Citation Nr: 1307326	
Decision Date: 03/04/13    Archive Date: 03/11/13

DOCKET NO.  10-22 394A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to an effective date prior to July 15, 2002 for the grant of a total disability evaluation for a neurogenic bowel disorder, to include whether prior rating decisions were clearly and unmistakably erroneous (CUE).


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, Inc.


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

N. Holtz, Associate Counsel
INTRODUCTION

The Veteran served on active duty from March 1993 to May 1995.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  In July 2011, the Veteran and his spouse testified during a videoconference hearing before the undersigned; a transcript of that hearing is of record.

The matter was remanded in July 2012 for further development.  As the appeal is being granted, no discussion of compliance with the July 2012 remand is necessary.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

In December 2012, the Veteran submitted evidence not previously considered by the RO.  Simultaneously, he submitted a waiver of RO consideration of that evidence; therefore, review of his claims may proceed without the necessity of RO review of the claims file. 

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  The correct facts were not before the RO at the time of the July 18, 1995 rating decision; but for such error, a higher initial rating would have been assigned to the Veteran's service-connected neurogenic bowel disorder.

2.  The applicable regulatory provisions extant in July 1995 were not correctly applied by the RO and, but for such error, a higher initial rating would have been assigned to the Veteran's service-connected neurogenic bowel disorder.


CONCLUSION OF LAW

A July 18, 1995 RO decision that granted service connection and assigned a 10 percent rating for bowel dysfunction was clearly and unmistakably erroneous, and but for those errors, a 100 percent rating would have been assigned.  38 U.S.C.A. §§ 5109A, 7105 (West 2002); 38 C.F.R. § 3.105 (2012); 38 C.F.R. §§ 3.350(e)(2), 4.1, 4.114, Diagnostic Code 7332 (1995).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 is not applicable to a claim that a prior rating decision was clearly and unmistakably erroneous.  Livesay v. Principi, 15 Vet. App. 165 (2001)(en banc) (holding VCAA does not apply to motions alleging a clear and mistakable error.)  Hence, there is no need to discuss whether VA complied with this Act.

Clear and unmistakable error

In July 1995, the RO granted service connection for bowel dysfunction, and assigned a 10 percent evaluation, effective the date that the Veteran separated from active duty service.  The rating assigned was based on a finding that the bowel dysfunction was manifested by chronic constipation; the condition was evaluated analogous to the impairment of anal sphincter control.  The Veteran did not appeal this decision and it is final.  See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012).

In September 1998, the RO assigned a 30 percent rating, effective August 3, 1998, for impairment of rectal and anal sphincter control.  The Veteran did not appeal.  Hence, the September 1998 rating decision is final.  Id.

In a September 2002 rating decision the Veteran was granted a 100 percent rating for a neurogenic bowel effective July 15, 2002.  He did not appeal this rating decision, and it is final.  Id.

In January 2010, the Veteran submitted correspondence arguing that he should have been assigned a 100 percent rating for his bowel symptomatology as of the July 1995 rating decision that granted service connection, and that the failure to do so constituted clear and unmistakable error.  He claimed that his condition had not changed since his original injury, and that VA medical records dating from 1995 supported his assertion that a 100 percent rating should have been assigned in the original rating decision.  

Previous determinations which are final and binding will be accepted as correct in the absence of a clear and unmistakably error.  See 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a).  In order for a clear and unmistakable error, the Court has stated:

(1) "[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied," (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made," and (3) a determination that there was [a clear and unmistakable error] must be based on the record and law that existed at the time of the prior adjudication in question.

Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)).

The United States Court of Appeals for the Federal Circuit (Federal Circuit) stated that there are two requirements to establish a claim of clear and unmistakable error: (1) the alleged error must have been outcome determinative; and (2) the error must have been based upon the evidence of record at the time of the original decision.  Cook v. Principi, 318 F.3d 1334, 1344 (Fed. Cir. 2002) (citations omitted).

In Fugo v. Brown, 6 Vet. App. 40 (1993) (overruled in part on other ground by Simmons v. Principi, 17 Vet. App. 104 (2003)), the Court stated that a clear and unmistakable error is the kind of legal or factual error that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.  Id. at 43.  To reasonably raise the question of clear and unmistakable error, there must be some degree of specificity as to what the alleged error is, and unless it is the kind of error that, if true, would be clear and unmistakable error on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the error.  Id. at 44.  Simply to claim clear and unmistakable error on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of clear and unmistakable error.  Id.

The Court has also stated that "an incomplete record, factually correct in all other respects, is not clearly and unmistakably erroneous," and that a breach of the duty to assist cannot constitute clear and unmistakable error because such a breach creates only an incomplete rather than an incorrect record.  Caffrey v. Brown, 6 Vet. App. 377, 383-84 (1994).

Under regulations in effect at the time of the July 1995 rating decision, a 100 percent rating for the impairment of sphincter control (bowel symptomatology) was warranted if there was a showing of a complete loss of sphincter control.  38 C.F.R. § 4.114, Diagnostic Code 7332 (1995).  

The Veteran's representative argues that while the phrase "complete loss of sphincter control" was not defined in Diagnostic Code 7332, a separate regulation, 38 C.F.R. § 3.350(e)(2) (1995), which addressed the requirements for granting special monthly compensation for paraplegia under 38 U.S.C.A. § 1114(o), provided that "[t]he loss of anal and bladder sphincter control is met even though incontinence has been overcome under a strict regimen of rehabilitation of bowel and bladder training and other auxiliary measures."  

The Board also observes that in a February 1994 administrative review involving a different veteran, the then-Director of VA's Compensation and Pension Service retroactively granted a 100 percent rating for the loss of bowel function under 38 C.F.R. § 4.114, Diagnostic Code 7332.  This decision, while not binding on the Board, was issued prior to the July 1995 rating decision, was not in this Veteran's record as of that time.  Therein, the Director found that the maintenance of bowel function "by the use of laxatives and manual stimulation" warranted a 100 percent evaluation for loss of anal sphincter control under Diagnostic Code 7332, and that corrective action to remedy a finding to the contrary was required under 38 C.F.R. § 3.105 (1995).  

Evidence of record at the time of the July 1995 decision included the Veteran's service treatment records, private hospital records following the Veteran's October 8, 1994 motorcycle accident, VA medical records, and a VA examination report.  Private records dated in October 1994 note that the appellant suffered from quadriparesis secondary to a cervical cord contusion. 

An October 1994 treatment report from the day of the Veteran's motorcycle accident that caused his spine trauma observed normal sphincter tone as part of the trauma evaluation.  

According to an October 14, 1994 post-accident treatment report, the Veteran had decreased sphincteric tone, "no palpable volitional control," and a "very, very weak" bulbocavernosus reflex.  

Following his transfer from private hospital care, VA treated the Veteran for three months on an inpatient basis.  The results of a physical examination provided in his January 1995 discharge summary provided that he had a "lax rectal sphincter muscle."  His bowel care requirements included suppositories as needed and digital stimulation.  

While not in the physical file with the remainder of the Veteran's service treatment records, in December 2012 the Veteran submitted handwritten VA hospital treatment records from the doctor who has treated him for his spine injury residuals from 1994 to the present, dated in January 1995.  While many of the handwritten notes were essentially identical to what was available in the January 1995 discharge summary, one of the notes specifically stated that the Veteran had "no bowel sensation," a fact not otherwise in the record.  While the handwritten January 1995 note was not in the Veteran's claims file, by July 1995 all VA records were in the constructive possession of VA.  See Caffrey, 6 Vet. App. at 384 (Kramer, J. concurring) (citing Bell v. Derwinski, 2 Vet. App. 611 (1992)).  

A February 1995 addendum to the January 1995 discharge summary provided that he "had very little sphincter tone of his bowels, and the rectum showed no wink reflex or any ability for [the Veteran] to contract the rectal sphincter."  The addendum author diagnosed the Veteran with a neurogenic bowel, and declared him to be totally disabled.  

In June 1995, VA provided the Veteran with a general medical examination; no rectal examination was conducted.  The examination report indicated that the Veteran had chronic constipation, but did not indicate the source of that information.  

The July 1995 rating decision's assignment of a 10 percent rating for impairment of sphincter control was based on two clear and unmistakable errors, each of which warrant granting the Veteran's present appeal.  

The first error was a misapplication of the relevant law addressing what constitutes a complete loss of sphincter control.  The Veteran correctly asserts that 38 C.F.R. § 3.350(e)(2) and 38 C.F.R. § 4.114, Diagnostic Code 7332, to the extent that they address the same subject, must be interpreted together.  The canon of statutory construction that "where the text permits, statutes dealing with similar subjects should be interpreted harmoniously[,]" applies equally to the interpretation of regulations.  Rice v. Martin Marietta Corp., 13 F.3d 1563, 1568 (Fed. Cir. 1993); see also Roy v. Brown, 5 Vet. App. 554, 559 (1993) (Steinberg, J., dissenting) (citing Talley v. Derwinski, 2 Vet. App. 282, 286, 288 (1992) for the rule of interpretation that requires VA regulations to be read in harmony, in the same manner that various sections of a statutory scheme should be construed as to produce a harmonious whole).  

As noted above, Diagnostic Code 7332 provided that the "complete loss of sphincter control" warranted a 100 percent rating.  The provisions of 38 C.F.R. § 3.350(e)(2) provided that "[t]he requirement of loss of anal . . . sphincter control is met even though incontinence has been overcome under a strict regimen of rehabilitation of bowel . . . training and other auxiliary measures."

As demonstrated in the 1994 administrative review by the Director of Compensation and Pension discussed above, interpreting these two regulations together results in the necessary finding that when a veteran's bowel care requires a regimen of suppositories and digital stimulation, that veteran has met the requirement for "a strict regimen of bowel . . . training and other auxiliary measures," and therefore, has met the requirement for a complete loss of sphincter control.  Considering the outcome of the July 1995 rating decision, the RO either did not consider, or misapplied, 38 C.F.R. § 3.350(e)(2) when adjudicating the Veteran's claim.  

The only evidence addressing the Veteran's bowel control of record at the time of the July 1995 rating decision was the January 1995 VA hospital discharge summary.  That document stated that the appellant required suppositories and digital stimulation to maintain bowel function.  Nothing in the record suggested that his bowel care regimen had changed prior to the July 1995 rating decision.  The RO cited the "chronic constipation" language from the June 1995 examination, an examination that failed to include a rectal examination, but did not address the bowel control the Veteran required.  The fact that the Veteran required suppository use and digital stimulation constituted "a strict regimen of rehabilitation of bowel . . . training and other auxiliary measures" to maintain bowel control.  As such, under the reasoning used by the Director of Compensation and Pension in February 1994, the evidence concerning suppositories and digital stimulation, which was uncontroverted by any other evidence in the claims file, demonstrated a complete loss of sphincter control.  

Correctly applying the law, to include 38 C.F.R. § 3.350(e)(2) and Diagnostic Code 7332 to the facts at the time of the July 1995 decision, it is undebatably evident that the RO assigned the incorrect rating to the Veteran's disability.  Clear and unmistakable error is manifest in the July 1995 rating decision.  See 38 C.F.R. § 3.105(a).  Because the Veteran needed suppositories and digital stimulation to care for his bowels, he had a complete loss of sphincter control, and 100 percent rating was warranted as of May 9, 1995, the day following his discharge from service.  38 C.F.R. §§ 3.350(e)(2), 4.114, Diagnostic Code 7332.

The second clear and unmistakable error in the July 1995 rating decision is that the correct facts concerning the Veteran's sphincter control were not before the RO at the time of the decision.  Had those facts been known, the outcome would have been manifestly different.  In the course of this appeal, the Veteran submitted VA records, as discussed above, that were not present in the claims file at the time of the July 1995 rating decision.  Those records, while not physically present, were constructively in VA's possession.  Bell.  

Though the Veteran submitted numerous records that were missing from the claims file, the most important records submitted were handwritten notes from his long-time treatment provider Dr. Scharff, who prepared the January 1995 VA hospital discharge summary.  In one of the notes, Dr. Scharff indicated that the Veteran had "no bowel sensation" (emphasis in original).  While there are various records suggesting a loss of sphincter tone, the existence of bowel dysfunction, and a diagnosis of neurogenic bowel, nowhere else in the claims file is there evidence that the Veteran had no bowel sensation.  

The fact that the January 1995 note predates the period for which the Veteran seeks disability compensation does not decrease the importance of this evidence.  Rather, as the January 1995 handwritten treatment note should have been part of his service treatment records, the importance of that evidence is heightened.  See Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009) (holding that the United States Court of Appeals for Veterans Claims erred when it determined that service medical records were not relevant to a claim because they pre-dated the period for which an appellant sought disability compensation, because VA is required to assess a disability in relation to its history when rating that disability).  

It was necessary that the RO have all relevant service treatment records in order to properly evaluate the Veteran's claim, because the rating of a disability requires the consideration of the disability's history.  As provided by 38 C.F.R. § 4.1, "[i]t is . . . essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history."  

Thus, the fact that this record was from the Veteran's active duty medical file and should have been included in his service treatment records, but was not, and thus was not considered by the RO, creates the second basis for clear and unmistakable error in the July 1995 decision.  The RO was unable to consider the history of the Veteran's disability in determining the appropriate rating, as it did not have all of the relevant evidence before it.  

The fact that the Veteran had "no bowel sensation" provides necessary and undeniable clarity to the remaining evidence of record that the time of the July 1995 rating decision.  In conjunction with the other evidence considered by the RO, including:

* the October 1994 findings of decreased sphincteric tone; 
* "no palpable volitional control;" 
* a "very, very weak" bulbocavernosus reflex; 
* the January 1995 discharge summary that indicated a "lax rectal sphincter muscle" and provided a bowel care regimen of suppositories as needed and digital stimulation;
* the February 1995 addendum to the discharge summary that indicated the Veteran had very little sphincter tone of his bowels, that his rectum showed no wink reflex or any ability for him to contract the rectal sphincter, and included a diagnosis of neurogenic bowel; 
* and the June 1995 examination report of chronic constipation, 

it is manifestly evident that the July 1995 rating decision was clearly and unmistakably erroneous.  Damrel, 6 Vet. App. at 245.  

The only possible result of an analysis of the evidence is manifestly different from the 10 percent rating assigned.  That is, a 100 percent rating should have been granted, under the criteria set forth in 38 C.F.R. § 4.114, Diagnostic Code 7332, as the evidence of record undebatably demonstrated that the appellant suffered from a complete loss of sphincter control.  

Although the RO assigned the Veteran a 100 percent disability rating for the loss of anal sphincter control effective in July 2002, based on evidence essentially identical to that found in the service treatment records, that he had a neurogenic bowel, it is evident that the July 1995 rating decision was clearly and unmistakably erroneous in two regards, and a 100 percent rating should have been assigned effective the date of the Veteran's discharge from service.  The Veteran's appeal, therefore, is granted. 

To the extent that the Veteran has made a freestanding claim of entitlement to an earlier effective date prior to July 15, 2002, for his 100 percent rating for the impairment of sphincter control, that claim is moot considering the outcome of this appeal. 


ORDER

The July 18, 1995 rating decision's failure to grant a 100 percent rating for a neurogenic bowel disorder was clearly and unmistakably erroneous.  The Veteran is assigned a 100 percent evaluation for his neurogenic bowel disorder, effective May 9, 1995, subject to the laws and regulations governing the award of monetary benefits.

\____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs