Citation Nr: 1814945 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 10-42 311 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent prior to December 13, 2010, and in excess of 30 percent thereafter, for anal fissure to include impairment of rectal sphincter control with fecal incontinence. 2. Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Williams, Counsel INTRODUCTION The Veteran had active military service from May 1992 to April 1995. This matter comes to the Board of Veterans' Appeals (Board) from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which granted service connection for anal fissures secondary to migraine headaches and assigned a noncompensable (0 percent) rating, effective November 13, 2009. The RO later granted an increased rating of 10 percent for anal fissures, effective November 13, 2009, in a May 2011 rating decision. In April 2012, the Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing at the RO. In March 2014, the Board remanded the claim to the Agency of Original Jurisdiction (AOJ) for further action, to include additional development of the evidence. In an August 2014 rating decision, the rating was increased to 30 percent, effective December 13, 2010. The Veteran did not indicate that he was satisfied with the assigned ratings. Thus, this claim remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In November 2016, the Board remanded this matter for further action, to include a VA examination. The required actions were complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). The matter is now ready for appellate review. In an August 2015 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for gastroesophageal reflux disease. In November 2015, the Veteran filed a notice of disagreement (NOD) regarding the assigned rating. That same month, the AOJ acknowledged the NOD. Thereafter, in a July 2017 rating decision, the RO granted a 60 percent (maximum) schedular rating for GERD effective March 17, 2015. As such, because the Veteran is in receipt of the maximum schedular rating for his GERD, the Board finds that the issue is no longer on appeal. The Board observes that, subsequent to the issuance of the August 2017 supplemental statement of the case, additional evidence was associated with the record. The Veteran has not waived AOJ consideration of such evidence; however, the Board finds that such is irrelevant to the instant matter and/or duplicative of the evidence previously considered by the AOJ. Consequently, as such evidence is redundant and not relevant to the issue adjudicated herein, no prejudice results to the Veteran in the Board proceeding with a decision at this time. In an August 2017 rating decision, the RO denied entitlement to service connection for obstructive sleep apnea. In an August 2017 statement, which can be construed as a Notice of Disagreement (NOD) with the RO's August 2017 rating decision that denied service connection for obstructive sleep apnea, the Veteran disagreed with the August 2017 VA examination report and reiterated that his sleep apnea was related to his military experience. A statement of the case (SOC) is required when a veteran files a timely NOD with a rating decision. 38 C.F.R. § 19.26 (2017). To date, no SOC has been furnished regarding entitlement to service connection for obstructive sleep apnea. Because the August 2017 NOD placed the issue in appellate status, the matter must be remanded for the AOJ to issue a SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). FINDINGS OF FACT 1. Prior to December 13, 2010, the Veteran's anal fissure to include impairment of rectal sphincter control with fecal incontinence was manifested by no more than constant slight or occasional moderate leakage, which did not require the Veteran to wear a pad. 2. From December 13, 2010, the Veteran's anal fissure to include impairment of rectal sphincter control with fecal incontinence has been manifested by no more than occasional involuntary bowel movements, necessitating the wearing of a pad. CONCLUSIONS OF LAW 1. The criteria for the assignment of an initial rating in excess of 10 percent prior to December 13, 2010 for anal fissure to include impairment of rectal sphincter control with fecal incontinence have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.114, Diagnostic Code 7332 (2017). 2. The criteria for the assignment of a rating in excess of 30 percent from January 3, 2014 for anal fissure to include impairment of rectal sphincter control with fecal incontinence have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.114, Diagnostic Code 7332 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. VA's duty to notify was satisfied by a letter in December 2009. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). With respect to the claim for a higher initial rating, in cases such as for anal fissure, where service connection has been granted and an initial disability rating and effective date has been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). With respect to the duty to assist, the record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service treatment records, post-service treatment records, and VA examination reports. The Veteran was also afforded a Board hearing before the undersigned in April 2012. A transcript is of record. The Veteran was afforded VA examinations in May 2014 and July 2017, the reports of which have been associated with the claims file. The VA examinations and opinions are thorough and adequate and provide a sound basis upon which to base a decision with regard to the claim being decided herein. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his claimed disorders. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board also notes that actions requested in the prior remands have been undertaken. In this regard, efforts were made to obtain treatment records from facilities identified by the Veteran; the Veteran was asked to provide the requisite forms in order for VA to obtain private treatment records; and VA examinations with opinions were conducted. The Board notes that the Veteran's representative, Texas Veteran's Commission (TVC), did not file a VA Form 646, Statement of Accredited Representative in Appealed Case review of the claims folder reveals that the Veteran's local representative was sent a copy of the last supplemental statement of the case that was issued in July 2017. Furthermore, the Veteran's representative was specifically requested to present comments and/or arguments with regard to the issue on appeal, but failed to do so. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Therefore, the Board will proceed with an adjudication of this appeal. Neither the Veteran nor his representative has raised any further 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). In sum, there is no indication of additional notice or evidence that would be reasonably likely to assist the Veteran in substantiating the current claim. Disability Ratings Law and Regulations Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4 (2017). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1 (2017). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2 (2017). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. When, after careful consideration of the evidence, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 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 that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased rating claim or in the adjudication of an initial rating 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. 506 (2007). The Board must assess the competency, credibility and probative weight of the relevant evidence; both lay and medical, 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. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 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 Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran 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, 128 (2000). Analysis The Veteran contends that higher ratings are warranted for his service connected anal fissure. As discussed in detail below, the Board finds that a higher initial rating in excess of 10 percent prior to December 13, 2010, and in excess of 30 percent thereafter, is not warranted. The Veteran's anal fissure, which has also been referred to as anal fistula, is rated under DC 7335. DC 7335 instructs that fistula in ano is to be rated as for impairment of sphincter control under DC 7332. Under DC 7332, the following ratings apply: a noncompensable rating is warranted for healed or slight impairment of sphincter control without leakage; a 10 percent rating is warranted for constant slight impairment of sphincter control, or occasional moderate leakage; a 30 percent rating is warranted for occasional involuntary bowel movements, necessitating wearing of a pad; a 60 percent rating is warranted for extensive leakage and fairly frequent involuntary bowel movements; and a 100 percent rating is warranted for complete loss of sphincter control. 38 C.F.R. § 4.114, DC 7332. Prior to December 13, 2010 The record reflects that the Veteran underwent a fissurectomy and sphincterectomy in October 2009. A VA examination was conducted in February 2010. The Veteran reported having pain and bleeding when he defecates. Specifically, he noted that he has painful bowel movements with hard stools and noticed minimal amounts of blood at times on the toilet paper. The examiner noted that the Veteran did not have a history of fecal incontinence or perianal discharge. Upon examination, the Veteran had external skin tags. The examiner was unable to complete digital exam because the Veteran had pain. There were no obvious skin lesions or tears externally. Hemorrhoids and anorectal fistula were not present at that time. The Veteran did have anal itching, burning, and rectal irritation, however. Private treatment records in 2009 and 2010 reflect findings of discomfort and some bleeding with bowel movements. It was noted that there was a superficial defect posteriorly, but no significant granulation tissue build up. Sphincterotomy site was reported to be healed and the outlet was minimally snug. The Veteran reported minimal, if any pain or bleeding, and a scar with some granulation tissue. See e.g. private treatment records dated in February 2010. In subsequent June 2010 private treatment records, it was noted that the Veteran continued to have minor pain and bleeding and an unhealed anal fissure wound. In additional private treatment records dated in October 2010, the Veteran reported leakage of stools but no abdominal pain, vomiting, diarrhea, constipation, blood with stools, change in stools, or narrowing of stools. For the period prior to December 13, 2010, the Veteran's symptoms are best described as constant, slight or occasional moderate leakage, which warrants a 10 percent rating. Although the Board recognizes the difficulty and embarrassment associated with the Veteran's symptoms, at no point prior to December 13, 2010 do any of the examiners or treatment providers indicate that the Veteran must wear a pad due to leakage or fecal incontinence. Therefore, the record does not warrant a rating in excess of 10 percent for the Veteran's anal fissure to include impairment of rectal sphincter control with fecal incontinence prior to December 13, 2010. From December 13, 2010 to the Present On December 13, 2010, the Veteran's private physician wrote a letter stating that the Veteran suffers from bleeding and some drainage with bowel movements. In additional private treatment records dated in December 2010, the Veteran complained of occasional liquid discharge, but not incontinence to stool or gas. He further reported leakage of stools but no abdominal pain, vomiting, diarrhea, constipation, blood with stools, change in stools, or narrowing of stools. Private treatment records dated in 2011 reflect that the Veteran complained of constipation and incontinence of stool. He was noted to have good resting and squeeze tone; and anterior and posterior canal appeared smooth and well healed without evidence of fissure. The Veteran also complained of rectal pain, painful defecation, and bright red rectal bleeding. It was specifically noted that the Veteran had a chronic fissure in ano, which is painful and has persistent leakage requiring the use of a pad. Private treatment records dated in March 2014 also reflect that the Veteran presented with some anal leakage, described as mucous-like, nonbloody discharge, requiring the Veteran to wear a pad daily. Upon examination at that time, there was an anal fissure noted posteriorly, and the perianal area demonstrated excoriations, but no fistulas. No external hemorrhoids were present. According to a May 2014 VA examination report, the Veteran reported continued leakage necessitating use of absorbent pads. Upon examination, there was a small fissure and small absorbent pad material without leakage, but no hemorrhoids noted. The examiner also indicated that the Veteran suffers from very mild leakage, which necessitates the wearing of a pad. It was further noted that the Veteran has occasional mild leakage with no extensive leak or involuntary bowel movements. There was no complete loss of sphincter control and loss of sphincter control was mild. It was further noted that the anal fissure did not affect his employment. Private treatment records dated in May 2015 reflect that the Veteran complained of having problems with the anal fissure. Examination of the anus, perineum, and rectum was normal and that fissure appealed to be healed. The examiner stated there were no anal fissures. The Veteran underwent another VA examination in February 2017. At that time, the examiner noted that the Veteran had impairment of rectal sphincter control with leakages that necessitates wearing of a pad. Examination of the rectal anal area revealed no external hemorrhoids, anal fissure or other abnormalities. Although the Veteran also had a pad stained with stool, the examiner remarked that such is not indicative of incontinence. The examiner also noted that the perianal area was not excoriated, but mildly irritated. Sphincter tone was noted to be mildly weak. The examiner determined that there were no other physical findings, complications, conditions, signs, or symptoms related to the service-connected disability. The record thus supports a finding that, from December 13, 2010, the symptoms of the Veteran's impairment of rectal sphincter control with fecal incontinence as a result of anal fissures are best described as occasional involuntary bowel movements necessitating the wearing of a pad. At no point does the Veteran's private treatment provider or the VA examiner describe the Veteran's symptoms as extensive leakage and fairly frequent involuntary bowel movements. The competent medical evidence is negative for evidence of excessive leakage and fairly frequent involuntary bowel movements. 38 C.F.R. § 3.114, Diagnostic Code 7332. Although the Veteran was noted to have persistent rectal bleeding and discharge, it has not been described as extensive or with frequent involuntary bowel movements. Therefore, a rating in excess of 30 percent is not warranted. The preponderance of the evidence is against the Veteran's claim for an evaluation in excess of 30 percent for anal fissure from December 13, 2010. The Board notes the Veteran has characterized his leakage as extensive because it necessitates wearing a pad. He also stated that his involuntary bowel movements are every other day. See April 2012 Board hearing transcript. These statements, while competent, are not credible as they are inconsistent with the medical evidence of record. Indeed, prior to December 13, 2010, the objective and credible evidence fails to support a finding that the Veteran's impairment of sphincter control required the use of absorbent material or resulted in more than constant slight, or occasional moderate leakage. For the period from to December 13, 2010, the objective and credible evidence fails to support a finding of extensive leakage and fairly frequent involuntary bowel movements or complete loss of sphincter control. In addition, the Veteran has reported having a scar. The Board is also aware that separate ratings are available for scars that are poorly nourished, with repeated ulceration; are tender and painful on objective demonstration; or cause any limitation of function. 38 C.F.R. § 4.118, Diagnostic Codes 7800-05 (2017). In the present case, the Veteran has not been awarded a separate compensable rating for any associated scar. The VA examinations were negative, however, for any findings of painful or unstable scars or scars greater than 39 cms square in size. No additional limitation of motion or other impairment was attributed by the examiner to the Veteran's claimed scar. Further, private and VA treatment records do not indicate any persistent scar associated with his anal fissure. Rather it has been described as healed or unhealed or exhibiting excoriation of the perianal skin or granulation tissue. Excoriation is defined as: ". . . a self-induced skin lesion, inflicted by the fingernails or other physical means." Dorland's Illustrated Medical Dictionary 665, 31st edition (2007). Granulation tissue is defined as: "the newly formed vascular tissue normally produced in the healing of wounds. . . ." Dorland's Illustrated Medical Dictionary 1957, 31st edition (2007). The February 2017 VA examiner specifically stated that the Veteran denied any scar to report and there was no scar due to sphincterotomy or fissurectomy. Thus, a separate compensable rating is not warranted at the present time. The Board has considered whether a higher or separate rating would be in order under other relevant diagnostic codes. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259 (1994). However, both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14 (2017). In this case, the Veteran's disability is rated primarily on the basis of fecal leakage. In this regard, the Board finds it significant that the Veteran has consistently reported bleeding and pain with bowel movements, however in the absence of any evidence of anemia or hemorrhoids, a rating under Diagnostic Code 7336 for hemorrhoids is not warranted. In addition, there is no evidence of resection of the intestine, fistula of the intestine, peritonitis, stricture, or prolapse of the rectum or anus. Thus, the Board finds no basis to assign additional separate ratings for the Veteran's anal fissure. In light of the above, the preponderance of the evidence is against a rating in excess 10 percent prior to December 13, 2010, and in excess of 30 percent thereafter, for anal fissure to include impairment of rectal sphincter control with fecal incontinence. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. Additional Considerations The above determinations are based upon consideration of applicable rating provisions. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation Service, for consideration of an extraschedular evaluation. 38 C.F.R. § 3.321(b) (1). Otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116. Despite the Veteran's complaints of bleeding and pain with bowel movements, the medical evidence does not show marked interference with employment due to anal fissure to include impairment of rectal sphincter control with fecal incontinence. Rather, the Veteran continued to be employed on a full-time basis throughout the period on appeal. Additionally, the Veteran has not been frequently hospitalized for his service-connected anal fissure to include impairment of rectal sphincter control with fecal incontinence. The Veteran has not submitted evidence that his anal fissure to include impairment of rectal sphincter control with fecal incontinence results in any further additional disability factors not contemplated in the criteria. Thus, although the symptoms of pain and bleeding are not specifically addressed by the schedular criteria, neither of these symptoms results in an exceptional disability picture with related factors such as "marked interference with employment" or "frequent periods of hospitalization." Because this second element of the Thun test has not been met, referral for consideration of an extraschedular rating is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER A rating in excess of 10 percent for anal fissure to include impairment of rectal sphincter control with fecal incontinence prior to December 13, 2010 is denied. A rating in excess of 30 percent for anal fissure to include impairment of rectal sphincter control with fecal incontinence effective from December 13, 2010 is denied. REMAND As discussed in the introduction, the Veteran submitted an August 2017 NOD to the RO's August 2017 rating decision that denied service connection for obstructive sleep apnea. To date, no SOC has been furnished regarding the claim. As the timely NOD placed this issue in appellate status, this matter must be remanded for the AOJ to issue a SOC. See Manlincon, 12 Vet. App. at 240-41. Accordingly, the case is REMANDED for the following action: Prepare a SOC in accordance with 38 C.F.R. § 19.29 (2017) regarding the issue of entitlement to service connection for obstructive sleep apnea. This is required unless the matter is resolved by granting the full benefit sought, or by the Veteran's withdrawal of the NOD. If and only if, the Veteran files a timely substantive appeal should this issue be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs