Citation Nr: 21065195 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 18-26 945 DATE: October 25, 2021 ORDER A compensable rating prior to April 18, 2017, for uterine fibroid and in excess of 30 percent as of August 1, 2017, for hysterectomy is denied. REMANDED Entitlement to a compensable rating prior to February 21, 2018, and in excess of 30 percent thereafter for right eye iritis and chorioretinal scar of the right eye, and angle closure glaucoma, to include bilateral dry eye syndrome, is remanded. FINDINGS OF FACT 1. For the appeal period prior to April 18, 2017, the Veteran's uterine fibroid did not require continuous treatment. 2. As of April 18, 2017, the Veteran had a total hysterectomy, but her ovaries were not removed. CONCLUSION OF LAW The criteria for a compensable rating prior to April 18, 2017, for uterine fibroid and in excess of 30 percent as of August 1, 2017, for hysterectomy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.116, Diagnostic Codes (DCs) 7613, 7618. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1982 to January 1990, October 2001 to June 2003, October 2003 to June 2004, December 2004 to September 2005, January 2006 to May 2006, January 2007 to September 2007, and October 2008 to May 2014. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2015 by a Department of Veterans Affairs (VA) Regional Office. In March 2020, the Veteran and her spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In July 2020, the Board remanded the issues on appeal, as well as claims for service connection for sleep apnea and restless leg syndrome, for additional development. While on remand, an August 2021 rating decision awarded service connection for obstructive sleep apnea and restless leg syndrome of the right and left lower extremities. As such are full grants of the benefits sought on appeal with respect to these issues, these matters are no longer before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). The remaining issues now return for further appellate review. 1. Entitlement to a compensable rating prior to April 18, 2017, for uterine fibroid and in excess of 30 percent as of August 1, 2017, for hysterectomy. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The appeal period before the Board stems from the Veteran's March 16, 2015, claim for an increased rating for her uterine fibroid, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). For the appeal period prior to April 18, 2017, she was in receipt of a noncompensable rating for uterine fibroid pursuant to DC 7613. 38 C.F.R. § 4.116. However, on such date, she underwent a hysterectomy and, thus, was awarded a 100 percent rating until August 1, 2017, upon which date a 30 percent rating was assigned, pursuant to DC 7618. Id. The Veteran is also in receipt of special monthly compensation based on loss of use of a creative organ as of April 18, 2017. In this regard, DC 7613 pertains to disease, injury, or adhesions of the uterus, which is evaluated under the General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs. In this regard, such provides for a noncompensable rating where symptoms do not require continuous treatment, a 10 percent rating where symptoms require continuous treatment, and a 30 percent rating where symptoms are not controlled by continuous treatment. DC 7618 provides that the removal of the uterus, including corpus, warrants a 100 percent rating for three months after removal and a 30 percent rating thereafter. In regard to the evaluation of the Veteran's uterine fibroid prior to April 18, 2017, she was prescribed hormone treatment, Prempro and Premarin, for menopause in October 2014, but discontinued it after May 2016 due to undesirable side effects. An April 2015 VA examination reflects her report of current symptoms of cramping and pain during intercourse. It was noted that a treatment record dated earlier in the month reflected menorrhagia, lower abdominal pain, and leiomyoma. Upon examination, intermittent pain was noted, but the Veteran did not require treatment or medications for her condition. In October 2015, it was noted that she had been post-menopausal since 2013, and was being followed for uterine fibroids and thickened endometrial stripe. Additional treatment records reflect that biopsies were performed, but do not show that she was receiving treatment for her uterine fibroid. On April 18, 2017, the Veteran underwent a hysterectomy due to pelvic pain, symptomatic uterine fibroid, and thickened endometrial stripe. At a July 2017 VA examination, she reported intermittent moderate pain and pelvic pressure. It was further noted that she took Naprosyn, but such was not continuous. There were no other relevant symptoms, and it was noted that she had not undergone a partial or complete oophorectomy, did not have evidence of complete atrophy of one or both ovaries, and did not have any other diseases, injuries, adhesions, or any other condition of the ovaries, incontinence, fistulae, or endometriosis, or any complications of her hysterectomy. Similarly, a February 2018 VA examination reflects the Veteran's report of pelvic pressure and pain in the abdomen, which were noted to simultaneously not require and require continuous treatment. There were no other relevant symptoms, and it was noted that she had not undergone a partial or complete oophorectomy, did not have evidence of complete atrophy of one or both ovaries, and did not have any other diseases, injuries, adhesions, or any other condition of the ovaries, fistulae, or endometriosis, or any complications of her hysterectomy. The examiner noted that the Veteran had urinary incontinence, but indicated that such was not due to a gynecological condition. Finally, at an April 2021 VA examination, the Veteran reported experiencing abdominal pain, and fecal and urinary incontinence. However, upon examination, no symptoms were noted and no treatment was required. It was also noted that the Veteran had not undergone a partial or complete oophorectomy, did not have evidence of complete atrophy of one or both ovaries, and did not have any other diseases, injuries, adhesions, or any other condition of the ovaries, fistulae, or endometriosis, or any complications of her hysterectomy. The examiner noted that the Veteran had urinary incontinence related to a gynecological condition that required absorbent material that is changed less than two times per day, but did not have vaginal-fecal leakage. Based on the foregoing, the Board finds that a compensable rating prior to April 18, 2017, for uterine fibroid and in excess of 30 percent as of August 1, 2017, for hysterectomy is not warranted. In this regard, for the appeal period prior to April 18, 2017, the Veteran's uterine fibroid did not require continuous treatment. In this regard, while she testified at the March 2020 Board hearing that she was on medication for such disability, which did not fully control the condition, her treatment records do not reflect any such prescription during the appeal period. Specifically, while the Veteran had been on hormone therapy from October 2014 to at least May 2016, such was for menopause rather than her uterine fibroid. Additionally, while she also reported taking pain medication at times, the purpose of such was not to treat or control her uterine fibroid, but rather manage the associated pain, and such was not continuous. Moreover, the April 2015 VA examiner found the Veteran did not require treatment or medications for her uterine fibroid. Thus, for the appeal period prior to such date, a compensable rating for such disability under DC 7613 is not warranted. As of August 1, 2017, the Veteran has been in receipt of the minimum rating of 30 percent for a hysterectomy under DC 7618 and, as of February 28, 2018, a separate 20 percent rating for urinary incontinence was assigned under DC 7517. In this regard, such rating was assigned based on the need for absorbent material that is changed less than two times per day. As there is no indication of a more frequent need to change such absorbent materials, a higher rating for such associated symptomatology is not warranted. Moreover, while the Veteran reported fecal incontinence at the April 2021 VA examination, such was not shown on examination. Consequently, a separate rating for such alleged symptomatology is not warranted. Moreover, in light of the absence of the removal of both ovaries in addition to the uterus, a higher rating is not warranted under DC 7617 and, as no additional associated symptomatology is shown, a higher or separate rating is not warranted under potentially applicable DC. In reaching the forgoing determination, the Board acknowledges the Veteran's belief that her gynecological disability is more severe than as reflected by the current assigned disability ratings. While she is competent to describe her symptomatology, she is not competent to provide an opinion regarding the severity of her symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence as detailed above, in which professionals with specialized expertise examined the Veteran, acknowledged her reported symptoms, and described the manifestations of such disability in light of the rating criteria, to be more persuasive than her own reports regarding the severity of her disability. The Board has also considered whether additional staged ratings under Hart, supra, are appropriate for the Veteran's service-connected gynecological disability; however, the Board finds that her symptomatology has been stable throughout each period on appeal. Therefore, assigning additional staged ratings for such disability is not warranted. Further, neither the Veteran nor her representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In conclusion, the Board finds that a compensable rating prior to April 18, 2017, for uterine fibroid and in excess of 30 percent as of August 1, 2017, for hysterectomy is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and her increased rating claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 2. Entitlement to a compensable rating prior to February 21, 2018, and in excess of 30 percent thereafter for right eye iritis and chorioretinal scar of the right eye, and angle closure glaucoma, to include bilateral dry eye syndrome. The Board observes that the Veteran's VA treatment records reflect that she receives treatment from a non-VA opthalmologist for her eye disability and, while she has submitted treatment records from Portsmouth Naval Medical Center that reflect treatment for such disability, it is unclear whether there are additional outstanding non-VA treatment records. Consequently, a remand is necessary in order to request that the Veteran submit, or authorize VA to obtain, all oustanding non-VA treatment records pertaining to her eye disability. The matter is REMANDED for the following action: The Veteran should be given an opportunity to submit, or authorize VA to obtain, any outstanding non- VA treatment records pertaining to her eye disability. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford her an opportunity to submit any copies in her possession. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Deemer, 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.