Citation Nr: 22018663 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 16-54 661 DATE: March 30, 2022 ORDER Entitlement to a rating in excess of 30 percent for keloid scars is denied. Entitlement to service connection for infertility effective August 22, 2016, is granted. REMANDED Entitlement to an initial rating in excess of 40 percent for incontinence residual to uterine displacement of the bladder (bladder disability), is remanded. Entitlement to service connection for infertility prior to August 22, 2016, is remanded. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's keloid scars were deep, nonlinear, and painful, but were not unstable and did not affect an area greater than 6 square inches (39 square centimeters) or result in any disabling effects. 2. The Veteran's infertility as of August 22, 2016, is proximately due to undergoing a hysterectomy secondary to her service-connected severe refractory dysfunctional uterine bleeding. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating in excess of 30 percent for keloid scars have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7801. 2. The criteria for entitlement to service connection for infertility effective August 22, 2016, as secondary to service-connected severe refractory dysfunctional uterine bleeding, benign follicular cyst, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1997 to November 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2015 (keloid scar and hysterectomy) and February 2016 (bladder disability) rating decisions issued by a Department of Veterans Affairs (VA) Regional Office. In July 2019, the Veteran testified at a Board hearing before a Veterans Law Judge who is no longer employed by the Board. A transcript of the hearing is associated with the record. In November 2021, the Veteran was notified that the Veterans Law Judge who conducted the July 2019 hearing was no longer employed at the Board and afforded her the opportunity to testify at another hearing. In this regard, such letter informed the Veteran that, if she did not respond to such letter within 30 days, the Board would assume that she did not desire another hearing and proceed with the adjudication of his appeal. To date, no response to such letter has been received and, thus, the Board will proceed with the adjudication of her appeal. In May 2020, the Board remanded the case, along with the issue of entitlement to a rating in excess of 50 percent for the Veteran's major depressive disorder, for additional development. While on remand, a July 2021 rating decision awarded an increased rating of 70 percent for the Veteran's major depressive disorder as of the date of her initial claim. As the Veteran specifically requested a 70 percent rating for such disability in her August 2016 notice of disagreement (NOD), such is a full grant of the benefit sought on appeal, and the issue is no longer before the Board. Grantham v. Brown, 114 F3d 1156 (Fed. Cir. 1977). The case now returns for further appellate review. Increased Rating 1. Entitlement to a rating in excess of 30 percent for keloid scars. 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. The appeal period before the Board begins on April 16, 2015, the date VA received the Veteran's claim for an increased rating for her keloid scars, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). For the entire appeal period, the Veteran's keloid scars are evaluated as 30 percent disabling under Diagnostic Code 7801. Scars are rated under 38 C.F.R. § 4.118, DCs 7800 through 7805. DC 7800 pertains to burn scars of the head, face, or neck; scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. However, as the scars at issue do not affect the head, face, or neck, DC 7800 is inapplicable and will not be further considered. DC 7801 pertains to burn scars or scars due to other causes, not of the head, face, or neck, that are, prior to August 13, 2018, deep and nonlinear and, after such date, associated with underlying soft tissue damage. Under this DC, a 10 percent rating is assigned when the scar(s) cover an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.). Higher ratings are available for greater areas affected. DC 7802 pertains to burn scars or scars due to other causes not of the head, face, or neck that are, prior to August 13, 2018, superficial and nonlinear and, after such date, not associated with underlying soft tissue damage. Under this DC, a single 10 percent rating is assigned when the scar(s) cover an area or areas of 144 square inches (929 sq. cm) or greater. DC 7804 provides that one or two scars that are unstable or painful warrant a 10 percent evaluation. Three or four scars that are unstable or painful warrant a 20 percent rating, while five or more scars that are unstable or painful warrant a 30 percent evaluation. Note (1) states that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) states that if one or more scars are both unstable and painful, the rater is to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804, when applicable. Note (3). DC 7805 provides that other scars (including linear scars) and other effects of scars evaluated under DCs 7800, 7801, 7802, and 7804 that require the evaluation of any disabling effect(s) not considered in a rating provided under DCs 7800-7804 should be rated under an appropriate DC. With regard to the effective date of the new criteria, VA indicated in the Supplementary Information to the Final Rule that its "intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied." The Veteran's claim in this case was pending prior to the August 13, 2018, effective date of the new criteria and, therefore, the Board will consider both the old and new criteria. In order to afford the Veteran all possible avenues of entitlement to a higher rating, the Board has considered all applicable DCs, to include both the old and new criteria, as well as his specific reports of her symptoms and the medical evidence. As an initial matter, the Board notes there is scant evidence relevant to the period on appeal. In this regard, a July 2015 VA examination report and May 2016 addendum opinion indicates the Veteran has five or more scars on both breasts, upper and lower back, and both buttocks, most of which were noted to be keloid formations. Specifically, the Veteran had a scar located on the right upper arm (1.5 x .5 cm), and left upper arm (2 x 1 cm), 7 scars on the anterior trunk (1 x .3 cm, 1 x .6 cm, 1.5 x 1 cm, 2 x .5 cm and 3 measuring 1 x .5 cm), and 12 scars on the posterior trunk (2.5 x 1.5 cm, 1.5 x 1 cm, ,5 x .2 cm, .5 x .3 cm, .5 x .8 cm, 2 measuring 2 x 1 cm, and 5 measuring 1 x .5 cm). All scars were noted to be deep and nonlinear, with a total area of 20.05 square centimeters. The examiner indicated that all scars were painful on examination, which the Veteran described as "stinging." The scars were not unstable or the result of burns. However, the examiner noted the Veteran's scars impacted her ability to work due to chronic irritation and stinging pain along the numerous keloids. A June 2019 VA examination report noted scars on the left head and left neck, however, he indicated that such were residuals of the Veteran's craniotomy due to her non-service connected stroke. Thus, such scarring may not be considered in the instant claim. Based on the foregoing, the Board finds that a rating in excess of 30 percent for the for the Veteran's keloid scars are warranted. Specifically, as pertinent to DC 7801, the Board finds that the evidence reflects that her keloid scars are deep and nonlinear, but are not associated with underlying soft tissue damage, and do not affect an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.). In regard to DC 7802, the Board finds that the Veteran's keloid scars are not associated with underlying soft tissue damage and do not affect an area or areas of 144 square inches (929 sq. cm) or greater. As pertinent to DC 7804, the Board notes that VA examination found the Veteran's scars to be painful, but not unstable. Finally, as relevant to DC 7805, while the July 2015 examiner found the Veteran's scars impacted her ability to work chronic irritation and stinging pain, the evidence does not show that her keloid scars result in limitation of function, to include limitation of motion. At such time, the Veteran remained employed, retiring later after suffering the non-service connected aneurysm in August 2017. Consequently, a higher or separate rating is not warranted under any other potentially applicable DC pursuant to DC 7805. Given the nature of the Veteran's retirement as specifically attributed to a nonservice-connected disability, consideration of a total disability rating based upon individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009), is not indicated. The Board has considered whether additional staged ratings under Hart, supra, are appropriate for the Veteran's service-connected keloid scars, however, the Board finds that her symptomatology had been stable throughout the period on appeal. Therefore, assigning additional staged ratings is not warranted. Neither the Veteran nor her representative have asserted that her scars have worsened since the prior VA examination sufficient to trigger a new examination. 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 increased rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Therefore, the Board finds that increased ratings for the Veteran's keloid scars are not warranted. Consequently, as the evidence weighs persuasively against such claim, the benefit-of-the-doubt doctrine is inapplicable, and her increased rating claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Service Connection 2. Entitlement to service connection for infertility since August 22, 2016, claimed as secondary to service-connected severe refractory dysfunctional uterine bleeding, benign follicular cyst (DUB). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.R.F. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As an initial matter, the Board notes that the evidence does not show, and the Veteran does not contend, that her hysterectomy is directly related to any aspect of her military service. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to considered "all possible" substantive theories of recovery. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory). Rather, her hysterectomy was due to severe bleeding as a result of her service-connected DUB. In August 2016, the Veteran underwent a hysterectomy as a result of her service-connected DUB. In this regard, VA treatment records reflect the Veteran's service-connected DUB caused severe bleeding resulting in anemia, for which she took iron supplements and received an iron infusion. A March 2015 ambulatory surgery record reported "heavy abnormal uterine bleeding through several adult diapers with hospital admission HCT [hematocrit] 20 and received 2 units PBRC [packed red blood cell], was placed on Progesterone 1 week ago, but condition progressively worsened; ultrasound findings of uterus concerning for adenomyosis." May 2015 records reflect the Veteran had a severe bleeding episode that it caused syncope, severe anemia, and she was admitted for bleeding. July 2016 records reflect that she decided not to seek to become pregnant again and was planning a hysterectomy due to her DUB. Further, a March 2018 gynecology consultation report states the Veteran underwent a vaginal hysterectomy and bilateral salpingectomy for vaginal bleeding/hemorrhage/anemia/blood transfusions with multiple hospitalizations. The Veteran underwent a VA gynecological examination in March 2017. At such time the examiner noted the Veteran was status post hysterectomy, and records that reflected her severe bleeding. He then opined that her hysterectomy was as least as likely as not due to her DUB. In support thereof, he stated that DUB led to severe menstrual periods leading to severe anemia, which required blood transfusions and adult diapers. Such condition was only remedied by hysterectomy. The Board affords great probative weight to the March 2017 VA examiner's opinion as he considered all of the pertinent evidence of record, to include the Veteran's contentions and her relevant medical history, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Therefore, resolving all doubt in the Veteran's favor, the Board finds that her infertility effective August 22, 2016, is due to a hysterectomy required to treat her service-connected DUB. Consequently, service connection for infertility effective August 22, 2016, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 3. Entitlement to an initial rating in excess of 40 percent for a bladder disability. The Veteran contends her urinary incontinence is more severe than as reflected by her currently assigned ratings. In this regard, the Board observes that at her December 2015 gynecological examination she reported having to change absorbent material 2 to 4 times a day. However, at her July 2020 Board hearing, she testified that she needs to change her absorbent pads 8 to 9 times a day. Further, she stated such disability leaves her feeling shame, isolation, and limits her ability to leave her home. Consequently, a remand is necessary to schedule the Veteran for an appropriate VA examination in order to assess the current nature and severity of her service-connected bladder disability in accordance with pertinent legal authority. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). 4. Entitlement to service connection for infertility prior to August 22, 2016. The Veteran initially filed her claim of entitlement to service connection for infertility in April 2015. She asserted that her infertility was the result of her service-connected DUB. In August 2016, she underwent a hysterectomy as a result of her service-connected DUB. Thus, as discussed above, service connection for infertility as a result of the hysterectomy secondary to her DUB has been established. The issue of service connection for infertility prior to her hysterectomy, however, has not yet been resolved. The Veteran underwent a VA gynecological examination in July 2015, however, while noting she was undergoing fertility "work up," no etiological opinion as to her infertility was offered. VA treatment records dated December 2015 reflect the Veteran was diagnosed with female infertility associated with anovulation. She was later diagnosed with unspecified female infertility in March 2016. Contemporaneous treatment records also show the Veteran experienced chronic abnormal uterine and vaginal bleeding. In December 2015, the Veteran underwent a gynecological examination to determine if her service-connected anemia was related to her heavy menstrual bleeding. At such time, the examiner diagnosed the Veteran with DUB, but did not provide an opinion as to the etiology of her infertility. However, the examiner did opine that her anemia was at least as likely as not due to her chronic uncontrolled menorrhagia, creating iron deficiency anemia. Such anemia resulted in frequent emergency room visits in which at times red blood cell transfusions were necessary. As pertinent to her instant claim, the examiner noted that the Veteran had seen OB/GYN specialists in 2005 and 2008 in an effort to correct her excessive vaginal bleeding, but no method was absolutely effective. In June 2016, a VA examiner opined that the Veteran's infertility was less likely as not related to her service-connected DUB. Instead, it was at least as likely as not that her infertility was caused by anovulation and morphologically abnormal (unicornuate) uterus. The only rationale provided was that these two conditions were common causes of female infertility. In July 2016, an addendum opinion was obtained, and the examiner stated that DUB and benign follicular cysts do not lead to chronic anovulation and/or unicornuate uterus. Unfortunately, this opinion is inadequate. The VA examiner was listed as an occupational medicine physician. The only rationale provided essentially said that anovulation and unicornuate uterus were two of the most common causes of female infertility, but the examiner did not apply these conditions to the Veteran's specific case. The Veteran has a long history of struggles with infertility, and even her own treating clinicians have listed varying labels for her infertility. Accordingly, it is insufficient to simply state two of the more common causes of female infertility without discussing the particulars of this Veteran's infertility and her complex medical condition. Accordingly, remand is necessary to obtain an adequate nexus opinion on the issue of infertility prior to the Veteran's hysterectomy. The matters are REMANDED for the following action: 1. Obtain any relevant, outstanding VA and non-VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). All attempts to contact the Veteran should be documented in the record. 2. Afford the Veteran an appropriate VA examination to determine the current nature and severity of her service-connected bladder disability. The record, to include a copy of this Remand, must be made available to the examiner, and all indicated tests and studies should be accomplished with all clinical findings reported in detail. The examiner should describe the nature and severity of all manifestations of the Veteran's bladder disability to include her reports of having to change absorbent materials more than 8 times a day. He or she should also describe the functional impairment resulting from such disability. A rationale for any opinion offered should be provided. 3. Obtain a new medical opinion from a specialist on the issue of the Veteran's infertility prior to her hysterectomy. A new examination may be ordered if deemed necessary. The Board notes that if the requested specialist(s) is/are not available in the local or near-regional area, the RO is allowed to utilize a clinician whose scope of credentials is as close to the requested specialist as possible. If the specialist is housed locally, the examining clinician may provide the specialist with a clinically appropriate case summary, either verbally or in writing, and then request the specialist provide a written opinion. A complete copy of the claims file must be made available to the specialist, including a copy of this remand. After a thorough review of the medical and lay evidence of record, the specialist is asked to discuss the following: (a.) Is it at least as likely as not that the Veteran's infertility prior to her hysterectomy was caused by a service-connected disability? (b.) Is it at least as likely as not that the Veteran's infertility was aggravated (any incremental increase in disability or any additional impairment of earning capacity regardless of permanence) by a service-connected disability? (Continued on the next page) The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. Hannah Fisher Acting 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.