Citation Nr: 1210685	
Decision Date: 03/23/12    Archive Date: 03/30/12

DOCKET NO.  06-34 604	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to a disability rating in excess of 30 percent for cervical dysplasia with chronic pelvic pain, status post loop electrosurgical excision procedure (LEEP) procedure.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Saira Spicknall, Counsel



INTRODUCTION

The Veteran served on active duty from March 2000 to November 2001.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center.  Notice of this rating decision was sent to the Veteran from the Cleveland, Ohio RO.  The Board observes that, with the exception of the March 2005 rating decision, the Veteran's claim has been managed by the Cleveland, Ohio RO.  

During the pendency of this appeal, the Veteran was scheduled for a Travel Board hearing before a member of the Board in October 2011 however, the Veteran failed to appear to the scheduled hearing and no motion for a new hearing was received thereafter.  See 38 C.F.R. § 20.704(d) (2011).

The Board observes that, in a June 2009 supplemental statement of the case (SSOC), the issue on appeal was characterized as entitlement to an increased evaluation for the service connected disability of cervical dysplasia with chronic pelvic pain, status post LEEP procedure, evaluated as 10 percent disabling from November 2001; and 30 percent disabling from May 19, 2004; thereby raising the issue of entitlement to an earlier effective date for the assignment of 30 percent prior to May 19, 2004, the date of the Veteran's claim for an increased rating.  Thereafter, in September 2009 and February 2010 VA 646 Forms and a January 2012 Informal Hearing Presentation, the Veteran's representative also characterized the issue on appeal as being entitlement to an earlier effective date for the evaluation of 30 percent for cervical dysplasia with chronic pelvic pain, status post LEEP procedure.  In this case, the Board finds that the Veteran only disagreed with the rating assigned in her May 2005 notice of disagreement (NOD).  In addition, she did not dispute the effective date assigned for the 30 percent disability rating awarded for her cervical dysplasia with chronic pelvic pain, status post LEEP procedure, within a year of the date of the claim within a year of the notice of the March 2005 rating decision.  Therefore, the issue on appeal does not address entitlement to an effective date prior to May 19, 2004 for cervical dysplasia with chronic pelvic pain, status post LEEP procedure, and is limited only to entitlement to a disability rating in excess of 30 percent for this condition.  


FINDING OF FACT

The Veteran's cervical dysplasia with chronic pelvic pain, status post LEEP procedure, has been productive of symptoms that are not controlled by continuous treatment.  


CONCLUSION OF LAW

The criteria for a disability rating in excess of 30 percent for cervical dysplasia with chronic pelvic pain, status post LEEP procedure, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 7612 (2011).  


REASONS AND BASES FOR FINDING  AND CONCLUSION

The Veterans Claims Assistance Act (VCAA)

The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000.  Implementing regulations were created, codified at 38 C.F.R. § 3.159 (2011).

VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1) (2011).

The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits.  Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The Veteran was provided notice of the VCAA in May 2006.  The VCAA letter indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records.  The Veteran also received notice in May 2006, pertaining to the downstream disability rating and effective date elements of her claim, and was furnished a statement of the case in September 2006 with subsequent re-adjudication in a June 2009 supplemental statement of the case.  Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Mayfield and Pelegrini, both supra.

The Veteran's actions are also indicative of her actual knowledge of the requirements for substantiating his increased rating claim.  The Veteran has reported her symptoms and their effect on her daily activities to her treating VA physicians as well as VA examiners.  Based on this evidence, the Board is satisfied that the Veteran had actual knowledge of what was necessary to substantiate her increased rating claim.  See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim).

Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of her claim in this Board decision.  Rather, remanding this case back to the RO for further VCAA development would be an essentially redundant exercise and would result only in additional delay with no benefit to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided).

All relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible.  The evidence of record includes private medical records, VA outpatient treatment reports, adequate VA examinations, a lay statement from the Veteran's ex-husband, and statements from the Veteran and her representative.  The Veteran has not indicated that she has any further evidence to submit to VA, or which VA needs to obtain.  

The record shows that the Veteran was last provided a VA examination in October 2008.  The Veteran was provided an adequate VA examination in October 2008 which included her subjective complaints and history and a physical examination.  Neither the Veteran nor her representative have indicated that her cervical dysplasia with chronic pelvic pain, status post LEEP procedure, has worsened since that last examination and no additional evidence has been received indicating such.  Therefore, given the absence of any report by the Veteran of a worsening of her cervical dysplasia with chronic pelvic pain, status post LEEP procedure, or an indication by the medical record of a worsening of the disability since the last examination, the Board finds that a new VA examination is not necessary in this case.  

There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained.  The Veteran and her representative have been accorded ample opportunity to present evidence and argument in support of his appeal.  Thus, the Board finds that VA has obtained, or made reasonable efforts to obtain, all evidence that might be relevant to the issues on appeal, and that VA has satisfied the duty to assist.  All pertinent due process requirements have been met.  See 38 C.F.R. § 3.103 (2011).

Pertinent Laws and Regulations

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability.  Separate diagnostic codes identify the various disabilities.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2011).  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned.  See 38 C.F.R. § 4.7 (2011).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  When, as here, the Veteran is requesting an increased rating for an established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  However, the most recent examination is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations.  See Powell v, West, 13 Vet. App. 31, 35 (1999).

Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different "staged" ratings may be warranted for different time periods.

The Veteran's current cervical dysplasia with chronic pelvic pain, status post LEEP procedure, is rated under Diagnostic Code 7612, which provides ratings for disease or injury of the cervix.  Under Diagnostic Code 7612, a noncompensable rating is assigned where symptoms do not require continuous treatment.  Where continuous treatment is required, a 10 percent rating is assigned.  Where continuous treatment does not control the symptoms, a 30 percent rating is warranted.  38 C.F.R. § 4.116, Code 7612 (2011).  

Analysis

It should be noted that VA regulations allow for the assignment of an increased rating up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred.  38 C.F.R. §§ 3.157, 3.400(o)(2).  In this case, as the Veteran filed her claim in May 2004, VA must review the evidence of record from May 2003.  

The Board observes that the Veteran is currently receiving the maximum rating possible under Code 7612 from the date of her claim, the earliest date available for the award of the 30 percent rating currently assigned.  In addressing any other potentially applicable Diagnostic Codes, the Board has considered whether higher disability rating may be warranted under Diagnostic Code 7629 for endometriosis, if applied by analogy.  Under this Diagnostic Code, a 50 percent disability rating is warranted where there are lesions involving bowel or bladder, confirmed by laparoscopy, pelvic pain, or heavy or irregular bleeding not controlled by treatment, and bowel or bladder symptoms.  See 38 C.F.R. § 4.116, Diagnostic Code 7629 (2011).  

Upon review of the medical evidence of record from May 2003, which includes VA outpatient treatment reports from January 2004 to November 2008, private treatment reports from July 2004 to September 2004, and VA examinations from September 2004 and October 2008, the Board finds that, while the Veteran has been continually treated for heavy bleeding (menorrhagia) with residual anemia, chronic pelvic pain, atypical squamous cells of undetermined significance (ASCUS), and positive high risk results for human papilloma virus (HPV), there are no medical findings of lesions involving bowel or bladder or bowel or bladder symptoms.  In addition, throughout the duration of the appeal, the Veteran has not complained of any bowel or bladder symptoms in conjunction with treatment for her cervical dysplasia with chronic pelvic pain, status post LEEP procedure, nor has this been demonstrated in any of the medical evidence of record, to include the VA examinations.  

In reaching the above conclusions, the Board has not overlooked statements by the Veteran and her ex-husband with regard to the severity of her service-connected cervical dysplasia with chronic pelvic pain, status post LEEP procedure.  In this regard, the Veteran and her husband are competent to report on factual matters of which they had firsthand knowledge, e.g., experiencing or witnessing pain and heavy bleeding.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  Lay evidence was provided by the Veteran during the course of her VA examinations and by her and her ex-husband in statements submitted to VA.  The Veteran is competent to report her current symptomatology as it pertains to her gynecological symptoms and her ex-husband is competent to attest to her symptoms which he witnessed (e.g. pain, bleeding) and the Board finds that their statements are credible.  With respect to the Rating Schedule, where the criteria set forth therein require medical expertise which the Veteran has not been shown to have or where these types of findings are not readily observable by a lay person, the Board has accorded greater probative weight to objective medical findings and opinions provided by the Veteran's treatment reports and his VA examination reports.  See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) ("[t]he probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . the credibility and weight to be attached to these opinions [are] within the province of the adjudicator.").  The Board has considered the reports of the Veteran and her ex-husband with respect to her symptoms in evaluating her disability rating in this decision.  

Therefore, the Board finds that, as the Veteran is currently receiving the maximum rating possible under Code 7612 for cervical dysplasia with chronic pelvic pain, status post LEEP procedure, and does not meet the criteria for a higher disability rating under Diagnostic Code 7629, a higher disability rating for cervical dysplasia with chronic pelvic pain, status post LEEP procedure, is not warranted.  

The Board also finds that other available Diagnostic Codes used to rate gynecological issues are either not applicable or would violate the rule against pyramiding.  The rule against pyramiding, as set forth in 38 C.F.R. § 4.14 (2011), states that the evaluation of the same disability under various diagnoses is to avoided.  

All things considered, the record as a whole does not show persistent symptoms that equal or more nearly approximate the criteria for an evaluation higher than 30 percent at any time since the date of claim on May 19, 2004.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  That is to say, the Veteran's disability has been no more than 30 percent disabling since that date, so her rating cannot be "staged" because the 30 percent rating represents her greatest level of functional impairment attributable to this condition since that date.  Since the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply.  38 C.F.R. § 4.3; Alemany v. Brown, 9 Vet. App. 518, 519 (1996).  The benefit sought on appeal is accordingly denied.

Extraschedular Consideration

As the Veteran is in receipt of the maximum schedular rating for her cervical dysplasia with chronic pelvic pain, status post LEEP procedure, the Board must specifically consider whether extra-schedular consideration under the provisions of 38 C.F.R. § 3.321(b) is warranted in this case.  See Moyer v. Derwinski, 2 Vet. App. 289 (1992) (VA must consider the provisions of 38 C.F.R. § 3.321(b) when a claimant is in receipt of the maximum schedular evaluation).  In this case however, the Board finds that at no point since the date of the claim has the disability been shown to be so exceptional or unusual as to warrant the assignment of a rating, higher than 30 percent from May 19, 2004, on an extra-schedular basis.  See 38 C.F.R. § 3.321.

The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedural Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c).  Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required.  See VAOGCPREC 6-96 (Aug. 16, 1996); Thun v. Peake, 22 Vet. App. 111 (2008).

If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or the Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization).  38 C.F.R. § 3.321(b)(1).  If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Thun, supra.

In this case, the Board finds that, while the Veteran is currently receiving the maximum rating under Diagnostic Code 7612, a higher rating may be considered under Diagnostic Code 7629, which may be applied by analogy and provides for a higher disability rating.  Therefore, in this case the Board finds that, in applying an analogous Diagnostic Code, the schedular criteria are adequate to rate the disability under consideration as the rating schedule fully contemplates the described symptomatology, and provides for ratings higher than those assigned based on more significant functional impairment.  Moreover, the Veteran's cervical dysplasia with chronic pelvic pain, status post LEEP procedure, does not present an exceptional disability picture so as to warrant an extraschedular rating.  In this regard, the evidence of record demonstrates that the Veteran was unable to work due to her psychiatric disorder, which is her most disabling condition, and she was awarded a 100 percent disability rating for such.  Additionally, while she had been to the emergency room on one occasion for heavy bleeding in 2004, such was the basis for the award of her 30 percent disability rating under Diagnostic Code 7612 and the evidence of record does not demonstrate frequent periods of hospitalization due to cervical dysplasia with chronic pelvic pain, status post LEEP procedure, at any time throughout the duration of the appeal.  

This matter was implicitly considered and rejected by the RO.  See Statement of the Case, dated September 2006, citing 38 C.F.R. § 3.321(b)(1).  Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met.  See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).


ORDER

A disability rating in excess of 30 percent for cervical dysplasia with chronic pelvic pain, status post LEEP procedure, is denied.



____________________________________________
L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs