.F.R. § 4.114 (2015).  The Veteran's disability picture was adequately compensated by the 20 percent rating assigned.  The Board finds that the evidence does not show severity that would warrant elevation to the next higher rating.  As the preponderance of the evidence was against finding of the symptomatology required for the assignment of a disability rating of 30 percent, the treatment records and VA examination dated from July 1981 to August 2000 do not constitute evidence demonstrating that a 30 percent rating was warranted prior to August 3, 2000.  Accordingly, the Board finds that the evidence does not establish that the Veteran would be entitled to a 30 percent rating prior to August 3, 2000.  

As the evidence does not show that the Veteran's herniated surgical scarring with recurrent surgical intervention for adhesions of small bowel and umbilicus met the criteria for a 30 percent rating prior to August 3, 2000, an earlier effective date for the 30 percent rating is not warranted because a factually ascertainable increase in disability to the 30-percent level was not shown prior to August 3, 2000.  As the preponderance of the evidence is against the claim, the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

Higher Combined Service-Connected Rating

The Veteran contends that she should have received a combined 100 percent rating for her service-connected disabilities prior to August 3, 2000, and since February 27, 2002.  In light of the foregoing rating increase for endometriosis, the Board agrees that a higher combined rating is warranted to the extent indicated.  

Combined service-connected disability ratings are not calculated by simply adding the percentage ratings of a Veteran's service-connected disability ratings.  Rather, they are calculated through the application of a combined ratings table, which considers the individual's efficiency based on his or her individual disabilities.  38 C.F.R. § 4.25 (2015).  The Veteran's service-connected disabilities are arranged in order of severity, and ratings are combined using the prescribed figures in the Combined Ratings Table.  38 C.F.R. § 4.25 (2015).  All combined ratings are then converted to the nearest number divisible by 10.  38 C.F.R. § 4.25 (2015).  For example, when a 20 percent rating is combined with a 10 percent rating, the combined rating is 22 percent which is rounded down to 20 percent.  Similarly, when a 60 percent rating is combined with a 20 percent rating, the combined rating is 68 percent which is rounded up to 70 percent.  

In April 1993, the RO granted service connection for endometriosis, a hysterectomy and bilateral oophorectomy and assigned a 50 percent rating, effective July 22, 1990.  

In February 1999, after reviewing the record, the Board assigned a pre-stabilization rating of 100 percent for a postoperative hysterectomy and bilateral oophorectomies with a history of endometriosis with secondary dysmenorrhea and lysis of adhesions, pelvic inflammatory disease, and a bladder disorder.  That rating became effective February 10, 1979.  38 CFR 4.28 (1998).  In accordance with the rating schedule, that rating was reduced to 50 percent effective February 10, 1980.  38 C.F.R. § 4.114, Diagnostic Code 7617 (1979).  The RO also granted service connection for a right pelvic cystic mass in the right adnexa, status post right oophorectomy.  The RO assigned a 30 percent rating effective December 2, 1980.  That rating was increased to 100 percent effective February 23, 1981, due to a period of hospitalization and reduced to 0 percent, effective May 1, 1981.  

In May 1999, the RO granted service connection for herniated surgical scarring and assigned a 20 percent rating.  The RO also granted service connection for a tender surgical scar with inflammation, the residual of an oophorectomy and assigned a 10 percent rating.  Both of those ratings became effective February 10, 1980.  

In light of the foregoing decisions, the Veteran was service-connected for the following disabilities, effective February 10, 1980:  a post-operative hysterectomy and bilateral oophorectomies, rated 50 percent; herniated surgical scarring with recurrent surgical intervention for adhesions of small bowel and umbilicus, rated 20 percent; and a tender surgical scar with inflammation, rated 10 percent.  Applying the Combined Ratings Table, the Veteran's 50 percent rating combined with a 20 percent rating combined with a 10 percent rating yielded a total combined rating of 60 percent, effective February 10. 1980.  38 C.F.R. § 4.25 (2015).  

The 30 percent rating for a right pelvic cystic mass, which became effective December 2, 1980, also increased the Veteran's combined rating to 80 percent, effective December 2, 1980.  Applying the Combined Ratings Table, the Veteran's 50 percent rating (post-operative hysterectomy and bilateral oophorectomies) combined with a 30 percent rating (right pelvic cystic mass in the right adnexa, status post right oophorectomy); combined with the 20 percent rating (herniated surgical scarring with recurrent surgical intervention for adhesions of small bowel and umbilicus) combined with a 10 percent rating (tender surgical scar with inflammation) yielded a total combined rating of 80 percent.  38 C.F.R. § 4.25 (2015).  

The aforementioned reduction to a 0 percent rating for the right pelvic cystic mass, effective May 1, 1981 reduced the combined rating to 60 percent, also effective May 1. 1981.  Applying the Combined Ratings Table, the Veteran's 50 percent rating (post-operative hysterectomy and bilateral oophorectomies) combined with the 20 percent rating (herniated surgical scarring with recurrent surgical intervention for adhesions of small bowel and umbilicus) combined with a 10 percent rating (tender surgical scar with inflammation), combined with a 0 percent rating (right pelvic cystic mass in the right adnexa, status post right oophorectomy) yielded a total combined rating of .  38 C.F.R. § 4.25 (2015).  

From February 23, 2981 through April 30, 1981, the Veteran had a 100 percent rating due to a period of hospitalization and convalescence.  38 C.F.R. § 4.29 (2002).  

A September 2003 rating decision increased the rating for herniated surgical scarring with recurrent surgical intervention for adhesions of small bowel and umbilicus from 20 percent to 30 percent, effective August 3, 2000.  Applying the Combined Ratings Table, the Veteran's 50 percent rating (post-operative hysterectomy and bilateral oophorectomies) combined with the 30 percent rating (herniated surgical scarring with recurrent surgical intervention for adhesions of small bowel and umbilicus) combined with a 10 percent rating (tender surgical scar with inflammation), combined with a 0 percent rating (right pelvic cystic mass in the right adnexa, status post right oophorectomy).  38 C.F.R. § 4.25 (2015).  Those combinations yielded a total combined rating of 70 percent, effective August 3, 2000. 38 C.F.R. § 4.25 (2015).

An August 2008 rating decision granted service connection and assigned a 50 percent rating for mood disorder with depressed features, effective February 27, 2002; a 30 percent rating for surgically induced menopause with vaginal dryness, atrophic vaginitis, and myofascial pain syndrome, effective February 17, 2002; and a 20 percent for urinary incontinence, effective February 27, 2002.  The Veteran's 50 percent rating (post-operative hysterectomy and bilateral oophorectomies) combined with the 50 percent rating (mood disorder with depressed features) combined with the 30 percent rating (herniated surgical scarring with recurrent surgical intervention for adhesions of small bowel and umbilicus) combined with the 30 percent rating (surgically induced menopause with vaginal dryness, atrophic vaginitis, and myofascial pain syndrome) combined with the 20 percent rating (urinary incontinence) combined with the 10 percent rating (tender surgical scar with inflammation), combined with a 0 percent rating (right pelvic cystic mass in the right adnexa, status post right oophorectomy) yielded a total combined rating of 90 percent.  38 C.F.R. § 4.25 (2015).  

In light of the Board's decision above, granting a separate 50 percent rating for endometriosis, the Veteran's ratings have changed.  

For the period from February 27, 2001, through February 26, 2002, service connection was in effect for the following disabilities:  a postoperative hysterectomy and bilateral oophorectomies with a history of dysmenorrhea, pelvic inflammatory disease, and incidental appendectomy, rated 50 percent; endometriosis, status post lysis of adhesions, rated 50 percent; a tender surgical scar with inflammation, rated as 10 percent; and a pelvic cystic mass in the right adnexa, rated 0 percent.  Those ratings yield a combined total rating of 80 percent, effective February 27, 2001 through February 26, 2002.  38 C.F.R. § 4.25 (2000).  

For the period from February 27, 2002, through November 17, 2002, service connection was in effect for the following disabilities:  a postoperative hysterectomy and bilateral oophorectomies with a history of dysmenorrhea, pelvic inflammatory disease, and incidental appendectomy, rated 50 percent; endometriosis, status post lysis of adhesions, rated 50 percent; a mood disorder with depressed features rated 50 percent; surgically induced menopause with vaginal dryness, atrophic vaginitis, and myofascial pain syndrome, rated 30 percent; urinary incontinence, rated 20 percent; a tender surgical scar with inflammation, rated as 10 percent; and a pelvic cystic mass in the right adnexa, rated 0 percent.  Those ratings yield a combined total rating of 100 percent, effective February 27, 2002 through November 17, 2002.  38 C.F.R. § 4.25 (2001).  

From November 18, 2002, through December 31, 2002, the Veteran had a 100 percent rating due to a period of hospitalization and convalescence.  38 C.F.R. § 4.30 (2002).  

Since January 1, 2003, service connection has been in effect for the following disabilities:  a postoperative hysterectomy and bilateral oophorectomies with a history of dysmenorrhea, pelvic inflammatory disease, and incidental appendectomy, rated 50 percent; a mood disorder with depressed features rated 50 percent; surgical scarring with recurrent surgical intervention for adhesions of the small bowel and umbilicus, rated 30 percent; surgically induced menopause with vaginal dryness, atrophic vaginitis, and myofascial pain syndrome, rated 30 percent; urinary incontinence, rated 20 percent; a tender surgical scar with inflammation, rated as 10 percent; and a pelvic cystic mass in the right adnexa, rated 0 percent.  Those ratings yield a combined total rating of 90 percent, effective January 1, 2003.

Based on the foregoing findings, an 80 percent combined rating is warranted from February 27, 2001 through February 26, 2002; a 100 percent combined rating is warranted from February 27, 2002, through November 17 2002.  To those extents, the appeal is granted.  Otherwise, the following combined ratings are confirmed and continued:  60 percent, effective February 10, 1980, through December 1, 1980; 80 percent, effective December 2, 1980, through February 22, 1981; 60 percent, effective May 1, 1981, through August 2, 2000; 70 percent, effective August 3, 2000, through February 26, 2001; and 90 percent effective January 1, 2003.  The preponderance of the evidence is against the assignment of any higher rating.

Extraschedular Consideration

The Board further finds that there is no evidence of any unusual or exceptional circumstances that would take this issue outside the norm so as to warrant an extraschedular rating.  38 C.F.R. § 3.321(b)(1) (2015).  There is a three-step inquiry for determining whether a Veteran is entitled to extraschedular rating consideration.  First, a determination is made as to whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate.  Second, if the schedular rating does not contemplate the level of disability and symptomatology and is found to be inadequate, then a determination must be made as to 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 rate 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 to determine whether, to accord justice, a Veteran's disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008).

The Board finds that the schedular rating for the service-connected disability addressed in this case is not inadequate.  When comparing the Veteran's disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that manifestations of the service-connected disability are congruent with the disability picture represented by the disability rating assigned.  The criteria for the rating assigned reasonably describe the Veteran's disability level and symptomatology.  The criteria for higher alternative ratings have been discussed. Therefore, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture and that there is nothing exceptional or unusual about the Veteran's digestive and scarring disabilities because the rating criteria reasonably describe the disability level and symptomatology.  Thun v. Peake, 22 Vet. App. 111 (2008).

The evidence does not suggest that any of the related factors are present.  The Veteran does not contend, and the evidence of record does not show, that the service-connected disability caused her to miss an inordinate amount of work or otherwise has markedly interfered with employment or has resulted in any hospitalizations, beyond those already noted of record.  The Board finds that those hospitalizations occurred during a lengthy rating period being considered here and do not rise to the level of frequent.  The evidence shows that she experiences difficulty in daily life, but those difficulties are not indicative of a marked interference with employment as a result of the service-connected disability.  The Board finds, therefore, that the Veteran's service-connected disability at issue does not result in marked interference with employment or frequent periods of hospitalization.  38 C.F.R. § 3.321(b)(1) (2014).

The Board notes that a Veteran may be awarded an extra-schedular rating based upon the combined effect of multiple service-connected disabilities in an exceptional circumstance where the rating of the individual disabilities fails to capture all the service-connected disabilities experienced.  Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). However, even resolving all reasonable doubt in favor of the Veteran, there is no indication that the Veteran's combined service-connected disabilities demonstrate an exceptional or unusual disability picture warranting extra-schedular consideration.  The Board finds that the evidence does not show that those disabilities combine to produce any exceptional or unusual disability picture, with marked interference with employment or frequent hospitalization. Therefore, the Board finds that referral to the appropriate VA officials, under 38 C.F.R. § 3.321, is not warranted.  Bagwell v. Brown, 9 Vet. App. 337 (1996).

Duties to Notify and Assist the Appellant

Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf.  38 C.F.R. § 4.25 (2015).  38 U.S.C.A. § 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.159 (2015).  The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

Here, the RO sent correspondence in July 2003 and July 2008; a rating decision in September 2003; and a statement of the case in January 2005.  These documents discussed specific evidence, the particular legal requirements applicable to the claims, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Thus, the VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the August 2009 supplemental statement of the case.  

In addition, all relevant, identified, and available evidence has been obtained, and the VA has notified the appellant of any evidence that could not be obtained.  The appellant has not referred to any additional, unobtained, relevant, available evidence.  In addition, the VA has also obtained medical examinations in relation to these claims.  Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. 


ORDER

Service connection for cystitis, to include as secondary to service-connected herniated surgical scarring with recurrent surgical intervention for adhesions of small bowel and umbilicus, is denied.  

A separate rating of 50 percent, but not higher, for endometriosis under Diagnostic Code 7629, to replace the current 30 percent rating for herniated scarring under Diagnostic Code 7301 only for the period that it is in effect, from February 27, 2001, through November 17, 2002, with reversion to the 30 percent rating under Diagnostic Code 7301 for herniated scarring on November 18, 2002, is granted.  

A rating in excess of 30 percent for surgical scarring with recurrent surgical intervention for adhesions of small bowel and umbilicus is denied.  

An effective date earlier than August 3, 2000, for the assignment of a 30 percent rating for herniated surgical scarring with recurrent surgical intervention for adhesions of small bowel and umbilicus is denied.  

A combined rating in excess of 60 percent, effective February 10, 1980, is denied.  

A combined rating in excess of 80 percent, effective December 2, 1980, is denied.  

A combined rating in excess of 60 percent, effective May 1, 1981, is denied.  

A combined rating in excess of 70 percent, effective August 3, 2000, is denied.  

A combined rating of 80 percent, effective February 27, 2001, through February 26, 2002, is granted.  

A combined rating of 100 percent, effective February 27, 2002, through November 17, 2002, is granted.  

A combined rating in excess of 90 percent, effective January 1, 2003, is denied.  



____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs