Citation Nr: 22010607 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 18-01 793 DATE: February 24, 2022 ORDER Entitlement to revision of a July 2007 rating decision on the basis of clear and unmistakable error (CUE) is granted; the July 2007 rating decision is revised to reflect the grant of an initial 50 percent disability rating for a total hysterectomy with bilateral salpingo-oophorectomy, effective September 28, 2000. FINDINGS OF FACT 1. A July 2007 rating decision granted service connection for a total abdominal hysterectomy and a right salpingo-oophorectomy and respectively assigned 30 percent and non-compensable disability ratings, effective September 28, 2000. The Veteran was notified of that decision in an August 2007 letter, but she did not initiate an appeal, and new and material evidence was not received within one year of the notice of that rating decision. 2. The assignment of an initial 30 percent rating for a total abdominal hysterectomy in the July 2007 rating decision is clearly and unmistakably in error and would have been manifestly different but for a factual error contained therein. CONCLUSIONS OF LAW The criteria for revision of a July 2007 rating decision on the basis of CUE have been met. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a), 4.116. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1974 to July 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified at a Board hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. Entitlement to revision of a July 2007 rating decision on the basis of CUE is granted; the July 2007 rating decision is revised to reflect the grant of an initial 50 percent evaluation for a total hysterectomy with bilateral salpingo-oophorectomy, effective September 28, 2000. During her October 2021 Board hearing, the Veteran testified that the July 2007 rating decision, which assigned a 30 percent disability rating for a total hysterectomy and a right salping-oophorectomy, should be reversed or amended based on CUE. Specifically, she reported that the Agency of Original Jurisdiction (AOJ) failed to consider relevant evidence showing that she underwent a total hysterectomy, which included removal of both of her ovaries, while she was serving on active duty. To this end, the Veteran explained that objective evidence in her STRs confirmed that both of her ovaries were removed during her in-service hysterectomy and showed that she was prescribed 1.25mg of estrogen, the highest possible dose, following the surgery. Thus, she argued that if her STRs had been reviewed effectively, her claim for entitlement to service connection for a total hysterectomy with bilateral salpingo-oophorectomy would have been granted and assigned an initial 50 percent disability rating under the applicable rating criteria. See October 2021 Hearing Transcript, pages 2-5; November 2016 VA Form 21-4138 Statement in Support of Claim. Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding will be accepted as correct in the absence of clear and unmistakable error. In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator, or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). To prove the existence of CUE as set forth in § 3.105(a), the claimant must show that an outcome-determinative error occurred, that is, an error that would manifestly change the outcome of a prior decision. Yates v. West, 213 F.3d 1372, 1374 (Fed. Cir. 2000). It has been held that CUE is a very specific and rare kind of "error." It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). A disagreement with how facts were evaluated is inadequate to raise the claim of CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). In light of the foregoing, the Veteran must argue that either the correct facts were not considered by the AOJ or that the applicable law or regulations were not correctly applied in the rating decision at issue. Such a determination must be based on the record and the law that existed at the time of that rating decision. Eddy v. Brown, 9 Vet. App. 52 (1996). Even when the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be ipso facto clear and unmistakable. Fugo, 6 Vet. App. at 43-44 (citing Russell, 3 Vet. App. at 313). Here, the Veteran filed her claim for entitlement to service connection for a hysterectomy in September 2000. See July 2007 Rating Decision Narrative. See VA Form 21-526 Veterans Application for Compensation or Pension. Thereafter, in a July 2007 rating decision, the RO granted service connection for a total abdominal hysterectomy and a right salpingo-oophorectomy and respectively assigned 30 percent and non-compensable disability ratings, effective September 28, 2000. Specifically, the RO referenced a June 1980 pathological report, which indicated that the Veteran's right ovary was excised during her in-service hysterectomy. However, the RO also determined that there was no objective evidence that she underwent a left salpingo-oophorectomy during service or as a result of her active duty service. As such, the RO found that an evaluation in excess of 30 percent was not warranted unless the evidence demonstrated complete loss of both ovaries. See July 2007 Rating Decision Narrative. However, contrary to the RO's finding, the Board finds the STRs include multiple entries indicating that both of the Veteran's ovaries were removed during her 1980 total abdominal hysterectomy. Specifically, an August 1981 medical record shows that the Veteran underwent a total abdominal hysterectomy and bilateral salpingo-oophorectomy in June 1980, and a subsequent medical record, dated in May 1982, indicates that the Veteran underwent a total hysterectomy in 1980 and her uterus and cervix were found to be absent on physical examination. In addition, a physical examination obtained in connection with an April 1983 gynecologic cytology showed that the Veteran's cervix, uterus, and adnexa were absent. The Board further notes that STRs dated in August 1983, October 1989, and June 1991 also indicate that the Veteran's in-service hysterectomy included a bilateral salpingo-oophorectomy, and medical records dated after the Veteran's June 1980 hysterectomy consistently show that she was prescribed 1.25mg of Premarin, a conjugated estrogen. In addition, the Veteran indicated that she had been treated for a female disorder on the July 1993 report of medical history, and the examiner explained that she had undergone surgery for a paraovarian cyst as well as a complete hysterectomy. See September 2006 STR Medical. The Board notes that, under the rules and regulations extant at the time of the July 2007 rating decision, removal of the uterus was rated pursuant to 38 C.F.R. § 4.116, Diagnostic Codes (DCs) 7618 and 7617. Specifically, DC 7918 set forth the criteria for rating removal of the uterus, including corpus, while DC 7617 was used when the uterus and both ovaries were removed. 38 C.F.R. § 4.116. To this end, under DC 7618, a 100 percent rating was assigned for three months after removal, and a 30 percent rating was assigned thereafter. However, under DC 7617, a 100 percent rating was assigned for three months after complete removal of the uterus and both ovaries, and a 50 percent rating was assigned thereafter. 38 C.F.R. § 4.116, DCs 7617, 7618. Based on the foregoing, the Board finds CUE in the July 2007 rating decision as it appears the correct facts showing that both of the Veteran's ovaries were removed during her in-service hysterectomy were not considered by the adjudicator; this error is undebatable, not merely a disagreement as to how the facts were weighed or evaluated, and the commission of the alleged error manifestly changed the outcome of the decision. To this end, the Board finds that, had the evidence showing that both of the Veteran's ovaries were removed during her in-service hysterectomy been considered, the Veteran would have been awarded an initial 50 percent disability rating pursuant to DC 7617. Thus, the Board finds that an initial 50 percent disability rating is warranted for the Veteran's service-connected total abdominal hysterectomy with bilateral salpingo-oophorectomy, effective September 28, 2000, on the basis of CUE. See 38 C.F.R. § 3.400. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Justis, 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.