Citation Nr: 21075548 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 16-44 707 DATE: December 20, 2021 ORDER Entitlement to a rating in excess of 50 percent for service-connected status post hysterectomy with bilateral salpingo-oophorectomy for uterine fibroids is denied. Entitlement to service connection for urinary incontinence as secondary to service-connected status post hysterectomy and bilateral salpingo-oophorectomy due to uterine fibroids is granted. Entitlement to service connection for anemia as secondary to service-connected status post hysterectomy and bilateral salpingo-oophorectomy due to uterine fibroids is denied. REMANDED Entitlement to service connection for female sexual arousal disorder (FSAD) as secondary to service-connected status post hysterectomy and bilateral salpingo-oophorectomy due to uterine fibroids is remanded. Entitlement to service connection for a disability manifested by sleep impairment, night sweats, depression, and anxiety, other than service-connected posttraumatic stress disorder (PTSD) with major depressive disorder and alcohol abuse, as secondary to service-connected status post hysterectomy and bilateral salpingo-oophorectomy due to uterine fibroids is remanded. FINDINGS OF FACT 1. The Veteran had a complete removal of the uterus and both ovaries in 2010. 2. The Veteran's urinary incontinence is proximately due to her service-connected residuals of hysterectomy and bilateral salpingo-oophorectomy. 3. There is no competent diagnosis of anemia of record. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent rating for residuals of hysterectomy and bilateral salpingo-oophorectomy due to uterine fibroids have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.116, Diagnostic Code 7617. 2. The criteria for service connection for urinary incontinence as secondary to service-connected residuals of hysterectomy and bilateral salpingo-oophorectomy have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for anemia have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1981 to August 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in May 2019. A transcript of the hearing has been associated with the claims file. By way of background, in September 2019, the Board remanded the issue of entitlement to increased rating for status post hysterectomy for further evidentiary development and adjudication. That development has been accomplished and the Board finds that VA substantially complied with the September 2019 Board remand. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). See also Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 1. Entitlement to a rating in excess of 50 percent for service-connected status post hysterectomy with bilateral salpingo-oophorectomy for uterine fibroids is denied. The Veteran's hysterectomy is rated under Diagnostic Code 7617. 38 C.F.R. § 4.116, Diagnostic Code 7617. Under Diagnostic Code 7617, a 100 percent evaluation is assigned for three months following complete removal of the uterus and both ovaries. After three months, a 50 percent rating is assigned for complete removal of the uterus and both ovaries. 38 C.F.R. § 4.116, Diagnostic Code 7617. As an initial matter, the Veteran filed a claim for entitlement to an increased rating for her status post hysterectomy in September 2011. Based on the evidence of record, the Board finds the Veteran's status post hysterectomy is consistent with a 50 percent rating. By way of background, in January 2010, she underwent hysterectomy and bilateral salpingo-oophorectomy. See October 2010 Medical Treatment Record Non-Government Facility. A post-operative follow-up showed that the incision appeared well healed with no complaints of pain. The Veteran was afforded a VA examination in April 2011. In the April 2011 VA examination, she claimed that she has dysuria, urgency, frequency, nocturia and incontinence. She stated that the frequency occurs as often as 10 times per day. The nocturia occurs five times per night. The incontinence is intermittent, and a pad or absorbent material is required as often as five times per day. She also endorsed being constipated about five times per week. The examiner noted that post hysterectomy the Veteran denied having any residual symptoms except for a painful scar. However, on examination, the linear scar was not painful and there was no skin breakdown. The examiner determined it was a superficial scar with no underlying tissue damage. There was no evidence of urethral discharge. The vagina had no abnormal discharge, tenderness, rectovaginal fistula, or urethrovaginal fistula. There were no signs of a rectocele or cystocele. The cervix, uterus, and both ovaries were absent. A PAP smear test showed essentially normal findings. The treatment records are consistent with the findings from the April 2011 VA examination. For instance, in a December 2011 VA treatment record, she denied having vaginal bleeding or a drop in hemoglobin. See April 2013 CAPRI. The Veteran was afforded a VA examination in December 2012 wherein she stated that her current symptoms were surgical menopause, painful scarring, and depression. She also endorsed having intermittent pain, severe pain, pelvis pressure, anemia, fatigue, blood clots, frequent or continuous menstrual disturbances, and periods for 10 days or longer. She endorsed having surgical menopause. She also claimed to have urinary stress incontinence and/or leakage that required absorbent materials to be changed more than four times per day. Urinary incontinence/leakage was due to a gynecologic condition. There was no diagnosis of anemia. There was no rectovaginal fistula, urethrovaginal fistula, or endometriosis. In the January 2014 VA examination, she endorsed having pelvic pain, heavy bleeding, blood clots, and menstruation problems. She was noted to have intermittent pain, severe pain, pelvic pressure, irregular menstruation, frequent or continuous menstrual disturbances, and surgical menopause. She endorsed having urinary stress incontinence and/or leakage that required absorbent materials to be changed more than four times per day. There was no rectovaginal fistula, urethrovaginal fistula, or endometriosis. Unlike her statements in the December 2012 and January 2014 VA examinations, in a November 2015 VA treatment record, she denied having urinary incontinence. See August 2018 VAMC Other Output/Reports. In a June 2015 VA treatment record, she denied having any night sweats. See August 2018 VAMC Other Output/Reports. In an October 2017 VA treatment record, for the first time she complained of hot flashes and night sweats associated with her hysterectomy. However, by January 2019 she again denied having night sweats. See January 2020 CAPRI. In a February 2020 VA treatment record, she continued to deny having night sweats. See June 2020 CAPRI. In the May 2019 hearing, she stated that she has night sweats, anemia, and sleep impairment due to her status post hysterectomy. She acknowledged that she has night sweats from her PTSD but then claimed that she has "night sweats on top of night sweats." Based on her testimony, in September 2019, the Board remanded the issue to obtain further clarification as to her claimed residuals of status post hysterectomy. Pursuant to the September 2019 Board remand order, she was afforded another VA examination. In the February 2020 VA examination, she endorsed having thin hair, brittle nails, anemia, night sweats, sleep impairment, depression, and anxiety. Specifically, she stated that her hair stayed thin and never recovered. Her fingernails and toenails gotten brittle and stayed that way ever since. She conceded that she does not know the state of her anemia since her 2010 surgery. She reported that she has night sweats two to three times per week. She also claimed daytime hot flashes with drenching sweats at times for which she changes her clothes/underwear during the day at work. She stated that she has nightmares almost every night but that they do not correlate with the night sweats. She stated the night sweats wake her up and she cannot fall back asleep. On nights without the sweats, she may wake up feeling very hot and dry or itchy ( she takes Benadryl for the itch), sometimes she wakes up due to her thoughts, and sometimes she wakes up with anxiety attacks. She also stated that she is depressed as she cannot have any more children. She claimed that she has anxiety especially when she has night sweats as she is unable to calm herself down. After the surgery, she has had pelvic pain for the first year then it slowly subsided and resolved. She endorsed having urinary incontinence and/or leakage that require absorbent materials to be changed less than two times per day. There was no rectovaginal fistula, urethrovaginal fistula, or endometriosis. As the Veteran underwent her hysterectomy in January 2010 and filed her claim for increased rating for hysterectomy in September 2011, she is past the three-month period for which a 100 percent rating is warranted at the time of her original claim. Therefore, the Board finds that a 50 percent rating, and no higher, is warranted for service-connected residuals of hysterectomy and bilateral salpingo-oophorectomy from the date of her claim. 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7617. 2. Entitlement to service connection for urinary incontinence, to include as secondary to service-connected status post hysterectomy and bilateral salpingo-oophorectomy due to uterine fibroids, is granted. The Board finds that the issue of entitlement to service connection for urinary incontinence on a secondary basis has been reasonably raised by the record, including the Veteran's statements and testimony, December 2012 VA examination, January 2014 VA examination, and February 2020 VA examination. The December 2012, January 2014, and February 2020 VA examiners noted that she reported stress urinary incontinence since her hysterectomy, and that she wears incontinence pads which requires changing at least two times per day to more than four times per day. Specifically, the April 2011 examiner noted that the Veteran endorsed having incontinence that requires absorbent material to be changed as often as five times per day. The December 2012 examiner noted that the Veteran has urinary incontinence due to removal of the uterus. She has stress incontinence that requires absorbent material to be changed more than four times per day. The January 2014 examiner noted that the Veteran has urinary incontinence due to total vaginal hysterectomy with bilateral salpingo oophorectomy. She has stress incontinence that requires absorbent material to be changed more than four times per day. The February 2020 examiner noted that the Veteran has urinary incontinence due to status post hysterectomy with bilateral salpingo oophorectomy. She has stress incontinence that requires absorbent material to be changed less than two times per day. Upon a review of the record, the Board finds her current urinary incontinence status post hysterectomy is proximately due to service-connected status post hysterectomy and bilateral salpingo-oophorectomy and should be separately rated. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for urinary incontinence status post hysterectomy is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. 3. Entitlement to service connection for anemia as secondary to service-connected status post hysterectomy and bilateral salpingo-oophorectomy due to uterine fibroids is denied. In the May 2019 VA examination, she claimed that she has anemia. However, a review of the records does not show a current diagnosis of anemia. In fact, the February 2020 VA examiner noted that although an August 2008 record shows that she has 'severe anemia' without a specific laboratory value, once she had a hysterectomy, the anemia related to her uterine bleeding would have been cured. Any further anemia she may have would not be related to her fibroids as these are no longer present. Additionally, the records do not show that she has a current diagnosis of anemia. The Board affords great probative value to the February 2020 VA examiner's assessment as the examiner explained that her past anemia was related to her uterine bleeding which was cured with the hysterectomy. Any further anemia she may have would not be related to her fibroids as these are no longer present. She does not currently have a diagnosis of anemia. In the absence of a current disability, the analysis ends, and the claim for service connection for anemia cannot be granted. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The claim is denied. REASONS FOR REMAND 4. Entitlement to service connection for FSAD as secondary to service-connected status post hysterectomy and bilateral salpingo-oophorectomy due to uterine fibroids is remanded. During the February 2020 VA examination, the examiner noted the Veteran had FSAD. However, the examiner did not opine as to whether FSAD was attributable to her service-connected status post hysterectomy and bilateral salpingo-oophorectomy due to uterine fibroids. Therefore, a remand is necessary. The Board observes that FSAD is assigned a non-compensable rating under 38 C.F.R. § 4.116 Diagnostic Code 7632. Although special monthly compensation (SMC) is available under 38 C.F.R. § 3.350, the Board observes the Veteran has already been granted SMC on account of loss of a creative organ. 5. Entitlement to service connection for a disability manifested by sleep impairment, night sweats, depression, and anxiety, other than service-connected PTSD with major depressive disorder and alcohol abuse, as secondary to service-connected status post hysterectomy and bilateral salpingo-oophorectomy due to uterine fibroids is remanded. The Board notes that the Veteran is service connected for PTSD with major depressive disorder and alcohol abuse rated at 50 percent as of September 30, 2013. The Veteran claims that she has sleep impairment, night sweats, depression, and anxiety related to her post-status hysterectomy. The February 2020 VA examiner noted that the treatment records prior to January 2010 document issues of chronic pain and sleep related concerns. After her surgery, the records show ongoing sleep issues but did not document any new concerns relating to change in sleep, night sweats, anxiety, or depression. The treatment records continue to show ongoing sleep and anxiety but no note of any concerns surrounding her hysterectomy or menopausal symptoms. There is no indication in the primary care notes of ongoing struggles with post-menopausal symptoms. The examiner stated that menopause can certainly cause sleep impairment, hot flashes (also experienced as night sweats), anxiety and depression that can last for 10 years or so however these symptoms can also be a part of her service-connected PTSD or depression. Her complaints about these symptoms as documented in the records appear to have started after the death of her daughter. There is no documentation of most of these symptoms being discussed with her primary care after her surgery but prior to her daughter's death or indeed at all, or of any treatments directed toward treating post-menopausal symptoms. As such it is not possible to determine to what degree her symptoms of sleep impairment, night sweats, depression and anxiety are due to her mental health diagnoses and how much of a contribution to these symptoms is coming from her post-menopausal state. One might expect that 10 years following menopause, at least some of her symptoms should have been improved in terms of severity or frequency however this does not appear to be the case, suggesting a very significant contribution from her mental health conditions. In an April 2013 VA treatment record, it was noted that in January 2012 her daughter unexpectedly died which triggered some issues and now she has decreased sleep and night sweats. In a November 2014 VA treatment record, a sleep study showed that she has sleep apnea. See December 2005 Medical Treatment Record Government Facility. In an August 2015 VA treatment record, she stated that she often goes two to three nights without sleep as she recalls her husband's abuse. See July 2016 CAPRI. In a January 2016 VA treatment record, she complained that she cannot tolerate her CPAP machine. See July 2016 CAPRI. The Board concludes a remand is necessary for an examiner to opine as to whether she has a disability manifested by a sleep impairment, night sweats, depression, and anxiety that has been caused or aggravated by a service-connected disability. The issues are remanded for the following action: 1. Obtain any outstanding VA or private treatment records and associate them with the claims file. 2. Thereafter, obtain an opinion as to whether it is at least as likely as not that the Veteran has female sexual arousal disorder that is (a) caused or (b) aggravated by a service-connected disability. Explain why or why not. 3. After the development in #1 is completed, obtain an opinion as to whether it is at least as likely as not that the Veteran has a disability or disabilities manifested by sleep impairment, night sweats, depression, and anxiety. The examiner should address the following: (a) Does the Veteran have a diagnosed psychiatric disability other than service-connected PTSD with major depressive disorder and alcohol abuse? If so, is such diagnosed psychiatric disability at least as likely as not (i) caused or (ii) aggravated by a service-connected disability, to include status post hysterectomy and bilateral salpingo-oophorectomy due to uterine fibroids? Please explain why or why not. (Continued on the next page) (b) Does the Veteran have a diagnosed disability manifested by either sleep impairment and/or night sweats? If so, is such diagnosed disability(ies) at least as likely as not (i) caused or (ii) aggravated by a service-connected disability, to include status post hysterectomy and bilateral salpingo-oophorectomy due to uterine fibroids? Please explain why or why not. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Noh, 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.