Citation Nr: 0809677	
Decision Date: 03/24/08    Archive Date: 04/09/08

DOCKET NO.  03-05 482A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Anchorage, 
Alaska



THE ISSUE

Entitlement to an initial rating in excess of 30 percent for 
neurogenic bowel, secondary to a T7 burst fracture.



REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States



ATTORNEY FOR THE BOARD

S. Shoreman, Associate Counsel



INTRODUCTION

The veteran had active service from October 1960 to November 
1973.

This matter comes before the Board of Veterans' Appeals 
(Board) from a June 2002 rating decision by the above 
Department of Veterans Affairs (VA) Regional Office (RO).  In 
addition to granting a 30 percent rating for neurogenic bowel 
secondary to a T7 burst fracture, the RO granted a 30 percent 
rating for neurogenic bladder.  The veteran submitted a 
Notice of Disagreement as to both ratings in June 2002. 

In a December 2002 rating decision, the RO increased the 
evaluation for neurogenic bladder to 60 percent.  The 
veteran's representative indicated in his March 2002 
statement submitted in lieu of VA Form 9 that the veteran was 
appealing only the rating for the neurogenic bowel disorder.  
Therefore, the appeal of the rating for the neurogenic 
bladder was not perfected, and the 60 percent rating became 
final.


FINDINGS OF FACT

1.  From September 21, 2001, through April 10, 2006, the 
veteran's neurogenic bowel was characterized by alternating 
diarrhea and constipation, with more or less constant 
abdominal distress as well as occasional involuntary bowel 
movements necessitating the wearing of a pad.

2.  Beginning April 11, 2006, the veteran's neurogenic bowel 
has been characterized by extensive leakage and fairly 
frequent involuntary bowel movements.

CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 30 percent for 
neurogenic bowel were not met for the period of September 21, 
2001, through April 10, 2006.  38 U.S.C.A. § 1155 (West 2002 
& Supp. 2007); 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 
4.40, 4.45, 4.114, Diagnostic Codes (DCs) 7399-7319, 7332 
(2007).


2.  The criteria for a rating of 60 percent for neurogenic 
bowel are met for the period beginning on April 11, 2006.  
38 U.S.C.A. § 1155, 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10, 4.20, 
4.27, 4.40, 4.45, 4.114, DCs 7399-7319, 7332.


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits, as codified in pertinent part at 38 
U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 
38 C.F.R. §§ 3.102, 3.156(a) (2007).

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant of the information and evidence not of record that 
is necessary to substantiate the claim; to indicate which 
information and evidence VA will obtain and which information 
and evidence the claimant is expected to provide; and to 
request that the claimant provide any evidence in the 
claimant's possession that pertains to the claim.  38 
U.S.C.A. § 5.103(a); 38 C.F.R. § 3.159(b).  The U.S. Court of 
Appeals for Veterans Claims has held that VCAA notice should 
be provided to a veteran before the initial RO decision on a 
claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  If, 
however, VCAA notice is provided after the initial decision, 
such a timing error can be cured by subsequent readjudication 
of the claim, as in a Statement of the Case (SOC) or 
Supplemental SOC (SSOC).  Mayfield v. Nicholson, 20 Vet. App. 
537, 543 (2006).

The U.S. Court of Appeals for the Federal Circuit has held 
that, if a claimant can demonstrate error in VCAA notice, 
such error should be presumed prejudicial.  VA then bears the 
burden of rebutting the presumption, by showing that the 
essential fairness of the adjudication has not been affected 
because, for example, actual knowledge by the claimant cured 
the notice defect, a reasonable person would have understood 
what was needed, or the benefits sought cannot be granted as 
a matter of law.  Sanders v. Nicholson, 487 F.3d 861 (Fed. 
Cir. 2007).


In March 2002, the RO sent the veteran a letter informing him 
of the types of evidence needed to substantiate his claim and 
its duty to assist him in substantiating his claim under the 
VCAA.  The letter informed the veteran that VA would assist 
him in obtaining evidence necessary to support his claim, 
such as medical records, employment records, or records from 
other Federal agencies.  He was advised that it is his 
responsibility to provide or identify, and furnish 
authorization where necessary for the RO to obtain, any 
supportive evidence pertinent to his claim. 

The Board finds that the content of the letter provided to 
the veteran complied with requirements of 38 U.S.C.A. 
§ 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to 
notify and assist.  The June 2002 rating decision, December 
2002 SOC, July 2005 SOC, and July 2007 SSOC explained the 
basis for the RO's action, and the SOC and SSOCs and provided 
him with additional 60-day periods to submit more evidence.  
It appears that obtainable evidence identified by the veteran 
relative to his claim has been obtained and associated with 
the claims file, and that neither he nor his representative 
has identified any other pertinent evidence, not already of 
record, which would need to be obtained for a fair 
disposition of this appeal.  It is therefore the Board's 
conclusion that the veteran has been provided with every 
opportunity to submit evidence and argument in support of his 
claims.

For an increased-compensation claim, 38 U.S.C.A. § 5103(a) 
requires, at a minimum, that the Secretary notify the 
claimant that, to substantiate a claim, the claimant must 
provide, or ask the Secretary to obtain, medical or lay 
evidence demonstrating a worsening or increase in severity of 
the disability and the effect that worsening has on the 
claimant's employment and daily life.  Vazquez-Flores v. 
Peake, No. 05-0355, (U.S. Vet. App. Jan. 30, 2008).  Further, 
if the diagnostic code under which the claimant is rated 
contains criteria necessary for entitlement to a higher 
disability rating that would not be satisfied by the claimant 
demonstrating a noticeable worsening or increase in severity 
of the disability and the effect that worsening has on the 
claimant's employment and daily life (such as a specific 
measurement or test result), the Secretary must provide at 
least general notice of that requirement to the claimant.  

The claimant must be notified that, should an increase in 
disability be found, a disability rating will be determined 
by applying relevant diagnostic codes, which typically 
provide for a range in severity of a particular disability 
from noncompensable to as much as 100 percent (depending on 
the disability involved), based on the nature of the symptoms 
of the condition for which disability compensation is being 
sought, their severity and duration, and their impact upon 
employment and daily life.  As with proper notice for an 
initial disability rating and consistent with the statutory 
and regulatory history, the notice must also provide examples 
of the types of medical and lay evidence that the claimant 
may submit (or ask the Secretary to obtain) that are relevant 
to establishing entitlement to increased compensation - e.g., 
competent lay statements describing symptoms, medical and 
hospitalization records, medical statements, employer 
statements, job application rejections, and any other 
evidence showing an increase in the disability or exceptional 
circumstances relating to the disability.  Vazquez-Flores, 
slip op. at 5-6. 

In this appeal, the veteran is challenging the evaluation 
assigned following the grant of service connection by the RO.  
In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court 
held that, in cases where service connection has been granted 
and an initial disability rating and effective date have been 
assigned, the typical service-connection claim has been more 
than substantiated, it has been proven, thereby rendering 
section 5103(a) notice no longer required because the purpose 
that the notice is intended to serve has been fulfilled.  Id. 
at 490-91.  Thus, because the notice that was provided before 
service connection was granted was legally sufficient, VA's 
duty to notify in this case has been satisfied.  The RO sent 
the veteran a letter in March 2006 explaining VA's 
obligations under Dingess.  Moreover, the claimant has not 
demonstrated any error in VCAA notice, and therefore the 
presumption of prejudicial error as to such notice does not 
arise in this case.  See Sanders v. Nicholson, supra. 

Therefore no useful purpose would be served in remanding this 
matter for yet more development.  Such a remand would result 
in unnecessarily imposing additional burdens on VA, with no 
additional benefits flowing to the veteran.  The Court of 
Appeals for Veteran Claims has held that such remands are to 
be avoided.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


It is the Board's responsibility to evaluate the entire 
record on appeal.  See 38 U.S.C.A. § 7104(a).  When there is 
an approximate balance in the evidence regarding the merits 
of an issue material to the determination of the matter, the 
benefit of the doubt in resolving each such issue shall be 
given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 
3.102, 4.3.

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court 
of Appeals for Veterans Claims held that an appellant need 
only demonstrate that there is an "approximate balance of 
positive and negative evidence" in order to prevail.  The 
Court has also stated, "It is clear that 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.

II.  Applicable Laws and Regulations

Disability evaluations are determined by the application of a 
schedule of ratings which is based on the average impairment 
of earning capacity.  Separate diagnostic codes identify the 
various disabilities.  38 U.S.C.A. § 1155 (West 2002 & Supp. 
2007); 38 C.F.R. Part 4 (2007).  When a question arises as to 
which of two evaluations shall be assigned, 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.

In determining the disability evaluation, VA has a duty to 
acknowledge and consider all regulations which are 
potentially applicable based upon the assertions and issues 
raised in the record and to explain the reasons used to 
support the conclusion.  Schafrath v. Derwinski, 1 Vet. App. 
589 (1991).  These regulations include, but are not limited 
to, 38 C.F.R. § 4.1, which requires that each disability be 
viewed in relation to its history and that there be an 
emphasis placed upon the limitation of activity imposed by 
the disabling condition, and 38 C.F.R. § 4.2, which requires 
that medical reports be interpreted in light of the whole 
recorded history, and that each disability must be considered 
from the point of view of the veteran working or seeking 
work.  These requirements for the evaluation of the complete 
medical history of the claimant's condition operate to 
protect claimants against adverse decisions based upon a 
single, incomplete, or inaccurate report, and to enable VA to 
make a more precise evaluation of the disability level and 
any changes in the condition.

In general, when an increase in the disability rating is at 
issue, it is the present level of disability that is of 
primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 
(1994).  However, when the current appeal arose from the 
initially assigned rating, consideration must be given as to 
whether staged ratings should be assigned to reflect 
entitlement to a higher rating at any point during the 
pendency of the claim.  Fenderson v. West, 12 Vet. App. 119 
(1999).  Moreover, staged ratings are appropriate in any 
increased-rating claim in which distinct time periods with 
different ratable symptoms can be identified.  Hart v. 
Mansfield, 21 Vet. App. 505 (2007).

The Rating Schedule provides that 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.  The 
veteran's disability before the Board is currently rated 
under the criteria of 38 C.F.R. § 4.114, Diagnostic Codes 
7399-7319.  Because his specific disability is not listed in 
the Rating Schedule, the RO assigned DC 7399 pursuant to 38 
C.F.R. § 4.27, which provides that unlisted disabilities 
requiring rating by analogy will be coded by the numbers of 
the most closely related body part and "99."  In its 
adjudication, the RO determined that the most closely 
analogous diagnostic code was DC 7319.

Diagnostic Code (DC) 7319 provides ratings for irritable 
colon syndrome (spastic colitis, mucous colitis, etc.).  Mild 
irritable colon syndrome, with disturbances of bowel function 
with occasional episodes of abdominal distress, is rated 
noncompensably (0 percent) disabling.  Moderate irritable 
colon syndrome, with frequent episodes of bowel disturbance 
with abdominal distress, is rated 10 percent disabling.  
Severe irritable colon syndrome, with diarrhea, or 
alternating diarrhea and constipation, with more or less 
constant abdominal distress, is rated 30 percent disabling.  
38 C.F.R. § 4.114. 

Ratings under DCs 7301 to 7329, inclusive, 7331, 7342, and 
7345 to 7348, inclusive, will not be combined with each 
other.  A single rating will be assigned under the diagnostic 
code that reflects the predominant disability picture, with 
elevation to the next higher rating where the severity of the 
overall disability warrants such elevation.  38 C.F.R. § 
4.114.

DC 7332 provides ratings based on impairment of sphincter 
control.  Healed or slight impairment of sphincter control, 
without leakage, is rated noncompensably 
(0 percent) disabling.  Constant slight impairment of 
sphincter control, or occasional moderate leakage, is rated 
10 percent disabling.  Occasional involuntary bowel 
movements, necessitating wearing of pad, are rated 30 percent 
disabling.  Extensive leakage and fairly frequent involuntary 
bowel movements are rated 60 percent disabling.  Complete 
loss of sphincter control is rated 100 percent disabling.  38 
C.F.R. § 4.114.

III.  Factual Background and Analysis

On September 21, 2001, the veteran sustained a T7 burst 
fracture as a result of a motor vehicle accident following a 
seizure.  Later in September 2001, while being discharged 
from Providence Alaska Medical Center, the veteran lost 
feeling below his umbilicus, including bowel function.  An 
October 2001 note from inpatient VA treatment indicates that 
the veteran had a bowel movement at intervals of every day to 
every other day with enema or digital stimulation, and that 
on October 24, 2001, he had his first bowel movement on a 
toilet since his hospitalization.  In November 2001 it was 
noted that he had a bowel movement every two to three days 
with enema and digital stimulation.

A March 2002 VA treatment note indicates that the veteran had 
neurogenic bowel dysfunction which required him to perform 
daily bowel care with suppositories.  A physician opined that 
this impairment was expected to be permanent.  A November 
2002 note in the veteran's VA treatment records relating to 
his neurogenic bowel indicates that he was able to self-void 
and that he denied any issues at that time.  In March 2003 it 
was noted that the veteran was on chronic stool softeners to 
help keep his bowel movements regular.

The veteran reported at March 2005 VA treatment that there 
was no remarkable change in his stool pattern or character.  
He had no regular bowel care scheduled, and had occasional 
incontinence causing him to use Depends pads.  He said that 
he planned to continue using an enema every two days if he 
had not had a bowel movement during that interval.  VA 
treatment notes from July 2005 further indicate that the 
veteran suffered from chronic constipation.  

The veteran had a VA examination in July 2005, at which he 
reported trying to have a bowel movement daily but sometimes 
going three days between them.  He had constipation weekly 
and no diarrhea.  He said that he had incontinence once a 
week and did not feel the urge of a bowel movement before it 
happened.  When he was leaving his house for a long period of 
time he would wear a Depends pad for security.  Upon 
examination, the veteran had normal bowel sounds in all 
quadrants.  There was slight tenderness to deep palpation on 
the lower left quadrant, and deep palpation of the right 
lower quadrant elicited the urge to evacuate his bowels.  The 
veteran was diagnosed with neurogenic bowel with occasional 
incontinence; he had no regular care scheduled.

The veteran reported at April 11, 2006, VA treatment that he 
generally would have an accident relating to his bowels two 
to three times a week, and that he evacuated his bowels every 
one to three days.  At a July 2006 VA QTC services 
genitourinary examination it was noted that he continued to 
experience bowel incontinence.  He reported spontaneous 
emptying of his bowels every one to three days, and denied 
any accidents.  There was no change in stool character, 
consistency, or color, and the veteran denied any blood in 
his stools.  At a December 2006 VA examination related to leg 
braces, it was noted that since the September 2001 injury the 
veteran had experienced incontinence of feces and neurogenic 
bowel syndrome.  He had a VA examination of the intestines 
(large and small) in April 2007 at which he reported using 
absorbent pads due to bowel incontinence twice daily.  He 
also reported on-and-off constipation, and said that it was 
embarrassing for him to attend public meetings because of his 
fecal incontinence.

The veteran's representative wrote in an October 2007 
statement that he knew the veteran from VFW functions, and 
that the veteran always found out where the restrooms were 
and would sit near an exit.  The representative had observed 
the veteran departing meetings and social functions in a 
rush.  The representative also transcribed an undated portion 
of a treatment note from the Seattle VA Spinal Cord Clinic 
stating that the veteran could not defecate by conscious 
effort.  The note continued that the spinal cord and colon 
innervations remained intact, allowing for reflex 
coordination and stool propulsion, and that reflex pathways 
usually continued to function below the lesion and could be 
utilized to stimulate defecation.
 
After a careful review of the evidence, the Board finds that 
an evaluation in excess of 30 percent for September 21, 2001, 
through April 10, 2006 is not warranted.  The veteran has had 
a 30 percent evaluation under DCs 7399-7319 (irritable colon 
syndrome) for that period, which is the highest rating 
available under that code.  He was not eligible for a higher 
rating under DC 7332 (rectum and anus, impairment of 
sphincter control).  A 60 percent evaluation requires 
extensive leakage and fairly frequent involuntary bowel 
movement, while a 30 percent evaluation requires occasional 
involuntary bowel movements, necessitating the wearing of a 
pad.  

As discussed above, in March 2005 the veteran reported 
occasional incontinence and said that he wore Depends.  In 
July 2005 he said that he sometimes went three days between 
bowel movements, had constipation, and had incontinence once 
a week.  The VA examiner noted that the veteran had 
occasional incontinence.  Overall, for the period of 
September 21, 2001, through April 10, 2006, the symptoms of 
the veteran's neurogenic bowel most approximate a 30 percent 
evaluation under DC 7332, because his incontinence during 
that period was occasional.  Since the veteran's incontinence 
was contemplated by the RO when he was assigned a 30 percent 
evaluation under DCs 7399-7319, the veteran cannot be 
assigned a separate 30 percent rating under DC 7332.

Considering the doctrine of resolving reasonable doubt in 
favor of the veteran, the Board finds that beginning on April 
11, 2006, he has warranted a 60 percent evaluation under DC 
7332.  The veteran reported at his VA treatment on April 11, 
2006, that he had incontinence two to three times a week.  
While he denied any accidents in July 2006, he also reported 
spontaneous emptying of his bowels every one to three days, 
and in April 2007 he reported incontinence of the bowels 
twice daily.  The next highest rating under DC 7332 is 100 
percent for complete loss of sphincter control.  The 
veteran's records do not indicate that he has been diagnosed 
with, or otherwise shown to have, a complete loss of 
sphincter control. 

However, the records do show that, on and after April 11, 
2006, he has been shown to suffer from frequent incontinence.  
We conclude, therefore, that the veteran's neurogenic bowel 
most clearly approximates a 60 percent rating, to be 
analogously evaluated under DC 7399-7332, effective from that 
date.  This will replace his previous 30 percent rating under 
DCs 7399-7319, because the symptoms of irritable colon 
syndrome are already contemplated in the 60 percent rating 
now assigned under DC 7332.

The Board appreciates the thorough development and analysis 
by the RO in evaluating this complex case.


ORDER

Entitlement to an evaluation in excess of 30 percent for 
neurogenic bowel for the period September 21, 2001, through 
April 10, 2006, is denied.

Entitlement to an evaluation of 60 percent for neurogenic 
bowel for the period beginning on April 11, 2006, is granted.



________________________________
ANDREW J. MULLEN	
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs