Citation Nr: 21001594 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 16-18 847 DATE: January 11, 2021 ORDER Entitlement to a disability rating in excess of 30 percent for total abdominal hysterectomy is denied. Entitlement to an increased rating for special monthly compensation on account of anatomical loss of a creative organ is denied. REMANDED Entitlement to service connection for irritable bowel syndrome, to include as secondary to service-connected depression with posttraumatic stress disorder, is remanded. Entitlement to service connection for posttraumatic stress disorder, to include as due to a military sexual trauma, is remanded. Entitlement to a compensable rating for a scar associated with total abdominal hysterectomy is remanded. Entitlement to a disability rating in excess of 70 percent for depression with posttraumatic stress disorder is remanded. FINDINGS OF FACT 1. The Veteran’s December 2013 total abdominal hysterectomy has been assigned the maximum allowable schedular rating for the entire period on appeal. 2. The Veteran is in receipt of the maximum allowable level of special monthly compensation for the loss of use of a creative organ. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for total abdominal hysterectomy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.14, 4.104, Diagnostic Code 7618. 2. Entitlement to an increased rating for special monthly compensation based on loss of use of a creative organ is not warranted as a matter of law. 38 U.S.C. §§ 1114 (k); 38 C.F.R. § 3.350 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1984 to February 1988. These matters come before the Board of Veterans’ Appeals (Board) on appeal from June 2015, October 2015, and March 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. Increased Rating 1. Entitlement to a disability rating in excess of 30 percent for total abdominal hysterectomy The Veteran is currently assigned a 30 percent rating for her service-connected total abdominal hysterectomy. She contends that a higher rating is warranted. Disability evaluations are determined by applying the criteria set forth in the Schedule for Rating Disabilities to the Veteran’s current symptomatology. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Veteran’s hysterectomy is currently evaluated under Diagnostic Code (DC) 7618, applicable to removal of uterus, including corpus. See 38 C.F.R. § 4.116. Under DC 7618, a 100 percent rating is warranted three months after removal of the uterus, including corpus. Thereafter, a 30 percent rating is assigned. 38 C.F.R. § 4.116, DC 7618. The medical evidence of record shows that the Veteran underwent a total abdominal hysterectomy in December 2013. She was granted a 100 percent rating for three months from the date of the surgery on December 3, 2013, through April 1, 2014. Thereafter, she was provided a 30 percent disability rating from April 1, 2014, for undergoing a hysterectomy. At the Board hearing, she reported that she continues to experience spotting and that she may require further surgical intervention. The Board notes that during the hearing, the Veteran was informed by the VLJ that the record would remain open for 90 days to allow time for her to submit additional medical records regarding her claim. However, the Veteran has not provided updated medical records showing she underwent an additional surgery. Accordingly, 30 percent is the maximum schedular rating warranted three months after removal of the uterus, including corpus. 38 C.F.R. § 4.116, DC 7618. A higher (50 percent) rating for a hysterectomy is only warranted under DC 7617 if there is complete removal of the uterus and both ovaries. 38 C.F.R. § 4.116, DC 7617. In this case, VA medical records show only the Veteran’s uterus was removed. There is no evidence that her ovaries were removed, and she has not claimed otherwise. Hysterectomy is specifically listed as the disability that is rated under either DC 7617 or DC 7618. “[W]hen a condition is specifically listed in the Schedule, it may not be rated by analogy.” Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). Thus, the Veteran’s hysterectomy cannot be rated by analogy and must be rated under either DC 7617 or DC 7618. Accordingly, the Board finds that the claim of entitlement to a disability rating in excess of 30 percent for the Veteran’s total abdominal hysterectomy has not been met at any time during the rating period. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to an increased rating, that doctrine is not applicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). Special Monthly Compensation Based on Loss of Use of a Creative Organ 2. Entitlement to special monthly compensation (SMC) on account of anatomical loss of a creative organ “SMC is available when, ‘as the result of service-connected disability,’ a veteran suffers additional hardships above and beyond those contemplated by VA’s schedule for rating disabilities.” Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011) (citing 38 U.S.C. § 1114 (k)-(s)). Section 1114(k) provides several distinct ways for a veteran, “as the result of service-connected disability,” to qualify for this rate of SMC, to include, anatomical loss or loss of use of one or more creative organs. 38 U.S.C. § 1114 (k). The Veteran contends she is entitled to a higher SMC rating for her total abdominal hysterectomy. After review of the record, the Board finds that a higher rating for SMC based on loss of use of a creative organ is not warranted. The Veteran is receiving SMC for loss of use of a creative organ due to a total abdominal hysterectomy caused by service-connected leiomyoma of the uterus, which is the maximum rating authorized under 38 U.S.C. § 1114 (k). The SMC rating became effective on June 27, 2012, the day the Veteran filed an increased rating claim for leiomyoma of the uterus. As the preponderance of the evidence is against a higher SMC rating for loss of use of a creative organ, reasonable doubt does not arise. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 57-58 (1990). Therefore, the Board finds that a higher rating for SMC based on loss of use of a creative organ is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for irritable bowel syndrome (IBS), to include as secondary to service-connected depression with posttraumatic stress disorder (PTSD) is remanded. The Veteran seeks service connection for IBS, which she alleges is related to her service-connected psychiatric disorder. At the September 2020 Board hearing, she explained that she experiences IBS symptoms whenever she is nervous and anxious. VA medical records indicate the Veteran is treated for IBS. The Veteran has not been afforded a VA examination to determine whether her claimed IBS is etiologically related to her service-connected psychiatric disability. Remand is required to obtain an examination and medical opinion. 38C.F.R. §3.159 (c)(4). 2. Entitlement to service connection for PTSD, to include as due to military sexual trauma (MST) is remanded. The Veteran is currently service-connected for an acquired psychiatric disorder characterized as depression with PTSD. However, she contends she is entitled to a separate rating for PTSD. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not “duplicative of or overlapping with the symptomatology” of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. A review of the medical evidence shows there is conflicting evidence regarding the Veteran’s psychiatric disorder diagnoses, and whether there is different symptomatology attributable to each diagnosis. A March 2013 VA examination report shows the Veteran was diagnosed with PTSD and depression. The examiner determined that the Veteran’s PTSD symptoms included sleep disturbance, nightmares, startle response and anger, while her depression caused depressed mood, low energy, hopelessness, and loss of enjoyment. In May 2015, a VA examiner diagnosed the Veteran with depressive disorder, and determined she did not have any other psychiatric disorders. The Veteran submitted a private psychiatric evaluation report in April 2017, showing the private physician diagnosed the Veteran with PTSD, and determined she did not have any other psychiatric disorders. At the Board hearing, the Veteran explained that she experiences depressive disorder symptoms associated with her hysterectomy, whereas her PTSD symptoms are associated with MST. She has also submitted lay statements in support of her PTSD claim showing that she experienced MST. For these reasons, the Board finds that remand is required to obtain an additional VA examination and medical opinion to clarify the Veteran’s diagnoses, and to determine whether the Veteran has PTSD symptoms that are separate from those associated with her service-connected depressive disorder. 3. Entitlement to a compensable rating for a scar associated with total abdominal hysterectomy is remanded. The Veteran seeks a compensable rating for a scar associated with her hysterectomy. The Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). At the Board hearing in September 2020, the Veteran reported that her scar is numb, hard, itchy, and causes constant throbbing. She has not attended a VA examination to assess the severity of her scar since May 2015. Since there is evidence of a worsening of her scar since her last VA scar examination, a remand is necessary to ascertain the current severity of the Veteran’s scar. 4. Entitlement to a disability rating in excess of 70 percent for depression with posttraumatic stress disorder is remanded. The Veteran contends she is entitled to a higher rating for service-connected depression. Because a new VA psychiatric disorder examination regarding the claim for PTSD may impact the claim for a higher rating for depression, adjudication will be deferred as the claims are inextricably intertwined. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA medical records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of her IBS. A copy of the claims file and this remand must be made available to the examiner for review. Based on an examination, review of the record, and any tests or studies deemed necessary the examiner should provide the following opinion: (a.) Is it at least as likely as not (50 percent or more probability) that the Veteran’s IBS is caused or aggravated (defined as any increase in disability) by the Veteran’s psychiatric disorders? (b.) The examiner must explain the rationale for all opinions in detail, and must consider the Veteran’s lay statements regarding the condition. If an opinion cannot be provided, the examiner should indicate why. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of her PTSD. A copy of the claims file and this remand must be made available to the examiner for review. Based on an examination, review of the record, and any tests or studies deemed necessary the examiner should provide the following opinion: (a.) The examiner should state whether the Veteran has a diagnosis of PTSD under the DSM-IV or 5 criteria. Attention is drawn to lay statements within the claims file regarding the Veteran’s report of MST. (b.) If PTSD is diagnosed, the examiner should opine as to whether it is at least as likely as not (50 percent or more probability) that the PTSD is related to the Veterans claimed in-service stressor(s), to include MST. (c.) The examiner should state whether it is possible to differentiate the Veteran’s PTSD symptoms from her service-connected major depressive disorder symptoms. If symptoms cannot be differentiated, the examiner must provide a reason why differentiation is not possible. If symptoms can be differentiated, the examiner must list which symptoms are attributable to each diagnosis. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected scar disability. A copy of the claims file and this remand must be made available to the examiner for review. (a.) Attention is drawn to the Veteran’s lay statements that her scar is numb, hard, itchy, and causes constant throbbing. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Miller, 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.