Citation Nr: 1322816 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 05-13 092 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to an evaluation in excess of 30 percent for anal fissures. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1991 to June 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina which continued a 10 percent evaluation for anal fissures. Jurisdiction has since been transferred to the Baltimore, Maryland RO. The Veteran testified at a Board hearing in Washington, DC in November 2007. This transcript has been associated with the file. During the pendency of the appeal, in a January 2011 rating decision, the RO assigned an increased evaluation of 30 percent effective January 13, 2003 for the Veteran's anal fissures. With respect to increased ratings, the United States Court of Appeals for Veterans Claims (Court) has held that on a claim for an original or increased rating, the appellant will generally be presumed to be seeking the maximum benefit allowed by law or regulations, and it follows that such a claim remains in controversy where less than the maximum benefit is allowed. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The case was brought before the Board in January 2008, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his appeal. Most recently the claim was before the Board in June 2012 when it was remanded for additional development to include obtaining treatment records and affording the Veteran a new VA examination. The Veteran's most recent VA treatment records were obtained and associated with the claims file. The Veteran was afforded a VA examination in July 2012. Therefore, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). In the June 2012 Board remand the issue of entitlement to service connection for a nervous disorder was referred to the RO for further development. However, there is no evidence the RO has further adjudicated this issue and therefore, it is REFERRED to the RO for proper adjudication. FINDINGS OF FACT 1. Prior to November 19, 2007 the Veteran's anal fissure symptoms were manifested by occasional involuntary bowel movements with constant slight or moderate leakage sometimes necessitating the wearing of a pad. 2. As of November 19, 2007 the Veteran's anal fissure symptoms were manifested by extensive leakage and fairly frequent involuntary bowel movements necessitating the wearing of a pad; the Veteran did not have a complete loss of sphincter control. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 30 percent for anal fissures prior to November 19, 2007 have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.114, Diagnostic Codes 7332, 7335 (2012). 2. The criteria for an evaluation of 60 percent, but no higher, for anal fissures have been met as of November 19, 2007. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.114, Diagnostic Codes 7332, 7335 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The notice requirements were met in this case by letters sent to the Veteran in January 2003 and March 2007. The January 2003 letter advised the Veteran of the information necessary to substantiate his claim, and of his and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). The March 2007 letter also advised the Veteran of how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the Veteran was not provided adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication of the claim in the April 2003 rating decision, this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above letters as well as the rating decision, statement of the case, and supplemental statements of the case. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Veteran has neither alleged nor proven that prejudice resulted from lack of proper VCAA notice, and therefore, the Board determines that none resulted. See Shinseki, supra. The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The Veteran's service treatment records and VA treatment records are in the file. The VA has also obtained private treatment records and associated them with the claims file. The Veteran has not indicated that there are any additional outstanding records to be obtained. The duty to assist with obtaining medical records has been satisfied. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). The Veteran was afforded a VA medical examination in July 2012 to determine the severity of his anal fissures. This opinion was rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file. The examiner obtained an accurate history. The examiner provided a detailed explanation for the opinions that were reached. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorder since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Therefore, the Board finds that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Rating Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Veteran contends that his anal fissures should be rated higher than 30 percent. For the reasons discussed below, the Board finds that an evaluation of 60 percent, but no higher, is warranted as of November 19, 2007, the date of the Veteran's Board hearing. The Veteran's service-connected anal fissures have been rated as 30 percent disabling under 38 C.F.R. § 4.118, Diagnostic Code 7335 for fistula in ano. Under this Diagnostic Code the fistula is to be rated as for impairment of sphincter control. Diagnostic Code 7332 has the criteria for impairment of sphincter control, rectum, and anus. Under this Diagnostic Code a 30 percent evaluation is warranted for occasional involuntary bowel movements, necessitating wearing of pad. A 60 percent evaluation is warranted for extensive leakage and fairly frequent involuntary bowel movements. A 100 percent evaluation is warranted for complete loss of sphincter control. Generally, the effective date for an increased rating is the date of receipt of the claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). If, however, the claim is filed within one year of the date that the evidence shows that an increase in disability has occurred, the effective date is the earliest date as of which an increase is factually ascertainable (not necessarily the date of receipt of the evidence). 38 C.F.R. § 3.157 (b) (1); 3.400(o)(2). At a June 2002 VA examination the Veteran reported trouble with sphincter control with some fecal leakage, infrequent bleeding, and anal fissures. There was no evidence of fecal leakage on examination. In the Veteran's January 2003 claim, he reported blood in his stool, incontinence, discomfort and pain when sitting for more than 20 minutes, frequent bowel movements, use of an undergarment liner, and leakage. At his April 2005 VA examination, the Veteran reported some problem holding stool. He did not need a pad for leakage. He did use sitz bath and suppositories to help with his symptoms. At the Veteran's November 19, 2007 Board hearing, he testified that his anal fissure symptoms had worsened since his April 2005 VA examination. He testified he now had to use a pad constantly due to daily leakage. He also testified of bleeding. He testified that he had involuntary bowel movements usually every day, especially when sitting for long periods. In a November 2007 statement from the Veteran's private physician, it was noted he had stool leakage and rectal bleeding. He was prescribed Depends to wear. In a November 2007 VA treatment record the Veteran reported daily bleeding and incontinence. In April 2008, two of the Veteran's friends provided statements as to the severity of the Veteran's symptoms. They stated they had observed the Veteran lose the ability to control his bowel movements and they were aware he had to wear pads daily. At his July 2012 VA examination, the Veteran reported he was wearing 2 pads a day for leakage, he had several uncontrolled bowel movements, and had defecated in his pants. He was also continuously using Preparation H. The examiner listed his symptoms as slight impairment of sphincter control; anal seepage, small, but could increase. The Veteran was noted to wear 2 pads a day. He had leakage, which was constant and slight, occasional moderate leakage, and occasional involuntary bowel movements. In sum, the evidence prior to November 19, 2007, indicates that a rating higher than 30 percent is not warranted. His initial June 2002 VA examination reflected a report of some fecal leakage, but there was no evidence of fecal leakage on examination. In the Veteran's January 2003 claim, he reported frequent bowel movements, use of an undergarment liner, and leakage. However, the April 2005 examination did not show that the Veteran used a pad for leakage. He did use sitz bath and suppositories to help with his symptoms. A higher 60 percent rating contemplates extensive leakage and fairly frequent involuntary bowel movements. In viewing the evidence in its totality, these symptoms were not shown. Rather, the evidence reflected occasional involuntary bowel movements which did not always require wearing of a pad, which certainly comes within the parameters of a 30 percent rating. However, as of November 19, 2007, the date of the Veteran's Board hearing, the Veteran's testimony indicates that his symptoms had worsened. He required the use of at least 2 pads a day, he reported constant leakage, and involuntary bowel movements almost daily. The Veteran is competent to report these symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). Although the July 2012 examiner did not check the boxes indicating extensive leakage and fairly frequent involuntary bowel movements, symptoms required for a 60 percent evaluation, the Board has taken multiple factors into account when determining an appropriate evaluation and finds that the criteria for a 60 percent rating are met when considering the overall disability. The Veteran's testimony, the April 2008 statements of his friends, and the July 2012 VA examination, are persuasive in showing that a 60 percent evaluation is warranted as of November 19, 2007. As there is no evidence of complete loss of sphincter control, a 100 percent evaluation is not warranted at any point during the appeal. For the reasons discussed above, the Veteran is not entitled to an evaluation in excess of 30 percent prior to November 19, 2007, or in excess of 60 percent as of November 19, 2007. The Board has considered whether the benefit of the doubt rule applies to the present appeal. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Extra-Schedular Consideration There is no evidence of exceptional or unusual circumstances to warrant referring this claim for extra-schedular consideration. 38 C.F.R. § 3.321(b)(1). The Court has clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a determination of whether the evidence presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, there must be a determination of whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as 'governing norms.' Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating under 38 C.F.R. § 3.321(b)(1). The Veteran's anal fissures are appropriately evaluated. His primary symptoms are fecal leakage, incontinence, involuntary bowel movements, and the use of pads. All of his symptoms are accounted for in the regular schedular rating criteria. According to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Indeed, in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the Court reiterated this, noting the disability rating, itself, is recognition that industrial capabilities are impaired. As the assigned schedular evaluation for the service-connected anal fissures is adequate, referral for an extra-schedular rating is unnecessary. Thun, supra. Furthermore, there is no evidence of any exceptional or unusual circumstances, such as frequent hospitalizations, suggesting he is not adequately compensated for this disability by the regular Rating Schedule. Extra-schedular referral is not warranted under the circumstances presented. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER Entitlement to an evaluation in excess of 30 percent prior to November 19, 2007 for anal fissures is denied. Entitlement to an evaluation of 60 percent, but no higher, is warranted as of November 19, 2007, subject to the applicable regulatory provisions governing payment of monetary awards. ____________________________________________ J. CONNOLLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs