Citation Nr: 1753869 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 11-15 838 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a rating in excess of 30 percent for service-connected fibroid uterus status post hysterectomy. 2. Entitlement to a compensable rating for service-connected allergic rhinitis. 3. Assignment of an initial evaluation from February 6, 1994 through July 30, 1997 for bilateral, post-operative temporomandibular joint disorder (TMJ). 4. Whether there was CUE in a January 1998 rating decision that assigned a 20 percent evaluation for service-connected TMJ. 5. Entitlement to an earlier effective date for the grant of service connection for posttraumatic stress disorder (PTSD), based only on whether clear and unmistakable error (CUE) exists in a May 1998 rating decision. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David Nelson, Counsel INTRODUCTION The Veteran served on active duty from March 1983 to February 1994. This case is before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. This case was previously before the Board in February 2017. The February 2017 Board decision, in pertinent part, granted a motion to revise a May 1994 rating decision that assigned a 10 percent evaluation for service-connected TMJ. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) system. The LCM contains documents that are either duplicative of the evidence in VBMS or not relevant to the issue on appeal. As noted in the February 2017 Board remand, the issue of entitlement to an earlier effective date for the grant of service connection for abdominal surgical scars has been raised by the record (at the January 2015 Board hearing), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The claims of assignment of an initial evaluation from February 6, 1994 through July 30, 1997 for TMJ, whether there was CUE in a January 1998 rating decision that assigned a 20 percent evaluation for TMJ, and entitlement to an earlier effective date for the grant of service connection for PTSD, based only on whether clear and unmistakable error (CUE) exists in a May 1998 rating decision, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran has had removal of her uterus, but not her ovaries. 2. The Veteran's allergic rhinitis has not been productive of polyps, an obstruction of the nasal passage greater than 50 percent on both sides, or a complete obstruction on one side. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for service-connected fibroid uterus status post hysterectomy are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.116, Diagnostic Codes 7622-7618 (2017). 2. The criteria for a compensable rating for allergic rhinitis are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6522 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Neither the Veteran nor her representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran offered testimony before the undersigned Veterans Law Judge at a Board hearing in January 2015 and delivered sworn testimony via video conference hearing in at the RO. In March 2013 the Veteran gave testimony at a hearing at the RO before a local hearing officer. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103 (c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. The Board also finds that there has been compliance with the prior remand directives of February 2017. See Stegall v. West, 11 Vet. App. 268 (1998). VA's duties to notify and assist are met, and the Board will address the merits of the claims. Laws and regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2017). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. I. Fibroid uterus status post hysterectomy. The Veteran's service-connected hysterectomy is rated 30 percent disabling under Diagnostic Codes 7622-7618. Service connection is also in effect for surgical scar (noncompensable) secondary to the service-connected hysterectomy. She was also granted entitlement to special monthly compensation under 38 U.S.C.A 1114, subsection (k) and 38 CFR 3.350 (a) on account of anatomical loss of a creative organ. As these were not appealed, they are not considered herein. Diagnostic Code 7617 provides that for three months after the complete removal of the uterus and both ovaries a 100 percent evaluation is assigned. A 50 percent evaluation is assigned thereafter. Diagnostic Code 7618 provides that a 100 percent evaluation is warranted for three months following the removal of the uterus. Thereafter, a 30 percent evaluation is warranted. Diagnostic Code 7619 provides that for three months after the removal of an ovary, a 100 percent rating is warranted. Thereafter, complete removal of both ovaries will result in a 30 percent rating, while the removal of one ovary with or without partial removal of the other results in a non-compensable rating. At the January 2015 Board hearing the Veteran indicated that she had undergone four gynecological surgeries and had experienced cramping and that "they have recently found that the cysts are now growing back on my ovaries." The Veteran indicated that she was cramping during the Board hearing. Her pain was worse on the left side and was like a stabbing pain that would go all the way into her back. She stated that she still had her ovaries and felt that she had done the right thing by keeping them. Private medical records indicate that in August 2010 the Veteran underwent a laparoscopic assisted vaginal hysterectomy. September 2103 to February 2015 VA records indicate that the Veteran sought treatment for gynecological complaints such as vaginal bleeding and chronic pelvic pain. Her pain would often be 4/10 in the daytime and increase to 8/10 by the evenings. The assessment included diverticulosis. A May 2015 VA medical record noted pelvic adhesions. An ultrasound noted the Veteran was status-post hysterectomy and noted the presence of both ovaries. At an April 2017 VA examination it was noted that the Veteran had undergone fibroid removal and ultimately a partial hysterectomy. The Veteran's current complaints included cyclical monthly pelvic cramps. The examiner noted that as the Veteran's uterus had been removed it was literally impossible for her still to have symptoms due to uterine fibroids. Although the examiner noted that it was possible for individuals to experience discomfort resulting from adhesions after abdominal or pelvic surgery, adhesion related pain was not cyclical and monthly as the Veteran had described. Therefore, the examiner stated, the Veteran was unlikely to be experiencing pain from abdominal adhesions and her monthly pain could not be uterine pain. The Board finds that a higher evaluation is not warranted. Under the assigned DC, she is at the highest maximum rating. Under DC 7617 and 7619, a higher evaluation requires removal of the ovaries. As noted above, the Veteran has retained her ovaries. The Veteran does not assert and the evidence does not reveal that the Veteran's ovaries have been removed. Additionally, DCs 7615 and 7620, for pelvic adhesions and atrophy of the uterus, do not provide for an evaluation in excess of 30 percent. And the evidence does not indicate any prolapse or displacement of the uterus, surgical complications of pregnancy, rectovaginal fistula, ureterovaginal fistula, surgery of the breast, malignant neoplasms of gynecological system or breast, Benign neoplasms of the gynecological system or breast, or endometriosis. See 38 C.F.R. § 4.116, DCs 7621, 7622, 7623, 7624, 7625, 7626, 7627, 7628, 7629 (2014). The Board acknowledges that the Veteran has provided competent testimony that her chronic pelvic pain was related to her hysterectomy. The Board notes, however, that VA personnel have indicated that the chronic pain may be due to nonservice-connected disability. At any rate, in the absence of evidence that there is complete removal of the uterus and both ovaries, the next higher (50 percent) rating is not warranted. II. Rhinitis The Veteran's rhinitis has been evaluated under Diagnostic Code 6522. Diagnostic Code 6522 assigns a 10 percent rating for allergic rhinitis without polyps, but with the presence of a greater than 50 percent obstruction on both sides or a complete obstruction on one side. A 30 percent rating is assigned when polyps are present. Where the scheduler criteria does not provide for a noncompensable evaluation, such an evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2017). At the January 2015 Board hearing the Veteran indicated that her rhinitis symptoms would worsen when around grass and just being outside. Her medications were offering some relief for her congestion. Her symptoms would also trigger migraines and some problems with her ears and eyes and she would have to postpone some of her activities. At an April 2017 VA sinusitis and rhinitis examination a diagnosis of allergic rhinitis was noted. The examiner stated that the Veteran did not have a greater than 50% obstruction of the nasal passage on both sides due to rhinitis. There was also no permanent hypertrophy of the nasal turbinates or nasal polyps. The examiner stated that the Veteran's rhinitis did not impact her ability to work. The Board finds that there has been no showing that the Veteran's allergic rhinitis is productive of a greater than 50 percent obstruction of the nasal passage on both sides or a complete obstruction on one side. As such, the Board finds that a 10 percent evaluation for allergic rhinitis is not warranted under Diagnostic Code 6522. In addition, the criteria for a 30 percent rating have not been met as nasal polyps have not been documented. Conclusion to rating claims The Board finds that there is not such an approximate balance of the positive evidence and the negative evidence to permit favorable determinations. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER A rating in excess of 30 percent for service-connected fibroid uterus status post hysterectomy is denied. A compensable rating for service-connected allergic rhinitis is denied. REMAND As for the issue of the assignment of an initial evaluation from February 6, 1994 through July 30, 1997 for TMJ, the Board observes that the February 2017 Board decision granted the Veteran's motion to revise the May 1994 rating decision on the basis that the May 27, 1994 rating decision that assigned an initial rating of 10 percent for TMJ constituted CUE. The practical effect of the Board's February 2017 decision is that there is currently no rating assigned for the Veteran's TMJ for the period of February 6, 1994 through July 30, 1997. On remand the AOJ must undertake an analysis and re-assign a rating for that time period and must also readjudicate the issue of whether there was CUE in a January 1998 rating decision that assigned a 20 percent evaluation for TMJ. As for the issue of entitlement to an earlier effective date for the grant of service connection for PTSD, based only on whether clear and unmistakable error (CUE) exists in a May 1998 rating decision, the Board notes that the July 2017 supplemental statement of the case did not comply with the Board's prior remand instructions. The following portion of the February 2017 Board decision is again provided for the AOJ's consideration prior to readjudication of this issue: Regarding the issue of entitlement to an earlier effective date for the grant of service connection for PTSD, based only on whether CUE exists in a May 1998 rating decision, remand is required for the RO to adjudicate this theory of recovery in the first instance. A review of the Veteran's Board hearing testimony and written statements, including a July 2010 statement, reveal that she asserts that she initially filed a claim for PTSD in 1994 but that the claim was either not forwarded to VA by her representative or was destroyed by unspecified VA personnel. In essence, the Veteran claims that there was CUE in the May 1998 rating decision as the "1994 claim" was not considered or of record when the effective date for PTSD was assigned. Accordingly, the RO must consider the Veteran's CUE claim prior to consideration by the Board. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment on and after April 11, 2017. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and her representative. 2. Contact the Veteran and afford her the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and her representative. 3. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the issues on appeal must be readjudicated. The issues are as follows: 1) assignment of an initial evaluation from February 6, 1994 through July 30, 1997 for TMJ (the Board previously found CUE in the 1994 rating decision); 2) whether there was CUE in a January 1998 rating decision that assigned a 20 percent evaluation for TMJ; and 3) entitlement to an earlier effective date for the grant of service connection for PTSD, based only on whether CUE exists in a May 1998 rating decision. If any of the claims remains denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs