Citation Nr: 1802585 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 12-08 146A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent from September 1, 2009, to December 13, 2013, for bowel incontinence. 2. Entitlement to a rating in excess of 30 percent from April 1, 2015, for bowel incontinence. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD B. Gabay, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1959 to April 1979. The matter of bowel incontinence initially came before the Board of Veterans' Appeals (Board) on appeal from March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa, which granted service connection and assigned the Veteran a 30 percent disability evaluation. In January 2009, the RO granted service connection for prostate cancer and assigned the Veteran a 100% evaluation. In June 2009, the RO reduced that evaluation to 40 percent effective September 1, 2009. Subsequently, the Veteran's evaluation of prostate cancer residuals was increased to 60 percent effective March 26, 2013, and back to 100% effective December 13, 2013. However, in a June 2014 decision, the Board restored the Veteran's 100% evaluation for prostate cancer effective September 1, 2009, due to the RO's failure to provide the Veteran a requested hearing. In a January 2015 rating decision, the RO once again reduced the Veteran's evaluation of prostate cancer residuals to 40 percent effective April 1, 2015. Thereafter, the Veteran was once again granted service connection for bowel incontinence and assigned a 30% evaluation effective April 1, 2015, the date the Veteran's prostate cancer residuals were reduced to 40%. Thus, the Veteran's claim for an increased rating for bowel incontinence was subsumed by his 100% evaluation for prostate cancer residuals from December 13, 2013, to April 1, 2015. The matter of TDIU comes before the Board from a March 2012 rating decision of the Des Moines RO, which denied the claim. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. From September 1, 2009, to December 13, 2013, the Veteran's bowel leakage and urgency was manifested by extensive leakage and fairly frequent involuntary bowel movements, marked by essentially constant bowel leakage that soiled and stained his clothing, required him to constantly use absorbent materials, required him to wake twice per night, and, required him to have constant ready access to restroom facilities. 2. From April 1, 2015, the Veteran's bowel leakage and urgency has been manifested by extensive leakage and fairly frequent involuntary bowel movements, marked by essentially constant bowel leakage that soils and stains his clothing, has required him to constantly use absorbent materials, has required him to wake four to five times each night, and, requires him to have constant ready access to restroom facilities. 3. With resolution of doubt in the Veteran's favor, the competent and credible evidence approximates findings that the Veteran's service-connected disabilities are so severe that they preclude him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 60 percent initial disability rating from September 1, 2009, to December 13, 2013, for bowel leakage and urgency associated with residuals of prostate cancer are met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.7, 4.10, 4.21, 4.114, Diagnostic Code 7332 (2017). 2. The criteria for a 60 percent initial disability rating from April 1, 2015, for bowel leakage and urgency associated with residuals of prostate cancer are met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.7, 4.10, 4.21, 4.114, Diagnostic Code 7332 (2017). 3. The criteria for a TDIU are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.7, 4.15, 4.16, 4.18, 4.19 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Neither the Veteran nor his 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). Merits of the Claim I. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities and are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings applies, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower disability rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The relevant focus for adjudicating an increased disability 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 a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. §§ 3.102, 4.3. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27 (2016). For all periods relevant to this appeal, the Veteran's bowel leakage and urgency, which are residuals of his prostate cancer, have been rated according to the criteria under 38 C.F.R. § 4.114, Diagnostic Code 7528-7332. Diagnostic Code 7528 is for malignant neoplasms of the genitourinary system. A note following the code provides that, following the cessation of surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e). If there has been no local reoccurrence or metastasis, the disability is to be rated on residuals, as voiding dysfunction or renal dysfunction, whichever is predominant. See 38 C.F.R. § 4.115b, Diagnostic Code 7528, Note. In this case, the evidence of record shows that the Veteran has not experienced any reoccurrence or metastasis of prostate cancer. As such, he is to be evaluated under Diagnostic Code 7332. Diagnostic Code 7332, which pertains to disabilities due to impairment of sphincter control of the rectum and anus, provides for a 30 percent disability rating where the evidence shows occasional involuntary bowel movements, necessitating the wearing of a pad. A 60 percent disability rating is assigned where the evidence shows extensive leakage and fairly frequent involuntary bowel movements. A 100 percent disability rating is appropriate where the disability in question has resulted in complete loss of sphincter control. a. September 1, 2009 to December 13, 2013 From September 1, 2009, to December 13, 2013, the Veteran's bowel incontinence was rated as 30 percent disabling pursuant to Diagnostic Code 7332. The Veteran underwent a VA examination in March 2009 for an evaluation of his prostate cancer residuals. The examiner identified the Veteran's residuals to include erectile dysfunction and stress incontinence, the latter of which required the Veteran to wear absorbent materials which had to be changed twice daily. In an April 2009 statement, the Veteran's wife stated that the Veteran must wear absorbent pads more often than he actually does, and that he changes his underwear "continually." In turn, the Veteran's wife stated that she washes the Veteran's clothes more often than she normally would. She reports that the Veteran has told her that "he can't always control urination and that he wants to be clean." In another April 2009 statement, the Veteran's private physician, Dr. Gettman, stated that the Veteran wears absorbent pads for urinary control, and that because of leakage, the Veteran must change his underwear twice per day. He further stated that the Veteran must get up twice per night to urinate. A December 2009 VA examination reported that the Veteran developed urinary incontinence after his prostatectomy and uses at least five pads per day. The examiner noted worsening symptoms since the Veteran's 2008 onset. The Veteran reported urinary frequency of every one to two hours, including two voidings at night. The examiner noted urinary leakage in the form of stress incontinence and the wearing of absorbent material that must be changed more than four times daily. The examiner diagnosed the Veteran with urinary incontinence and noted mild effects associated with the Veteran's urinary incontinence, including dressing, toileting, and grooming; moderate effects including chores, shopping, and traveling; and severe effects including exercise, sports, and recreation. The Veteran stated that he avoids social contacts because he is concerned about having accidents, and that he needs to know where toileting facilities are located in places he plans to visit. The examiner also diagnosed the Veteran with fecal incontinence, noting mild symptoms of chores, shopping, traveling, dressing, toileting, and grooming; and moderate symptoms of exercise, sports, and recreation. As a result of this examination, the Veteran was granted service connection for bowel incontinence and assigned a 30 percent disability evaluation. The Veteran underwent a VA examination in February 2012 in which the Veteran stated that he constantly wears absorbent pads for bowel incontinence. The examiner noted a diagnosis of mild to moderate fecal incontinence and moderate to severe urinary incontinence. He noted mild symptoms associated with the Veteran's bowel incontinence, including recreation, traveling, and driving; moderate symptoms including exercise; and severe symptoms including sports and toileting. In October 2012 and February 2013 statements, the Veteran indicated that his bowel incontinence had worsened. A March 2012 letter from Dr. Lubbers, the Veteran's private physician, noted that the Veteran's incontinence is getting worse. He further opined that it is common for patients of the Veteran's age to have worsening stress and urge incontinence. The Veteran's medical evidence of record and credible lay statements lead the Board to conclude that the extent of leakage experienced by the Veteran was consistent with a 60 percent disability rating under Diagnostic Code 7332 from September 1, 2009, to December 13, 2013. In that regard, the Veteran asserted consistently that he was required to wear an absorbent pad essentially at all times, and, that he was required to change the pad four to five times each day. The Veteran adds that, even though he used absorbent pads, the extent and frequency of bowel leakage was such that his clothes became soiled and stained. The Veteran stated that he avoided social contacts because of his condition, and that when he went out, he needed to know where the bathroom was at all times. Under the facts presented by the Veteran's assertions, the Veteran's disability is consistent with extensive leakage and fairly frequent involuntary bowel movements. The criteria for a 60 percent disability rating are met. Therefore, the Veteran is entitled to a higher 60 percent disability rating for bowel incontinence. However, there is no indication that the Veteran is entitled to a higher rating under Diagnostic Code 7332 because there is no evidence of complete loss of sphincter control. See 38 C.F.R. § 4.115b, Diagnostic Code 7332 (2017). b. From April 1, 2015 Since April 1, 2015, the Veteran's bowel incontinence has been rated as 30 percent disabling pursuant to Diagnostic Code 7332. A July 2015 statement from the Veteran indicated that he still constantly uses absorbent pads, he urinates and makes bowel movements 12 to 14 times per day, and wakes up four to five times each night for bladder and bowel needs. The Veteran stated that he constantly leaks, and that his absorbent pads must be changed frequently. The Veteran also stated that he is unable to participate in or attend sporting events or other public activities. During a March 2016 VA examination, the Veteran reported up to a dozen bowel movements per day and involuntary leakage two to three times per day. He has accidents while walking. He reported that he does not have pain with bowel movements, straining, nor particular diarrhea. Dietary changes include eliminating coffee and soda, have helped. He reported constant use of absorbent pads and that he must carry antiseptic wipes with him at all times. He must be proximate to a bathroom at all times, as there is an odor apparent as soon as any leakage occurs. For this reason, he is unable to go on long excursions outside. He particularly misses exercise with wife, fishing, and hunting. In an August 2017 statement, the Veteran's private physician, Dr. Lubbers, reported that the Veteran's significant urinary and fecal incontinence have worsened slowly over the past decade. He reported that the Veteran has both stress and urinary incontinence with multiple episodes daily. He stated that the Veteran must change his protection at least four or five times daily, including once or twice daily due to fecal soiling. Finally, Dr. Lubbers stated that it is not likely that the Veteran's condition will improve, and will, in fact, likely worsen continually with age. The Veteran's medical evidence of record and credible lay statements lead the Board to conclude that the extent of leakage experienced by the Veteran was consistent with a 60 percent disability rating under Diagnostic Code 7332. In that regard, the Veteran asserted consistently that he was required to wear an absorbent pad essentially at all times, and, that he was required to change the pad every time he used the restroom. The Veteran adds that, even though he used absorbent pads, the extent and frequency of bowel leakage was such that his clothes became soiled and stained. The Veteran stated that he was required to have antiseptic pads and be proximate to a bathroom at all times. Under the facts presented by the Veteran's assertions, the Veteran's disability is consistent with extensive leakage and fairly frequent involuntary bowel movements. The criteria for a 60 percent disability rating are met. Therefore, the Veteran is entitled to a higher 60 percent disability rating for bowel incontinence. However, there is no indication that the Veteran is entitled to a higher rating under Diagnostic Code 7332 because there is no evidence of complete loss of sphincter control. See 38 C.F.R. § 4.115b, Diagnostic Code 7332 (2017). II. TDIU Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2016). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a) (2016). In determining whether the Veteran is eligible to receive TDIU benefits, the Board observes that the Veteran is service-connected for residuals of prostate cancer, currently evaluated as 60 percent disabling; bowel incontinence associated with residuals of prostate cancer, currently evaluated as 60 percent disabling as noted above; erectile dysfunction, currently evaluated as 0 percent disabling; and three surgical scars, status post prostate removal, currently evaluated as 0 percent disabling. The Veteran's combined evaluation is 80 percent. The assigned combined evaluation of 80 percent for the Veteran's service-connected disabilities meets the criteria for schedular consideration of TDIU. See 38 C.F.R. § 4.16(a). Thus, the Veteran is eligible to receive TDIU benefits. Having determined that the Veteran meets the percentage threshold requirements, the remaining inquiry is whether he is unable to secure or follow substantially gainful occupation as a result of such service-connected disabilities. The evidence of record indicates that the Veteran's prostate cancer residuals and bowel incontinence were productive of occupational deficiencies due to regular incontinence, embarrassment, and odors. As detailed above, the Veteran has little to no control over his bowel movement, and he requires using the restroom upwards of a dozen times per day. Thus, the evidence of record demonstrates that the Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation. Based on the above analysis, the competent, credible, and probative evidence of record demonstrates that the Veteran's service-connected disabilities render him unemployable. In resolving all doubt in the Veteran's favor, entitlement to a TDIU has been established and his appeal is granted. 38 C.F.R. § 4.16 (2017). When all the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence indicates that the Veteran is entitled to a TDIU. ORDER An initial rating in excess of 30 percent from September 1, 2009, to December 13, 2013, for bowel incontinence is granted. A rating in excess of 30 percent from April 1, 2015, for bowel incontinence is granted. A TDIU is granted. ____________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs