Citation Nr: 21063278 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 17-35 119 DATE: October 13, 2021 ORDER An initial rating of 50 percent for endometriosis is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The evidence reveals that throughout the rating period on appeal, the Veteran's endometriosis manifests in lesions involving the bladder confirmed by laparoscopy, pelvic pain, and heavy bleeding not controlled by treatment, and bowel symptoms. 2. The Veteran's service-connected endometriosis, posttraumatic stress disorder (PTSD), migraine headaches, bilateral trapezius myalgia and spasms, and lumbar spine disability have precluded gainful employment consistent with her education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating of 50 percent for endometriosis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.10, 4.116, Diagnostic Code 7629. 2. The criteria for TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 2002 to September 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, granted service connection for endometriosis and assigned a 10 percent rating, effective March 12, 2012, and denied entitlement to a TDIU. In a subsequent May 2017 rating decision, the RO increased the rating for endometriosis to 30 percent, effective March 12, 2012. These matters were before the Board in March 2019, at which time they were remanded for additional evidentiary development. 1. Entitlement to an initial rating in excess of 30 percent for endometriosis Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. In the case of an initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, the Board must consider whether the disability has undergone varying and distinct levels of severity while the claim has been pending and provide staged ratings during those periods. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. §§ 4.7, 4.21. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's service-connected endometriosis has been assigned a 30 percent rating, effective March 12, 2012. Pursuant to 38 C.F.R. § 4.116, Diagnostic Code 7629, a 30 percent rating is warranted for pelvic pain or heavy or irregular bleeding not controlled by treatment and a 50 rating is warranted for lesions involving bowel or bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment, and bowel or bladder symptoms. Turning to the evidence of record, the Veteran's treatment reports in March 2012 revealed severe endometriosis and she underwent a diagnostic laparoscopy and partial transection of the uterosacral ligaments. Following surgery, in September 2012, it was noted that she had not responded satisfactory to medications or the surgery. She was unable to have intercourse and was constantly in pain. She had discomfort with bowel movements. She was assessed with severe endometriosis with dyspareunia and severe incapacitating dysmenorrhea. The Veteran underwent a VA examination in January 2013. The examiner noted that her endometriosis symptoms included pelvic pain, continuous treatment, and heavy or irregular bleeding requiring continuous treatment. Subsequently, in May 2013, the Veteran underwent advanced operative laparoscopy with excision of endometriosis. The surgical report revealed endometriosis over the left and right bladder peritoneum. A January 2015 treatment record revealed that the Veteran had been seen frequently for her endometriosis in the emergency room. In November 2016 and March 2017, it was noted that she had severe incapacitating dysmenorrhea not responsive to conservative care. Over the previous eight to nine months the pain was incapacitating and required the Veteran to be bedridden. The pain did not respond to over the counter treatment. In April 2017 the Veteran complained of abdominal pain and constipation. The Veteran submitted a letter from G.L., M.D., dated in June 2017. Dr. G.L. noted that the Veteran had tried and failed medical management for her endometriosis. In spite of their efforts, she continued to have heavy, irregular, and abnormal bleeding and pelvic pain. She had several visits to the emergency room for pain management. During her second surgery, it was confirmed that she had endometriosis on the bladder and peritoneum and the surgeon described fibrosis throughout these areas. She continued to have pelvic pain. Accordingly, Dr. G.L. assessed the Veteran with stage IV endometriosis with laparoscopic proven biopsies of the bladder and peritoneum and continued to be managed for bleeding and pain that had not responded to treatment. The Veteran underwent a VA examination in February 2020, at which time she complained of ongoing abdominal pain and irregular periods. The examiner noted that her symptoms did not require continuous treatment. It was noted that she was assessed with anemia in February 2017 and her hemoglobin was listed as 12.9. After a review of the evidence, the Board finds that a 50 percent rating, the maximum schedular rating, for the Veteran's endometriosis is warranted throughout the rating period on appeal. In this regard, a May 2013 laparoscopy revealed fibrosis lesions in the bladder. She has continued to complain of pelvic pain and heavy or irregular bleeding throughout the rating period on appeal. She has tried and failed various treatment remedies as confirmed by Dr. G.L. Moreover, her treatment records reveal her complaints of bowel symptoms associated with her endometrioses. Thus, a 50 percent rating, or the highest schedular rating, is warranted throughout the rating period on appeal. The Board notes that anemia was noted in the February 2020 VA examination. However, the rating criteria for evaluating anemia under Diagnostic Code 7700, as in effect prior to December 9, 2018, indicate that a noncompensable rating is warranted only if the hemoglobin is 10gm/100ml or less, which is not shown. Further, the rating criteria for evaluating iron deficiency anemia under Diagnostic Code 7720, as in effect as of December 9, 2018, specifically states not to evaluate iron deficiency anemia due to blood loss under such diagnostic code, but to evaluate the anemia under the condition causing the blood loss. Thus, the Veteran's anemia is contemplated by Diagnostic Code 7629. 38 C.F.R. § 4.117. The Board acknowledges the February 2020 VA examination, which did not note lesions involving her bladder or symptoms not controlled by treatment. However, the Board gives no weight to this opinion. In this regard, the examiner failed to reference or acknowledge the March 2013 laparoscopy, which revealed endometriosis over the bladder. Moreover, Dr. G.L, confirmed that the Veteran had fibrosis throughout her bladder and peritoneum and that her symptoms were not controlled by treatment. According, the Board finds that the Veteran's endometriosis warrants a 50 percent rating, the highest schedular rating, throughout the rating period on appeal, or from March 12, 2012. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) A TDIU may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.19, 4.25. Generally, to be eligible for a TDIU, a schedular percentage threshold must be met. If there is only one service-connected disability for TDIU purposes, it must be rated at least 60 percent disabling. If there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000). The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The Veteran does not have to be 100 percent unemployable in order to be entitled to a TDIU. Roberson v. Principi, 251 F. 3d 1378, 1385 (Fed. Cir. 2001). When there is an approximate balance of positive and negative evidence as to any issue, all reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107. In the present case, the Veteran's claim of entitlement to a TDIU has been pending since her claim for an increased rating for endometriosis, or from March 12, 2012. Since that time, she has been service connected for posttraumatic stress disorder (PTSD), endometriosis, migraine headaches, bilateral right and left trapezius myalgia and spasms, lumbar sprain with low back syndrome, right knee collateral ligament sprain, herpes, and residual scar with an overall, combined rating of 90 percent. Thus, she meets the threshold set forth under 38 C.F.R. § 4.16(a). The Veteran submitted a VA Form 21-8940 in June 2017 and indicated that she worked as a cashier, leasing agent, and property manager after the military and until November 2011. She was a high school graduate and had one year of college. Turning to the evidence of record, the Veteran underwent a headache VA examination in October 2012, at which time it was noted that her headache disability impacted her ability to work and she was unable to do anything when she had migraine headaches. She had characteristic prostrating attacks of migraine headache pain more frequently than once per month. The Veteran underwent a back VA examination in October 2012, at which time it was noted that her back disability impacted her ability to work. She had pain with sitting and standing for periods of longer than 15 minutes and bending over and walking for a block and a half. A shoulder VA examination revealed that her bilateral trapezius disability impacted her ability to work due to computer typing causing pain and pain with lifting more than five pounds. The Veteran subsequently underwent a VA examination for PTSD and the examiner indicated that her psychiatric disability caused occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, and/or mood. She indicated that she resigned from her position as a property manager in November 2011 due to her physical and mental limitations. She attempted to attend school from January 2010 to August 2011 but was unable to complete her studies due to her physical and mental disabilities. Her PTSD symptoms included difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran was afforded a VA examination in January 2013 to assess her back disability, at which time the examiner indicated that her back disability would mildly impact a sedentary job like a receptionist and would preclude a physical job. Subsequently, in November 2016, the treatment records reveal that the Veteran had been bedridden due to her incapacitating pain from endometriosis. She submitted a June 2017 letter from Dr. G.L., who concluded that her endometriosis continued to become more and more debilitating with severe impairment in her ability to perform usual activities and to work. Furthermore, as records confirm, she had several emergency room trips for pain management. Based on the evidence of record, and resolving all doubt in favor of the Veteran, the Board finds that her service-connected PTSD, endometriosis, lumbar spine disability, bilateral trapezius disability, and migraine headaches impact her ability to work. In this regard, she was primarily employed as a cashier, leasing agent, and property manager following service. Given her debilitating endometriosis, she is periodically bedridden and would be unable to keep a manageable schedule. She is not able to function during prostrating migraine headaches, which occur more than once per month. Moreover, her bilateral trapezius disability impacts her ability to type. In addition, her lumbar spine disability impacts her ability to sit or stand for more than 15 minutes at a time or walk more than a block and a half, which would impact her ability to work as a cashier, leasing agent, and property manager. Lastly, her PTSD produces occupational impairment with deficiencies in most areas such as work. Based on her mental and physical impairments, the Board finds that the Veteran is precluded from working as a cashier, leasing agent, or property manager, or a similar work setting. The Board acknowledges the negative opinion provided by the February 2020 examiner, who indicated that she had no restrictions on job activities. However, there was no rationale associated with this opinion and no indication of the disabilities the examiner evaluated. In light of the above evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran is precluded from substantially gainful employment due to her service-connected endometriosis, PTSD, migraine headaches, bilateral trapezius myalgia and spasms, and lumbar spine disability. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Merrick 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.