Citation Nr: 21023559 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-05 677 DATE: April 21, 2021 ORDER A disability rating in excess of 30 percent for salpingitis infertility is denied. FINDING OF FACT The Veteran’s current rating of 30 percent for salpingitis infertility is the maximum benefit provided under the rating schedule and an extraschedular rating is not warranted. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for salpingitis infertility, including on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.116, Diagnostic Code (DC) 7699-7614. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1987 to September 1990 This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision by a Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, continued the 30 percent disability rating for salpingitis infertility. The matter previously came to the Board in December 2018 but was remanded in pursuit of a new VA examination. The matter has come before the Board once more and the Board finds that there has been substantial compliance with its directives and may now proceed with a decision. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a disability rating in excess of 30 percent for salpingitis infertility. The Veteran’s salpingitis infertility is currently rated under hyphenated diagnostic code 7699-7614. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number is “built up” with the first two digits being selected from that part of the schedule most closely identifying the part, and the last two digits being “99” for an unlisted condition. Id. DC 7614 is rated under the General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs. Under Diagnostic Code 7614 a noncompensable (0 percent) rating is warranted for symptoms that do not require continuous treatment; a 10 percent rating is warranted for symptoms that require continuous treatment; and a maximum 30 percent rating is warranted for symptoms that are not controlled by continuous treatment. 38 C.F.R. § 4.116, DC 7614. The Veteran filed a claim for an increased rating for her service-connected salpingitis infertility in July 2012. She was afforded a VA examination in August 2012, at which time her past right and left salpingectomy in 1988 for ectopic pregnancy was noted. No symptoms or medications were reported at that time. The Veteran was subsequently afforded a VA examination in November 2019, at which time she reported that she had sadness and depression as a result of her infertility issues. She had no additional gynecological symptoms. She did not have a previous hysterectomy. Her disability did not impact her ability to work. In the instant case, the Veteran’s symptoms reported in the November 2019 rating decision, including sadness and depression related to her infertility issues, are contemplated by the rating schedule. In this regard, Diagnostic Code provides a 30 percent disability rating, the highest schedular rating, for symptoms not controlled by continuous medication. As mentioned above, the Veteran is currently in receipt of the highest possible rating for her disability. The only remaining avenue for an increased rating for the Veteran’s salpingitis infertility is through an extraschedular rating. The Veteran indicates she believes she merits an extraschedular rating in her February 2015 VA Form 9, stating, “I think the VA decided incorrectly in my case because the determination was a standard determination given in cases like this.” To accord justice in exceptional cases where the schedular standards are found to be inadequate a RO is authorized to refer the case to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for assignment of an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). When the Board finds that an extraschedular rating may be warranted based on the above factors, it cannot grant an extraschedular rating in the first instance. Anderson v. Shinseki, 23 Vet. App. 423, 428-429 (2009). Rather, it must remand the claim to the Agency of Original Jurisdiction (AOJ) for referral to the Director of Compensation Service (Director). See Thun v. Peake, 22 Vet. App. 111 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Thun v. Peake, 22 Vet. App. 111 (2008), describes the three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular rating for that service-connected disability is inadequate. Second, if the schedular rating does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” Third, if the rating schedule is inadequate to evaluate the veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director, Compensation and Pension Service, to determine whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular rating. If an extraschedular disability rating is denied in the first instance, then the matter is returned to the Board for reevaluation based on the first two criteria. The evidence of record does not present such an exceptional disability picture that the available schedular rating for that service-connected disability is inadequate. The Veteran submitted a VA Form 9 in February 2015 stating the disability “took a toll mentally, physically, and emotionally” but did not offer specifics. A November 2019 VA examination was afforded to the Veteran to determine the current severity of her disability. The Veteran reported her infertility caused her sadness and depression and the clinician reported no additional gynecological conditions. Moreover, the examiner indicated that her service-connected salpingitis infertility did not impact her ability to work. As such, the Board finds the Veteran’s disability picture is not so exceptional as to warrant referral for an extraschedular rating. (Continued on the next page)   In summary, as the Veteran is currently in receipt of the maximum rating available for her service-connected salpingitis infertility and the disability picture does not merit referral for an extraschedular rating. Thus, the Board finds that a disability rating in excess of 30 percent for salpingitis infertility is not warranted. S. Merrick Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Lee Feldman, Associate 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.