Citation Nr: 1336987 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 10-18 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an evaluation in excess of 30 percent for impairment of sphincter control. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from December 1968 to December 1969. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. FINDING OF FACT The Veteran's damaged anal sphincter, secondary to fragment wound, is manifested by 95 percent loss of sphincter tone, loose bowels, and fecal leakage, requiring up to six tablets of Imodium daily to overcome incontinence. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran's favor, the criteria for a 100 percent for impairment of sphincter control have been met. 38 U.S.C.A. § 1155 (West 2002 and Supp. 2013); 38 C.F.R. §§ 4.1, 4.7, 4.114, Diagnostic Code 7332 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In light of the favorable outcome of this appeal, any perceived lack of notice or development under the VCAA should not be considered prejudicial. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. When, as here, the Veteran is requesting a higher rating for an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected impairment of sphincter control has been rated as 30 percent disabling pursuant to Diagnostic Code 7332 which provides a 30 percent evaluation for occasional involuntary bowel movements necessitating wearing of pad, a 60 percent evaluation for extensive leakage and fairly frequent involuntary bowel movements, and a 100 percent evaluation for complete loss of sphincter control. 38 C.F.R. § 4.114, Diagnostic Code 7332. Initially, the Board notes that the Veteran received gunshot wounds of the left buttocks and right groin from enemy small arms and grenade fire on August 12, 1969 while on active duty in the Republic of Vietnam for which he received a Purple Heart Medal. He was initially treated at First Medical Battalion, First Marine Division, where he had laparotomy with a left end colostomy and Hartman's pouch. The missile apparently entered in the suprapubic area and existed through the left buttock. In September 1969, there was still some question as to sphincter tone. Delayed primary closure of his large left buttock wound was done in October 1969 with excellent healing and good results; however, there was only a flicker of anal sphincter action. The Veteran was diagnosed with having, inter alia, large perineal and anal tissue deficits which would render him incontinent if his colostomy was closed. A private treatment record dated in March 2008 indicates that the Veteran reported that he had frequent diarrhea (4-6 times per day) and sometimes had difficulty controlling his bowels. On VA examination in May 2008, the Veteran reported diarrhea, loose stools, and daily fecal leakage. The Veteran also reported that he required the use of six tablets of Imodium per day regularly before leaving the house. The Veteran denied the use of any pads or protective undergarments but reported "going through a lot of underwear." The Veteran reported having to change occasionally once or twice throughout the day at times but not every day. On physical examination, sphincter tone was severely diminished with 95 percent loss of tone. In May 2008, the Veteran stated that he has to buy underwear like people purchase milk and bread. He also noted that in addition to the Imodium, he was taking dicyclomine 20 mg tablets once in the morning and once in the evening. In a June 2008 letter, the Veteran's treating physician, Dr. Knox, noted that he suffered some major injuries to his perirectal area, that he required multiple surgeries involving his rectum as well as his pelvis area, that he had some major abnormalities from those injuries including basically having no rectal tone or squeeze, and that he believed that the underlying fecal incontinence was due to the inability to squeeze his sphincter muscles to prevent leakage. In August 2008, Dr. Knox noted that the Veteran had very poor anal tone secondary to anal sphincter damage from previous surgeries while in the service; that there was little treatment that could be offered for the problem; and that as he got older, the anal control would probably continue to get worse. In an August 2008 letter, the Veteran's other treating physician, Dr. West, stated that he had received a gunshot wound while serving in Vietnam, that he required a colostomy, and that the exit wound was near his anus and destroyed his sphincter tone. Dr. West stated that a year after the colostomy, the colon was anastomosed to the Veteran's rectum, and that since that last operation, he had minimal rectal tone and had loss of control of his bowel movements. Dr. West noted that the Veteran had controlled his bowel movements through using medications, principally Lomotil and Imodium, that enabled him to function in his daily activities. Dr. West stated that he believed that the Veteran had a 10 percent function of his anal sphincter which would not improve. In August 2009, Dr. Knox noted that the Veteran's military injury had pretty much left him with no real anal control and frequent issues of fecal incontinence. The record clearly demonstrates that the Veteran's bowel dysfunction results in for extensive leakage and fairly frequent involuntary bowel movements. These manifestations are contemplated by a 60 percent evaluation. The higher 100 percent rating is appropriate when there is complete loss of sphincter control. In this case, although there is objective evidence of between 90 and 95 percent loss of sphincter tone, the evidence has never suggested that there is a complete loss of sphincter control. Although the phrase "complete loss of sphincter control" is not defined in Diagnostic Code 7332, a separate regulation, 38 C.F.R. § 3.350(e)(2) (2012), which addressed the requirements for granting special monthly compensation for paraplegia under 38 U.S.C.A. § 1114(o), is instructive as it provides 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." In this case, the evidence demonstrates that the Veteran utilizes a daily regimen of taking Imodium and Lomotil. Thus, although objective findings of a complete loss of anal sphincter control have not been shown, the Veteran's condition requires a strict regimen to temporarily overcome incontinence. Based on the evidence, and resolving all doubt in his favor, the Board finds that a 100 percent rating is warranted for the Veteran's service-connected impairment of sphincter control. ORDER Entitlement to a 100 percent evaluation for impairment of sphincter control is granted subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs