92 Decision Citation: BVA 92-05798 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-38 183 ) DATE ) ) ) THE ISSUE Entitlement to a disability rating greater than 40 percent for interstitial cystitis. REPRESENTATION Appellant represented by: AMVETS WITNESSES AT HEARINGS ON APPEAL The veteran, J. T., and C. B. ATTORNEY FOR THE BOARD M. W. Greenstreet, Counsel INTRODUCTION The veteran had active military service in March and April 1975 and from June 1979 to December 1981. This matter comes before the Board on appeal from a March 1990 rating decision from the Cleveland, Ohio, Department of Veterans Affairs (VA) regional office (RO), in which the disability rating for the veteran's interstitial cystitis was reduced from 60 percent to 40 percent. The RO received the veteran's notice of disagreement in March 1990; it issued a statement of the case in May 1990, and it received the veteran's substantive appeal in May 1990. The veteran offered testimony in support of her claim at a July 1990 hearing at the RO. This case was docketed at the Board of Veterans' Appeals in July 1991, and the veteran offered testimony before a member of the Board in February 1991. In June 1991, the appellant raised the additional issues of entitlement to service connection for diabetes mellitus, an acquired psychiatric disorder, and the residuals of a hysterectomy, all as secondary to her interstitial cystitis. At her February 1992 hearing, she stated that the only issue which she wished to address as an appellate issue was that of entitlement to an increased rating for interstitial cystitis. The issues of entitlement to service connection for the residuals of a hysterectomy, diabetes mellitus, and an acquired psychiatric disorder are referred to the RO for appropriate action. The issue of entitlement to a disability rating greater than 10 percent for the veteran's low back disorder is also referred to the RO. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the issue in this case is her entitlement to restoration of a 60 percent disability rating for cystitis. She avers that disorder is manifested by constant burning pain, hourly nocturia, daytime urinary frequency, and severe pain with intercourse. She emphasizes that she tries to avoid taking medication for cystitis and that she does not seek medical help as often as she should. She also points out that she wears protective pants due to leakage and that she has been fired from a job in the past due to her disability. She asks that the Board rate her disability under Diagnostic Code 7513 of the VA's Schedule for Rating Disabilities. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran has interstitial cystitis characterized by incontinence, urinary frequency and pain. CONCLUSION OF LAW The schedular criteria for a disability rating of 60 percent for interstitial cystitis have been met. 38 U.S.C. §§ 1155, 5107(a) (1989) (formerly §§ 355, 3007(a), renumbered in 1991); 38 C.F.R. Part 4, Codes 7512, 7513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the veteran's claim is plausible; therefore, it is well grounded within the meaning of 38 U.S.C. § 5107(a). There are a number of urologic examination and treatment reports of record, and we are satisfied that all relevant facts have been properly developed. The record shows that the appellant has twice testified that she experiences a number of debilitating symptoms caused by interstitial cystitis, such as extensive urinary frequency, near constant pain, a degree of incontinence, and severe pain on intercourse. Recent examinations and an August 1990 cystoscopy have confirmed a diagnosis of interstitial cystitis, and the record supports the manifestations reported by her. Based on these facts, we find that she is entitled to a 60 percent disability rating under either Diagnostic Code 7512 or 7513. 38 C.F.R. § 3.321(b)(1) provides that in exceptional cases where schedular evaluations are inadequate the VA can assign an extraschedular evaluation which is commensurate with the average earning capacity impairment due to the service-connected disability. This section further provides that the governing norm in those exceptional cases is a finding that there such an exceptional or unusual disability picture, with related factors such as marked interference with employment or frequent periods of hospitalization, as would make the application of the regular schedular standards impractical. While the appellant has reported that she has lost considerable time from work and, in fact, lost a job due to interstitial cystitis, she stated at her last hearing that she continues to work as an accountant. On this basis, we do not find that the rating codes utilized in this case are inadequate so as to render the application of those codes impractical. Although we are cognizant of the many social and family problems resulting from her disability, we would emphasize that the rating schedule is based on the average degree of industrial impairment or loss of earning capacity resulting from the disability. ORDER A 60 percent disability rating for interstitial cystitis is granted, subject to the regulations governing the disbursement of monetary benefits. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 WARREN W. RICE, JR. ROBERT D. PHILIPP * *38 U.S.C. § 7102(a)(2)(A) (1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a notice of disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.