Citation Nr: 20046784 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 15-25 229 DATE: July 13, 2020 ORDER An initial rating in excess of 100 percent for rectovaginal fistula is denied. An initial rating in excess of 40 percent for urinary tract infection, cystitis, and urethral syndrome is granted. An initial rating in excess of 20 percent for status post ectopic pregnancy and adhesions is denied. An initial compensable rating for status post salpingectomy with uterine fibroids is denied. A rating in excess of 10 percent for anemia is denied. An effective date prior to August 13, 2010 for anemia is denied. REMANDED An effective date prior to August 13, 2010 for rectovaginal fistula is remanded. An effective date prior to August 13, 2010 for urinary tract infection is remanded. An effective date prior to August 13, 2010 for status post ectopic pregnancy and adhesions is remanded. An effective date prior to August 13, 2010 for status post salpingectomy with uterine fibroids is remanded. FINDINGS OF FACT 1. The Veteran is already in receipt of the maximum schedular rating for rectovaginal fistula; and the record does not tend to show that her disability is manifested by symptomatology not already contemplated by the relevant schedular criteria. 2. The Veteran’s for urinary tract infection, cystitis, and urethral syndrome urethroplasty have been characterized by the need to change absorbent materials four or more times per day due to voiding dysfunction. 3. The Veteran’s status post ectopic pregnancy and adhesions were manifested by four painful scars with no unstable scars. She does not have at least five scars that are painful or unstable. 4. The Veteran’s status post salpingectomy with uterine fibroids disability has not required continuous treatment, and has not shown displacement of the uterus. 5. The Veteran’s anemia resulted in hemoglobin levels over 10gm/100ml with findings of dyspnea on mild exertion, weakness, easy fatigability, and shortness of breath. Her anemia has not otherwise required transfusion of platelets or red cells, iron infusions or immunosuppressive therapy, transfusion due to severe anemia, or been manifested by signs or symptoms related to central nervous system impairment requiring parenteral B12 therapy. 6. After the original grant of service connection, the Veteran first filed a claim for an increased rating for anemia on August 13, 2010. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 100 percent for rectovaginal fistula have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.116, Diagnostic Code 7624. 2. The criteria for an evaluation of 60 percent, but no higher, for service-connected urinary tract infection, cystitis, and urethral syndrome are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.115a, 4.115b, DC 7518. 3. The criteria for a rating in excess of 20 percent for status post ectopic pregnancy and adhesions have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.118, Diagnostic Code 7804. 4. The criteria for a compensable rating for status post salpingectomy with uterine fibroids disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.116, Diagnostic Code 7613. 5. The criteria for a rating in excess of 10 percent for iron deficiency anemia have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.117, Diagnostic Codes 7700, 7720. 6. The criteria for an earlier effective date for an increased rating for anemia have not been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1986 to January 1998. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in August 2013, at which time it was remanded for the issuance of a statement of the case. In November 2018, more than 90 days after certification of the appeal to the Board, the Veteran submitted a VA Form 21-22a appointing a private attorney, Jacqueline McCormack, as his new representative. The Board has found good cause to accept the change in representation. Accordingly, the Board honors the change in representation. See 38 C.F.R. § 20.1304. REFERRED The issue of whether there was clear and unmistakable error (CUE) in a June 1999 rating decision for the Veteran’s gynecological issues was raised in an August 2019 motion (see 8/22/19 Third Party Correspondence) from her attorney and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Id. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3; see Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the disorder. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The Veteran is competent to report symptoms and experiences observable by her senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). 1. An initial rating in excess of 100 percent for rectovaginal fistula The Veteran is seeking a higher evaluation for her service-connected rectovaginal fistula, currently rated at the maximum schedular rating of 100 percent. Rectovaginal fistula is appropriately rated under Diagnostic Code 7624. 38 C.F.R. § 4.116. Under this formula, a 0 percent rating is assigned for no leakage. A 10 percent evaluation is assigned for vaginal fecal leakage less than once a week. A 30 percent rating is warranted when vaginal fecal leakage occurs one to three times per week requiring wearing of pad. An evaluation of 60 percent is assigned where there is vaginal fecal leakage four or more times per week, but less than daily, requiring wearing of pad. Lastly, 100 percent evaluation is assigned for vaginal fecal leakage at least once a day requiring wearing of a pad. 38 C.F.R. § 4.116. In a June 2012 VA examination, the Veteran’s was noted to have rectovaginal fistula due to emergency surgery for ectopic pregnancy/fistula in 1990 and 1992. She had vaginal-fecal leakage daily or more often that required wearing of a pad or absorbent material. In a December 2012 notice of disagreement, the Veteran indicated that her disability caused her social, hygienic, financial, and mental problems. She was socially isolated due to embarrassment and being conscious about hygienic issues. Financially, she had to pay for medications and clothing items. In this case, the Veteran is already in receipt of the maximum schedular rating available for her service-connected rectovaginal fistula, and has been during the entire period on appeal. For this period, she is not entitled to a higher rating as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board notes that she is separately rated for urinary tract infection. The Veteran has not contended this disability warrants consideration of a schedular alternative to Diagnostic Code 7624, nor is such reasonably raised by the record. Similarly, she does not contend, nor does the record otherwise reflect, such would be warranted but for the use of medication. See Jones v. Shinseki, 26 Vet. App. 56 (2012). Additionally, in her December 2012 statement, she indicated that she agreed with the rating assigned for rectovaginal fistula and its associated complications. She stated that the effective date should be in January 1998 – this matter is addressed in the Remand section below. The Board notes that in exceptional cases where the schedular evaluation is found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability may be approved, provided the case presents such an exceptional or unusual disability picture with related factors such as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). However, Board finds that this case does not warrant referral for consideration of an extraschedular rating. In pertinent part, the Veteran does not contend, nor does the record otherwise reflect, that her rectovaginal fistula is manifested by symptomatology not already contemplated by the relevant schedular criteria. See Thun v. Peake, 22 Vet. App. 111 (2008), aff’d Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board also notes that the rating criteria requires that all symptomology of the disability be taken into account, and a determination be made regarding the overall severity of such symptoms. See Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019) (explaining that extraschedular referral is “reserve[d] . . . for those cases that are truly ‘exceptional’”). For all these reasons, the claim for a rating in excess of 100 percent for rectovaginal fistula is denied. 2. An initial rating in excess of 40 percent for urinary tract infection, cystitis, and urethral syndrome The Veteran is seeking a higher evaluation for her service-connected urinary tract infection, cystitis, and urethral syndrome, currently rated at 40 percent. The Veteran’s urinary tract infection, cystitis, and urethral syndrome is rated under Diagnostic Code 7518. 38 C.F.R. § 4.115b. This Diagnostic Code employs the rating criteria for voiding dysfunction, which can be evaluated as urine leakage. See 38 C.F.R. § 4.115a. Regarding urine leakage, a 20 percent rating is warranted for the requiring of wearing absorbent materials that must be changed less than 2 times per day. A 40 percent rating is warranted when absorbent materials must be changed 2 to 4 times per day. A 60 percent rating is warranted when the use of an appliance is required, or absorbent materials must be changed more than 4 times per day. Voiding dysfunction can also be rated on the basis of urinary frequency or obstructed voiding. Id. Urinary frequency with a daytime voiding interval between two and three hours, or; awakening to void two times per night warrants a 10 percent evaluation. Urinary frequency with a daytime voiding interval between one and two hours, or; awakening to void three to four times per night warrants a 20 percent evaluation. Urinary frequency with a daytime voiding interval less than one hour, or; awakening to void five or more times per night warrants a 40 percent evaluation. 38 C.F.R. § 4.115a. Obstructed voiding involving symptomatology with or without stricture disease requiring dilatation one to two times per year warrants a noncompensable evaluation. Marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) post void residuals greater than 150 cc; (2) uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec); (3) recurrent urinary tract infections secondary to obstruction; and (4) stricture disease requiring periodic dilatation every two to three months requires a 10 percent evaluation. A 30 percent evaluation is warranted when there is urinary retention requiring intermittent or continuous catheterization. Id. In a June 2011 urogynecologic questionnaire, the Veteran reported that she leaked urine when she laughed, coughed, sneezed, or strained, she wore panty liner, pads or adult diapers to protect clothes, lost urine before she could get to the bathroom, leaked urine constantly and was never dry, and she urinated frequently to prevent having an incontinent episode. In an August 2011 medical record, she complained of dysuria, urinary frequency, and urgency. The Veteran underwent a June 2012 VA examination. Symptoms noted were urinary frequency, occasional burning, and slow stream. She had a voiding dysfunction that caused urine leakage. Her symptoms also required her to use absorbent material. It was noted in two different sections that the absorbent material had to be changed less than 2 times per day and also two to four times a day. The use of an appliance was not required. The voiding dysfunction caused increased urinary frequency. Daytime voiding intervals were noted between two and three hours. Nighttime awakening to void was noted at five or more times. In her December 2012 notice of disagreement, the Veteran disagreed with the rating decision and indicated that she changed the absorbent material more than four times a day. The Board finds that the Veteran’s lay statement in her notice of disagreement to be probative. The Veteran is competent to state that she changes her absorbent pads over four times a day. Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). As such, the Board finds that the evidence is at least in equipoise regarding the frequency of the Veteran’s need to change absorbent materials four or more times per day. Therefore, reasonable doubt must be resolved in the Veteran’s favor and the criteria for a 60 percent rating, the highest schedular evaluation allowed based on urinary tract infection, cystitis, and urethral syndrome are met. 38 C.F.R. § 4.3. 3. An initial rating in excess of 20 percent for status post ectopic pregnancy and adhesions The Veteran’s status post ectopic pregnancy and adhesions are rated as 20 percent disabling under Diagnostic Code 7804 for unstable or painful scars. Under Diagnostic Code 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. A higher 20 percent rating is warranted for three or four scars that are unstable or painful, and a 30 percent rating is warranted for five or more scars that are unstable and painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. Note 1 to Diagnostic Code 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note 2 provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note 3 provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this Diagnostic Code, when applicable. 38 C.F.R. § 4.118. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. The Board notes that the applicable DC 7804 was not changed by the August 13, 2018, amendments. In this case, during a June 2012 VA examination, the Veteran was found to have five total scars on the anterior trunk. Four were painful scars. None of the scars were found to be unstable. She did not have any scars that were both painful and unstable. The examiner found the length of the linear scars measured 1.9 cm, 2.5 cm, 3.5 cm, 12cm, and 12 cm. After review of the record, the Board finds that the preponderance of the evidence is against a finding a rating in excess of 20 percent. Specifically, the VA examination shows that she has five scars. Four of these scars are painful, but none are unstable. Three or four painful scars is evaluated as 20 percent disabling under the pertinent rating code. The Veteran does not have the fifth painful scar required for a higher rating, and she does not have the one or more unstable scars required to receive an added 10 percent. 38 C.F.R. § 4.118, Code 7804, Note (3). The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include pain and her reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the competent and probative medical records show, that the Veteran’s scars warrant higher ratings in this case. As such, the Veteran’s statements are outweighed by the evidence gather by a medical professional for the purpose of assessing her scars. 38 C.F.R. § 3.159(a)(1). The Board has also considered the application of other DCs, however no other DCs are applicable or would provide higher ratings for the Veteran’s scars. The current 20 percent rating assigned under the rating criteria for scars that are unstable or painful is appropriate. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an increased rating for her scars. Therefore, this matter is denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 4. An initial compensable rating for status post salpingectomy with uterine fibroids The Veteran seeks a compensable rating for her status post salpingectomy with uterine fibroids. The Veteran’s uterine fibroid disability is rated under Diagnostic Code 7613, which pertains to disease, injury, or adhesions of the uterus. Under the General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs, a noncompensable rating is warranted for symptoms that do not require continuous treatment. A 10 percent rating is warranted for symptoms that require continuous treatment. A 30 percent rating is warranted for symptoms not controlled by continuous treatment. 38 C.F.R. § 4.116, Diagnostic Code 7613. To warrant a compensable rating, at a minimum, uterine fibroids must cause symptoms that require continuous treatment. Having carefully reviewed the relevant evidence of record, the Board finds that the evidence does not reflect that the disability requires continuous treatment, and that it has not required continuous treatment at any point during the appeal period. A medical record with a computed tomography scan from June 2010 showed that the Veteran had an enlarged fibroid uterus. A June 2012 VA examination noted that the Veteran was diagnosed with fibroids/adhesions in 1990. She reported pelvic pain and dyspareunia. The examiner noted that her symptoms did not require continuous treatment. In her December 2012 notice of disagreement, the Veteran indicated that her gynecologist recommended a hysterectomy because she lost large amounts of blood due to fibroids. She reported she treated with iron supplements and pain medication due to iron deficiency and chronic pelvic pain. The Board concludes that the preponderance of the evidence is against a compensable rating for the Veteran’s status post salpingectomy with uterine fibroids. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.116, Diagnostic Code 7613. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). There is no uterine prolapse or displacement to warrant a rating under Diagnostic Code 7621. Diagnostic Code 7629 is not applicable as the Veteran has not been diagnosed with endometriosis, which is required by laparoscopy for the code to be applicable. Though Diagnostic Code 7613 does not directly address heavy vaginal bleeding, it is intended to address general disabilities of the uterus that could result in such symptomatology. Therefore, Diagnostic Code 7613 is the more appropriate code. The Boards notes that the Veteran is separately rated as 10 percent disabling for anemia. On balance, neither the lay nor medical evidence reflects the criteria to support the assignment of a compensable rating for uterine fibroids, as explained above. 38 C.F.R. § 4.7. Here, the Veteran’s uterine fibroids are asymptomatic (i.e., they have not required continuous treatment). Thus, a compensable rating is not warranted at any time. The preponderance of the evidence is against assignment of a compensable rating for the status post salpingectomy with uterine fibroids and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). Accordingly, a higher initial rating is not warranted. 5. A rating in excess of 10 percent for anemia The Veteran seeks an increase for her anemia. Her disability is currently rated as 10 percent disabling under Diagnostic Code (DC) 7700. The Veteran’s claim of service connection for anemia was received by VA on August 13, 2010. At the time that the Veteran filed her claim, an iron deficiency anemia disability was evaluated under Diagnostic Code (DC) 7700. On October 29, 2018, the Department of Veterans Affairs issued a final rule revising 38 C.F.R. § 4.117, the portion of the VA Schedule for Rating Disabilities that addresses the hemic and lymphatic systems. The final rule updated medical terminology, added certain hematologic diseases, and provided detailed and updated criteria for evaluating conditions pertaining to the hematologic and lymphatic systems. The rule removed DC 7700 (Anemia, hypochromic-microcytic and megaloblastic, such as iron-deficiency and pernicious anemia) and added separate diagnostic codes (DCs 7720-7723) for the four major types of anemia that are neither hereditary nor secondary (addressed under the diagnostic code for the causative condition). When a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects. See VAOPGCPREC 7-03; 69 Fed. Reg. 25,179 (2003). If application of an amended regulation has a retroactive effect, then the regulation cannot be applied. Rodriguez v. Peake, 511 F.3d 1147, 1153 (Fed. Cir. 2008). But even if the amended versions are more favorable, the amended versions may only be applied as of their effective date and, before that time, only the former version of the regulation may be applied. See VAOPGCPREC 3-00; 65 Fed. Reg. 33,422 (2000); see also Kuzma v. Principi, 341 F.3d 1327, 1328-29 (Fed. Cir. 2003). As the Veteran’s claim was pending at the time that the portion of the VA Schedule for Rating Disabilities that addresses the hemic and lymphatic systems was changed, the Board must address whether a higher disability rating is warranted under both the old and the new diagnostic criteria. The Board will select the diagnostic criteria which is most favorable to the Veteran. Pursuant to DC 7700 (the old rating criteria), iron-deficiency anemia which is manifested by hemoglobin of 10gm/100ml or less, with findings such as weakness, easy fatigability, or headaches warrants a 10 percent disability rating. A 30 percent evaluation is warranted if hemoglobin of 8gm/100ml or less, with findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath. A 70 percent evaluation is warranted if hemoglobin is 7gm/100ml or less, with findings such as dyspnea on mild exertion, cardiomegaly, tachycardia, or syncope. The maximum 100 percent rating is warranted when hemoglobin is 5gm/100ml or less, with findings such as high output congestive heart failure or dyspnea at rest. 38 C.F.R. § 4.117, DC 7700 (2012). Under DC 7716, anemia requiring transfusion of platelets or red cells, on average, at least once per 12-month period; or infections recurring, on average, at least once per 12-month period, warrants a 30 percent rating. Anemia requiring transfusion of platelets or red cells, on average, at least once every three months per 12-month period; or infections recurring, on average, at least once every three months per 12-month period; or using continuous therapy with immunosuppressive agent or newer platelet stimulating factors warrants a 60 percent rating. Anemia requiring peripheral blood or bone marrow stem cell transplant; or requiring transfusion of platelets or red cells, on average, at least once every six weeks per 12-month period; or infections recurring, on average, at least once every six weeks per 12-month period, warrants a 100 percent rating. 38 C.F.R. § 4.117, DC 7716 (2012). Under DC 7720, iron deficiency anemia requiring intravenous iron infusions 4 or more times per 12-month period warrants the next-higher and maximum 30 percent rating. 38 C.F.R. § 4.117, DC 7720 (2019) . Under DC 7721, a folic acid deficiency requiring continuous treatment with high-dose oral supplementation warrants a maximum 10 percent rating. 38 C.F.R. § 4.117, DC 7721 (2019). (As the Veteran is already assigned a 10 percent rating for his anemia, DC 7721 offers no higher evaluation, and is not for application.) Under DC 7722, for pernicious anemia and Vitamin B12 deficiency anemia, continuous treatment with Vitamin B12 injections, Vitamin B12 sublingual or high-dose oral tablets, or Vitamin B12 nasal spray or gel warrants a 10 percent rating; and an initial diagnosis requiring transfusion due to severe anemia, or if there are signs or symptoms related to central nervous system impairment, such as encephalopathy, myelopathy, or severe peripheral neuropathy, requiring parenteral B12 therapy, warrants a 100 percent rating. 38 C.F.R. § 4.117, DC 7722 (2019). Finally, under DC 7723, acquired hemolytic anemia requiring at least 2 but less than 4 courses of immunosuppressive therapy per 12-month period warrants a 30 percent rating. Acquired hemolytic anemia requiring immunosuppressive medication 4 or more times per 12-month period warrants a 60 percent rating. Acquired hemolytic anemia requiring a bone marrow transplant or continuous intravenous or immunosuppressive therapy warrants a 100 percent rating. 38 C.F.R. § 4.117, DC 7723 (2019). Laboratory testing from May 2010 and January 2011 reveal a hemoglobin count of 10.9gm/100ml and 10.8gm/100ml. The Veteran was afforded a VA examination in June 2012. It was noted that she required continuous treatment of iron supplements. The Veteran reported weakness, easy fatigability, shortness of breath, and dyspnea on mild exertion. Laboratory testing revealed a hemoglobin count of 10.6gm/100ml. In her December 2012 notice of disagreement, the Veteran indicated that due to her irritable bowel syndrome and uterine fibroids, she was easily fatigued and weak. At no point during the rating period on appeal does the evidence show that the Veteran’s anemia has been productive of a hemoglobin level of 8gm/100ml or less, with findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath. While the Veteran reports symptoms of weakness, easy fatigability, shortness of breath, and dyspnea on mild exertion related to her anemia, the record is silent as to complaints of headaches or lightheadedness. Accordingly, a disability rating in excess of 10 percent for the Veteran’s anemia under the old rating criteria (prior to October 29, 2018) is not warranted. See 38 C.F.R. § 4.117, DC 7700. The Board also finds that a disability rating in excess of 10 percent for the Veteran’s anemia under the new rating criteria is not warranted. As evidence does not tend to show that the Veteran’s anemia required transfusion due to severe anemia, or that there have been signs or symptoms related to central nervous system impairment requiring parenteral B12 therapy, an evaluation in excess of 10 percent is not warranted under DC 7722 for pernicious anemia and Vitamin B12 deficiency anemia. As noted above, the Veteran has only required iron supplement for her anemia treatment. Accordingly, a disability rating in excess of 10 percent under 38 C.F.R. § 4.117, DC 7722 is not warranted. The evidence does not reflect that the Veteran’s anemia has required transfusion of platelets or red cells so as to warrant a higher rating under 38 C.F.R. § 4.117, DC 7716. Further, the evidence of record does not show that the Veteran’s anemia has required iron infusions or immunosuppressive therapy so as to warrant a higher rating under 38 C.F.R. § 4.117, DC 7720 or DC 7723. Based on the foregoing, the Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for the Veteran’s anemia at any point during the rating period on appeal. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and a higher rating is not warranted. 38 U.S.C. § 5107(b). 6. An effective date prior to August 13, 2010 for anemia The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Except as otherwise provided, the effective date of an evaluation and an award of pension, compensation, or dependency and indemnity compensation based on an original claim or a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date the claim arose, whichever is later. 38 C.F.R. § 3.400. Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if the formal claim has not been filed, an application form will be forwarded to the claim for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of the receipt of the formal claim. 38 C.F.R. § 3.155. For claims for an increase in a service-connected disability, if an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(1), (2); VAOPGCPREC 12-98. The Veteran contends that she is entitled to an earlier effective date for her anemia rating. A January 2010 rating decision indicated that the Veteran’s anemia was very mild and was a symptom associated with her irritable bowel syndrome (IBS). The effective date given was September 18, 2009, which was the date she made a claim for a bowel infection. She filed a notice of disagreement in April 2010 and April 2010 for psychiatric issues and her left knee disability, but not the IBS with anemia. Accordingly, the September 2009 rating decision became final with regard to her IBS with anemia. On August 13, 2010, she filed a claim for anemia. The November 2012 rating decision granted a separate 10 percent rating for anemia effective August 13, 2010. After a review of the claims file, the Board finds that an earlier effective date is not warranted. In this regard, the Veteran first submitted an increased rating claim for anemia as a separate disability in a VA 21-4138 Statement in Support of Claim in August 2010. There is no communication prior to this that might be construed as a claim for an increased rating or disagreement with the January 2010 rating decision that rating anemia with irritable bowel syndrome. Furthermore, the Board finds that the record does not establish that it was factually ascertainable that the Veteran’s disability increased in the year prior to her submitted claim for the increase. As such, the Board finds that the preponderance of the evidence weighs against an effective date for the increased rating prior to the currently assigned date.   REASONS FOR REMAND 1. An effective date prior to August 13, 2010 for rectovaginal fistula is remanded. 2. An effective date prior to August 13, 2010 for urinary tract infection is remanded. 3. An effective date prior to August 13, 2010 for status post ectopic pregnancy and adhesions is remanded. 4. An effective date prior to August 13, 2010 for status post salpingectomy with uterine fibroids is remanded. Remand is necessary for the AOJ to adjudicate the Veteran’s motion alleging CUE in a prior final AOJ decision. The Veteran’s attorney has alleged that there was CUE in a June 1999 rating decision that denied service connection for chronic GYN problems (claimed as vaginitis, yeast infections, cervical lesion). Specifically, it is contended that the adjudicator overlooked material facts regarding pertinent diagnoses. Additionally, the representative contends the adjudicator incorrectly applied 38 U.S.C. § 5107(a) in determining that the Veteran’s claim was not well grounded because there was no evidence of a chronic in-service injury. The June 2015 Statement of the Case addressing the Veteran’s claims for earlier effective dates for the above issues did not address the Veteran’s CUE motion. The United States Court of Appeals for Veterans’ Claims (Court) has held that the Board lacks jurisdiction over any theory of CUE that has not been adjudicated by the RO in the first instance. Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002); Jarrell v. Nicholson, 20 Vet. App. 326, 332-33 (2006). In such a circumstance, the Board is obligated to refer new theories of CUE to the RO to “be decided in the same manner as any other claim.” 38 U.S.C. § 5109A (e); see Godfrey v. Brown, 7 Vet. App. 398, 410 (1995). Accordingly, the allegation of CUE in the June 1999 rating decision is referred to the RO for appropriate action. See 38 C.F.R. § 19.9(b) (2018). The Board finds that the issues of entitlement to earlier effective dates for rectovaginal fistula, urinary tract infection/urethral syndrome, status post ectopic pregnancy and adhesions, and status post salpingectomy with uterine fibroids are inextricably intertwined with the issue of whether there was CUE in the June 1999 rating decision. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, a remand is necessary to allow the AOJ the opportunity to decide the CUE issue in the first instance before the Board reaches an appellate determination on the earlier effective date issues. These matters are REMANDED for the following action: Adjudicate the referred motion (see page 4 of this decision) alleging CUE in the June 1999 rating decision denying service connection for chronic GYN problems. Should the AOJ deny the claim, the appellant/representative must be notified of the decision and informed of her appellate rights. While the appellant has perfected appeals for entitlement to earlier effective dates for rectovaginal fistula, urinary tract infection/urethral syndrome, status post ectopic pregnancy and adhesions, and status post salpingectomy with uterine fibroids, she is hereby notified that that an AOJ denial of the CUE motion will be before the Board if, and only if, she files a timely notice of disagreement and a timely substantive appeal with an AOJ denial of the CUE motion. 38 U.S.C. § 7104. (Continued on the next page)   After the development regarding that CUE motion has been completed, return the 4 effective date issues list in the Remand section to the Board if they are not grant to the Veteran’s satisfaction. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cruz, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.