Citation Nr: 1333895 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 12-02 228 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office Center in St. Petersburg, Florida THE ISSUE Entitlement to an evaluation in excess of 30 percent for residuals of a rectal fistula. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from January 1964 to December 1981, with prior active service totaling three years, three months and twenty-six days. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the appellant's claim for an increase for postoperative residuals of a rectal fistula, then evaluated as 10 percent disabling. By further rating action in December 2011, the RO increased the rating assigned from 10 percent to 30 percent, effective from the date of receipt of the claim for increase in October 2009. This case was previously before the Board in April 2013 and remanded for additional development. For the reasons discussed below, the Board finds that there has been substantial compliance with the April 2013 remand. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Throughout the rating period on appeal, the appellant's residuals of a rectal fistula are manifested by no more than occasional involuntary bowel movements, necessitating wearing of a pad, and occasional slight or moderate leakage. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for residuals of a rectal fistula are not met throughout the rating period on appeal. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7335-7332 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant 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 appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Notice and Assistance VA has 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). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). More specific notice is required in claims for increased compensation. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's increased rating claims. Appropriate notice was provided in a October 2009 letter, prior to initial adjudication of the claim. Mayfield, 444 F.3d at 1333; See Prickett v. Nicholson, 20 Vet. App. 370 (2006). VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. Private medical records identified by the appellant have been obtained, to the extent possible. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the appellant. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the appellant's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2013). The RO provided the Veteran appropriate VA examinations in February 2010 and July 2013. The July 2013 examination is adequate because it is based on a thorough examination, a description of the Veteran's pertinent medical history, and appropriate diagnostic tests. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The appellant has not reported receiving any recent treatment specifically for this condition and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings. There is no objective evidence indicating that there has been a material change in the severity of the appellant'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. The July 2013 examination report is thorough and supported and provided findings pertinent to the rating criteria. The examination in this case is adequate upon which to base a decision. The July 2013 VA examination was also completed in compliance with the April 2013 remand. See Stegall v. West, 11 Vet. App. 268 (1998). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Legal Criteria Disability evaluations are determined by comparing a veteran's present symptomatology with the criteria set forth in the Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 4.1 (2013). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the appellant. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Nevertheless, where, as here, the appellant is appealing the rating for an already established service-connected condition, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The appellant's residuals of a rectal fistula are evaluated under Diagnostic Code 7335-7332. 38 C.F.R. § 4.114, Diagnostic Code 7335-7332 (2013). Under Diagnostic Code 7335, ano in fistula is to be rated as impairment of sphincter control. See 38 C.F.R. § 4.114, Diagnostic Code 7335 (2013). Under Diagnostic Code 7332, impairment of sphincter control of the rectum and anus is rated 0 percent when healed or slight, without leakage, 10 percent with constant slight or occasional moderate leakage, 30 percent with occasional involuntary bowel movements, necessitating the wearing of a pad, 60 percent with extensive leakage and fairly frequent involuntary bowel movement, and 100 percent for complete loss of sphincter control. See 38 C.F.R. § 38 C.F.R. § 4.114, Diagnostic Code 7332 (2013). The appellant's claim for an increased evaluation was received on October 8, 2009. As such, the rating period on appeal is October 8, 2008. 38 C.F.R. § 3.400(o)(2) (2013). Analysis The appellant asserts that he is entitled to a higher rating for his service-connected residuals of a rectal fistula. For the reasons that follow, the Board finds that a higher rating is not warranted. In January 2009, an Eglin Air Force Base record indicates that the appellant complained of right buttock pain. He did not have any genitourinary symptoms. A July 2009 Eglin Air Force Base treatment record notes that the appellant had no change in bowel habits, constipation, diarrhea, abdominal pain or cramping. An October 2009 VA treatment record reflects that the appellant did not report a change in bowel habit or blood in stool. A November 2009 private treatment record indicates that the appellant had not had any problems with his bowel and bladder function. The appellant reported having constipation frequently. The private physician noted that there was no change in bowel habits. In a March 2010 notice of disagreement, the appellant stated that he wore pads which he used three times a day due to leakage because the muscles are not strong enough to shut off the bowel movement or leakage. He stated that he tried to control the bowel movements by watching what he eats. The appellant was afforded a VA examination in February 2010. The appellant reported that he had symptoms of loose sphincter control. He changed a pad 2 to 3 times daily due to fecal leakage. The VA examiner stated that the appellant "denies involuntary bowel movements." The report notes the frequency and extent was a small amount constantly requiring a pad all the time. He had no hemorrhoids. He had no treatment other than using pads. The Board notes that the appellant stated that the March 2010 VA examiner did not physically examine him. Nevertheless, the Board finds the VA examination adequate to the extent it described the appellant's report of his symptoms of loose sphincter control. An April 2011 Eglin Air Force Base record reflects that the appellant had no fecal incontinence. In a January 2012 substantive appeal, the appellant stated that he experienced involuntary bowel movements and recurrent leakage. A January 2012 Eglin Air Force Base record reflects that the appellant reported that he has had incontinence with constant seepage of rectal contents and occasionally some stool incontinence. He had no pain other than intermittent skin irritation. He denied fevers or chills or abscess formation in the peri-anal area. On examination, the appellant had seepage of rectal contents with mild irritation of peri-anal skin. There was no obvious fistula on examination. The assessment was fistula-in-ano with chronic bowel incontinence with mild skin irritation due to sphincter damage. A March 2012 private treatment record notes that the appellant has fecal incontinence secondary to five surgeries on the muscle of his anal verge. A February 2012 VA treatment record notes that the appellant reported having trouble with the fissure with increased drainage. He had to use pads daily. A March 2012 letter from a physician at Eglin Air Force Base reflects that the appellant has a history of leaking some stool from his anal verge. The physician stated that, "I think it initially started with a fistula in ano but over the years he had subsequent surgeries including what appears to be a skin graft to correct the defect." The physician stated that "On examination of his anal verge, he had decreased sphincter tones especially in one quadrant where he had what appeared to be skin graft. At this point, I told him that the muscle seems to be separated in that area to a point where it probably is not going to get better." The physician noted that the appellant seemed to handle it fairly well with control of his bowel movements. The appellant was afforded another VA examination in July 2013. The VA examiner noted that the appellant was status post excision for anal margin squamous cell carcinoma which was unrelated to the service-connected postoperative residuals of rectal fistula. The appellant reported that no further treatment recommendations were made following the rectal squamous cell resection in 2010. The appellant told the examiner that "if I am constipated, it does not drain a lot. Some days are better than other days. It drains a little bit almost all of the time." He stated that he used gauze pads which he changed approximately 6 times a day. The appellant reported that the drainage was brown loose stool. The VA examiner found that the appellant had impairment of rectal sphincter control with constant slight leakage. The examiner stated that the appellant had a gauze pad in situ with brown fecal drainage present. There was no objective clinical evidence of a rectal fistula, stricture or hemorrhoids on rectal exam. The VA examiner did not check a box indicating the appellant has involuntary bowel movements. The examination report reflects that the appellant did not have any scars related to the condition. The examiner also noted that the condition did not impact the appellant's ability to work. Based on the evidence of record, the Board finds that a higher rating is not warranted for the appellant's service-connected residuals of a rectal fistula. Under Diagnostic Code 7335, a higher rating of 60 percent is warranted for extensive leakage and fairly frequent involuntary bowel movement. The Board finds that the overall evidence does not support a finding that he had extensive leakage and fairly frequent involuntary bowel movements. The appellant is competent to report symptoms capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In the March 2010 notice of disagreement, the appellant stated that he wore pads which he changed two to three times per day due to leakage because his muscles were not control enough to shut off the bowel movement or leakage. He stated that he tried to control bowel movements by watching what he ate. In his substantive appeal, the appellant stated that he experienced involuntary bowel movements and recurrent leakage. The Board finds the appellant's statements to be generally consistent with the evidence of record, and thus credible. The Board also finds that the appellant's statements do not support a finding that a 60 percent rating is warranted. His statements to do not demonstrate that he has extensive leakage and fairly frequent involuntary bowel movement, rather they support a finding that he has occasional involuntary bowel movement, necessitating the wearing of a pad. The appellant's statements are thus consistent with a 30 percent rating. The Board finds that a preponderance of the evidence of record is against a finding that the appellant had extensive leakage and fairly frequent involuntary bowel movements. The January 2009 and July 2009 Eglin Air Force Base records indicated the appellant did not have any genitourinary symptoms or change in bowel habits. The February 2010 VA examination report indicated that the appellant denied involuntary bowel movements and that he had a small amount of fecal leakage requiring a pad all of the time. The April 2011 Eglin Air Force base record indicates the appellant had no fecal incontinence. The January 2012 Eglin Air Force Base record reflects that the appellant reported that he has had incontinence with constant seepage of rectal contents and occasionally some stool incontinence. The March 2012 letter from the Eglin Air Force Base physician reflects that the appellant had decreased sphincter tones and noted that the appellant seemed to handle it fairly well with control his bowel movements. The July 2013 VA examination report reflects that the appellant had constant slight leakage and the examiner did not note that the appellant had involuntary bowel movements. The Board finds that the overall evidence supports a finding that the appellant had no more than occasional involuntary bowel movements necessitating the wearing of a pad and constant slight fecal leakage. The Board has considered whether a higher rating is warranted under another stricture of the rectum and anus with great reduction of lumen or extensive leakage. Thus, a higher rating is not warranted under Diagnostic Code 7333. The evidence also does not reflect that the appellant had a severe (or complete) persistent prolapse of the rectum. Thus, a higher rating is not warranted under Diagnostic Code 7334. The appellant did not have hemorrhoids related to the condition. The July 2013 VA examination report noted that the appellant did not have any scars related to the condition. The examiner noted that the appellant was status post excision for anal margin squamous cell carcinoma which was unrelated to the service-connected postoperative residuals of rectal fistula. The January 2012 Eglin Air Force Base record noted that the appellant had mild irritation of the peri-anal skin. However, the evidence does not reflect that the appellant has a skin condition that is related to the service-connected residuals of a rectal fistula. Thus, the Board finds that a separate rating is not warranted. The Board has considered whether extraschedular consideration is warranted based on the evidence of functional, including occupational, impairment secondary to the residuals of a rectal fistula. See Barringer v. Peake, 22 Vet. App. 242 (2008). The discussion above reflects that the symptoms of the appellant's residuals of a rectal fistula are contemplated by the applicable rating criteria. The competent medical evidence of record shows that the residuals of a rectal fistula are primarily manifested by occasional involuntary bowel movements, necessitating wearing of a pad, and occasional leakage. The applicable Diagnostic Code used to rate the appellant's disability provides for ratings based on these symptoms. The effects of the appellant's disability have been fully considered and are contemplated in the rating schedule. Consideration of whether the appellant's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). TDIU is an element of all appeals for an increased evaluation. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, however, TDIU consideration is not warranted. The appellant has not contended and the evidence does not indicate that the appellant is unemployable as a result of his service-connected residuals of a rectal fistula. The July 2013 VA examiner specifically found that the condition did not impact the appellant's ability to work. In sum, the Board finds that the evidence is against the appellant's claim for a rating in excess of 30 percent for residuals of a rectal fistula throughout the period on appeal. The Board finds that the evidence is consistent with a 30 percent rating. Accordingly, the Board finds that the preponderance of the evidence is against the appellant's claim. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to an evaluation in excess of 30 percent for residuals of a rectal fistula is denied. ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs