Citation Nr: 1758021 Decision Date: 12/14/17 Archive Date: 12/28/17 DOCKET NO. 09-35 090 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a disability rating higher than 30 percent for total abdominal hysterectomy with left salpingo-oophorectomy due to fibroid uterus with history of pelvic pain, postoperative laparotomy, (claimed as abdominal hysterectomy with surgical removal of both ovaries). REPRESENTATION Appellant represented by: David Cole, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from January 1979 to July 1988. This appeal arises to the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board remanded the Veteran's claim in July 2014 and December 2016 for additional development. Based on the association of VA treatment records, a May 2015 letter to the Veteran regarding any outstanding private treatment records, the multiple scheduled VA examinations, and subsequent readjudication of the claim, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal was processed using the Veteran's Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of these electronic records. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The preponderance of the evidence of record does not show that the April 1997 surgery included the removal of the Veteran's right ovary or that the current absence of such ovary is related to such surgery or otherwise to her active service. CONCLUSION OF LAW The criteria for a disability rating greater than 30 percent for total abdominal hysterectomy with left salpingo-oophorectomy due to fibroid uterus with history of pelvic pain, postoperative laparotomy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.116, Diagnostic Code (DC) 7618 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist Neither the Veteran nor her representative has identified any shortcomings in fulfilling VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate DCs identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2017). VA must consider whether the Veteran is entitled to "staged" ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. The Veteran is in receipt of a 30 percent rating under 38 C.F.R. § 4.116, DC 7618, which pertains to removal of the uterus, including corpus. The Veteran contends that she actually should be rated under DC 7617 based on the removal of the uterus and both ovaries and that a 50 percent disability rating is warranted under that DC. For VA compensation purposes, under 38 C.F.R. § 4.116, DC 7618, removal of the uterus warrants the long-term assignment of a 30 percent rating, while under DC 7617 removal of the uterus and both ovaries corresponds to the long-term assignment of a 50 percent rating. (Under both DCs there is an initial 3-month period after removal where a 100 percent rating is warranted.) A July 1993 abdominal ultrasound showed that the Veteran's right ovary was within normal limits. Similarly, a September 1994 pelvic ultrasound showed the right ovary within normal limits. In April 1997, the Veteran underwent surgery at a private medical facility that was described as a total abdominal hysterectomy and a left salpingo-oophorectomy. The operative report made no mention of removal of the right ovary. A subsequent pathology report examined the uterus, cervix, left fallopian tube, and left ovary, but the right ovary was not listed as included for examination. A March 1998 pathology report for a vaginal smear indicated that the hormonal pattern was compatible with the Veteran's age and history, to include "(? Preserved ovaries)." A February 1999 private treatment record specifically indicated that the Veteran's right ovary remained after the 1997 surgery, although it is unclear if the notation was based on a related history or diagnostic testing. A March 2004 VA treatment record indicated that the Veteran and had undergone a total hysterectomy and right ovary removal in 1997 for uterine prolapse and endometriosis. It is unclear from the record on what basis this history was noted, to include whether the notation represented an error that meant to refer to the left ovary. A June 2008 private pelvic ultrasound showed that the uterus and left ovary were surgically absent. In addition, there was no visualization of a right ovary. The physician indicated that it was uncertain whether the nonvisualization of a right ovary represented surgical absence. In her July 2008 notice of disagreement, the Veteran stated that she had undergone no surgeries since the 1997 surgery. In April 2013 and June 2013, the Veteran denied any gynecological complaints and her chief complaint was pain due to a motor vehicle accident the previous month. That note included a history of a 1997 total abdominal hysterectomy that also included a bilateral salpingo-oophorectomy. It is unclear on what basis that notation was made; however, the Veteran declined a pelvic examination at that time and no diagnostic testing from that visit is of record. During her November 2013 Board hearing, the Veteran and her representative argued that the 1997 hysterectomy included the removal of both ovaries and not only the left ovary as originally reported. Pursuant to the Board's remand instructions, the Veteran was scheduled for a VA examination; however, in May 2016 she indicated that she would not attend any examination with the VA that did not include an MRI or ultrasound. As such, the Board again remanded the Veteran's claim for a VA examination that included an ultrasound. A VA contract examination was scheduled for February 2017. The Veteran, however, again failed to attend. When contacted as to her reasons for not attending the examination the Veteran indicated that she would provide additional evidence explaining why she had not attended. In November 2017, the Veteran submitted a statement reiterating her argument in April 1997 that both her right and left ovaries were removed and that she was entitled to a 50 percent disability rating. In support of that contention, she again pointed to the June 2008 private ultrasound in support of her contention that her right ovary also was removed during the April 1997 surgery. Thus, the Veteran's claim turns on whether her April 1997 in-service surgery included the removal of both ovaries or only the left ovary. The Board finds that the medical evidence is insufficient to support such a finding and, as the Veteran has refused to attend multiple scheduled VA examinations, there appears to be no way to determine the cause of her currently missing right ovary. The April 1997 operation report clearly details that only the left ovary was removed during the surgery and both prior and subsequent records document the existence of the right ovary. The Veteran has consistently relied on the June 2008 private sonogram in support of her contention that both ovaries were removed during her April 1997 surgery, as she had not had undergone any subsequent surgeries and the June 2008 sonogram showed that the right ovary was absent. That said, the June 2008 sonogram specifically indicated that it was unclear if the right ovary was missing due to surgical removal. The Board acknowledges the Veteran's contentions that her right ovary was removed during the April 1997 surgery and recognizes that she is competent to report physically observed symptoms. Her lay assertions, however, are outweighed by the clear description in the April 1997 operative report that limited the scope of the surgery to a total abdominal hysterectomy and a left salpingo-oophorectomy. The Board has considered the March 2004 VA treatment record that indicated the Veteran's right ovary had been removed in 1997, but this appears to be a misstatement, as there is no mention of the removal of the left ovary that unquestionably was removed during the 1997 surgery. In any case, it is unclear as to the basis for the statement that the right ovary had been removed during the 1997 surgery. The Board affords it limited probative weight given the absence of any contemporaneous diagnostic testing and the specific evidence from the time and thereafter that the right ovary had not been removed. As the Veteran has declined to appear for multiple VA examinations that were scheduled with the intent to determine the nature of the Veteran's service-connected disability, the Board has no choice but to rely on the evidence of record that fails to establish that the Veteran's right ovary was removed during the April 1997 surgery. The operation report clearly limits the surgery to an abdominal hysterectomy with removal of the left ovary and there is no specific competent evidence to refute the operation report. For the foregoing reasons, the Board finds that the Veteran does not meet the criteria for a 50 percent rating under DC 7617 and concludes that a rating higher than her current 30 percent rating is not warranted under any other DC. 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 (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 Entitlement to a disability rating higher than 30 percent for total abdominal hysterectomy with left salpingo-oophorectomy due to fibroid uterus with history of pelvic pain, postoperative laparotomy, is denied. ____________________________________________ DELYVONNE M. WHITEHEAD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs