Citation Nr: 1237487 Decision Date: 11/01/12 Archive Date: 11/09/12 DOCKET NO. 09-27 847A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an increased disability evaluation for fissure in ano, rated as noncompensable prior to April 18, 2008, and as 10 percent disabling thereafter. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. R. Mullins, Associate Counsel INTRODUCTION The Veteran had active service from November 1967 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. This claim was previously remanded by the Board in December 2010 for further evidentiary development. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in September 2010. A written transcript of this hearing has been prepared and incorporated into the evidence of record. In April 2012, VA received notice from the Veteran that he was revoking his power of attorney from the Veterans of Foreign Wars of the United States (VFW). Prior to April 2012, however, the Veteran was assisted in his appeal by the VFW. FINDINGS OF FACT 1. Prior to April 18, 2008, the Veteran's fissure in ano was manifested by moderate fecal leakage; it was not manifested by occasional involuntary bowel movements necessitating the wearing of a pad. 2. As of April 18, 2008, the Veteran's fissure in ano has been manifested by frequent fecal leakage and occasional involuntary bowel movements, necessitating the wearing of a pad; it has not been manifested by extensive leakage and fairly frequent involuntary bowel movements. (CONTINUED ON NEXT PAGE) CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to a disability evaluation of 10 percent for fissure in ano, as of January 31, 2006, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.114, Diagnostic Code 7332 (2011). 2. The criteria for establishing entitlement to a disability evaluation of 30 percent for fissure in ano, as of April 18, 2008, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.114, Diagnostic Code 7332 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For an increased disability rating claim, VA is required to provide the Veteran with generic notice - that is, the type of evidence needed to substantiate the claim. This includes evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). This information was provided to the Veteran in letters dated September 2006, March 2008 and January 2011. While all of this notice was not provided to the Veteran until after the initial adjudication of his claim, the claim was subsequently readjudicated, no prejudice has been alleged, and none is apparent from the record. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service treatment records. Also, the Veteran received VA medical examinations in April 2006, April 2008 and February 2011, and VA has obtained these records as well as the records of the Veteran's outpatient treatment with VA. Copies of private treatment records have also been incorporated into the claims file. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for fair adjudication of the claim that has not yet been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, the Board finds there has been substantial compliance with its December 2010 remand directives. The Board notes that the Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). The record indicates that the Appeals Management Center (AMC) provided the Veteran with additional notice and scheduled him for a more recent VA examination. The AMC later issued a Supplemental Statement of the Case (SSOC). Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Relevant Laws and Regulations Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2011). 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). See also 38 C.F.R. §§ 4.1, 4.2 (2011). As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. As is the case here, where entitlement to compensation has already been established and 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). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Facts and Analysis The Veteran contends that he is entitled to an increased rating for his service-connected fissure in ano. Specifically, he has argued that he is entitled to a compensable disability evaluation prior to April 18, 2008, and a disability evaluation in excess of 10 percent as of April 18, 2008. For historical purposes, the Veteran was granted service connection for fissure in ano, formerly thought to be hemorrhoids, in a January 1971 rating decision. A noncompensable (0 percent) disability evaluation was assigned under Diagnostic Code 7335, effective as of July 1, 1970. In January 2006, VA received a claim from the Veteran seeking a higher disability evaluation for this condition. This claim was denied in a September 2006 rating decision. A timely notice of disagreement was received from the Veteran in December 2006. In a July 2009 rating decision, the disability evaluation was increased to 10 percent, effective as of April 18, 2008. A statement of the case was subsequently issued. The Veteran then indicated in his August 2009 appeal to the Board that while he accepted the 10 percent disability evaluation, he felt that he was entitled to an earlier effective date for the 10 percent disability evaluation. However, in subsequent statements, the Veteran asserted that his rectal disability was continuing to worsen. As such, the claim currently on appeal is entitlement to a compensable disability evaluation prior to April 18, 2008, and entitlement to a disability evaluation in excess of 10 percent as of April 18, 2008. The Veteran was afforded a VA examination in April 2006. It was noted that the Veteran's anal fissure had been stable since its original onset and that he was not currently receiving treatment. The Veteran reported occasional anal bleeding with moderate fecal leakage. It was noted that the Veteran never required pads as a result of this. Physical examination revealed external hemorrhoids measuring 2 centimeters (cm) by 1 cm and 1 cm by 7 millimeters (mm). There was evidence of bleeding with no thrombosis or fissure. There was also no anal or rectal stricture, impairment of the sphincter or rectal prolapse. It was noted that if visualization of the Veteran's anal fissure was required, the Veteran would require endoscopy under sedation because of his tight anal sphincter. The Veteran was diagnosed with external hemorrhoids resulting in no significant occupational effects or problems with performing daily activities. The Veteran underwent a colonoscopy at the St. Tammany Parish Hospital in July 2007. This revealed a high-grade anal stricture and a large external tag inside of the anal area. It was noted that a pediatric scope was required due to the Veteran's anal stricture. A July 2007 evaluation from a private physician with the initials R.B.D. also notes an anal stricture with bleeding. It was noted that the Veteran's urologist likely caused this bleeding by attempting to perform a prostate examination. An August 2007 record from Dr. D notes that the Veteran's anal stricture was somewhat better, that the Veteran was having 3 solid stools per day and that his anal pain had improved after using a prescribed cream. An August 2007 VA outpatient treatment record also noted persistent rectal pain for 24 hours a day. The Veteran was afforded an additional VA examination in April 2008. It was noted that the Veteran's condition had become progressively worse and that his hemorrhoids bled more frequently. As a result of bleeding and leakage, the Veteran had to wear a pad. The Veteran's rectal bleeding was described as persistent. The Veteran also had a recurrence of hemorrhoids without thrombosis four or more times per year. The Veteran also suffered from fecal incontinence with moderate fecal leakage requiring the use of pads. The Veteran's fecal incontinence and discharge were noted to be persistent. External hemorrhoids of 2.5 by 1.0 cm and 1.0 by 0.7 cm in size were also noted. There was no anorectal fistula, but there was anal or rectal stricture with moderate lumen reduction. The Veteran was diagnosed with external hemorrhoids associated with fissure in ano. This did not have an effect on the Veteran's usual daily activities, but it resulted in significant occupational effects due to decreased mobility, fecal incontinence and pain. According to a private treatment record dated October 2010 from a physician with the initials J.H.V., the Veteran was suffering from rectal bleeding, hemorrhoids and pain in the rectum. He was also noted to be suffering from an anal stricture. A rectal examination was not performed at this time because the Veteran had a tight anal stricture and it would be very painful. It was also noted that dilating the rectum or doing any kind of rectal procedure may very well precipitate incontinence because the sphincter did not appear to be working correctly. The Veteran was afforded an additional VA examination in February 2011. The Veteran reported rectal bleeding and leaking of fecal matter. He also reported pain in the rectum and having to wear pads. The Veteran indicated that he had to change his pads two to four times per day and that he could not sit for an extended period of time because of rectal pain. The examiner noted that the Veteran suffered from persistent rectal prolapsed and frequent rectal bleeding. The Veteran also had a history of hemorrhoids with frequent bleeding. The examiner concluded that the Veteran suffered from fecal incontinence with moderate fecal leakage. The Veteran also endorsed frequent involuntary bowel movements. The examiner noted that the Veteran was wearing an adult diaper that had a very small amount of yellowish stool. There was no blood. External tags were also not painful to the touch. The examiner attempted to perform a rectal examination on the Veteran, but after inserting a finger approximately 3.5 cm, the Veteran desired to discontinue the examination due to discomfort. As such, the examiner was unable to complete the rectal examination or determine whether there was an anorectal fistula, anal or rectal stricture or impairment of the sphincter. No stool or blood was noted upon withdraw of the examiner's finger. The examiner diagnosed the Veteran with a history of fissure in ano. However, this condition remained unconfirmed pending completion of a colonoscopy. It was again noted that this resulted in significant occupational effects due to decreased concentration, fecal incontinence and pain. The examiner was unable to determine whether the Veteran's reported involuntary bowel movements and his anal leakage were a result of his fissure in ano. The examiner explained that while there was fecal material adhering to the adult diaper, she could not state with certainty that this was a result of a fissure because she was unable to complete the examination. The examiner was also unable to offer opinions regarding the Veteran's anal stricture and impaired sphincter due to the incomplete examination. The record also contains a private colonoscopy report dated November 2011. According to this report, inspection of the anal area showed external hemorrhoidal tags and extremely tight anal stricture. The rectum was noted to appear grossly normal during the evaluation. A diagnosis of an extremely high-grade stricture in the anus was assigned at this time. According to a January 2012 VA surgical evaluation, the Veteran had a longstanding history of rectal pain and bleeding. The Veteran was also noted to have persistent rectal stricture with high rectal tone. The Veteran also reported occasional leakage from the rectum. A rectal examination revealed several scars as well as external hemorrhoids. There was also a posterior midline anal fissure. Rectal tone was also increased with an inability to pass a finger through the rectum. Diagnoses of anal fissure and hemorrhoids were assigned at this time. The Veteran was afforded an additional VA examination in March 2012 since the February 2011 examination was incomplete. It was noted that the Veteran suffered from internal or external hemorrhoids and rectal stricture. These were diagnosed around 1971. Records also revealed diagnoses of anal fissures, hemorrhoids, ulcerative colitis and chronic diarrhea. The examiner concluded that the Veteran's hemorrhoids were moderate with fissures. An anal fistula was not diagnosed at this time. Rectal stricture, impaired sphincter control, rectal prolapsed and pruritus ani were also not assigned. Examination revealed frequent bleeding, most likely from the external hemorrhoids and fissures, as well as increased rectal tone with an inability to pass a finger through the opening. The examiner concluded that the Veteran's condition had no impact on his ability to work. It was also noted that a recent surgery evaluation undertaken by VA made no mention of an anal fistula. Finally, the record contains a number medical statements dated April 2012. According to Dr. D, the Veteran suffered from a number of medical conditions, including rectal issues. This resulted in fecal incontinence that required him to wear pads on a daily basis. The record also contains a statement from a VA physician dated April 2012. According to this physician, the Veteran was found to be suffering from an anal fissure in January 2012 that resulted in fecal leakage and bleeding that sometimes required incontinence pads. On present examination, there was obvious leakage in his shorts, external hemorrhoids, skin tag and what appeared to be an open fistula. It was noted that due to severe pain, the Veteran's anal canal could not be examined for a fissure. The above evidence demonstrates that the Veteran is entitled to a disability evaluation of 10 percent as of January 31, 2006 - the date of receipt of his claim for an increased disability evaluation. Upon filing his claim for an increased disability evaluation, the Veteran was afforded a VA examination in April 2006. During this examination, the Veteran described what the examiner referred to as moderate fecal leakage. The Veteran's disability is currently rated under Diagnostic Code 7335 for fistula in ano. 38 C.F.R. § 4.114. This code instructs the rater to rate this condition as impairment of sphincter control. Impairment of sphincter control is rated under Diagnostic Code 7332. Under this code, a compensable 10 percent disability evaluation is warranted when there is evidence of constant slight or occasional moderate fecal leakage. According to the examination report, the Veteran experienced moderate fecal leakage. While there is no objective evidence of this noted in the examination report, fecal leakage is certainly something the Veteran is competent to testify about. Lay assertions may serve to support a claim for service connection when they relate to the occurrence of events that are observable as a lay person or the presence of a disability or symptoms of a disability that are subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support the existence of a disability even when not corroborated by contemporaneous medical evidence). In the present case, there is nothing of record to call into question the Veteran's assertion, and subsequent evidence confirms that the Veteran experiences fecal leakage. As such, a 10 percent disability evaluation is warranted prior to April 18, 2008. However, the preponderance of the evidence of record demonstrates that a disability evaluation in excess of 10 percent is not warranted prior to April 18, 2008. A higher disability evaluation of 30 percent is not warranted unless there are occasional involuntary bowel movements necessitating the wearing of a pad. 38 C.F.R. § 4.114, Diagnostic Code 7332. According to the April 2006 VA examination, the Veteran did not wear a pad. He also made no mention of involuntary bowel movements during this examination. An August 2007 record from Dr. D also indicates that the Veteran was having 3 solid stools per day. There was no mention of involuntary bowel movements related to this and the Veteran has not alleged involuntary bowel movements prior to April 18, 2008. As such, the preponderance of the evidence of record demonstrates that a disability evaluation in excess of 10 percent, prior to April 18, 2008, is not warranted. With that having been said, the Board finds that a disability evaluation of 30 percent is warranted as of April 18, 2008, however. The April 2008 VA examination report reflects that the Veteran was suffering from fecal incontinence with persistent loss of sphincter control. It was also noted that the Veteran was required to wear pads because of this. While the examination report does not specifically indicate whether the Veteran was suffering from loss of bowel control at this time, the Veteran did endorse loss of bowel control during his September 2010 hearing. The February 2011 VA examination report also reflects frequent involuntary bowel movements. As such, when affording the Veteran the full benefit of the doubt, the Board finds that he is entitled to a disability evaluation of 30 percent as of April 18, 2008. A higher disability evaluation of 60 percent, however, is not warranted. A 60 percent disability evaluation is warranted when there is evidence of extensive leakage and fairly frequent involuntary bowel movements. 38 C.F.R. § 4.114, Diagnostic Code 7332. According to an April 2012 statement from a VA physician, the Veteran's anal fissure resulted in fecal leakage "sometimes" requiring the use of incontinence pads. The fact that the Veteran only has to sometimes where incontinence pads would suggest that any involuntary bowel movements only happen occasionally, rather than fairly frequently. The Board recognizes that the Veteran has testified to a significant amount of anal leakage. However, a lower disability evaluation of 10 percent is meant to compensate a Veteran for constant moderate leakage. As such, the preponderance of the evidence of record demonstrates that a disability evaluation of 60 percent is not warranted at any time during the pendency of this claim. Having resolved all reasonable doubt in favor of the Veteran, the Board finds that a disability evaluation of 10 percent is warranted as of January 31, 2006 - the date of receipt of the Veteran's claim. See 38 U.S.C. § 5107(b). A higher disability evaluation of 30 percent is also warranted as of April 18, 2008. To this degree, the Veteran's claim is granted. However, the preponderance of the evidence is against a disability evaluation in excess of 10 percent prior to April 18, 2008, and a disability evaluation in excess of 30 percent as of April 18, 2008. Extraschedular Consideration The Board finds that the Veteran's fissure in ano does not warrant referral for extraschedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extraschedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Board finds that the evidence does not warrant referral of the Veteran's claim for extraschedular consideration. The level of severity of his fissure in ano is adequately contemplated by the applicable diagnostic criteria. The criteria provide for a higher rating, but as has been thoroughly discussed above, the ratings assigned herein is appropriate. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. Accordingly, the claim will not be referred for extraschedular consideration. ORDER A disability evaluation of 10 percent for a fissure in ano, prior to April 18, 2008, is granted. A disability evaluation of 30 percent for a fissure in ano, as of April 18, 2008, is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs