Citation Nr: 1045598 Decision Date: 12/06/10 Archive Date: 12/14/10 DOCKET NO. 07-28 515 ) DATE ) ) On appeal from the Department of Veterans Affairs Togus Regional Office in Augusta, Maine THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for the period prior to June 24, 2010, and in excess of 60 percent for the period beginning June 24, 2010, for residuals of a fistulectomy. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period prior to June 24, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active duty for training from August 1969 to January 1970 and active military duty from December 2003 to September 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Department of Veterans Affairs (VA) Togus Regional Office (RO) in Augusta, Maine. This case was previously before the Board in June 2009, at which time it was remanded for additional development. The case has now been returned to the Board for further appellate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). FINDINGS OF FACT 1. For the period beginning September 25, 2006, the manifestations of the Veteran's residuals of a fistulectomy have most nearly approximate extensive leakage and fairly frequent involuntary bowel movements. 2. The Veteran's combined disability rating is 80 percent. 3. The Veteran has been unable to obtain and maintain any form of substantially gainful employment due solely to the effects of his service-connected disabilities for the period of his TDIU claim prior to June 24, 2010. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 60 percent, but not higher, have been met for the period beginning September 25, 2006, for residuals of a fistulectomy. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7332 (2010). 2. The criteria for a TDIU for the period of this claim prior to June 24, 2010, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2010), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The record reflects that the Veteran was mailed a letter in October 2006 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The October 2006 letter also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claims. The Board also finds the Veteran has been afforded adequate assistance in response to his claims. The Veteran's service treatment records (STRs) are on file. VA Medical Center treatment records have been obtained. Private treatment records are on file. The Veteran was afforded appropriate VA examinations. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claims. The Board is also unaware of any such evidence. In sum, the Board is satisfied that any procedural errors in the originating agency's development and consideration of the claims were insignificant and non prejudicial to the Veteran. Accordingly, the Board will address the merits of the claims. Legal Criteria Disability Rating Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2010). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2010). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). There are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain coexisting diseases in this area, as indicated in the instruction under the title "Diseases of the Digestive System," do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in 38 C.F.R. § 4.14. 38 C.F.R. § 4.113. Ratings under DCs 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. There is no specific diagnostic code pertaining to residuals of a fistulectomy. The Board notes that the RO has evaluated the Veteran's disability under Diagnostic Code 7332, the code used for evaluating disabilities of the rectum and anus and impairment of sphincter control. Under this code a 30 percent disability rating is warranted for occasional involuntary bowel movements, necessitating wearing of a pad. A 60 percent disability rating is warranted for extensive leakage and fairly frequent involuntary bowel movements. A maximum 100 percent disability rating is warranted for complete loss of sphincter control. 38 C.F.R. § 4.114. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16. "Substantially gainful employment" is that employment that "is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment will not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). A TDIU may be assigned, if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A claim for a TDIU presupposes that the rating for the service- connected disabilities is less than 100 percent, and only asks for a TDIU because of "subjective" factors that the "objective" rating does not consider. Vittese v. Brown, 7 Vet. App. 31, 34-35 (1994). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis Evaluation of Residuals of a Fistulectomy In accordance with 38 C.F.R. §§ 4.1, 4.2 (2010) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service- connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Veteran was afforded a VA examination in June 2006. At that time, the Veteran reported that while serving in Iraq, he developed a peri-anal abscess. He reported that he received surgical treatment for the problem, at which time nerve damage to the sphincter was sustained. The Veteran reported that he was only able to eat one meal a day so that he could better control his bowel urgency. He reported that he used Imodium for treatment, in addition to maintaining a high fiber diet. The Veteran reported that he had no sphincter control. He denied fecal leakage, unless he was not able to make it to a bathroom when he experienced bowel urgency. He reported that he experienced bowel urgency daily, but denied experiencing incontinence on a daily basis. He denied wearing a pad, he denied hemorrhoidal bleeding, and he denied experiencing diarrhea. He reported that he used a suppository once a week and that he occasionally experienced itching. Upon physical examination, the skin around the Veteran's anus was found to be hyperemic. There was no drainage, and there were no external hemorrhoids noted. There were no fissures, and digital rectal examination (DRE) revealed normal sphincter tone. The examiner diagnosed "status post multiple peri-rectal abscesses." Also of record is an April 2006 letter from the Veteran's private physician, Dr. B.G. In his letter, Dr. B.G. reported that the Veteran had experienced difficulty with bowel incontinence since his fistulectomy surgery in 2004. He reported that the Veteran suffered from a protracted incontinence course, particularly with a primary symptom of urgency. In a July 2006 rating decision, the Veteran was awarded entitlement to service connection for residuals of a fistulectomy and granted a disability rating of 30 percent. In September 2006, VA received a statement from the Veteran in which he reported that his symptomatology had increased in severity since his last VA examination and that he was unable to work as a result of his service-connected disabilities. Also in September 2006, the Veteran underwent an electromyogram (EMG) of the anal rectal sphincter. The Veteran was found to have outlet dysfunction, constipation, and fecal incontinence. Anorectal muscle function was also found to be delayed. In March 2007, the Veteran was afforded a VA examination in response to his claim for increase. At that time, it was reported that the Veteran's symptoms continued to be similar to those reported at his June 2006 VA examination. He reported that he had a sense of urgency and could not tell when he would have a bowel movement, requiring him to stay near a bathroom at all times. He reported that when he felt the need to have a bowel movement, he would need to find a bathroom right away. The Veteran reported that he tried to avoid incontinence by limiting where he went and always trying to have a bathroom nearby. He reported that he continued to take Imodium for treatment, but that he was not certain it was helpful, and that he had further increased his fiber intake. The Veteran reported that he no longer used suppositories and that he had gone for bowel/pelvic floor muscle training for strengthening and felt that it had improved his muscle tone, but that he still experienced urgency. He reported that he was only able to avoid involuntary bowel movements by eating only once a day. The Veteran reported that he did not feel signals to defecate and that he wore a pad. Upon physical examination, the Veteran was found to have decreased sphincter muscle tone, estimated at three-quarters normal in terms of muscle strength and tone. There was no active fistula, drainage, inflammation, or visible hemorrhoids. The Veteran had internal hemorrhoids. Heme occult was negative, there were no masses, he was not wearing a pad, and there was no staining of the Veteran's underwear. The examiner diagnosed anal rectal muscle dysfunction, only partially amenable to improvement with pelvic floor muscle strength training. The examiner reported that even after treatment, the Veteran continued to experience symptoms of urgency. With regard to the Veteran's employment, the examiner reported that the Veteran had a regimen that allowed him to anticipate, for the most part, when he would have a bowel movement; and while he did need to have ready access to a bathroom, the Veteran should have been able to continue his regimen in a working situation. In June 2010, the Veteran was afforded another VA examination. At that time, it was reported that the Veteran's symptoms continued to be similar to those reported at his last VA examination. The Veteran reported experiencing a sense of urgency and reported that he could not tell when he would have a bowel movement. He reported that he continued to try and avoid incontinence by limiting where he went and by continuing to only eat one meal per day. The Veteran also reported that at times, he was not able to make it to the bathroom in time and would soil his underwear. He reported that he had soiling approximately twice per week and that prior to his VA examinations, he would stop eating for two days to prevent soiling. He reported wearing a diaper-like undergarment that he changed once per day. The examiner noted that the Veteran was losing weight because of his dietary habits and noted that if the Veteran ate more, he would have more frequent involuntary bowel movements. Upon physical examination, the Veteran was found to have severe loss of peri-anal sensation, which led to involuntary bowel movements and fecal soiling. It was noted that the Veteran was unable to gain weight, but that he was not malnourished. The Veteran's general health was noted to be fair. The Veteran had severe fecal incontinence requiring pads and moderate weakness of the sphincter muscle. The examiner reported that the Veteran had stopped working because he could not control his bowel movements. The examiner also noted that the Veteran's disability would prevent him from participating in sports; have a severe effect on his ability to participate in recreation, exercise, toilet, and travel; and would have a moderate effect on the Veteran's ability to complete chores, shop, eat, and groom himself. The examiner reported that it was at least as likely as not that the Veteran's disability would have a negative impact on his ability to do any heavy or repetitive physical work, such as his previous job as a landscaper. The examiner reported that the Veteran's disability would decrease his ability to follow substantially gainful employment as a result of his fecal incontinence and that the Veteran would not be able to function in a workplace setting because of his condition. In an August 2010 rating decision, the Veteran was awarded a 60 percent disability rating for his residuals of fistulectomy, effective the date of his June 2010 VA examination. A review of the VA Medical Center treatment notes of record shows that the Veteran's VA Medical Center problem list includes his gastrointestinal (GI) disability. However, while the disability is briefly noted in the VA Medical Center treatments notes, there is no evidence that the Veteran has received significant treatment for his GI disability at the VA Medical Center. The Board finds that the Veteran is entitled to a 60 percent disability rating for his GI disability beginning September 25, 2006, the Veteran's date of claim for entitlement to an increased disability rating. In this regard, the Board notes that this is the first date that VA was put on notice that the Veteran's disability had increased in severity. Additionally, both the March 2007 and June 2010 VA examination reports document that the Veteran experienced involuntary bowel movements and required the use of pads. While it was noted that the Veteran was able to control his involuntary bowel movements to some degree, the Board notes that this was only accomplished by limiting his food intake to one meal a day. The Board further notes that this is not a healthy course of treatment and could cause further nutritional problems for the Veteran in the future. Also, as noted above, the Veteran's September 2006 EMG revealed outlet dysfunction, constipation, fecal incontinence, and delayed anorectal muscle function. For these reasons, the Board finds that the Veteran's disability more nearly approximates extensive leakage and fairly frequent involuntary bowel movements than occasional involuntary bowel movements necessitating wearing of a pad. 38 C.F.R. § 4.114, Diagnostic Code 7332. Consideration has been given to assigning a disability rating on excess of 60 percent for this period. However, there is no evidence of record indicating that the impairment for this period more nearly approximated total loss of sphincter control required for a higher rating. In this regard, the Board specifically notes that the June 2010 VA examination report indicates that the Veteran had moderate weakness of the sphincter muscle. Therefore, a higher disability rating is not warranted. 38 C.F.R. § 4.114, Diagnostic Code 7332. Consideration has been given to assigning a higher disability rating prior to September 25, 2006; however, the Board notes that the evidence of record for that period fails to show that the Veteran experienced extensive leakage and fairly frequent involuntary bowel movements. In this regard, the Board notes that the June 2006 VA examination report indicates that the Veteran did experience some bowel urgency and incontinence, but he was not noted to require pads at that time and treatment with Imodium and a high fiber diet seemed to have some effect on the Veteran's disability. It was not until VA received the Veteran's September 2006 claim that there was any indication that the Veteran's disability had worsened. 38 C.F.R. § 4.114, Diagnostic Code 7332. Consideration has also been given to assigning a disability rating under another of the gastrointestinal Diagnostic Codes. However, the Board notes that the Veteran's predominant residual of his fistulectomy is impairment of the sphincter and the anorectal muscle, the symptoms of which are adequately contemplated by Diagnostic Code 7332. Therefore, the assignment of a disability rating under another diagnostic code would not be appropriate at this time. 38 C.F.R. § 4.114. TDIU The Veteran filed his claim of entitlement to a TDIU in September 2006. Including the increased disability rating granted herein, service connection has been in effect for the following disabilities since that time: residuals of a fistulectomy, rated as 60 percent disabling from September 25, 2006; posttraumatic stress disorder, rated as 30 percent disabling; degenerative disc disease and degenerative joint disease of the lumbar spine, rated as 10 percent disabling; and tinnitus, rated as 10 percent disabling. The Veteran's combined rating is 80 percent. Accordingly, the Veteran meets the minimum schedular criteria for the assignment of a TDIU. The Veteran has a high school education and reported that he last worked full time in September 2005, at which time he was discharged from active service with the United States Army. Prior to his active military service, the Veteran worked as a driver and a laborer, worked in landscaping, and owned and operated a specialized trucking outfit. The Board has considered all of the medical evidence pertaining to the severity of the service-connected disabilities. The March 2007 VA examiner reported that the Veteran's low back disability made it inadvisable for him to do any heavy lifting or repetitive physical work such as landscaping, cement work, etc. The examiner did report that the Veteran would be able to do some driving, but the Veteran would be better off in a sedentary position that would allow him to get up and walk or stretch for a brief period every half hour to an hour. The Board notes that there is no evidence of record indicating that the Veteran would be qualified for such employment. Additionally, as noted above, the March 2007 VA examiner reported that the Veteran would be somewhat limited by his GI disability, in that he would require ready access to a bathroom at all times. As noted above, the June 2010 VA examiner reported that the Veteran's ability to maintain gainful employment would be severely limited by his GI disability. The Board notes that the Veteran was granted entitlement to a TDIU in an August 2010 rating decision. The TDIU was assigned effective as of June 24, 2010, the date of the Veteran's most recent VA examination. In light of the Veteran's limited education and occupational background and the medical opinions supporting his claim, the Board finds that the Veteran's service-connected disabilities alone also rendered him unable to obtain and maintain employment during the period of his TDIU claim prior to June 24, 2010. Thus, entitlement to a TDIU is warranted for that period. ORDER The Board having determined that the Veteran's residuals of a fistulectomy warrant a 60 percent rating, but not higher, for the period from September 25, 2006, the benefit sought on appeal is granted to this extent and subject to the criteria applicable to the payment of monetary benefits. Entitlement to a TDIU during the period of the claim prior to June 24, 2010, is granted, subject to the criteria applicable to the payment of monetary benefits. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs