Citation Nr: 1800020 Decision Date: 01/02/18 Archive Date: 01/19/18 DOCKET NO. 13-01 829 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an evaluation in excess of 30 percent disabling for service-connected fecal incontinence. REPRESENTATION Appellant represented by: American Legion ATTORNEY FOR THE BOARD N. Whitaker, Associate Counsel INTRODUCTION The Veteran served on active duty with the U.S. Navy from March 1993 to October 2002. This case comes before the Board of Veterans Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. Pursuant to a February 2015 Board decision, the Veteran's claim was remanded for further development, to include obtaining outstanding VA treatment records and scheduling a VA examination. The development was properly concluded, and the appropriate VA examination was obtained in May 2015. The claim was re-adjudicated in a September 2015 supplemental statement of the case. Based upon the foregoing, the Board's finds that the prior remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran's claim has now returned to the Board for appellate consideration. FINDING OF FACT Throughout the period on appeal, the Veteran's fecal incontinence has been manifested by extensive leakage and fairly frequent involuntary bowel movements. It has not been manifested by complete loss of sphincter control. CONCLUSION OF LAW The criteria for an evaluation of 60 percent disabling, but no higher, for service-connected fecal incontinence have been met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.114, Diagnostic Code 7332 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2017). The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. §§ 4.1, 4.10 (2016). Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. The Veteran was assigned an evaluation of 30 percent disabling for fecal incontinence, under 38 C.F.R. § 4.114, Diagnostic Code 7332 (2017). Under 38 C.F.R. § 4.114, Diagnostic Code (DC) 7332, a 0 percent rating is assigned for healed or slight impairment of sphincter control, rectum and anus, without leakage. A 10 percent rating is provided for impairment of sphincter control characterized by constant slight, or occasional moderate leakage; a 30 percent rating is provided for impairment of sphincter control characterized by occasional involuntary bowel movements, necessitating wearing a pad; a 60 percent rating is provided for extensive leakage and fairly frequent involuntary bowel movements; and a 100 percent rating is provided for complete loss of sphincter control. The Board notes that manifestations of leakage from the rectum and anus are contemplated by both DC 7332 and DC 7333. Therefore, these codes have overlapping symptomatology, and separate evaluations under these codes would violate the rule against pyramiding, per 38 C.F.R. § 4.14, which does not allow for compensation of the same symptoms under separate diagnoses. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (the critical element is that none of the symptomatology is duplicative or overlapping with symptomatology of the other condition). In this case, application of DC 7332 is proper as it contemplates the Veteran's rectal symptoms such as fecal incontinence and leakage, and it contemplates her underlying disability of impairment of anus and sphincter control. Further, DC 7332 provides the highest possible evaluation of all the potentially applicable diagnostic codes for the Veteran's symptoms. Review of the claims file indicates the Veteran has undergone numerous VA examinations to assess the nature and current severity of her service-connected fecal incontinence condition. In a June 2011 notice of disagreement, the Veteran reported a worsening of symptoms since her prior VA examination. She noted current symptoms including more frequent involuntary bowel movements of solid waste and ongoing stool leakage. The Veteran reported an inability to control her symptoms as she often experienced them unexpectedly, while visiting family, at work, at home, while shopping, recreational walking, bending, and while consuming meals. The Veteran noted daily use of absorbent pads which were often ineffective during these episodes resulting in disposal of under garments and/or outer wear. In October 2012, the Veteran underwent a VA examination. During the clinical evaluation, the Veteran reported that her condition had its onset in 2001 following a back injury suffered in service. She noted chronic symptoms of fecal incontinence, to include liquid and solid stool and passing flatus which she is unable to control. Daily use of pad liners were required and needed to be changed twice daily. Prescribed treatments included a high-fiber diet, a psyllium supplement and one probiotic capsule taken once daily. The Veteran denied a prior history of internal or external hemorrhoids, anal perineal fistula, rectal stricture, rectal prolapse, or pruritus ani. There was no evidence of scars related to the Veteran's condition. The Veteran reported employment as a full-time administrative assistant for the Park Service and stated that her condition impacted her ability to work as she was often required to run to the restroom to ensure that her rectal hygiene was appropriate. Despite the Veteran's assertions regarding her professional limitations, the examiner noted that she remained independent her activities of daily living and can manage all benefits and finances independently. On examination, evidence of external hemorrhoids and fecal drainage was discovered. Complete blood count results revealed a normal hemoglobin and hematocrit. During the clinical evaluation, the Veteran provided a copy of results from an August 2012 colonoscopy performed by an outside provider. The examination results revealed mild diverticulosis found in the sigmoid colon and residual thick liquid stool. Following a review of the record and clinical evaluation, the examiner confirmed the prior diagnosis of impaired sphincter control with fecal incontinence. Pursuant to a Board remand in February 2015, the Veteran was afforded a subsequent VA Examination. In April 2015, the Veteran reported that her symptoms had worsened. She noted that her symptoms were often triggered by coughing, walking, exercise, or bending. The Veteran also reported experiencing a full uncontrolled bowel movement, without warning and before she was able to make it to the restroom. During the clinical evaluation, the Veteran provided a copy of test results from a May 2002 rectal manometry test. Diagnostic findings revealed normal sensation with an inability to illicit anal wink. The Veteran's diminished external sphincter squeeze pressure despite normal internal sphincter function was also noted. On examination, diagnostic images revealed evidence of a small hemorrhoid with no evidence of fecal drainage or fecal material. The examiner noted the Veteran's report that her condition impacts her daily living as she was required the make frequent trips to the restroom to address hygiene related to uncontrolled fecal leakage. A review of an August 2012 colonoscopy which mild diverticulosis in sigmoid colon and residual thick liquid stood was noted; however, no additional diagnosis findings were indicated. While the Board has considered the findings rendered in the October 2012 and April 2015 VA examinations, a review of the Veteran's recent medical history reveals symptomology that more closely approximates an evaluation of 60 percent disabling for the Veteran's service-connected fecal incontinence. More specifically, in an August 2015 supplemental statement of support, the Veteran cited additional medical evidence of her worsening symptoms. Notably, in an August 2011, a gastrointestinal (GI) consultation indicated that the Veteran underwent an endoscopy that showed poor sphincter tone. Other diagnostic findings included normal mucosa to 60 centimeters. Following the examination, the physician opined that the Veteran's bladder and bowel incontinence were likely related to sacral nerve damage from a back injury sustained in 2001. A normal colonoscopy 3 years prior was also noted. Other VA treatment records between December 2013 and November 2014, noted similar findings. More specifically, in December 2013, a women's health outpatient note referenced a finding that the Veteran's anal sphincter pressure was normal at rest, but the squeeze response was weak. Subsequently, a neurology follow-up note, dated June 2014, indicated that the Veteran's sphincter tone was +1 with gripping the finger mildly but minimal contraction was noted on asking the Veteran to bear down. A subsequent neurology follow-up note, dated November 2014, referenced the Veteran's history of bowel and bladder incontinence of unclear etiology beginning in 2001. Mild improvement in the consistency of stools was noted between 2001 and 2005 via use of fiber therapy; however, worsening symptoms including frequent fecal leakage requiring use of absorbent pads was reported since 2005. Diagnostic findings revealed absent anal wink but intact perianal sensations to pin prick and light touch with mildly preserved (+1) spinsterish contraction gripping the finger. A prior finding by the Veteran's primary care physician indicating absent perianal sensation and flaccid sphincter tone. The Board has also fully considered the lay assertions of record. On numerous occasions, the Veteran provided written statements as well as hearing testimony indicating that her symptoms had worsened. Specifically, she described current symptoms including chronic and uncontrolled fecal incontinence and leakage that requires regular use of absorbent pads. She also noted an impact to her daily living as her symptoms were are often triggered by walking, bending, sneezing or coughing and resulted in frequent trips to the restroom to tend to rectal hygiene, to include discarding soiled undergarments or outwear. The Veteran also reported loss of interest in intimacy with her spouse and avoidance of social activities due to embarrassment or shame related to her condition. The Board acknowledges the Veteran's competence to report on the above referenced symptoms and the lay statement of her husband which reaffirms the Veteran's complaints of chronic symptoms. In this case, the aforementioned lay statements are deemed both probative and credible. In light of the foregoing, the Board finds that the Veteran's symptoms of fecal incontinence more closely approximates an evaluation of 60 percent disabling due to her complaints of frequent and uncontrolled fecal leakage and involuntary bowel movements. However, a higher disability rating of 100 percent for this period is not warranted, as such a rating contemplates complete loss of sphincter control. The Board notes that while the medical evidence of record has consistently revealed findings of an impaired sphincter control, there is no evidence of diagnostic findings indicating that the Veteran suffers from complete loss of sphincter control. The Veteran's own statement would not support such a grant. Accordingly, Veteran's claim of entitlement to an evaluation of 60 percent disabling, but no higher, for fecal incontinence is granted. Conversely, however, the preponderance of the evidence fails to show that a higher evaluation of 100 percent is warranted at any time throughout the appeal period. Duty to Notify and Assist VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2017). Copies of compliant VCAA notices were located in the claim's file. In addition, the Board finds that the duty to assist a claimant has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. A VA examination has been conducted and any necessary opinions obtained. Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). As there is no allegation that the hearing provided to the Veteran in September 2014 was deficient in any way, further discussion of the adequacy of the hearing is not necessary. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). After a careful review of the file, 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). ORDER Entitlement to an evaluation 60 percent disabling, but no higher, for service-connected fecal incontinence is granted. JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs