Citation Nr: 1316109 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 12-30 769 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to an effective date earlier than May 7, 2009 for service connection for pudendal neuropathy. 2. Entitlement to an initial rating in excess of 30 percent for fecal incontinence. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his representative ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from July 1981 to December 1985, June 1989 to May 1990, and August 1990 to July 1991. This appeal comes to the Board of Veterans' Appeals (Board) from two rating decisions dated December 2009 and April 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. The Board notes the issues of entitlement to a compensable rating for hemorrhoids and entitlement to service connection for penile deformity were both initially appealed to the Board. However at his February 2013 hearing before the Board the Veteran indicated he wished to withdraw both of these issues. 38 C.F.R. § 20.204. As such, these issues are no longer before the Board. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. The issue of increased rating for fecal incontinence is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The evidence of record establishes the Veteran's date of claim for service connection for pudendal neuropathy is March 31, 2008. CONCLUSION OF LAW The criteria for an effective date of March 31, 2008, but no earlier, for the grant of service connection for pudendal neuropathy have been met. 38 U.S.C.A. § 5110(b)(1) (West 2002); 38 C.F.R. §§ 3.1569(b), 3.400(b)(2). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking an earlier effective date for the grant of service connection and schedular maximum rating of 10 percent for service connection pudendal neuropathy. The general rule with regard to an award of service connection is that the effective date for such an award will be the date the claim was received or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2). The Veteran asserts his rating should date back to when he first filed a claim based on similar symptoms in March 2008. In March 2008 the Veteran filed a claim for service connection for prostatitis. In his claim the Veteran asserted his prostatitis was secondary to his service connected spinal neurological disorder and gastro-intestinal disorder. This claim was denied by a rating decision in August 2008. Less than a year later, before the rating decision became final 38 C.F.R. § 20.302, the Veteran filed the current claim for service connection for pudendal neuropathy. In his claim the Veteran stated his pudendal neuropathy was associated with his erectile dysfunction and chronic pain. In December 2009 the Veteran was granted service connection for this condition and assigned the schedular maximum rating of 10 percent. 38 C.F.R. § 4.124a Diagnostic Code 8599-8530. The Veteran asserts the effective date of his service connection and subsequent rating for pudendal neuropathy should date back to his filing of his claim for prostatitis because both claims were based on the same symptoms. In several written statements submitted throughout this appeal the Veteran described that he experienced chronic pain in his low back, prostate, and penile regions. He explained his doctors initially thought the pain was due to prostatitis and diagnosed the Veteran with the condition, however subsequent testing ruled out prostatitis. His doctors then opined his symptoms were due to pudendal neuropathy. The Veteran asserts that because his initial claim for prostatitis was based on the same symptoms for which service connection was eventually granted, his effective date should date back to his initial filing for service connection for prostatitis. In addition, the Veteran has submitted research from numerous web pages which indicate that pudendal nerve entrapment is often misdiagnosed as prostatitis. The Board finds the medical evidence of record supports the Veteran's assertions. The evidence reflects he has consistently sought treatment for pain in his low back, prostate, and penis since before filing his claim for prostatitis in March 2008. For example, in January 2008 the Veteran sought treatment from a private physician regarding his penile pain. The private physician noted the Veteran's prostate was tender upon examination and opined his pain may be due to prostatitis. The Board notes shortly after this private treatment the Veteran filed his claim for service connection for prostatitis based on the diagnosis he received from a medical professional. The medical evidence of record establishes that throughout 2008 the Veteran's private and VA physicians performed numerous tests to determine the source of his chronic low back, prostate, and penile pain. In March 2008, the VA facility performed a biopsy on the Veteran's prostate. In April 2008 the Veteran's urology consultant reviewed the results of the biopsy and found no evidence of prostatitis. The physician then opined the Veteran's pain may be due to spinal compression of the pelvic nerves. In May 2008 the Veteran was referred to a neurologist who was unable to determine a neurological source of the Veteran's chronic pain. The Veteran was then referred to a physical therapist that specialized in nerve entrapment. This physical therapist treated the Veteran in August 2008 and opined she suspected pudendal neuropathy. This physical therapist then regularly treated the Veteran throughout the rest of 2008. In October 2008 the Veteran's physician noted his condition had improved by 50 percent with physical therapy. Therefore his physician opined the Veteran's condition was likely in part neurogenic. In January 2009 the Veteran's physical therapist wrote a letter to his physician providing an update on his condition. She noted treatment consisted of myofascial release of the levators and urogenital diaphragm. She also indicated she planned to perform intrarectal myofascial release again in the next several treatment sessions. In June 2009 the Veteran returned to his VA urologist. The urologist opined he agreed with the assessment of the Veteran's physical therapist that his chronic back and prostate pains, as well as erectile issues, were due to pudendal neuralgia. Treatment records throughout the rest of 2009 reflect the diagnosis of pudendal neuropathy. Based on the foregoing, the Board finds the medical evidence of record supports the Veteran's assertions. He has consistently reported the same symptoms since at least early 2008. He was initially diagnosed with prostatitis, however later testing ruled out that diagnosis. His physicians subsequently diagnosed the source of these same symptoms as pudendal neuropathy. The Court of Appeals for Veteran's Claims (Court) has recognized that multiple medical diagnoses do not necessarily represent wholly separate claims. Clemons v. Shinseki, 23 Vet. App. 1, 4 (2009). As a lay person, the Veteran is able to testify as to symptoms he can observe with his own senses, such as pain in his low back, prostate, and penis, however he is not competent to provide a diagnosis that requires the application of medical expertise to his observed symptoms. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, the Court held that in filing a claim the Veteran is seeking service connection for the symptoms he observed regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the Board finds in filing his initial claim in March 2008 the Veteran was seeking service connection for his symptoms of pain and erectile dysfunction, not the diagnosis of prostatitis. As such, the Board finds the Veteran's May 2009 claim for pudendal neuropathy was not a separate claim for a new condition, but rather a recharacterization of the his existing symptoms and claim for prostatitis. The Board notes the Veteran cannot file a new claim seeking an earlier effective date than an award which has already become final. Such would be a "freestanding" effective date claim that would undermine the finality of previous decision, and for this reason is not allowed. Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006). However, the Board finds the Veteran's initial claim for prostatitis did not become final. As discussed above, the RO issued a rating decision denying service connection for prostatitis in August 2008. In May 2009 the Veteran submitted a new claim for pudendal neuropathy. The following month he submitted new evidence from his physical therapist diagnosing pudendal nerve impairment. As such, the Board finds these filings constitute new and material evidence filed within one year from the rating decision and as such, his initial claim did not become final. 38 C.F.R. § 3.156(b). Therefore, the Board finds the Veteran's initial claim for service connection for prostatitis never became final, and there is no violation of Rudd. Based on the foregoing, the Board finds the Veteran's current service connected pudendal neuropathy is based on the same symptoms the Veteran initially sought service connection for in March 2008. The medical evidence of record establishes the Veteran had experienced these same symptoms of chronic pain in his low back, prostate, and penis, as well as erectile dysfunction for several years before he filed his claim in March 2008. As discussed above, the effective date for an award of service connection is the date the claim was received or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2). As such, the Board finds the Veteran's is entitled to an effective date of March 31, 2008, the date the Veteran's claim for the same symptoms was originally received. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In this case, the Veteran's claim for service connection for pudendal neuropathy was fully granted and the schedular maximum rating was assigned. He then appealed the downstream issue of the effective date of the rating assigned. Under these circumstances, since the original claim was granted, there are no further notice requirements under the aforementioned law with regards to that issue. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA and private treatment records have been obtained, as have service treatment records. Additionally, the Veteran was able to testify before the Board in regards to this claim. Also, in Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the February 2013 Board personal hearing, the VLJ fully explained the issue on appeal. The Veteran was assisted at the hearing by an accredited representative from the Disabled American Veterans, and the VLJ and the representative asked questions regarding the nature and etiology of the Veteran's claimed pudendal neuropathy, specifically regarding an earlier effective date. The Veteran also indicated he submitted all the evidence he had. In addition, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. The Veteran was also provided with a VA examination (the report of which has been associated with the claims file). The Board finds the VA examination was thorough and adequate and provided a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of the examination. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER An effective date of March 31, 2008, but no earlier, for the grant of service connection for pudendal neuropathy is granted, subject to the laws and regulations controlling the award of monetary benefits. REMAND The Veteran is also seeking an increased initial rating for his service connected fecal incontinence. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation already has 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). However, where, as here, the question for consideration is propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran is currently assigned a 30 percent rating for his service connected fecal incontinence under Diagnostic Code 7332 for impairment of sphincter control. Under this code a 30 percent rating is warranted when the Veteran experiences occasional involuntary bowel movements, necessitating wearing of pad. A 60 percent rating is warranted when impairment of sphincter results in extensive leakage and fairly frequent involuntary bowel movements. A maximum 100 percent rating is warranted when there is complete loss of sphincter control. 38 C.F.R. § 4.114, Diagnostic Code 7332. Throughout the period on appeal the Veteran has consistently reported that he experienced involuntary bowel movements approximately four to six times per day, and as a result has to wear protective undergarments at all times. In December 2010 the Veteran was provided with a VA examination. The examiner was not able to review the Veteran's claims file, but did review his VA medical record and reported his medical history consistent with the record. The examiner then personally interviewed and examined the Veteran. The examiner noted the Veteran wore incontinence briefs that he had to change two to three times per day. The Veteran reported he felt urgency and needed to strain to have a bowel movement. The Veteran also reported he felt when he had a bowel movement but often could not make it to the bathroom in time. The Veteran reported his incontinence was worse when lifting or moving objects, including his young daughter. He reported his physical therapy for pelvic weakness did help his condition somewhat. Upon examination the examiner noted some smear of stool was in the pull-up type diaper the Veteran was wearing. Sphincter control was normal around examiner's finger, and stool was noted on examining finger. The examiner opined the Veteran's bowel incontinence was more likely due to his colitis than his pudendal neuropathy. As discussed above, in February 2013 the Veteran testified at a hearing before the undersigned Veteran's Law Judge. At the hearing the Veteran testified that his condition had gotten worse since his last VA examination, and he now had to change his undergarments approximately six times per day. The Board notes the Veteran's most recent VA examination is over two years old. Because the Veteran reported his condition had worsened and there is no more recent VA examination to adequately evaluate his current condition, the Board finds a remand for a new examination is required. See Weggenmann v. Brown, 5 Vet. App. 281 (1993). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination to evaluate the nature and severity of his service connected fecal incontinence. The examiner should be provided with the Veteran's claims file and a complete rationale should be provided for any opinion expressed. The examiner should specifically address the Veteran's contention that his condition had worsened since the previous VA examination in December 2010, and his assertion his condition now requires changing his undergarments six times each day. 2. Then readjudicate the appeal. If the increased rating claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs