Citation Nr: 21071613 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-45 810 DATE: November 30, 2021 ORDER On and after December 1, 2016, entitlement to a 30 percent evaluation for service-connected status-post salpingo-oophorectomy is granted. REMANDED Prior to August 16, 2016, entitlement to an initial compensable evaluation for service-connected right ovarian cyst with atrophied ovary is remanded. On and after December 1, 2016, entitlement to an evaluation in excess of 30 percent for service-connected status-post salpingo-oophorectomy is remanded. FINDING OF FACT The Veteran's service-connected right ovary and non-service-connected left ovary were removed in August 2016. CONCLUSION OF LAW On and after December 1, 2016, the criteria for a 30 percent disability rating for service-connected status-post salpingo-oophorectomy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.116, Diagnostic Code 7619. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2004 to August 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In addition to the issue noted above, the Veteran testified regarding entitlement to increased ratings for posttraumatic stress disorder (PTSD) with depression, eczema, and rhinosinusitis. See Hearing Transcript (August 2021). In October 2021, another VLJ held a hearing regarding increased ratings for PTSD, eczema, and rhinosinusitus. That hearing transcript has not yet been associated with the claims file. As there have been two separate hearings before two separate VLJs regarding three issues, a panel decision is required. See 38 U.S.C. § 7102(a); 38 C.F.R. § 20.604. Those issues will be handled in a separate panel decision. As only one hearing has been held regarding the issue of an increased evaluation for the service-connected salpingo-oophorectomy, it is addressed herein. After a January 2016 rating decision granted service connection for right ovary atrophy, the Veteran filed a timely notice of disagreement. See Rating Decision (January 2016); NOD (April 2016). However, in response to the August 2017 statement of the case, she failed to perfect the appeal to the Board. See SOC (August 2017). In this regard, the Veteran did not file a substantive appeal regarding this issue. Timely perfection of a substantive appeal is not jurisdictional in nature and given that there was a subsequent hearing on the issue in this appeal, the Board finds that waiver of the substantive appeal requirement is warranted. See Percy v. Shinseki, 23 Vet. App. 37, 46 (2009) (holding the filing of a substantive appeal is not jurisdictional and may be waived by VA). The Board, therefore, exercises jurisdiction over the issue. On and after December 1, 2016, entitlement to a 30 percent evaluation for service-connected status-post salpingo-oophorectomy is granted. The Veteran contends that she is entitled to a higher evaluation as both of her ovaries have been removed. See Hearing Transcript (August 2021). She also alleges her total hysterectomy is due to her service-connected right ovary disability. See Hearing Transcript (August 2021). The Board finds that a 30 percent evaluation is for assigment, effective December 1, 2016, as both ovaries have been removed. See 38 C.F.R. § 4.116, Diagnostic Code 7619. 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). In January 2016, the RO granted service connection for atrophy of the right ovary and assigned a zero percent evaluation, effective August 14, 2019. See Rating Decision (January 2016). The disability was rated under Diagnostic Code 7620, for atrophy of the ovaries. See Rating Decision (January 2016). In December 2016, a 100 percent temporary total evaluation was assigned, effective August 16, 2016, after the Veteran underwent a bilateral salpingo-oophorectomy. See Medical Treatment Record Non-Government Facility (February 2018); Rating Decision (December 2016). Effective December 1, 2016, a zero percent evaluation was assigned under Diagnostic Code 7619, for removal of an ovary. See Rating Decision (December 2016); 38 C.F.R. § 4.116, DC 7619. The Veteran's disability is rated under Diagnostic Code 7619. For removal of one ovary with or without partial removal of the other, a zero percent evaluation is assigned. For compete removal of both ovaries, a 30 percent evaluation is assigned. For three months after removal, a 100 percent evaluation is assigned. See 38 C.F.R. § 4.116, DC 7619. In cases of the removal of one ovary as the result of a service-connected injury or disease, with the absence or nonfunctioning of a second ovary unrelated to service, an evaluation of 30 percent will be assigned for the service-connected ovarian loss. See 38 C.F.R. § 4.116, DC 7619. For this time period, the RO assigned a zero percent evaluation, reflecting removal of the service-connected right ovary in August 2016. See Medical Treatment Record Non-Government Facility (February 2018); Rating Decision (December 2016). The Board finds that a 30 percent evaluation is for assignment, effective December 1, 2016. In an August 2016 private record, it was noted that the Veteran had a bilateral salpingo-oophorectomy. See Medical Treatment Record Non-Government Facility (September 2016); Medical Treatment Record Non-Government Facility (February 2018). Although both ovaries are removed, the Veteran is only service-connected for the right ovary. Under DC 7619, however, where both ovaries are removed, but only one is service-connected, a 30 percent evaluation is for assignment based on the Note. This is precisely the situation in the Veteran's case. Accordingly, a 30 percent evaluation is for assignment, effective December 1, 2016. As noted below, there are outstanding records applicable to the appeal period. Thus, the determination of whether an even higher evaluation is for assignment at any point during the appeal period, is not addressed herein. REASONS FOR REMAND 1. Prior to August 16, 2016, entitlement to an initial compensable evaluation for service-connected status-post salpingo-oophorectomy is remanded. 2. On and after December 1, 2016, entitlement to an evaluation in excess of 30 percent for service-connected status-post salpingo-oophorectomy is remanded. The Veteran contends that she is entitled to a higher evaluation as both of her ovaries have been removed. See Hearing Transcript (August 2021). She also alleges her total hysterectomy is due to her service-connected right ovary disability. See Hearing Transcript (August 2021). The Board finds that remand is warranted to attempt to obtain relevant private medical records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes making reasonable efforts to obtain relevant private medical records. 38 C.F.R. § 3.159(c)(1). At the August 201 Board hearing, the Veteran reported that she saw private gynecologists for her service-connected disability, to include treatment one week prior. See Hearing Transcript (August 2021). Private gynecological records are associated with the claims file. See Medical Treatment Record Non-Government Facility (February 2018); Medical Treatment Record Non-Government Facility (September 2016); Medical Treatment Record Non-Government Facility (August 2015); Medical Treatment Record Non-Government Facility (February 2015). However, the most recent records are dated in August 2016 and it isn't clear if they are complete prior to that date. See Medical Treatment Record Non-Government Facility (February 2018). Accordingly, remand is required to obtain those records. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. T and Dr. G, as referenced in the August 2021 Board hearing transcript. Make two requests for the authorized records from Dr. T and Dr. G, for all records dated after August 2009, and in particular, after August 2016, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's VA treatment records for the period from June 2019 to the Present. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M., 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.