Citation Nr: 9903526 Decision Date: 02/08/99 Archive Date: 02/17/99 DOCKET NO. 97-23 797A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to a compensable evaluation for chronic pelvic pain. ATTORNEY FOR THE BOARD Tsopei Robinson, Associate Counsel INTRODUCTION The veteran had active duty from July 1993 to October 1996. This matter comes before the Board of Veterans' Appeals (Board) from a May 1997 rating determination of a Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT The veteran's service-connected pelvic disorder is manifested by complaints of pelvic pain controlled by treatment. CONCLUSION OF LAW The criteria for a 10 percent evaluation for chronic pelvic pain has been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.116, Diagnostic Code 7629 (1998). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background The veteran's service medical records show a diagnosis for chronic pelvic pain in April 1996. In April 1996, the veteran had an abdominal ultrasound and underwent diagnostic laparoscopic surgery. The ultrasound was within normal limits. On laparoscopic surgery the uterus, tubes, ovaries and anterior and posterior cul-de-sacs were normal. The postoperative diagnosis was chronic pelvic pain. The veteran's June 1996 separation examination noted a significant history for pelvic pain. An undated treatment record shows that the veteran had had a good response to a trial of Lupron. In October 1996, it was reported that she had been given an injection of Lupron and was to continue on that medication until December 1996. Thereafter she was to begin using Lo-Ovral. The veteran was accorded a VA orthopedic examination in March 1997. At that time, she reported a history of pain in her lower abdomen. On examination, the veteran walked and moved about in an entirely normal manner, without any evidence of limp or discomfort. An X-ray examination of the pelvis was entirely normal. The examiner commented that there he had found no orthopedic explanation for the veteran's subjective complaints. The veteran was accorded a VA general medicine examination in March 1997. At that time, she complained of pain in both ovarian areas intermittently since approximately 1995. The diagnosis was chronic pelvic pain of unknown etiology. The veteran was accorded a gynecological examination for VA in August 1998. At the time, she complained of chronic pelvic pain, more on the right than the left. The veteran reported that she took Loestrin for birth control and to control bleeding. She also reported that she took Motrin for her pelvic pain, but that the pain was not relieved by this medication. She reported that she missed at least one day of work per month because of pelvic pain. On examination, the uterus was within normal limits. There was no prolapse or displacement of the uterus or any adhesions. There was no rectovaginal fistula present or fecal leakage. There was no rectocele, cystocele or perineal relaxation present. The external vaginal examination was negative for lesions. The speculum examination revealed moist vaginal walls without any signs of inflammation or lesions. There were no lesions or masses present. The uterus was mildly friable. There was mild tenderness to palpation in the right adnexal area, otherwise there were no masses present. The uterus was normal in size. The Papanicolaou (Pap) smear examination was within normal limits. The complete blood count and urinalysis examinations were within normal limits. The pelvic examination was within normal limits. There was mild tenderness noted in the right adnexal area; otherwise, no masses or lesions were present. The examiner reported that the diagnosis was chronic pelvic pain of unknown etiology. The examiner commented that although the veteran reported constant pain and the need to leave work approximately once a month, "her condition should not impinge much on absence from work." The examiner further commented that the veteran could perform all activities of daily living. Pertinent Law and Regulations Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1998). The average impairment as set forth in VA's Schedule for Rating Disabilities, codified in 38 C.F.R. Part 4, includes diagnostic codes which represent particular disabilities. Generally, the degrees of disabilities specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. Id. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Whether the upper or lower extremities, the back or abdominal wall, the eyes or ears, or the cardiovascular, digestive, or other system, or psyche are affected, evaluations are based upon lack of usefulness, of these parts or systems, especially in self-support. This imposes upon the medical examiner the responsibility of furnishing, in addition to the etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of disability upon the person's ordinary activity. In this connection, it will be remembered that a person may be too disabled to engage in employment although he or she is up and about and fairly comfortable at home or upon limited activity. 38 C.F.R. § 4.10 (1998). If an unlisted condition is encountered it is rated under a closely related disease or injury in which the functions affected, the anatomical localization, and the symptomatology are closely analogous. 38 C.F.R. § 4.20 (1998). The determination of whether an increased evaluation is warranted is to be based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1 (1998), which requires that each disability be viewed in relation to its history. Although medical reports must be interpreted in light of the whole recorded history, the primary concern in a claim for an increased evaluation for a service-connected disability is the present level of disability. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. Analysis Upon review of the record, the Board concludes that the veteran's claim for an increased disability rating is well grounded within the meaning of the statutes and judicial construction. See 38 U.S.C.A. § 5107(a) (West 1991); see also Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). In order to present a well-grounded claim for an increased rating of a service connected disability, a veteran need only submit his or her competent testimony that symptoms, reasonably construed as related to the service-connected disability, have increased in severity since the last evaluation. Proscelle, 2 Vet. App. at 631, 632; see also Jones v. Brown, 7 Vet. App. 134 (1994). When a claimant is awarded service connection for a disability and subsequently appeals an initial assignment of a rating for that disability, the claim continues to be well grounded as long as the rating schedule provides for a higher rating and the claim remains open. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). The United States Court of Veterans Appeals (Court) has recently held that service connection was not warranted for complaints of pain where there was no clinical evidence of the pain, and medical experts could find no etiological basis for the pain. Evans v. West, 12 Vet. App. 22 (1998). In the instant case, however, service connection has been granted for the veteran's complaints of pelvic pain, and the Board must evaluate that condition on the basis of the applicable provisions of the rating schedule. The rating schedule does not contain a specific diagnostic code for chronic pelvic pain. Chronic pelvic pain will consequently, be evaluated by analogy to a closely related disease in which the functions affected and anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (1998). The veteran's chronic pelvic pain has been rated by analogy to 38 C.F.R. § 4.116, Diagnostic Code 7629. That diagnostic code pertains to the evaluation of endometriosis, and provides for a 10 percent evaluation when there is pelvic pain or heavy or irregular bleeding requiring continuous treatment for control. A 30 percent rating requires pelvic pain or heavy or irregular bleeding not controlled by treatment. In order for a 50 percent rating, the veteran must suffer from lesions involving bowel or bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment, and bowel or bladder symptoms. Diagnostic Code 7629. The Board finds that Diagnostic Code 7629 is the appropriate diagnostic code under which to evaluate the veteran's condition. That diagnostic code encompasses the anatomical area of the veteran's service connected condition and also encompasses her symptoms. After considering all of the evidence in light of the applicable criteria, the Board is of the opinion that a 10 percent rating is warranted for the veteran's service- connected chronic pelvic pain. The record shows that the veteran has received treatment for her complaints of pain. The veteran's pelvic pain, however, is reportedly controlled when she uses Lupron. The veteran did report, on the recent gynecological examination, that her pain was not controlled by her current medication, Motrin. However, the examiner reported an entirely normal examination with the exception of mild tenderness in the left adnexal area. The examiner found that the veteran could perform all daily living activities. Although the veteran reported that she was forced to leave work one a month, the examiner essentially found that her condition would not necessitate absences from work. In short, there is no objective evidence that her pelvic pain is currently uncontrolled. The medical professionals have concluded that her disability would result in no impairment in her ability to maintain the activities of daily living, including employment. 38 C.F.R. § 4.10 (1998). The record does not support the veteran's assertion that her pain is uncontrolled by medication. In the absence of any clinical evidence that the veteran has pelvic pain or heavy or irregular bleeding that is not controlled by treatment, the Board concludes that the 30 percent evaluation is not warranted. In rendering this determination, the Board has considered all pertinent aspects of 38 C.F.R. Parts 3 and 4 as required by the United States Court of Veterans Appeals in Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The United States Court of Veterans Appeals (Court) has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of the VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. ORDER A 10 percent evaluation for chronic pelvic pain is granted, subject to controlling regulations governing the payment of monetary benefits. Mark D. Hindin Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), 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, 102 Stat. 4105, 4122 (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.