Citation Nr: 21072288 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 18-51 231 DATE: December 2, 2021 ORDER The reduction from 30 percent to 10 percent for endometriosis was improper and the 30 percent rating is restored. A rating in excess of 30 percent for endometriosis is denied. REMANDED The claim for a rating in excess of 10 percent for lumbar spine disability is remanded. The claim for a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's endometriosis was not shown to have actually improved in the ability to function under the ordinary conditions of life and work during the course of the appeal. 2. The Veteran's endometriosis is manifested by pelvic pain or heavy or irregular bleeding controlled by treatment. CONCLUSIONS OF LAW 1. The criteria for restoration of the 30 percent rating for endometriosis have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344. 2. The criteria for a rating in excess of 30 percent for endometriosis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.27, 4.116, Diagnostic Code (DC) 7629. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from September 2007 to August 2011. In February 2020, she testified before the undersigned. A copy of the hearing transcript is of record. She has since retained representation as designated on the front of the decision. Entitlement to a TDIU has been raised by the evidence of the record. The Board has characterized the issues on appeal to include entitlement to a TDIU. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Regarding the claim for a rating in excess of 10 percent for endometriosis, the Board notes that in a March 2017 Legacy system rating decision, the Agency of Original Jurisdiction (AOJ) reduced the evaluation of the service-connected endometriosis from 30 to 10 percent disabling, effective February 16, 2017. The Board observes that 38 C.F.R. § 3.105 (e) applies only when a reduction in evaluation results in a reduction or discontinuance of compensation payments currently being made. See 38 U.S.C. §5112 (b)(6); VAOPGCPREC 71-91 (1991) (holding that section 5112 does not provide a 60-day grace period where there is only a reduction in evaluation with no corresponding reduction in compensation); see also 38C.F.R.§ 3.105 (e). The RO's action in reducing the rating for the Veteran's service-connected endometriosis from 30 percent ratings to 10 percent, effective February 16, 2017, did not result in a reduction of compensation payments. Rather, the Veteran remained in receipt of a 90 percent schedular rating. The Veteran retained special monthly compensation at the S-1 rate from October 3, 2016 to February 16, 2017. As such, her overall disability rating was not affected by the reduction of the endometriosis rating. Under these circumstances, compliance with the pre-reduction procedural safeguards delineated in 38 C.F.R. § 3.105 (e) was not required. VAOPGCPREC 71-91 (Nov. 7, 1991); see also Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed. Cir. 2007); O'Connell v. Nicholson, 21 Vet. App. 89, 92 (Vet. App. 2007). However, even so, when considering whether the AOJ properly reduced a veteran's rating, the Board must determine whether an improvement in disability reflects an actual improvement in the ability to function under the ordinary conditions of life and work. See Brown v. Brown, 5 Vet. App. 413, 421 (1993). Here, such a determination was in no way made. The AOJ simply did not make such a determination. Moreover, it is evident from the Veteran's credible testimony that the condition has simply not improved in the sense that she was better able to function under the ordinary conditions of life and work. As such, the reduction of the rating for endometriosis from 30 percent to 10 percent is void accrued benefits initio and the 30 percent rating is restored. The Board will now proceed with its appellate review of the claim for a rating in excess of 30 percent for endometriosis. In May 2020, the Board remanded the appeal to have the RO obtain outstanding VA treatment records, obtain potentially outstanding Social Security Administration (SSA) records and issue a Statement of the Case (SOC) that addressed the issue of a rating in excess of 10 percent for a low back disability. Thereafter, additional VA treatment records were obtained. In July 2020, SSA reported that they did not have any records pertaining to the Veteran. In September 2020, the RO issued a Supplemental Statement of the Case that addressed the issues on appeal. The appeal has returned to the Board for further appellate consideration. The Veteran seeks a rating in excess of 30 percent for endometriosis. Her claim was received in February 2013. Under Diagnostic Code (DC) 7629, a 10 percent rating is assigned for endometriosis with pelvic pain or heavy or irregular bleeding requiring continuous treatment for control. 30 percent rating is assigned for endometriosis with pelvic pain or heavy or irregular bleeding, not controlled by treatment. A 50 percent evaluation requires symptoms of lesions involving bowel or bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment, and bowel or bladder symptoms. 38 C.F.R. § 4.117, DC 7629. A 50 percent evaluation is the schedular maximum for endometriosis. No higher schedular rating is available under DC 7629. The Board may not deny entitlement to a higher rating based on relief provided by medication when those effects are not specifically contemplated by the rating criteria." Jones v. Shinseki, 26 Vet. App. at 63; see Massey v. Brown, 7 Vet. App. 204, 208 (1994) ("The Board's consideration of factors which are wholly outside the rating criteria provided by the regulations is error as a matter of law."). However, the Board may deny entitlement to a higher rating due to the ameliorative effects of medication when the applicable diagnostic code contemplates the effects of medications. See McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016). Here, Diagnostic Code 7629 explicitly contemplates medical treatment in the rating criteria. As such, evidence pertaining to a veteran's compliance with treatment is pertinent to the issue of whether a higher rating is warranted. The Board finds that the preponderance of the evidence of record is against a rating in excess of 30 percent for endometriosis, because the evidence does not show symptoms of lesions involving bowel or bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment. At a VA examination in October 2013, the diagnosis of endometriosis was noted to have been discovered in April 2011 by laparoscopic exploration, which showed endometriosis and ovarian cysts. The Veteran gave birth in July 2013 and had experienced severe abdominal pain and irregular menstruation. The examiner noted the presence of pelvic pain and heavy or irregular bleeding not controlled by treatment. Treatment records show that the Veteran had a surgical procedure in August 2014 which included a Laparoscopic fulguration of endometriosis, a Laparoscopic appendectomy, and a Laparoscopic bilateral partial oophorectomy, removing an ovarian cyst from the left and an ovarian lesion from the right. In February 2015, the Veteran asserted that she believed that 80 percent of her pain was related to endometriosis, but the gynecology consult felt that the Veteran's endometriosis was not the primary cause of her abdominal pain. VA treatment records from June 2016 show that the Veteran was seen as walk in for heavy bleeding for approximately three weeks. VA treatment records from August 2016 note the following: 2011: complaints of severe dysmenorrhea, trial of OCPs, did not help her. Was trying to pregnant and unable to do so 2013: due to continued pain and inability to get pregnant, had first l-scope surgery with fulguration of endometriosis in Oregon. After 2013 she subsequently got pregnant. Pregnancy was very difficult her, she lost weight, and needed a feeding tube. After her pregnancy she continued to have pain. 2014-2015: Tried Lupron for several months and then was told may not be working anymore. 2015: 2nd L-scope with fulguration of endometriosis and appendectomy as endometriosis lesions seen on appendix. Then she had maybe 1 or 2 shots of Lupron after surgery but was told to stop. She now has been on DMPA for past 6 months. States she is having almost continuous bleeding and passing clots with DMPA. Using 2-3 menstrual cups per day. The pain score in August 2016 was 0. VA treatment records from November 2016 showed that the Veteran was on Depo-Lupron injection therapy and that her pain score was 0. She did report experiencing some hot flashes and fatigue from the treatment, but stated that the condition was tolerable. A second VA examination was provided in February 2017. The Veteran was noted to experience pain and pelvic pressure, as well as no menstruation; however, there was no finding of any bleeding issues, lesions, bowel or bladder symptoms or anemia as a result of the endometriosis. She received a Lupron injection every three months, and it was noted that her symptoms required continuous treatment. In November 2017 and May 2018, it was noted that the Veteran was happy with how Lupron had controlled her endometriosis symptoms. Her pain score was 0. At a hearing before the Board in February 2020, the Veteran testified that she had stopped taking the shots and was just dealing with the symptoms at that point. Turning to the rating criteria. A rating in excess of 30 percent requires lesions involving bowel or bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment, and bowel or bladder symptoms. Here, it is clear from the medical records and the Veteran's testimony that her endometriosis has been problematic, and symptomatic. However, the evidence of record has not shown bowel or bladder lesions on any laparoscopy and the Veteran's endometriosis has generally been controlled by treatment. It is not disputed that the Veteran has experienced pelvic pain, but this appears to be her main symptom, and a 30 percent rating is assigned specifically for pain that is not controllable. The Board has closely reviewed the Veteran's testimony, and it was that testimony that was particularly persuasive in establishing that the 30 percent rating should be restored. However, as discussed above the criteria for a rating in excess of 30 percent have not been met and to that extent the claim is denied. REASONS FOR REMAND The claim for a rating in excess of 10 percent for a back disability is remanded. As noted by the Board in its May 2020 remand, in a February 2017 rating decision (the Veteran was notified of the decision in a February 15, 2007 letter), that the Agency of Original Jurisdiction (AOJ), had in part, continued a 10 percent rating for the low back disability. Within a year, the Veteran filed a timely notice of disagreement wherein she disagreed, in part, with the 10 percent rating assigned to the service-connected low back disability. The AOJ did not issue a statement of the case (SOC) with respect to the issue of a rating in excess of 10 percent for a low back disability, thus, the Board remanded the claim to have one provided to the Veteran. Thereafter, in September 2020, the AOJ issued a Supplemental Statement of the Case (SSOC), which, in part, addressed the issue of entitlement to a rating in excess of 10 percent for a low back disability. Notably, 38 C.F.R. § 19.31 states specifically: "In no case will a Supplemental Statement of the Case be used . . . to respond to a notice of disagreement on newly appealed issues that were not addressed in the Statement of Case." 38 C.F.R. § 19.31. Thus, it was error for the AOJ to address the issue of entitlement to a rating in excess of 10 percent for a low back disability in the first instance in an SSOC. Moreover, there is not a valid substantive appeal that would bestow upon the Board jurisdiction to, at this point, adjudicate the Veteran's claim for a rating in excess of 10 percent for a low back disability. The Board points out that, for claims under the legacy system, an appeal consists of a timely filed NOD in writing and, after an SOC has been furnished, a timely filed Substantive Appeal. See 38 U.S.C. § 7105 ; 38 C.F.R. § 20.200. Accordingly, the Board concludes that it does not have jurisdiction at this time to consider the claim of entitlement to a rating in excess of 10 percent for a low back disability, as the requirements for filing an appeal of this issue have not been met. See 38 U.S.C. § 7105; 38 C.F.R. § 20.200. A remand is therefore required for the AOJ to furnish to the Veteran with a copy to her an SOC on the matter of entitlement to a rating in excess of 10 percent for a low back disability, along with a VA Form 9, and to afford her the appropriate opportunity to file a substantive appeal to perfect an appeal on this issue. See 38 C.F.R. § 19.29; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998) (a Board remand confers a right on a claimant to compliance with the remand order). The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200 , 20.201, 20.202. Accordingly, this issue is remanded for issuance of an SOC that addresses the issue of entitlement to a rating in excess of 10 percent for low back disability and proper notice of her appellate rights on this issues. Entitlement to a TDIU rating is remanded. In this case, the issue of entitlement to a TDIU is potentially affected by the results of the rating issue remanded herein; thus, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, a remand is also warranted regarding this issue. The matters are REMANDED for the following action: (Continued on the next page) 1. Furnish to the Veteran and her representative an SOC with respect to the issue of entitlement to a rating in excess of 10 percent for low back disability along with a VA Form 9, and afford her a full opportunity to perfect an appeal as to this issue. 2. The Veteran and her representative are hereby reminded that to obtain appellate review of any issue not currently in appellate status, a timely appeal must be perfected for the claim referenced above, within 60-days of the issuance of an SOC as to that issue. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carole Kammel, 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.