Citation Nr: 21062049 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-50 064A DATE: October 6, 2021 ORDER Entitlement to an evaluation in excess of 30 percent for service-connected endometriosis is denied. FINDING OF FACT The service-connected endometriosis is manifest by uncontrolled pelvic pain, but not bowel or bladder symptoms. CONCLUSION OF LAW The criteria for entitlement to an evaluation of 50 percent for service-connected endometriosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.21, 4.116, Diagnostic Code (DC) 7629. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1979 to October 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). This issue was previously before the Board in September 2019 and June 2020, each time remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. While on remand, in a December 2020 rating decision, the RO granted an evaluation of 30 percent effective May 20, 2013. As this is not a complete award of the benefits sought, the matter will still be adjudicated by the Board herein. Entitlement to an evaluation of 50 percent for service-connected endometriosis 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. 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. § 1155; 38 C.F.R. § 4.1. 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. 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. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). 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). Here, the Veteran filed their claim for service connection for endometriosis in May 2013, which was granted in a May 2014 rating decision with a 10 percent evaluation effective the date of the claim. As noted above, the RO granted a 30 percent evaluation for the entire appeal period in a December 2020 rating decision. The Veteran's endometriosis is currently rated 38 C.F.R. § 4.116, DC 7629. Under DC 7629, an evaluation of 10 percent is warranted for pelvic pain or heavy or irregular bleeding requiring continuous treatment for control. An evaluation of 30 percent is warranted for pelvic pain or heavy or irregular bleeding not controlled by treatment. A 50 percent evaluation is assigned where there are lesions involving the bowel or bladder which are confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment, and bowel or bladder symptoms. During the pendency of the appeal, the rating criteria for evaluating gynecological conditions and disorders of the breast under 38 C.F.R. § 4.116 were updated and went into effect on May 13, 2018. 83 Fed. Reg. 15068 -15074 (April 9, 2018). However, DC 7629 was unchanged. The Veteran underwent VA examinations in April 2014, April 2016, December 2019, and October 2020. Additional VA and private treatment records (PTRs) provide additional insight into the current severity of the disability. An August 2013 note from the Veteran's private provider indicates that the Veteran underwent laparoscopies in the 1990s, but that all records from that period had been destroyed. During the April 2014 VA examination, the Veteran reported intermittent, severe pain that can last up to several hours, and irregular menstruation, but that they were on no medication. The examiner noted that the Veteran had a laparoscopy, but provided no further information. The examiner opined that the endometriosis had no functional impact on the Veteran's ability to work; however, the examiner did note that the Veteran works from home, and if there is a flare-up of pain, the Veteran will take a break and wait for the pain to subside. In an October 2014 statement, the Veteran asserted that the pain is agonizing, ruthless, stubborn, and never ending. They explained that no treatment has helped, including laparoscopies, pain control facilities, and medication like Dandazol. The Veteran reported that any relief was only ever temporary, and that the pain would return. Further, they asserted that the Dandazol caused their voice to change to sound masculine, and then even after discontinuing the medication, their voice never returned to normal. The Veteran reported that this has taken a psychological toll on them. During the April 2016 VA examination, the Veteran reported intermittent mild and moderate pain, with a baseline of 3 out of 10, but when flares happen, they can last for several hours. The Veteran explained that they take holistic Chinese herbal preparations for the endometriosis and episodes of pelvic pain; however, the examiner noted that the symptoms do not require continuous treatment as the Veteran explained that using the holistic preparations was adequate. Later, the examiner noted the Veteran's reports that physical therapy helps the pain symptoms as well. The examiner noted that the Veteran had a laparoscopy, but provided no further information. An October 2016 note from a VA Advanced Practice Nurse (APN) indicates that the endometriosis causes chronic, daily pain. A September 2017 VA APN note indicates daily chronic pelvic pain that does not respond to conventional therapies. A separate September 2017 VA treatment record notes that the Veteran has had to learn to cope with the chronic pain. In an October 2017 statement, the Veteran asserted that they have received every kind of treatment available, including five laparoscopies, physical therapy, women's health physical therapy, healing and touch therapy, and acupuncture, but that nothing has worked. The Veteran explained that when they were prescribed Dandazol in the 1980s, it destroyed their voice. July 2019 VA treatment records note that the Veteran uses marijuana to help with the pain. Their treating physician advised them that it is not clear that surgery would reduce the chronic pelvic pain, and lifelong pain management would be safer. There, the Veteran also requested a referral for continued acupuncture. During the December 2019 VA examination, the Veteran reported chronic pelvic pain that is getting worse, and that the pain is usually at an 8 or 9 out of 10 intermittently, and rarely goes down to a 4 or 5 out of 10. The Veteran explained that they are undergoing pain management, and that their weekly acupuncture appointments only help for about a day. They also stated that they use a heating pad while working, and have to take Tylenol to function. The Veteran asserted that sometimes the pain is so intense that they vomit and have diarrhea. The examiner noted that the Veteran does not have any urinary incontinence or leakage, and that the Veteran had laparoscopies in the 1980s and 1990s. The examiner opined that the endometriosis has a functional impact on the Veteran's ability to work, and explained that the Veteran only works part time, and when in pain, they have to take breaks. The examiner stated that when the Veteran is in pain, it is difficult to walk or move, and that they have to lay down or sit and rock back and forth to return to functioning. The examiner noted that the Veteran cannot do any heavy lifting, operate heavy machinery, or climb ladders. January 2020 VA treatment records note that the pain is worse, and that the Veteran cannot exercise as much. The Veteran reported continued use of marijuana and acupuncture for the pain. In a February 2020 statement, the Veteran reported daily pain that is usually an 8 or a 9 out of 10, and that it is rarely below a 7. For treatment, the Veteran stated that they see an acupuncturist, go to a pain and integrative clinic, and that they are waiting to be scheduled for Tai Chi, but that nothing seems to help. The Veteran asserted that they were told that laparoscopy is the worst idea because the operation causes lesions which causes more pelvic pain, and that the procedure is no longer recommended. July 2020 VA treatment records note that the Veteran attends physical therapy, acupuncture, and Tai Chi, but that the pain is still constant, at a 3 to 7 out of 10. The Veteran reported taking Tylenol. Later July 2020 VA treatment records indicate that the acupuncture is helpful, but that the sessions had been put on hold because of COVID-19. The examiner recommended that the Veteran not have a repeat laparoscopy as the Veteran likely has an adhesive disease, and another surgery may result in even more adhesion formation. During the October 2020 VA examination, the Veteran reported constant moderate pain, and that they treat it with Tylenol, acupuncture, stretching, and attending a pain clinic. The examiner, however, noted that the symptoms do not require continuous treatment. The examiner found that the Veteran does not have urinary incontinence or leakage, and that the Veteran had a laparoscopy in 1981, but provided no further information regarding that. The examiner noted that the Veteran denied bowel and bladder symptoms, and that the Veteran did not want a laparoscopy based on their physician's recommendation in July 2020. The examiner opined that the endometriosis does have a functional impact on the Veteran's ability to work, explaining that the Veteran has limited ability to stand and sit for prolonged periods of time due to pelvic pain. In December 2020, the RO requested a clarifying statement from the October 2020 examiner, as they had noted that the symptoms do not require continuous treatment, but also listed the Veteran's detailed treatment plan. The examiner acknowledged the contradiction, and explained that the Veteran utilizes various modalities to reduce the symptoms, but the symptoms were still not completely relieved. They also stated that the Veteran was without acupuncture for 3 months due to COVID-19, and that there was a significant surge of pain during that time. After review of the evidence of record, the Board finds that a 50 percent disability rating under DC 7629 is not warranted. The Veteran has consistently reported continuous complaints of pelvic pain as a result of the endometriosis throughout the appeal period. The October 2016 VA APN note indicated that the endometriosis causes chronic, daily pain. Although the April 2016 examiner noted that the symptoms do not require continuous treatment, this is in conflict with the Veteran's regular reports of taking pain medication, utilizing holistic Chinese remedies and heating pads, undergoing a variety of physical therapies and regular acupuncture, participating in Tai Chi, and even simple rest, the Veteran and their providers still have not found a solution. Similarly, the October 2020 examiner also noted that the symptoms do not require continuous treatment, but in their December 2020 clarifying statement, the examiner acknowledged that the Veteran undergoes a variety of treatments, and is still without complete relief from the pain. Regarding the requirement under DC 7629 for lesions involving bowel or bladder confirmed by laparoscopy, the June 2020 Board remand specifically requested that a laparoscopy be performed if the Veteran consented. As noted above, the Veteran did not consent to a laparoscopy based on their treating physician's opinion that surgery is unlikely to relieve any pain, and that due to the Veteran's adhesion condition, a laparoscopy would likely increase the severity of the endometriosis symptoms. The Board will not order the Veteran to undergo an invasive procedure, especially one that is not recommended by the Veteran's treating physician. Given the July 2020 VA treatment record indicating that the Veteran likely has an adhesive disease, and the Veteran's history of laparoscopies, the Board finds this criterion to be met. As for the requirement under DC 7629 that requires bowel or bladder symptoms for a 50 percent rating, the Veteran was found to have no urinary incontinence or leakage at each of the VA examinations. Although the Veteran did report during the December 2019 examination that sometimes the pelvic pain is so bad that they vomit and have diarrhea, the examiner nonetheless did not endorse bowel symptoms associated with the service-connected endometriosis. Bowel symptoms associated with the endometriosis were also not found on any of the other VA examinations, and do not appear elsewhere in the record. Accordingly, the criterion of bladder or bowel symptoms is not met. The Board has considered the Veteran's lay statements consistently reporting pelvic pain throughout the appeal period. They are competent to attest to things they experience through their senses, such as pelvic pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, the severity of symptoms the Veteran experienced related to a current disability require medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999). Accordingly, the Board finds that an evaluation in excess of 30 percent is not warranted. Finally, the Board acknowledges the Veteran's various statements regarding the medication they took to treat their endometriosis in the past that caused their voice to change, and subsequently took a psychological toll on them. If the Veteran believes that the service-connected endometriosis has secondarily caused a psychiatric disorder, they may apply for benefits on the appropriate form as prescribed by the Secretary. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rogos 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.