Citation Nr: 23014737 Decision Date: 03/10/23 Archive Date: 03/10/23 DOCKET NO. 19-02 514 DATE: March 10, 2023 ORDER Entitlement to an increased initial rating of 10 percent for residuals of myomectomy for uterine fibroids is granted. Entitlement to service connection for left breast pain is denied. Entitlement to service connection for right shoulder pain is denied. FINDINGS OF FACT 1. The Veteran's residuals of myomectomy for uterine fibroids have manifested in constant pain and irregular bleeding since the procedure. 2. The Veteran has not demonstrated a current left breast disorder resulting in functional impairment. 3. The Veteran has not demonstrated a current right shoulder disorder resulting in functional impairment. CONCLUSIONS OF LAW 1. The criteria for an increased initial rating of 10 percent for residuals of myomectomy for uterine fibroids have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.116, Diagnostic Code (DC) 7613. 2. The criteria for service connection for a left breast disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 3. The criteria for service connection for a right shoulder disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1993 to April 2014. Among other awards and decorations, she received the Bronze Star Medal for her service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran initially requested a Board hearing on her VA Form 9. However, in October 2021 written correspondence, she withdrew this request. Increased Rating 1. Entitlement to an initial compensable rating for residuals of myomectomy for uterine fibroids The Veteran's residuals of myomectomy for uterine fibroids are currently rated as noncompensable under DC 7613. The Veteran seeks an increased initial rating. The Board first notes that DC 7628 is also potentially applicable to this case. Prior to amendment, effective May 13, 2018, old DC 7628 provided for rating benign neoplasms of gynecological system "according to impairment in function of the urinary or gynecological system, or skin." See 38 C.F.R. § 4.116 (2017); see also 83 Fed. Reg. 15068, 15071 (Apri. 9, 2018). Effective May 13, 2018, DC 7628, benign neoplasms of gynecological system, provides for rating chronic residuals, including impairment of function, "under the appropriate diagnostic code(s) within the appropriate body system." 38 C.F.R. § 4.116 (2021) (emphasis added). DC 7613, uterus, disease, injury, or adhesions of, provides for rating under the General Formula for Disease, Injury, or Adhesions of Female Reproductive Organs (DCs 7610-7615), which provides a noncompensable rating for symptoms that do not require continuous treatment. A 10 percent rating is provided for symptoms that require continuous treatment. A 30 percent rating is provided for symptoms not controlled by continuous treatment. 38 C.F.R. § 4.116. This DC was not the subject of amendment in 2018. The Veteran received a VA examination in April 2014. It was noted she underwent a myomectomy for uterine fibroids and bleeding in 2006. No current symptoms were noted. In February 2018, she received another VA examination during which she reported symptoms of constant pain. In addition, the report noted the Veteran was diagnosed with anemia. The examiner noted the Veteran did not require any treatment for her condition. The RO has denied entitlement to a compensable rating, finding the Veteran's residuals do not more nearly approximate "symptoms requiring continuous treatment" and thus do not warrant a 10 percent rating under DC 7613. After careful review, while it is true a compensable rating may not be warranted under DC 7613, the Board finds a 10 percent rating is appropriate when rating the condition analogously to endometriosis. (The Board finds this is consistent with the directive of DC 7628 to "rate chronic residuals to include scars, lymphedema, disfigurement, and/or other impairment of function under the appropriate diagnostic code(s) within the appropriate body system.") In this regard, DC 7629 provides a 10 percent rating is warranted for pelvic pain or heavy or irregular bleeding requiring continuous treatment for control. 38 C.F.R. § 4.116, DC 7629. Here, the Veteran has demonstrated pelvic pain since her myomectomy. To this extent, her claim is granted. The Board has considered rating the Veteran's disability by taking into account associated anemia, consistent with Bailey v. Wilkie, in which the Court of Appeals for Veterans Claims (Court) held VA "is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability." Bailey v. Wilkie, 33 Vet. App. 188, 203-04 (2021); see also Wilson v. McDonough, 35 Vet. App. 103 (2022). The Veteran was diagnosed with anemia following February 2018 lab testing; this was noted on the VA examination report but, notably, her anemia was not specifically linked to the Veteran's service-connected disability. Even taking into account the Veteran's associated anemia (and assuming it is related to her service-connected disability), the criteria for a higher 10 percent rating have not been met, as the Veteran's symptoms have not been shown to require continuous treatment such as iron supplementation. 38 C.F.R. § 4.117, DC 7720 (applicable to iron deficiency anemia). In summary, the Board has resolved all reasonable doubt in granting the Veteran an initial compensable rating, taking into account her reports of pain stemming from her myomectomy. There is no basis in the evidence of lay statements for a rating in excess of 10 percent. In this case, the Veteran has not contended, and the evidence does not suggest, that she has experienced symptoms outside of those listed in the schedular criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (Board is not obligated to analyze whether referral for extraschedular consideration is warranted if 38 C.F.R. § 3.321(b)(1) is neither specifically sought by the claimant nor reasonably raised by the facts found by the Board). The Board concludes entitlement to an increased initial rating of 10 percent is warranted for residuals of myomectomy for uterine fibroids. The Board further concludes entitlement to an initial rating in excess of 10 percent is not warranted. Service Connection 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). 2. Entitlement to service connection for left breast pain 3. Entitlement to service connection for right shoulder pain The Veteran seeks service connection for left breast and right shoulder disorders, claimed simply as pain. For the following reasons, however, the Board finds the claims must be denied on grounds that the Veteran has not put forth persuasive evidence of current disabilities. On review, there is no indication in the record of any pertinent diagnoses or treatment involving the left breast or right shoulder. VA examinations in April 2014 did not reveal disabilities of the left breast or right shoulder. In June 2018, the Veteran was scheduled for appropriate VA examinations. However, she did not appear for the examinations and has not subsequently provided good cause for her failure to appear. Under 38 C.F.R. § 3.655(a), when entitlement to a benefit cannot be established without a current VA examination or reexamination, and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655(b) or (c), as appropriate. With respect to original claims, the claims shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). Examples of good cause include, but are not limited to, illness or hospitalization of the claimant, and death of an immediate family member. See 38 C.F.R. § 3.655. The Veteran's VA medical records show she has complained of right shoulder pain at various times during the appeal period; however, there is no evidence of a specific diagnosis involving the right shoulder and the evidence of record does not establish functional impairment of the right shoulder. The April 2014 VA examination noted above reveals the Veteran's report that she injured her right shoulder in 2007; she denied current symptoms but stated she occasionally has flare-ups of right shoulder pain. (VA treatment records do not reflect treatment or complaints for a left breast disorder.) After carefully reviewing the record, the Board finds the most persuasive evidence of record is against a finding of current disabilities of the left breast or right shoulder. The Board accepts the Veteran's assertions regarding her left breast and right shoulder pain. Even so, the Board finds the pertinent evidence is insufficient to establish current disabilities for VA compensation purposes. The Board reiterates the RO determined VA examinations were needed to substantiate the Veteran's claims. She did not appear for those examinations with no good cause provided. As such, the Board must rate the claims based on the existing evidence. To that end, the pertinent evidence consistent entirely of the Veteran's lay reports of left breast and right shoulder pain, with no conclusive supporting diagnoses underlying these symptoms. The Board acknowledges symptoms such as pain, even without an underlying diagnosis, can still constitute a current disability, for VA compensation purposes, if such symptoms reach the level of a functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018); also see Wait v. Wilkie, 33 Vet. App. 8, 17 (2020). However, the Veteran in this case has not alleged, and the evidence does not reflect, that her claimed left breast and right shoulder pain has had this effect during the appeal period. The Veteran has reported only that she has pain in these body areas; she has not described specific functional impairment relating to this pain. Her VA medical records contain no evidence of such impairment. Similarly, the Veteran's representative submitted an Informal Hearing Presentation in November 2021 alleging left breast and right shoulder pain but did not present additional evidence regarding functional impairment. The Board acknowledges the Veteran's statements regarding her pain but finds these statements, without more, do not establish functional impairment of earning capacity. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a current disabilityi.e., symptoms resulting in functional impairment of earning capacitythere can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); Saunders, supra. For the reasons discussed above, the Board finds the Veteran has not put forth persuasive evidence establishing that she has left breast or right shoulder disorders causing functional impairment of her earning capacity. Given the absence of persuasive evidence of left breast or right shoulder disorders, per Saunders, at any point during the pendency of the Veteran's appeal, the claims must be denied. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ryan, 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.