Citation Nr: 21066468 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 12-15 656 DATE: November 1, 2021 ORDER Entitlement to a rating in excess of 50 percent for residuals of hysterectomy is denied. Entitlement to a rating in excess of 30 percent for abdominal adhesions is denied. FINDINGS OF FACT 1. The Veteran's residuals of hysterectomy are not characterized by the wearing of absorbent materials that must be changed more than four times a day. 2. The Veteran's abdominal adhesions are characterized by moderately severe symptoms, including partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 50 percent for residuals of total hysterectomy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.114, Diagnostic Code 7617. 2. The criteria for a disability rating in excess of 30 percent for abdominal adhesions have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.114, Diagnostic Code 7615-7301. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active service from June 1981 to August 1981 and from March 1985 to September 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran and her mother presented sworn testimony at a hearing before the undersigned Veterans Law Judge in May 2017. The matter was previously remanded in December 2017, March 2020, and March 2021. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). Diagnostic Code 7301 provides compensation for adhesions of the peritoneum. 38 C.F.R. § 4.114. Ratings for adhesions will be considered when there is history of operative or other traumatic or infectious (intraabdominal) process, and at least two of the following: disturbance of motility, actual partial obstruction, reflex disturbances, presence of pain. A 0 percent rating is provided for mild symptoms. Id. A 10 percent rating is provided for moderate symptoms characterized by pulling pain on attempting work or aggravated by movements of the body, or occasional episodes of colic pain, nausea, constipation (perhaps alternating with diarrhea) or abdominal distension. Id. A 30 percent rating is provided for moderately severe symptoms characterized by partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain. Id. A 50 percent rating is provided for severe symptoms characterized by definite partial obstruction shown by X-ray, with frequent and prolonged episodes of severe colic distension, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage. Id. Diagnostic Code 7615 provides compensation for disease, injury, or adhesions of the ovary. 38 C.F.R. § 4.116. For the purpose of VA disability evaluation, a disease, injury, or adhesions of the ovaries resulting in ovarian dysfunction affecting the menstrual cycle, such as dysmenorrhea and secondary amenorrhea, shall be rated under diagnostic code 7615. Id. Diagnostic Codes 7610 through 7615 are rated under the General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs (Diagnostic Codes 7610 through 7615). 38 C.F.R. § 4.116. A 0 percent rating is provided for symptoms that do not require continuous treatment. Id. A 10 percent rating is provided for symptoms that require continuous treatment. Id. A 30 percent rating is provided for symptoms not controlled by continuous treatment. Id. Diagnostic Code 7617 provides compensation for complete removal of the uterus and both ovaries. 38 C.F.R. § 4.116. A 100 percent rating is provided for three months after removal. Id. A 50 percent rating is provided thereafter. Id. Voiding dysfunction is compensated under the rating criteria for genitourinary system dysfunctions. 38 C.F.R. § 4.115A. A 20 percent rating is appropriate for requiring the wearing of absorbent materials which must be changed less than 2 times per day. Id. A 40 percent rating is appropriate for requiring the wearing of absorbent materials which must be changed 2 to 4 times per day. Id. A 60 percent rating is appropriate for requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. Id. Hysterectomy 1. Entitlement to a rating in excess of 50 percent for hysterectomy on an extraschedular basis From September 30, 1992, the Veteran is rated at 50 percent for total hysterectomy under Diagnostic Code 7617. On June 1, 2010, the Veteran filed a claim for an increased rating. Because the claim is a non-initial claim, the Board will consider evidence of symptomatology from one year prior to when the claim was filed. 38 C.F.R. § 3.400(o). See A.B. v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a claim remains in controversy where less than the maximum available benefit is awarded unless the Veteran expresses an intent to limit the appeal to a specific disability rating). If an increase in severity of disease is ascertainable prior to a year before the filing date, the effective date shall be the date that the increase in severity is discernible. See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). The preponderance of the evidence is against a rating in excess of 50 percent. A January 2016 VA examination indicates urinary incontinence/leakage due to a gynecological condition that requires absorbent material that is changed 2 to 4 times a day. In a September 2016 VA medical record, the Veteran describes "urinary urgency and small amount of leaking (not enough to require a pad)." A March 2017 VA medical record states that the Veteran "[w]ears one pad most days." In an August 2017 VA medical record, the Veteran describes using "several pads daily" because of a "terrible" gel that she was prescribed and that "the oral agents ... worked better than the gel does." In the May 2017 hearing transcript, the Veteran describes incapacitating cramping and having to "literally stoop down and push out blood clots." She also experiences diarrhea. She takes pain pills and uses a TENS unit. Her adhesions impact bowel function, resulting in constipation and her "hav[ing] to really push hard." In a March 2018 VA medical record, the Veteran indicates that she uses "12 pads/day." A September 2018 VA medical record indicates that the Veteran "[w]ears thick two pads daily, quite wet." The April 2018 VA gynecological examination has been held to be inadequate. See March 2020 Board remand. An April 2019 VA medical record indicates that the Veteran "wears 2 thick pads most days." In a September 2020 VA medical record, the Veteran states that she "wears 2 [pads] daily" for incontinence. A November 2020 VA gynecological examination indicates urinary incontinence/leakage not due to a gynecological problem but does not indicate the frequency with which absorbent materials are required. The May 2021 VA gynecological examination indicates "increased pelvic pain and cramping." This pain is characterized as severe and intermittent; she takes medication to treat this condition. There is no evidence of complete atrophy of one or both ovaries. There is urinary incontinence requiring absorbent material that is changed two to four times per day. The Veteran "has difficulty working due to frequent pelvic pain and discomfort." The May 2021 VA gynecological examination ascribes the Veteran's incontinence and rectal bleeding to her hysterectomy, not her abdominal adhesions. The Board will therefore consider rating these symptoms by analogy based on voiding dysfunction. The evidence consistently indicates that the use of absorbent materials which must be changed 2 to 4 times per day. This is consistent with a rating of no greater than 40 percent by analogy to voiding dysfunction under the rating criteria for genitourinary system dysfunction. 38 C.F.R. § 4.115A. A higher rating of 60 percent is only available where the disorder in question requires the use of an appliance or the wearing of absorbent materials which must be changed more than four times a day. As the evidence consistently indicates the use of pads being changed four times or fewer per day, a rating in excess of 50 percent is not available based on the severity of her incontinence. A higher rating is also not available based on the psychological symptoms, pain, cramping, and gastrointestinal problems that she experiences as a result of the residuals of her hysterectomy. Regarding psychological symptoms, the Veteran is now separately being rated for an adjustment disorder under Diagnostic Code 9440. Her gastrointestinal problems and pain are already covered by her 30 percent rating for abdominal adhesions under Diagnostic Code 7515-7301. This is because Diagnostic Code 7301 is predicated on at least two of the following: disturbance of motility, actual partial obstruction, reflux disturbances, presence of pain. 38 C.F.R. § 4.114. Her 30 percent rating under Diagnostic Code 7301 further captures her gastrointestinal problems ("delayed motility of barium meal") and pain ("less prolonged episodes of pain"). In addition to her rating for pain under Diagnostic Code 7615-7301, the Veteran is also rated at 10 percent for painful hysterectomy scar under Diagnostic Code 7804. Taken together, the Board finds that other rating criteria already capture the psychological symptoms, pain, cramping, and gastrointestinal problems that she experiences as a result of the residuals of her hysterectomy. To further compensate the Veteran for these same symptoms under Diagnostic Code 7617 would constitute the prohibited practice of pyramiding. 38 C.F.R. § 4.14. As the Veteran is already being compensated for these symptoms and her incontinence does not require the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day, the preponderance of the evidence is against a rating in excess of 50 percent for total hysterectomy. For these reasons, the Board must deny the Veteran's claim of entitlement to a rating in excess of 50 percent for total hysterectomy. Abdominal Adhesions 2. Entitlement to a rating in excess of 30 percent for abdominal adhesions From June 1, 2010, the date the Veteran filed this claim, she has been rated at 30 percent. All ratings are under Diagnostic Code 7615-7301. This claim was filed on June 1, 2010. The preponderance of the evidence is against a rating in excess of 30 percent for abdominal adhesions. There is no lay or medical evidence to support the existence of definite partial obstruction shown by X-ray, with frequent and prolonged episodes of severe colic distension, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage. The Veteran's symptoms of rectal bleeding, incontinence, and psychological symptoms are captured by her ratings of 50 percent under Diagnostic Code 7617 and 30 percent under Diagnostic Code 9440. She is additionally being compensated for pain under Diagnostic Code 7804. To further compensate the Veteran for these symptoms under Diagnostic Code 7301 would constitute the prohibited practice of pyramiding. 38 C.F.R. § 4.14. For these reasons, the preponderance of the evidence is against a 50 percent rating for abdominal adhesions. Thus, entitlement to a rating in excess of 30 percent for abdominal adhesions must be denied. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cannon, Brian 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.