Citation Nr: 21029794 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 19-28 571 DATE: May 17, 2021 ORDER An initial rating of 10 percent for uterine fibroids, status post embolization with dysmenorrhea, from October 1, 2012, to February 15, 2018, is granted. A rating of 100 percent for laparoscopic hysterectomy and bilateral salpingectomy with uterine fibroids from February 16, 2018, to May 16, 2018, and a rating of 30 percent for the disability thereafter, is granted. Special monthly compensation (SMC) under 38 U.S.C. § 1114(k) based on anatomical loss of a creative organ beginning February 16, 2018, is granted. SMC under 38 U.S.C. § 1114(s) from February 16, 2018, to May 16, 2018, is granted. FINDINGS OF FACT 1. Beginning the October 1, 2012, date of service-connection until her February 16, 2018, hysterectomy, the Veteran's uterine fibroids resulted in symptoms requiring continuous treatment. 2. The Veteran's February 16, 2018, hysterectomy, due to her service-connected uterine fibroids, occurred during the initial rating period for her uterine fibroids. 3. The Veteran's February 16, 2018, hysterectomy resulted in loss of a creative organ. 4. From February 16, 2018, to May 16, 2018, in addition to her hysterectomy residuals, the Veteran had multiple separate and distinct disabilities involving different anatomical segments or bodily systems that together were independently ratable at 90 percent. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 10 percent for uterine fibroids, status post embolization with dysmenorrhea, from October 1, 2012, to February 15, 2018, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.116, Diagnostic Code 7613. 2. The criteria for a rating of 100 percent for laparoscopic hysterectomy and bilateral salpingectomy with uterine fibroids from February 16, 2018, to May 16, 2018, and a rating of 30 percent for the disability thereafter, are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.116, Diagnostic Code 7618. 3. The criteria for SMC under 38 U.S.C. § 1114(k) based on anatomical loss of a creative organ beginning February 16, 2018, are met. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a). 4. The criteria for SMC under 38 U.S.C. § 1114(s) from February 16, 2018, to May 16, 2018, are met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1991 to September 1991, and September 1992 to September 2012. This appeal is before the Board of Veterans' Appeals (Board) from a May 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office. In April 2021, the Veteran testified at a Board hearing before the undersigned Acting Veterans Law Judge. A transcript is included in the claims file. The Veteran originally sought service connection for uterine fibroids, which was denied in a March 2013 rating decision. In a May 2018 rating decision, the agency of original jurisdiction (AOJ) found clear and unmistakable error (CUE) in the March 2013 rating decision and granted service connection for uterine fibroids, status post embolization with dysmenorrhea, effective October 1, 2012. The AOJ assigned an initial noncompensable (0 percent) rating, under 38 C.F.R. § 4.116, Diagnostic Code (DC) 7613, for disease, adhesions, or injury of the uterus. The Veteran appealed the initial rating and perfected an appeal of the issue to the Board. On February 16, 2018, the Veteran underwent laparoscopic hysterectomy and bilateral salpingectomy. She filed a formal claim for compensation for removal of her uterus as secondary to her service-connected uterine fibroids on July 31, 2019. In a September 2019 decision, the AOJ granted a rating of 30 percent for laparoscopic hysterectomy and bilateral salpingectomy with uterine fibroidsin place of her previous, 0 percent rating for uterine fibroidspursuant to 38 C.F.R. § 4.116, DC 7618, for removal of the uterus. The AOJ assigned an effective date for that rating of July 31, 2019, identifying that as the date of the Veteran's claim. In the same decision, the AOJ also granted SMC under 38 U.S.C. § 1114(k) based on anatomical loss of a creative organ, also effective July 31, 2019. However, while the AOJ considered the Veteran's July 2019 application for benefits as a separately raised claim, the matter was raised during the pendency of the Veteran's appeal of her initial rating for uterine fibroids, and the hysterectomy occurred during the initial rating period for those fibroids. Therefore, consideration of a rating for her hysterectomy should have been made in connection with that pending claim; hysterectomy was well-within the scope of her increased rating claim for uterine fibroids, as it was a progression of such fibroids. Indeed, the 30 percent rating for laparoscopic hysterectomy and bilateral salpingectomy with uterine fibroids was assigned in place ofrather than separate fromher previous, 0 percent rating for uterine fibroids, indicating that the AOJ considered the hysterectomy part of her service-connected uterine fibroid disability. Therefore, the Board considers the matter of the rating for the Veteran's laparoscopic hysterectomy and bilateral salpingectomy with uterine fibroids also on appeal as part of her claim for a higher initial rating for uterine fibroids. Likewise, the matters of SMC under 38 U.S.C. § 1114(k) and (s) are also on appeal as ancillary benefits of the Veteran's service-connected benefits. See 38 U.S.C. § 3.155(d)(2) (VA will adjudicate as part of a claim entitlement to any ancillary benefits that arise as a result of the adjudication decision, such as SMC, even if such benefits are not asserted by the claimant). Increased Rating Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 1. An initial rating of 10 percent for uterine fibroids, status post embolization with dysmenorrhea, from October 1, 2012, to February 15, 2018, is granted. As reflected in a September 2019 statement and the Veteran's April 2021 testimony before the Board, she asserts that she is entitled to an initial compensable rating for her uterine fibroids from the October 1, 2012, date of service connection. She contends that her fibroids and resulting pain, discomfort, and abnormal bleeding, required over-the-counter medication including Motrin, heating pads, and other self-treatment to alleviate her symptoms. Resolving reasonable doubt in the Veteran's favor, the Board finds that she is entitled to an initial 10 percent rating for her uterine fibroids. Under 38 C.F.R. § 4.116, DC 7613, disease, adhesions, or injury of the uterus are rated under the General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs (for rating diagnostic codes 7610 through 7615). Under the General Rating Formula, while symptoms that do not require continuous treatment warrant a noncompensable rating, symptoms that require continuous treatment warrant a 10 percent rating. For the purpose of VA disability rating, 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. 38 C.F.R. § 4.116. VA treatment records from 2012 to 2018 support the Veteran's assertions of pain and abnormal bleeding in connection with her uterine fibroids, which required treatment including over-the-counter medications to control. The use of Motrin for relief of pain and discomfort was noted on September 2017 VA gynecological examination. Given the Veteran's statement and testimony and the supporting medical records, and resolving reasonable doubt in her favor, the Board finds that, beginning the October 1, 2012, date of service-connection until her February 16, 2018, hysterectomy, her uterine fibroids resulted in symptoms requiring continuous treatment. Accordingly, an initial rating of 10 percent for uterine fibroids, status post embolization with dysmenorrhea, from October 1, 2012, to February 15, 2018, must be granted. 2. A rating of 100 percent for laparoscopic hysterectomy and bilateral salpingectomy with uterine fibroids from February 16, 2018, to May 16, 2018, and a rating of 30 percent for the disability thereafter, is granted. Under DC 7618, removal of the uterus, for three months after removal, warrants a 100 percent rating; thereafter, it warrants a 30 percent rating. 38 C.F.R. § 4.116. As discussed above, the Veteran's February 16, 2018, hysterectomy, due to her uterine fibroids, occurred during their initial rating period being considered on appeal. Thus, as of that date, any higher rating for the Veteran's disability based on her hysterectomy is warranted. Therefore, applying DC 7618, a 100 percent rating for the Veteran's hysterectomy is warranted from the February 16, 2018, date of hysterectomy for three months to May 16, 2018. A 30 percent rating for removal of the uterus after the initial three-month period ending May 16, 2018, is also warranted under this provision. Accordingly, a rating of 100 percent for laparoscopic hysterectomy and bilateral salpingectomy with uterine fibroids from February 16, 2018, to May 16, 2018, and a rating of 30 percent for the disability thereafter, must be granted. 3. SMC under 38 U.S.C. § 1114(k) based on anatomical loss of a creative organ beginning February 16, 2018, is granted. SMC provided by 38 U.S.C. § 1114(k) is payable for loss or loss of use of one or more creative organs. 38 C.F.R. § 3.350(a). As discussed above, in its September 2019 decision granting a rating of 30 percent for laparoscopic hysterectomy, the AOJ, effective July 31, 2019the date it considered the Veteran to have filed a claim for such benefitalso granted SMC under 38 U.S.C. § 1114(k) based on anatomical loss of a creative organ, also effective July 31, 2019, as a benefit encompassed in the Veteran's claim. However, as discussed above, the Board is considering the Veteran's hysterectomy rating as part of her claim for a higher initial rating for uterine fibroids, and her February 16, 2018, hysterectomy occurred during the initial rating period on appeal. The Board is therefore granting an increased rating for the Veteran's hysterectomy effective the February 16, 2018, date of the hysterectomy. Thus, the Veteran's SMC benefit under § 1114(k), ancillary to the hysterectomy rating, also warrants an effective date of February 16, 2018. See note to 38 C.F.R. § 4.116, DC 7618 (instructing to review for entitlement to SMC under § 3.350 of this chapter in connection with the given rating). Accordingly, SMC under 38 U.S.C. § 1114(k) based on anatomical loss of a creative organ beginning February 16, 2018, must be granted. 4. SMC under 38 U.S.C. § 1114(s) from February 16, 2018, to May 16, 2018, is granted. SMC provided by 38 U.S.C. § 1114(s) is payable where a veteran has a single service-connected disability rated as total and has additional service-connected disability or disabilities independently ratable at 60 percent or more, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). From February 16, 2018, to May 16, 2018, in addition to her hysterectomy residuals, the Veteran had multiple separate and distinct disabilities involving different anatomical segments or bodily systems including depressive disorder, headache, and multiple peripheral neuropathies, which together were independently ratable at 90 percent. Therefore, as the Board is granting a rating of 100 percent for her laparoscopic hysterectomy and bilateral salpingectomy with uterine fibroids from February 16, 2018, to May 16, 2018, the criteria for SMC under 38 U.S.C. § 1114(s) for that period are met. Accordingly, SMC under 38 U.S.C. § 1114(s) from February 16, 2018, to May 16, 2018, must be granted. TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Andrew Mack, 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.