Citation Nr: 21065940 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 17-30 189 DATE: October 28, 2021 ORDER Entitlement to a 30 percent rating from [the earlier effective date of] April 12, 2016 to May 31, 2016, for status post bilateral ovarian cystectomy and left oophorectomy with dyspareunia and premature menopause, is granted. Entitlement to a rating in excess of 30 percent for status post bilateral ovarian cystectomy and left oophorectomy with dyspareunia and premature menopause, is denied. FINDINGS OF FACT 1. It is factually ascertainable that from April 12, 2016, the Veteran's status post bilateral ovarian cystectomy and left oophorectomy with dyspareunia and premature menopause was manifested by a nonfunctioning right ovary equivalent to the loss of that ovary. 2. From April 12, 2016, the Veteran's status post bilateral ovarian cystectomy and left oophorectomy with dyspareunia and premature menopause is rated at the highest schedular rating allowable; there are no exceptional or unusual factors with regard to the Veteran's ovarian disability that would warrant an extraschedular evaluation. CONCLUSION OF LAW A 30 percent rating for status post bilateral ovarian cystectomy and left oophorectomy with dyspareunia and premature menopause, is warranted from the earlier effective date of April 12, 2016; a rating in excess of 30 percent for the disability is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.20, 4.116, Diagnostic Codes (Codes) 7615, 7619. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served on active duty from June 1996 to July 2000. This case comes to the Board of Veterans' Appeals (Board) on appeal from an August 2016 Department of Veterans Affairs (VA) rating decision, which denied a compensable rating for the Veteran's ovarian disability. A March 2020 videoconference hearing was held before the undersigned. In April 2020, the Board remanded the case to the agency of original jurisdiction (AOJ) for further development. A March 2021 rating decision increased the rating for the ovarian disability to 30 percent, effective May 31, 2016. Entitlement to increases in the rating for status post bilateral ovarian cystectomy and left oophorectomy with dyspareunia and premature menopause With the filing of her claim for a higher rating , the Veteran contended that a compensable rating was warranted. After VA denied her claim, she argued, in an October 2016 statement, for a compensable ("20 percent") rating on the basis that she was in premature menopause as a result of a non-functional right ovary. At the March 2020 hearing, she explained that as her right ovary "does not work," it was the functional equivalent of the loss of an ovary. After the AOJ granted a 30 percent rating (under criteria for the complete removal of both ovaries), the Veteran has not advanced any further argument, but her representative indicated in an August 2021 statement that her disability should be evaluated analogously under 38 C.F.R. § 4.116, Code 7614. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil 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 an unlisted condition is encountered, it is permissible to rate under a closely related disease or injury in which not only the functions affected but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Effective May 31, 2016, the Veteran's ovarian disability has been rated 30 percent under 38 C.F.R. § 4.116, Diagnostic Code 7619, for complete removal of both ovaries. She was evaluated under this code analogously, on the basis of a VA examiner's opinion in February 2021 that her non-functioning right ovary was comparable to the complete removal of that ovary, which was consistent with prior medical evidence in 2016 indicating premature ovarian failure leading to (permanent) menopause. For the reasons that follow, the Board finds that the evidence supports a 30 percent rating from the earlier effective date of April 12, 2016 on the basis that it was factually ascertainable from that date that the Veteran's symptoms supported a 30 percent rating, but further finds that a rating higher than 30 percent is not warranted. A March 2013 rating decision granted service connection for status post bilateral ovarian cystectomy and left oophorectomy, rated 0 percent, effective in November 2012. The VA also granted a separate, compensable rating for painful residual scars associated with the ovarian surgeries, as well as special monthly compensation (SMC) under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a), on account of loss of use of a creative organ, effective in November 2012. The Veteran did not appeal that decision. On March 18, 2016, she filed a claim for increased ratings for her gynecological disabilities, in part alleging secondary effects of painful sexual activity and emotional distress over cysts on her remaining right ovary. A May 2016 rating decision, in pertinent part, granted service connection for adjustment disorder with mixed anxiety and depressed mood as secondary to the service-connected ovarian disability; denied increased ratings for the residual scars associated with the ovarian surgeries; and denied a compensable rating for status post bilateral ovarian cystectomy and left oophorectomy with dyspareunia. Of particular note, the VA added "with dyspareunia" to the Veteran's service-connected disability regarding her claimed pain with sexual activity. (On an April 18, 2016 VA gynecological examination, the examiner furnished a diagnosis of dyspareunia but did not clearly or specifically relate the pain to the service-connected status post bilateral ovarian cystectomy and left oophorectomy. On a July 2020 VA gynecological examination, the examiner noted the Veteran's report of painful sex since about 1998, after her last surgery.) On May 31, 2016, the Veteran filed a claim for an increased rating for her ovarian disability, alleging that her surgeries had induced early menopause. In a June 2016 statement, she detailed symptoms of hot flashes, irritability, and sleep disturbances and indicated that blood work on April 12, 2016 suggested premature ovarian failure resulting in her premature menopause (she said her doctor informed her that her menopause was iatrogenic, caused by her ovarian surgeries). An August 2016 rating decision denied a compensable rating. A March 2021 rating decision granted a 30 percent rating, effective May 31, 2016 (date of receipt of claim), for status post bilateral ovarian cystectomy and left oophorectomy with dyspareunia and premature menopause. Of particular note, the VA added "with premature menopause" to the service-connected disability. The governing provisions state that the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the claim is received within one year from such date; otherwise, it shall be the date of receipt of the claim. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2). In other words, there is a one-year "look back" period from the date of receipt of the Veteran's claim, and the Board will determine if it is factually ascertainable that there was a worsening of the disability on a date during that period. Here, as the Veteran's claim for a higher rating in relation to her ovarian disability was filed on May 31, 2016, the Board will consider the evidence of record beginning one year prior to such claim. (She did not appeal the May 2016 rating decision arising from her claim filed on March 18, 2016.) Throughout the rating period on appeal beginning on May 31, 2015, the Veteran's ovarian disability was rated 0 percent until May 31, 2016, from which date a 30 percent rating, under Code 7619 has been assigned. Under Code 7619, if the ovaries are removed, an initial rating of 100 percent is assigned for 3 months after removal (here, as the left ovary removal occurred in the 1990s, such rating is not applicable). Thereafter, a 0 percent rating is warranted for removal of one ovary with or without partial removal of the other, and a 30 percent rating is warranted for the complete removal of both ovaries. From May 31, 2016, the Veteran has been evaluated at the maximum permitted under Code 7619, in addition to receiving SMC based on loss of use of a creative organ since service connection was established for the disability. While she still retains her right ovary, VA medical opinions of January 2021 and February 2021 show it was non-functional, resulting in premature menopause, and was thus deemed equivalent to the loss (or removal) of that ovary. The question arises as to whether it is factually ascertainable at some point in the one-year period prior to the receipt of the increased rating claim that the evidence reflects a non-functioning right ovary that is tantamount to loss of that ovary. The Board determines such affirmative evidence is found on April 12, 2016 (but not earlier in the one-year period prior to date of claim), when the Veteran presented to the VA with complaints including right lower quadrant pain, received a diagnosis of recurrent cyst, and underwent blood testing because it was thought she may be undergoing early menopause at that time. VA treatment records confirmed on a May 31, 2016 follow up visit for various menopausal symptoms that the Veteran's provider found her to be in premature ovarian failure based on her symptoms and her elevated FSH level (which was obtained from the blood work performed on April 12, 2016), and that she likely had iatrogenic menopause due to her ovary surgeries. The April 18, 2016 VA gynecological examination report reflects that the Veteran had not undergone menopause, but it appears the examiner may not have been apprised of the results of the blood test taken a few days earlier. Moreover, on July 2020 VA gynecological examination, the Veteran reported that she had not had a menstrual cycle since "2016." Given the diagnostic testing, in association with her various symptoms, it is objectively shown on April 12, 2016, but not before that date, that the Veteran was in early menopause from ovarian failure. Therefore, she warrants a 30 percent rating from that earlier date. The only other applicable criteria for consideration are those in 38 C.F.R. § 4.116, Code 7615, for evaluating disease, injury, or adhesions of the ovary (and not Code 7614, for evaluating disease, injury, or adhesions of the fallopian tube, as asserted by the Veteran's representative in August 2021). Under Code 7615, a 0 percent rating is assigned for symptoms that do not require continuous treatment; a 10 percent rating is assigned for symptoms that require continuous treatment; and a maximum 30 percent rating is assigned for symptoms not controlled by continuous treatment. Thus, Code 7615 does not offer the Veteran a higher rating for her disability. In any case, there is no evidence that the Veteran received continuous treatment for her ovarian disability. There was discussion about hormone replacement therapy (HRT) on May 31, 2016, but the Veteran had reservations about this treatment given her family history of breast cancer. On the July 2020 VA examination, she confirmed that she was not taking hormones. From April 12, 2016, the Veteran is assigned the highest schedular rating permitted under the criteria in Codes 7619 and 7615. The Board has considered the applicability of other potential rating criteria referable to evaluation of gynecological conditions. However, as the evidence of record fails to demonstrate that she has undergone removal of her uterus in addition to the ovaries, she is not entitled to a higher or separate rating under Code 7617. Moreover, there are no exceptional or unusual factors with regard to the Veteran's ovarian disability that would warrant an extraschedular evaluation. Here, the rating schedule specifically contemplates symptoms associated with the disease or injury of an ovary, as well as removal of both ovaries. 38 C.F.R. § 4.116, Codes 7615, 7619. As is noted above, she has been awarded service connection and a separate rating for mental impairment secondary to her ovary removal. Accordingly, referral to the Director, Compensation Service, for consideration of an extraschedular rating is not warranted, as the manifestations of the Veteran's disability are accounted for in the schedular rating assigned. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Further, neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record, in regard to the claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The Veteran has been awarded SMC for loss of use of a creative organ for her ovary removal for throughout the evaluation period. Therefore, based on the foregoing, the Board concludes that the Veteran's service-connected ovarian disability warrants a 30 percent, but no higher, rating throughout from April 12, 2016, and that the appeal seeking further increases must be denied George R. Senyk Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debbie Breitbeil, 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.