UTERUS REMOVAL OF

Summary

The Veteran, who served from November 1979 to October 1983, appeals decisions regarding increased ratings for several conditions and entitlement to Dependents' Educational Assistance (DEA). The Veteran sought an increased rating for a hysterectomy with bilateral salpingo-oophorectomy, but the Board found the current 50 percent rating under DC 7617 to be the maximum allowable, as the 100 percent rating is only applicable for three months post-surgery, and the claim was filed much later. The Veteran also appealed for a higher rating for PTSD with major depressive disorder. The Board found that while the Veteran's symptoms prior to May 19, 2021, warranted a 70 percent rating, a suicide attempt on May 19, 2021, more closely approximated total occupational and social impairment, thus granting a 100 percent rating from that date. The Veteran claimed entitlement to Total Disability based on Individual Unemployability (TDIU) from September 26, 2014. A vocational assessment indicated significant occupational and social impairment due to psychiatric symptoms, including difficulty with workplace interactions and focus, leading the Board to grant TDIU from September 26, 2014. Finally, the Veteran sought an earlier effective date for DEA benefits. Given the TDIU grant effective September 26, 2014, the Board found the Veteran entitled to an earlier effective date for DEA benefits, corresponding to the TDIU award.

Rationale

Veteran seeking increased rating for hysterectomy with bilateral salpingo-oophorectomy.; Currently rated 50% under DC 7617.; DC 7617 allows 100% for 3 months post-surgery, then 50%.; Claim filed after the 3-month period, so 50% is maximum.

Full Decision Text

Citation Nr: A26034424
Decision Date: 04/14/26	Archive Date: 04/14/26

DOCKET NO. 250725-569396
DATE: April 14, 2026

ORDER

Entitlement to a rating in excess of 50 percent for total hysterectomy with bilateral salpingo-oophorectomy is denied.

Entitlement to a 100 percent rating for posttraumatic stress disorder with major depressive disorder, recurrent, moderate, from May 19, 2021, is granted.

Entitlement to a total disability rating due to individual unemployability from September 26, 2014 is granted.

Entitlement to an effective date from September 26, 2014, for the award of eligibility for Dependents' Educational Assistance (DEA) under 38 USC chapter 35 is granted.

FINDINGS OF FACT

1. The Veteran is in receipt of the maximum rating for total hysterectomy with bilateral salpingo-oophorectomy.

2. The Veteran's posttraumatic stress disorder with major depressive disorder, recurrent, moderate more closely approximated total social and occupational impairment from May 19, 2021. 

3. The Veteran is unable to secure and maintain gainful employment as a result of her service-connected disabilities.

4. From September 26, 2014, the Veteran had a total disability rating.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 50 percent for total hysterectomy with bilateral salpingo-oophorectomy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §4.116, Diagnostic Code (DC) 7617.

2. The criteria for a 100 percent rating for posttraumatic stress disorder with major depressive disorder, recurrent, moderate, from May 19, 2021 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.130, DC 9411.

3. The criteria for a total disability rating due to individual unemployability from September 26, 2014, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16.

4. The criteria for Entitlement to an effective date from September 26, 2014, for the award of eligibility for Dependents' Educational Assistance (DEA) under 38 USC chapter 35 have been met. 38 U.S.C. §§ 3510, 5110, 5113; 38 C.F.R. §§ 3.807, 21.3021.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 1979 to October 1983. 

The rating decisions on appeal were issued in May 2023 and July 2023 and constitute initial decisions; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. 

In April 2024, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of May 2023 and July 2023 decisions. In August 2024, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior May 2023 and July 2023 decisions. Therefore, the Board of Veterans' Appeals (Board) may only consider the evidence of record at the time of the May 2023 and July 2023 decisions.

In the July 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the May 2023 and July 2023 AOJ decisions, which were subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will
2023 AOJ decisions, which were subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

Increased Rating

Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

The VA's Rating Schedule determines a Veteran's disability rating. 38 C.F.R. Part 4. As far as can be practicably determined, the percentage ratings contained in the Ratings Schedule represent the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.

1. Entitlement to a rating in excess of 50 percent for total hysterectomy with bilateral salpingo-oophorectomy.

The Veteran contends she is entitled to a higher rating for total hysterectomy with bilateral salpingo-oophorectomy. 

The Veteran is in receipt of an initial 50 percent rating. Her claim for increase was received on February 20, 2020. The relevant period for review also includes the one-year look-back period for increased rating claims. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). She is rated under DC 7617. 

DC 7617 compensates for the complete removal of the uterus and both ovaries. It provides that a rating of 100 percent is warranted for three months after removal of uterus and both ovaries, and then a 50 percent rating is warranted thereafter. 38 C.F.R. § 4.116, DC 7617.

After reviewing the evidence of record, the Board finds that the Veteran has been in receipt of the maximum allowable rating for status post-hysterectomy with voiding dysfunction throughout the appeal period, and a higher rating is not warranted.

The evidence of record indicates that the Veteran underwent a hysterectomy in 1980. Based on DC 7617, the Veteran would only be entitled to a 100 percent rating for her status post-hysterectomy for three months after the removal of the uterus and ovaries; however, the Veteran only filed her initial claim in 2014, well after the three-month period contemplated by DC 7617. The increased rating claim on appeal was filed in 2020. Therefore, the highest maximum rating the Veteran is entitled to for status post-hysterectomy is a 50 percent rating under DC 7617, which she has been assigned throughout the appeal period.

The Board notes that it has considered the other diagnostic codes under Gynecological Conditions and Disorders of the Breast, but only DC 7618, removal of the uterus, including corpus, is applicable to the Veteran's situation. DC 7618 provides that for three months following removal, a 100 percent rating is warranted and thereafter, a 30 percent rating is warranted. This DC would provide the Veteran a lower rating than she currently receives. 

The Veteran has not presented any symptoms which are not contemplated by the currently assigned 50 percent

2. Entitlement to a 100 percent rating for posttraumatic stress disorder with major depressive disorder, recurrent, moderate, from May 19, 2021.

The Veteran contends her psychiatric condition
.

The Board notes that it has considered the other diagnostic codes under Gynecological Conditions and Disorders of the Breast, but only DC 7618, removal of the uterus, including corpus, is applicable to the Veteran's situation. DC 7618 provides that for three months following removal, a 100 percent rating is warranted and thereafter, a 30 percent rating is warranted. This DC would provide the Veteran a lower rating than she currently receives. 

The Veteran has not presented any symptoms which are not contemplated by the currently assigned 50 percent

2. Entitlement to a 100 percent rating for posttraumatic stress disorder with major depressive disorder, recurrent, moderate, from May 19, 2021.

The Veteran contends her psychiatric condition warrants a higher rating. She is rated 70 percent disabling prior to December 28, 2022 and 100 percent thereafter. 

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission.?The rating agency shall assign a rating based on all the evidence of record that bears occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination.?When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign a rating solely on the basis of social impairment.?See?38?C.F.R. §?4.126.??

The Veteran's psychiatric disorder is rated under DC 9434, 38 C.F.R. § 4.130, utilizing the General Rating Formula for Mental Disorders. Under this general formula, ratings are assigned according to the manifestation of symptoms and the extent to which they cause occupational and social impairment. See Bankhead v. Shulkin, 29 Vet. App. 10, 18 (2017); see also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). The rating criteria includes a non-exhaustive list of symptoms, meaning that VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign a particular evaluation. Bankhead, 29 Vet. App. at 18 (quoting Vazquez-Claudio, 713 F.3d at 116-17) (quotations omitted). Thus, a veteran may qualify for a given disability rating by demonstrating that he or she suffers from the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that those symptoms caused the level of occupational and social impairment associated with a particular disability evaluation. Bankhead, 29 Vet. App. at 18; Vazquez-Claudio, 713 F.3d at 116-17 (quotations omitted). In sum, "VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment." Bankhead, 29 Vet. App. at 22 (internal citations omitted). 

Under DC 9411, a 70 percent rating will be assigned for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and an inability to establish and maintain effective relationships.   

A 100 percent rating will be assigned for total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting herself or others, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name.  

Turning to the evidence of record, the Veteran underwent a VA examination in March 2020. The examiner found there was occupational and social impairment with deficiencies in most areas, which corresponds to a 70 percent rating. She was married for 21 years at the time of the examination. She retired from her profession as a nurse in 2013. Symptoms included depressed mood, panic attacks more than once a week, chronic sleep impairment
 communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting herself or others, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name.  

Turning to the evidence of record, the Veteran underwent a VA examination in March 2020. The examiner found there was occupational and social impairment with deficiencies in most areas, which corresponds to a 70 percent rating. She was married for 21 years at the time of the examination. She retired from her profession as a nurse in 2013. Symptoms included depressed mood, panic attacks more than once a week, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. She was appropriately dressed and groomed, speech had normal rate and rhythm, and her thought process was linear, logical, and conversant. There was no evidence of bizarre ideation, hallucinations, or perceptual disturbance. She denied current suicidal ideation, intent, or plan.

The Veteran attempted suicide on May 19, 2021. 

The Board finds the May 2021 suicide attempt more closely approximates total occupational and social impairment. Therefore, a 100 percent rating is warranted from May 19, 2021, the date of her suicide attempt.

However, prior to May 19, 2021, the Veteran's psychiatric symptoms more closely approximate occupational and social impairment with deficiencies in most areas. For example, she maintained her marriage of 20+ years. She denied suicidal ideation and was found to be a low suicide risk. She was not found to hallucinate, have delusions, or grossly inappropriate behavior. Her hygiene was noted to be appropriate. 

As such, the Board finds prior to May 19, 2021, the Veteran's psychiatric symptoms more closely approximated symptoms contemplated by a 70 percent rating, and her symptoms from May 19, 2021 more closely approximated total social occupational impairment, which warrants a 100 percent rating from that date. 

3. Entitlement to a total disability rating due to individual unemployability from September 26, 2014.

It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 

Entitlement to a TDIU is based on an individual's particular circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must consider the individual veteran's education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The ultimate question of whether a veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner").

The phrase "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has both an economic and a noneconomic component. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component means an occupation earning more than marginal income outside of a protected environment. Id. The noneconomic component concerns whether the veteran is able to "secure or follow" gainful employment. Id. In determining whether a veteran can secure or follow a substantially gainful occupation, the Board should consider the veteran's history, education, skill, and training; whether he or she "has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required" to work in a substantially gainful occupation, and "whether the veteran has the mental ability to perform the activities required" to work in a substantially gainful occupation. Id.

Regarding the economic component, marginal employment shall not be considered substantially gainful employment, and generally shall be deemed to
 whether the veteran is able to "secure or follow" gainful employment. Id. In determining whether a veteran can secure or follow a substantially gainful occupation, the Board should consider the veteran's history, education, skill, and training; whether he or she "has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required" to work in a substantially gainful occupation, and "whether the veteran has the mental ability to perform the activities required" to work in a substantially gainful occupation. Id.

Regarding the economic component, marginal employment shall not be considered substantially gainful employment, and generally shall be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Ortiz-Valles v. McDonald, 28 Vet. App. 65, 69-70 (U.S. 2016); 38 C.F.R. § 4.16(a).

The United States Court of Appeals for Veterans Claims (CAVC) defined employment in a protected environment. That is, CAVC held that employment in a protected environment means "a lower-income position that, due to the veteran's service-connected disability or disabilities, is shielded in some respect from competition in the employment market." LaBruzza v. McDonough, 37 Vet. App. 111, 123-24 (2024). Employment in a protected environment still constitutes marginal employment even though earned annual income exceeds the poverty threshold. Id. The Board may consider any individualized factor or evidence that tends to clarify whether a specific position was shielded in some respect from competition in the employment market. Id. at 124. Yet CAVC emphasized in LaBruzza that employment need not be completely shielded or separated from the employment market to qualify as being in a protected environment and thus marginal employment. Id. at 122. The Court in LaBruzza also cautioned that employment is not "in a protected environment" simply because a veteran receives workplace accommodations for service-connected disabilities or remains employed despite being occupationally impaired. Id. at 125 (citing Van Hoose, 4 Vet. App. at 363). Significantly, the Court in LaBruzza added, "of course, the income that a veteran earns from employment must be relatively low to qualify as 'in a protected environment.' Id. at 124. Regardless, the Court in LaBruzza would not set a bright-line rule for what constitutes a "lower-income" position. Id. at 123.

A TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).

The Veteran stated on the March 2021 VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability that she last worked full time in November 2013.

The Veteran submitted a vocational assessment in December 2022. The provider concluded the Veteran was unable to secure substantially gainful employment from September 2014. The Veteran reported that while she worked as a nurse, she had a hard time establishing relationships with staff and patients. She frequently had verbal altercations, and a co-worker complained about her behavior due to perception that she was hostile, angry, and negative. She reported being unable to focus on work because she is easily overwhelmed and unable to prioritize work activities. The Veteran reported decreased attention and concentration, poor memory, low motivation, sleep disturbance, and fatigue. The provider found the Veteran's psychiatric symptoms would prevent the Veteran from attending work on a regular schedule, and she would be unable to meet employer expectations of appropriate and effective workplace interactions. 

In consideration of the above, the Board finds that the evidence of record persuasively supports the Veteran's claim for a TDIU rating from September 26, 2014. 

4. Entitlement to an effective date from September 26, 2014, for the award of eligibility for DEA under 38 USC chapter 35
, and negative. She reported being unable to focus on work because she is easily overwhelmed and unable to prioritize work activities. The Veteran reported decreased attention and concentration, poor memory, low motivation, sleep disturbance, and fatigue. The provider found the Veteran's psychiatric symptoms would prevent the Veteran from attending work on a regular schedule, and she would be unable to meet employer expectations of appropriate and effective workplace interactions. 

In consideration of the above, the Board finds that the evidence of record persuasively supports the Veteran's claim for a TDIU rating from September 26, 2014. 

4. Entitlement to an effective date from September 26, 2014, for the award of eligibility for DEA under 38 USC chapter 35.

For purposes of eligibility to DEA benefits under Chapter 35, the child, spouse, or surviving spouse of a Veteran will have basic eligibility if the following conditions are met: (1) The Veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the Veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the Veteran's death; or (4) the Veteran died as a result of a service-connected disability. 38 U.S.C. § 3510; 38 C.F.R. § 3.807(a).

In this case, the AOJ awarded DEA benefits under Chapter 35, effective December 28, 2022. That is the same effective date as the award of a 100 percent rating for posttraumatic stress disorder. However, considering the effective date granted herein for a TDIU rating, the date of award of a total rating has changed, and the Veteran will be rated total as of September 26, 2014.?

The criterion for educational benefits provides that for effective dates assigned following the grant of benefits under Chapters 30, 31, 32, and 35 shall, to the extent feasible, correspond to the effective dates relating to awards of disability compensation. 38 U.S.C. § 5113.

In light of the Board's decision, the Veteran is entitled to an earlier effective date for DEA benefits. As a total rating has been assigned as of September 26, 2014, that is the earliest for eligibility for DEA benefits. Prior to September 26, 2014, the Veteran was not service connected. Therefore, the Veteran is found to have been permanently and totally disabled as of September 26,2014.

 

 

Ann K. Minami

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	P. McDaniels, 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.