Citation Nr: 21031414 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 08-13 364A DATE: May 21, 2021 ORDER An initial rating in excess of 30 percent prior to May 22, 1995, and in excess of 50 percent thereafter for endometriosis is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to October 25, 2002, is denied. FINDINGS OF FACT 1. Prior to May 22, 1995, the Veteran's endometriosis resulted in symptoms not controlled by continuous treatment, but did not result in symptomatology that is not contemplated by the currently assigned rating. 2. As of May 22, 1995, the Veteran's endometriosis is manifested by lesions involving bowel and bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment, and bowel and bladder symptoms, but did not result in symptomatology that is not contemplated by the currently assigned rating. 3. Prior to October 25, 2002, the Veteran's service-connected disabilities did not render her unable to secure or follow a substantially gainful occupational consistent with her education and work history. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent prior to May 22, 1995, and in excess of 50 percent thereafter for endometriosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.116, Diagnostic Code (DC) 7615 (prior to May 22, 1995), 7629 (as of May 22, 1995). 2. The criteria for a TDIU prior to October 25, 2002, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1981 to September 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision issued by the Department of Veterans Affairs (VA) Appeals Management Center. In June 2012, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In April 2013 and January 2020, the case was remanded for additional development. While on remand, October 2020 rating decision awarded increased ratings of30 percent, effective September 16, 1992, the date of service connection, to May 22, 1995, and 50 percent thereafter for endometriosis. As the Veteran is presumed to be seeking the maximum benefit available for a disability, and neither she nor her representative has expressed satisfaction with the assignment of such ratings, the claim for a higher initial rating remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). Such rating decision also awarded a TDIU as of October 25, 2002. Thus, in light of such actions, the claims on appeal have been characterized as shown on the title page of this decision. The case now returns for further appellate review. 1. Entitlement to an initial rating in excess of 30 percent prior to May 22, 1995, and in excess of 50 percent thereafter for endometriosis. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. By way of background, a February 2007 rating decision awarded service connection for endometriosis with an initial noncompensable rating, effective September 16, 1992, pursuant to 38 C.F.R. § 4.116, DC 7629. However, DC 7629 was not in existence until May 22, 1995. Consequently, in the October 2020 rating decision, the Agency of Original Jurisdiction (AOJ) noted that, as endometriosis was not listed in the Rating Schedule prior to May 22, 1995, it was rated analogous to a disability in which not only the functions affected, but anatomical localization and symptoms, are closely related, i.e., disease, injury, or adhesions of ovary, pursuant to DC 7615. 38 C.F.R. § 4.116. In this regard, such disability was assigned the maximum schedular rating of 30 percent pursuant to the General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs (DCs 7610-7615) for symptoms not controlled by continuous treatment from September 16, 1992, to May 22, 1995. However, as of such date, endometriosis is listed in the Rating Schedule under DC 7629. In this regard, in Copeland v. McDonald, 27 Vet. App. 333, 338 (2015), the United States Court of Appeals for Veterans Claims (Court) held that when a condition is specifically listed in the rating schedule, it may not be rated by analogy. Suttmann v. Brown, 5 Vet. App. 127, 134 (1993) (providing that "[a]n analogous rating... may be assigned only where the service-connected condition is 'unlisted.'"). Consequently, as of May 22, 1995, the Veteran's endometriosis is evaluated under DC 7629 and is assigned the maximum rating of 50 percent for lesions involving bowel and bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment, and bowel and bladder symptoms. With respect to the period from September 16, 1992, the date of service connection until May 22, 1995, the date of the change in DC, the Board notes that the Veteran is in receipt of the maximum schedular rating for symptoms not controlled by continuous treatment under the General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs. In this regard, such rating contemplates all symptoms resulting from the Veteran's endometriosis, to include adhesions, pelvic pain, heavy bleeding, and bowel symptomatology, which were not controlled by medication despite numerous attempts. See July 2012 Board testimony; June 2019 Veteran statement; VA treatment records; July 1993, May 2002, October 2011, September 2016, and November 2016 VA examinations; and October 2018, January 2020, and October 2020 VA opinions. Furthermore, as of May 22, 1995, the Board observes that the Veteran is in receipt of the maximum schedular rating for endometriosis with lesions involving bowel and bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment, and bowel and bladder symptoms under DC 7629, which contemplates all symptoms resulting from such disability, to specifically include adhesions, pelvic pain heavy bleeding not controlled by treatment, and bowel symptomatology. See July 2012 Board testimony; June 2019 Veteran statement; VA treatment records; July 1993, May 2002, October 2011, September 2016, and November 2016 VA examinations; and October 2018, January 2020, and October 2020 VA opinions. Furthermore, while the October 2020 VA examiner found that the Veteran had anemia secondary to her endometriosis, which was treated with ferrous sulfate/Niferex, her lowest hemoglobin levels were 11.1 in October 1995, 11 in November 1998, and 10.6 in October 2001. As pertinent to the rating criteria for evaluating anemia under DC 7700, as in effect prior to December 9, 2018, a noncompensable rating is not warranted unless hemoglobin is 10gm/100ml or less, which is not shown. Further, the rating criteria for evaluating iron deficiency anemia under DC 7720, as in effect as of December 9, 2018, the Note thereto specifically states not to evaluate iron deficiency anemia due to blood loss under such DC, but to evaluate the anemia under the condition causing the blood loss. Thus, the Veteran's anemia is contemplated by DC 7629. Consequently, the Board finds that the Veteran's endometriosis has been assigned the maximum schedular rating under the relevant DCs for the entire appeal period. Furthermore, as such disability does not result in symptomatology that is not contemplated by the currently assigned ratings, referral for extra-schedular consideration under 38 C.F.R. § 3.321 is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008); Morgan v. Wilkie, 31 Vet. App. 162 (2019). Therefore, the Board finds that an initial rating in excess of 30 percent prior to May 22, 1995, and in excess of 50 percent thereafter for endometriosis is not warranted. In reaching such determination, the Board considered whether additional staged ratings under Fenderson, supra, are appropriate for the Veteran's endometriosis; however, the Board finds that her symptomatology has been stable throughout each period on appeal. Thus, assigning additional staged ratings for such disability is not warranted. Furthermore, neither the Veteran nor her representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the initial rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Therefore, as the preponderance of the evidence is against the Veteran's claim for an initial rating in excess of 30 percent prior to May 22, 1995, and in excess of 50 percent thereafter for endometriosis, the benefit of the doubt doctrine is not applicable and such initial rating claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a TDIU prior to October 25, 2002. The Veteran has been awarded a TDIU as of October 25, 2002, but she asserts that her service-connected endometriosis prevented her from securing and following a substantially gainful occupation prior to such date as the pain and profuse bleeding associated with such disability prohibited her from working. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Rating boards should submit to the Director of Compensation Service (Director) for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). "Substantially gainful employment" is considered "work that involves doing significant productive physical or mental duties and is done for pay and profit" even if the work "is done on a part-time basis or if a claimant is paid less, or is given less responsibility that when the same claimant worked before." In other words, "substantially gainful occupation" is "one that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income" prior to when he was last employed. See Faust v. West, 13 Vet. App. 342, 356 (2000) (citing analogous Social Security Administration Regulations). Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. In this regard, the Court has indicated that factors to consider in determining whether a protected work environment exists may include the "magnitude of the veteran's job responsibilities and the degree of accommodation necessary for successful, full-time work." Cantrell v. Shulkin, 28 Vet. App. 382, 392 (2017). Additionally, in Judge Lance's concurring opinion, it was noted that where a veteran's disabilities do not result in lost income or where legally required accommodations permit a veteran to maintain gainful employment, an award of TDIU does not serve its intended purpose. Id. at 396. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court held that the initial extra-schedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." The Court also defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue Although VA did not receive the Veteran's Application for Increased Compensation Based on Unemployability (VA 21-8940) until August 20, 2008, the Board has assumed jurisdiction over the issue of entitlement to a TDIU prior to October 25, 2002, as part and parcel of her claim for a higher initial rating for endometriosis, which stems from September 16, 1992, the date of service connection for such disability. Rice v. Shinseki, 22 Vet. App. 447 (2009); Harper v. Wilkie, 30 Vet. App. 356 (2018). Prior to October 25, 2002, the Veteran's endometriosis is rated as 30 percent disabling from September 16, 1992, to May 22, 1995, and as 50 percent disabling thereafter; status post left salpingectomy is rated as 10 percent disabling; and fibrocystic breast disease and surgical scars, which are both rated as noncompensably disabling. Thus, her combined disability rating is 40 percent from September 16, 1992, to May 22, 1995, and 60 percent disabling thereafter. Thus, the Veteran does not meet the schedular threshold for a TDIU prior to May 22, 1995; however, if she is rendered unemployable by reason of her service-connected disabilities, her claim can be referred for extra-schedular consideration of a TDIU. Furthermore, as her service-connected disabilities of endometriosis and left salpingectomy affect a single body system, i.e., the gynecological system, such are considered one disability for TDIU purposes and, thus, she meets the schedular threshold for a TDIU as of May 22, 1995. However, the Board finds the Veteran's service-connected disabilities did not render her unable to secure or follow a substantially gainful occupation consistent with her education and work history prior to October 25, 2002. In this regard, in her August 2008 VA Form 21-8940, the Veteran reported she completed two years of college, and VA treatment records reflect she earned an Associate's Degree in Business Administration. See April 2007 VA treatment records. The Veteran also reported she last worked full-time from October 2000 to December 2002 as an accounting technician for the Department of the Air Force, at which time, she indicated that she became too disabled to work. The Board notes other records indicate the Veteran stopped working in such position on October 24, 2002, the day before TDIU was awarded. Nonetheless, prior to that date, she worked full-time as a telephone operator from October 1999 to January 2001, as a part-time telemarketing sales agent from July 1999 to August 1999, and full-time for the Bureau of the Census from November 1998 to March 1999. Additionally, the Veteran reported in a May 2019 statement that she worked as a cashier at Sam's Club for one month in 1995, before being hospitalized for a small bowel obstruction. She also attempted to work for the U.S. Postal Service in 1997, but failed the training test due to memory, concentration, and lack of agility capabilities, which were unrelated to her service-connected disabilities. In his February 2021 Written Brief Presentation, the Veteran's representative asserts such employment was marginal in nature, and the Veteran missed a great amount of work due to her service-connected disabilities, to include missing up to 9 months of work when employed an accounting technician with the Air Force. The Board notes that, in October 2002, the Air Force base financial services officer recommended the Veteran for disability retirement due to her high absences from such position. However, even with such missed time, in 2001, the Veteran earned $24,381, which is well over the federal poverty guidelines for that year. See R.S. Supervisor's Statement and 2001 DOD Leave and Earnings Statement. The Board also observes that, while the Veteran's positions prior to October 2000 were brief, none were in a family business or sheltered workshop, and there is no indication accommodations were made in her job duties for such employment to qualify as a sheltered work environment. Further, her earnings with the Bureau of the Census equate to $8,400 annually, which is more than the 1999 poverty guidelines. Nonetheless, regardless of the Veteran's employment status prior to October 25, 2002, the Board finds that her service-connected disabilities did not render her unable to secure or follow a substantially gainful occupation consistent with her education and work history. In this regard, a physical profile serial report dated July 1992, just prior to the Veteran's discharge, states she was exempt from exercise; limitations included no running and no heavy lifting more than 30 pounds; and she would be much slower reacting or performing work due to medication. However, while such limitations may preclude the Veteran from a physical occupation, there is no indication she would not be able to perform in a position consistent with her experience and education in the accounting field. Further, there is no indication the medication taken in July 1992 remained in effect throughout the appeal period and, while the Veteran has been prescribed various medications throughout the appeal period, to include pain medication, birth control pills, Lupron, and Danazol at various times for her endometriosis symptoms, there is no indication that such resulted in a reduction in her productivity. Additionally, while post-service treatment records reflect the Veteran's intermittent reports of complaints related to her endometriosis, to include pelvic pain, heavy bleeding, and bowel symptomatology, which resulted in surgical intervention for obstructions in September 1995 and October 2001, such were not frequent and, at times, she reported improvement in her symptoms to the point where she felt better. Moreover, in October 2018, a VA examiner reviewed the record and provided a retrospective opinion regarding the impact the Veteran's endometriosis would have on her ability to work. Specifically, he found that, while she would be unable to carry out work duties several days a month due to her pain and bowel issues associated with her endometriosis, she would be able to carry out work-related duties most of the time. Moreover, the examiner observed that the Veteran had periods of time when she was not in pain and felt well enough to stop birth control pills, which were used to control her endometriosis symptoms. Moreover, while the Veteran has alleged that she was rendered unemployable due to her service-connected disabilities, to specifically include her endometriosis, from September 16, 1992, to October 25, 2002, the Board observes that from November 1998 until October 25, 2002, with the exception of March 1999 to October 1999, the Veteran reported she was employed on a full-time basis and, from October 2000 to January 2001, she actually overlapped work positions and worked two full time jobs for a short period, which demonstrates that she was capable of performing the physical and mental acts required by employment commensurate with her education and training in accounting throughout the appeal period. Therefore, based on the foregoing, the Board finds that, prior to October 25, 2002, the Veteran's service-connected disabilities did not render her unable to secure or follow a substantially gainful occupation consistent with her education and work history. As the preponderance of the evidence is against her claim for a TDIU prior to October 25, 2002, the benefit of the doubt doctrine is not applicable in the instant appeal and such claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. M. Kelly, 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.