Citation Nr: 1326905 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 07-25 969 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased evaluation in excess of 10 percent prior to April 20, 2011 for the service-connected fecal incontinence. 2. Entitlement to an increased evaluation in excess of 30 percent beginning on April 20, 2011 for the service-connected fecal incontinence. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1968 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 decision of the RO that granted service connection for fecal incontinence with an evaluation of 10 percent effective on December 21, 2006. In March 2011, the Board remanded the issue of an initial evaluation in excess of 10 percent for the service-connected fecal incontinence and granted a total disability rating based on individual unemployability by reason of service-connected disability (TDIU). By way of a RO rating decision in March 2012, the Veteran was assigned an increased evaluation of 30 percent for the service-connected fecal incontinence effective on April 20, 2011. A review of the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. Additionally, the Board notes that, in a July 2013 appellate brief, the Veteran, through his representative, appears to the make the argument for an earlier effective date for a TDIU rating. The Board currently does not have jurisdiction and refers the matter to the RO for clarification and further action as deemed appropriate. FINDINGS OF FACT 1. Prior to April 20, 2011, the service-connected fecal incontinence is shown to have been manifested by a disability picture that more nearly approximated that of occasional involuntary bowel movements, necessitating wearing of pads. 2. Beginning on April 20, 2011, the service-connected disability picture is show to more closely resemble that of extensive leakage and fairly frequent involuntary bowel movements; complete loss of sphincter control is not demonstrated. CONCLUSIONS OF LAW 1. The criteria for the assignment of a disability evaluation of 30 percent, but no higher for the service-connected fecal incontinence prior to April 20, 2011 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1- 4.7, 4.10, 4.21, 4.114 including Diagnostic Code 7332 (2012). 2. The criteria for the assignment of a disability evaluation of 60 percent, but no higher for the service-connected fecal incontinence beginning on April 20, 2011 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1- 4.7, 4.10, 4.21, 4.114 including Diagnostic Code 7332 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). January 2007 and April 2011 VCAA letters explained the evidence necessary to substantiate the claim for an increased rating. The letters also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice letters provided and explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Moreover, the requirements with respect to the content of the notice were met in this case. The April 2011 notice letter notified the Veteran that, to substantiate a claim for increased compensation, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Under these circumstances, the Board finds that VA has satisfied its duty to notify under VCAA. With regard to the duty to assist, the claims file contains service treatment records, reports of post-service treatment, and reports of VA examinations. The Veteran underwent a VA examination in April 2011 to obtain medical evidence as to the current severity of his service-connected disability pursuant to the last Board remand in March 2011. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. There is no indication in the claims file that there are additional available relevant records that have not yet been obtained. To the extent that the action taken hereinbelow is favorable to the Veteran, further discussion of VCAA is not required at this time. Rating Criteria and Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Where there is a question as to which of two evaluations shall be applied, 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. Diagnostic Code 7332 provides ratings based on impairment of sphincter control, with regard to the rectum and anus. Healed or slight impairment of sphincter control, without leakage, is rated as noncompensable. 38 C.F.R. § 4.114, Diagnostic Code 7332. Constant slight impairment of sphincter control, or occasional moderate leakage, is rated 10 percent disabling. Id. Occasional involuntary bowel movements, "necessitating wearing of pad", are rated 30 percent disabling. Id. Extensive leakage and fairly frequent involuntary bowel movements are rated 60 percent disabling. Id. Complete loss of sphincter control is rated 100 percent disabling. Id. Period of Appeal Prior to April 20, 2011 The April 2007 rating decision granted service connection for fecal incontinence with a 10 percent evaluation effective December 21, 2006, which is the date of the Veteran's most recent claim. The Veteran contends that his disability evaluation for the period prior to April 20, 2011 should be in excess of 10 percent. Applying the facts in this case to the rating criteria, the Board finds that an evaluation of 30 percent is assignable for the period prior to April 20, 2011. A June 2006 VA treatment record showed that the Veteran had been prescribed incontinence briefs, or pads, for three times per day for incontinence control. The record reflects that the Veteran previously complained of (and was service-connected for) residuals of prostate cancer, to include urinary incontinence, as of July 2004. Thus, the pads in June 2006 were likely for urinary incontinence. However, at a VA examination for diabetes mellitus in January 2007, the Veteran reported recently developing for fecal incontinence that usually occurred upon coughing or sneezing. He stated that he was already using pads for his urinary incontinence and changes his pads at least eight times per day and three to four times per night. The evidence shows that the Veteran was having occasional, involuntary bowel movements, which were noted to occur when he coughed or sneezed, and was already wearing a pad that clearly served a dual purpose for the urinary and the fecal incontinence. During the April 2011 VA examination, the Veteran stated that his fecal incontinence began in 2005. The Veteran is competent to describe his symptoms and their impact because this information is within his personal experience. See Layno v. Brown, 6 Vet. App. 465 (1994) (concluding that lay witnesses are competent to provide testimony or statements relating to facts of events that the lay witness observed or that is within the realm of his/her personal knowledge). See Pond v. West, 12 Vet. App. 341 (1999); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991) (collectively holding that factors for consideration in weighing credibility include a showing of interest, self-interest, bias, inconsistent statements, inconsistency with other evidence of record, facial implausibility, bad character, malingering, desire for monetary gain, and witness demeanor). After a careful review of the record for the this period, the Board finds that Veteran, and considering that the evidence clearly reflects incontinence issues prior to the January 2007 VA examination, the Board finds that for the period prior to April 20, 2011, the Veteran's disability evaluation more accurately resembles the 30 percent evaluation criteria, as opposed to the 10 percent criteria. Thus, a 30 percent evaluation for this period of appeal is warranted. The Board also finds that a 60 or 100 percent evaluation is not warranted for this period of appeal because prior to April 20, 2011, the lay and medical evidence does not show that the Veteran had extensive leakage and fairly frequent involuntary bowel movements or complete loss of sphincter control. Period of Appeal Beginning on April 20, 2011 The Veteran avers that he should be awarded a 100 percent disability for the period of appeal effective on April 20, 2011, the date of the latest VA examination. He claims that he does not know when he is defecating and does not know when he is not. He has lost control and sensation in that region, thus more closely approximating the 100 percent disability criteria for complete loss of sphincter control. The VA examination in April 2011 reflects that the Veteran had a history of fecal incontinence of the past six years. He reported having to change his pads five to six times during the course of the day due to his fecal leakage combined with his urinary leakage. The Veteran reported that the fecal leakage became severe enough that he had to constantly wear pads. His stools were mostly loose with occasional constipation. He reported having fecal urgency at times and being unable to make it to the restroom and will soil his pads. He reports having bowel movements and not realizing that he had them. He did not know of a medication that would help with this issue as he has tried them before and found them to be ineffective. He stated that he had to stop working because he could not remain sanitary and did not feel comfortable working with the involuntary fecal leakage. Based on careful review of the record, the Board finds that the service-connected disability picture manifested by fecal incontinence more closely resembles that of extensive leakage and fairly frequent involuntary bowel movements. The Veteran is not shown to have manifestations that equate with total loss of sphincter control. Thus, on this record, an increased rating of 60 percent, but no more is assignable effective on April 20, 2011. See 38 C.F.R. § 4.7. Extraschedular Consideration The determination of whether a claimant is entitled to an extraschedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. If it is determined that this is so, the second step of the inquiry requires a determination of "whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires referral of the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extraschedular rating is warranted. Id. The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Based on the foregoing, the Board finds that referral for extraschedular consideration is not warranted. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER An increased evaluation of 30 percent, but no higher for the service-connected fecal incontinence prior to April 20, 2011 is granted, subject to the regulations controlling disbursement of VA monetary benefits. An increased evaluation of 60 percent, but no higher for the service-connected fecal incontinence beginning on April 20, 2011 is granted, subject to the regulations controlling disbursement of VA monetary benefits. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs