Citation Nr: 20046733 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 16-15 597A DATE: July 13, 2020 ORDER Entitlement to an initial increased rating in excess of 20 percent for residuals of colon cancer due to asbestos exposure is denied. REMANDED Entitlement to a total disability rating based on unemployability due to service-connected disabilities (TDIU), from June 10, 2004 to April 20, 2010, is remanded. FINDING OF FACT The Veteran’s residuals of colon cancer with resection was manifested by no more than moderate symptoms. CONCLUSION OF LAW The criteria for entitlement to an initial increased rating in excess of 20 percent for residuals of colon cancer due to asbestos exposure have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.114, Diagnostic Codes (DC) 7343-7329. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from April 1955 to April 1959. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in February 2018 for further adjudication. In March 2020, the Veteran, through his representative, submitted additional evidence in support of his claims. A waiver of AOJ consideration was accompanied with the additional evidence. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran’s service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis, and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). 1. Entitlement to an initial increased rating in excess of 20 percent for residuals of colon cancer due to asbestos exposure is denied. The Veteran contends that he is entitled to a higher disability rating for his service-connected residuals of colon cancer with resection. In a July 2014 rating decision, the Veteran was granted service connection for colon cancer, and assigned a 20 percent disability rating from June 10, 2004 under DCs 7343-7329, which governs the large intestine. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. Under DC 7343, malignant neoplasms of the digestive system, exclusive of skin growths are initially rated at 100 percent. A note to the rating criteria provides that an evaluation of 100 percent shall continue beyond the cessation of any surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. If there has been no local recurrence or metastasis, the condition is to be rated on its residuals. Ratings under DCs 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. Under DC 7329, a 20 percent rating is assigned for resection of the large intestine with moderate symptoms. Where there are severe symptoms objectively supported by examination findings, a 40 percent rating is assignable. Also, it is noted that the disability shall be rated under DC 7301 where residual adhesions constitute the predominant disability. 38 C.F.R. § 4.114, DC 7329. Descriptive words such as “slight,” “moderate” and “severe” as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. Turning now to the relevant evidence in this case, the Board notes that the Veteran was diagnosed with colon carcinoma, stage III, in January 2002. He underwent resection with incidental appendectomy and cholecystectomy. In July 2002, he received adjuvant chemotherapy and leucovorin for six months. Since 2010, a reoccurrence of the cancer has not been shown. A June 2004 treatment record demonstrated a normal rectal exam. A March 2005 VA treatment record indicated the Veteran denied anorexia, unexplained weight loss, blood in stool, reflux, or change in urination but reported two to six daily stools since his colon surgery. An April 2006 VA treatment record demonstrated chronic, reoccurring elimination issues since his colon resection; the record also noted a 20-pound weight loss over the year “from laying around all the time,” with residual effects of colon cancer to include fatigue and occasional fecal incontinence. A March 2009 VA examination reflected a diagnosis of colon carcinoma, stage III, and the Veteran’s complaints for diarrhea and history of rectal bleeding. The examination also demonstrated no evidence of rectal prolapse or leakage but a good sphincter tone. The examiner indicated the Veteran was limited in daily activities due to frequent bowel movements and fatigue. Private treatment records indicated the Veteran denied abdominal pain, incontinence, or hematuria during that time. VA treatment records from March 2009 to October 2010 indicated the Veteran experienced diarrhea one to four times a day, but no fecal leakage and exhibited good sphincter tone. VA treatment records from January 2011 to April 2015 reflected normal colonoscopies, active and normal bowel movements, occasional fecal incontinence, and diarrhea one to four times a day. An October 2010 VA examination for prostate cancer reflected no abdominal or flank tenderness and normal anus and rectal walls. The examination also reflected no significant changes in symptoms due to colon cancer nor any side effects of current treatment. The Veteran continued to experience one to four daily episodes of diarrhea lasting less than a day. The Veteran’s son, R.L.M., reported a decline in his father’s health and difficulties with daily tasks, including mowing the lawn and climbing the stairs, due to frequent urination and bowel movements. The Veteran’s other son, C.R.M., reported that his father had very little energy throughout the day and became easily fatigued after a few hours due to frequent urination and bowel movements. He also reported the Veteran’s inability to partake in long trips due to fatigue and frequent bowel movements. The Veteran’s long-time neighbor reported the Veteran’s inability to mow his lawn, since his surgery and chemotherapy treatments, due to fatigue and frequent bowel movements. The Veteran’s wife, L.M.M, reported that her husband’s fatigue and bowel movements significantly inhibited daily tasks since his surgery and chemotherapy. She also reported the Veteran experienced frequent bowel movements, and at times, intestinal gas resulting in fecal defecation. See July 2015 Buddy/Lay Statements. In July 2015, the Veteran reported debilitating fatigue with difficulties in accomplishing daily tasks, such as mowing the lawn. He reported the lack of stamina and energy and the inability to work due to bowel frequency. A September 2015 VA Intestinal Surgery examination report reflected the Veteran’s reports of a healthy appetite and normal bowel movements. The examination also demonstrated no evidence of weight loss, continuous medications, interference with absorption and nutrition, intestinal fistula, or any functional impact on the ability to work. A September 2015 VA Intestinal Conditions examination report reflected complaints for abdominal flatulence, occurring two to three times per week, loose bowel movements since 2002, and semi solid stools occurring three to five times per day, with rapid evacuation at times. The examination also noted the Veteran’s reports of fatigue and inability to complete daily tasks, such as mowing the lawn. VA treatment records from June 2016 to June 2019 indicated normal bowel movements with no complaints for abdominal pain and the Veteran denied anal leakage, constipation, diarrhea, or the use of a pad. A May 2019 VA Intestinal Conditions examination reflected a diagnosis of residuals of colon cancer due to asbestos and indicated consistent bowel symptoms since diagnosis. The examination demonstrated no evidence of continuous medications, bowel disturbance with abdominal distress, weight loss, malnutrition, or tumors. The Veteran reported difficulties in occupational functioning due to excessive fatigability. As indicated above, the Veteran’s colon cancer residuals are rated as 20 percent disabling under DC 7343-7329. On review, the weight of the evidence is against finding that the Veteran’s colon cancer residuals are severe in nature. VA treatment records reflected, at most, the Veteran’s sporadic complaints of frequent stools and diarrhea, characterized as one to four times daily, fatigue, and occasional fecal incontinence; however, recent VA records between 2018 to 2019 indicated the Veteran denied issues with constipation or diarrhea, weight loss, abdominal pain, bloody stools, or anal leakage. The October 2010, September 2015, and May 2019 VA examinations demonstrated no more than moderate severity of his post-operative residuals, including daily episodes of diarrhea lasting no more than a day, abdominal flatulence occurring two to three times per week, loose bowel movements, and fatigue. The evidence further reflected no evidence of weight loss attributable to intestinal surgery, interference with absorption and nutrition, nor persistent intestinal fistula and consistently demonstrated good sphincter control. Moreover, the most recent May 2019 VA examination demonstrated that the Veteran’s colon cancer is not currently treated with continuous medications and that his symptoms have remained consistent since onset. As such, the Board finds that the Veteran’s residuals of colon cancer have consistently manifested as no more than moderate symptoms and the criteria for the next higher rating of 40 percent under DC 7329 is not warranted. The Board also acknowledges the Veteran’s contentions that evaluation for a rating of 30 percent under DC 7332 is warranted for impairment of sphincter control that causes occasional involuntary bowel movements necessitating wearing of pads. DC 7332 provides for a higher rating of 30 percent for occasional involuntary bowel movements, necessitating wearing a pad, 60 percent for extensive leakage and fairly frequent involuntary bowel movements, and a 100 percent for complete loss of sphincter control. 38 C.F.R. § 4.114, DC 7332. However, the medical evidence of record does not support occasional involuntary bowel movements, necessitating wearing of a pad. The Veteran’s representative has asserted the implied use of a pad due to frequent bowel movements. See March 2020 Appellant’s Brief. However, the March 2009 VA examination and VA treatment records from May 2009 to October 2010 noted “good sphincter control.” Furthermore, VA treatment records from July 2018 to June 2019 indicated that the Veteran denied urinary or bowel incontinence and instead reported normal, active bowel movements. Therefore, a higher rating under DC 7332 is not warranted. The Board has considered other relevant diagnostic codes for the evaluation of the digestive system, but the evidence of record does not support a separate disability rating for conditions including impairment of sphincter control, hemorrhoids, hernia, and rectum prolapse. DC 7330-7342. Accordingly, the Board finds a disability rating of 20 percent, but no higher, is warranted for the Veteran’s service-connected colon cancer residuals due to asbestos exposure under DC 7343-7329, from June 10, 2004. As the preponderance of the evidence is against assignment of any higher rating, the benefit-of-the-doubt doctrine is not applicable to that extent. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56. REASONS FOR REMAND 2. Entitlement to TDIU from June 10, 2004 to April 20, 2010, is remanded. The matter of entitlement to a TDIU rating is for consideration throughout the appeal period from June 10, 2004 to April 20, 2010, the date the Veteran was in receipt of a permanent and total 100 percent schedular rating for prostate cancer. Although the Veteran filed VA Form 21-8940 seeking a TDIU rating in July 2015, he claimed that his service-connected disabilities, including colon cancer and hearing loss, prevented him from securing any substantially gainful occupation. Notwithstanding his formal TDIU claim, the matter of the Veteran’s entitlement to a TDIU may be considered a component of an increased rating claim when such is expressly raised by the Veteran or reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, while the Veteran formally claimed TDIU by means of his July 2015 application, the evidence received in conjunction with his claim for initial increased ratings for colon cancer residuals raises the issue of entitlement to TDIU, thereby triggering the application of Rice. The Veteran contends that he is unable to obtain gainful employment due to his service-connected disabilities. The Veteran is service-connected for prostate cancer, rated as 100 percent disabling from April 21, 2010; bilateral hearing loss rated as 20 percent disabling from June 10, 2004 and 100 percent disabling from July 09, 2015; residuals of colon cancer as due to exposure to asbestos, rated as 20 percent disabling from June 10, 2004; tinnitus, rated as 10 percent disabling from June 10, 2004; fatigue as residuals of colon cancer, rated as 10 percent disabling from June 10, 2004; peripheral neuropathy of the bilateral extremities, rated as 10 percent disabling from July 09, 2015; and bilateral otitis media with perforation of the tympanic membrane, rated as 0 percent disabling from June 10, 2004. Therefore, the Veteran does not meet the schedular criteria for TDIU during the entire rating period on appeal. See 38 U.S.C. § 5110 (a); 38 C.F.R. §§ 3.400, 4.16(a). Even when the percentage requirements of 38 C.F.R. § 4.16 (a) are not met, a TDIU may be granted on an extraschedular basis in exceptional cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of a service-connected disability. 38 C.F.R. § 4.16 (b). The Board cannot award TDIU on this basis in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Here, there is evidence of record suggesting unemployability. As a matter of background, the Veteran finished high school and worked primarily in physically strenuous positions as a machine operator and janitor. A Social Security statement indicated that the Veteran worked from 1937-2003. See November 2017 Correspondence. The Veteran has asserted that he has not worked in any gainful capacity since he was treated for stage III colon cancer in 2002. For the most part, these jobs are heavy in physical labor and semi-skilled. In his July 2015 application for TDIU, the Veteran reported that he was too disabled to work due to his service-connected colon cancer and hearing loss, and that he previously worked as a machine operator in December 2000 with an earning maximum of $1,944/month. He reported that his frequent bowel movements and fatigue limited his daily activities. A November 2017 private opinion from Dr. P.C. indicated that the Veteran’s service-connected colon cancer is the proximate cause for his ongoing cancer related fatigue, bowel urgency and incontinence, and the inability to secure gainful employment since 2002. He concluded that the colon cancer residuals and hearing condition prevented the Veteran from rejoining and working in a typical occupational or sedentary setting due to physical limitations, lack of stamina, fatigability, and reduced hearing. He also noted the Veteran would require close proximity to a bathroom throughout the day. The May 2019 VA examiner noted the Veteran’s functional difficulties in an occupational setting due to his excessive fatigue. A March 2020 vocational counselor indicated a review of the Veteran’s C-file and concluded that the Veteran is unemployable due to residuals of colon cancer surgery in January 2002, to include fatigue and diarrhea. Additionally, the counselor noted the Veteran’s hearing loss posed limitations in the ability to hear conversations in a noisy work environment, thereby precluding his ability to fully perform in prior work capacities that would not otherwise allow for unscheduled work breaks. The Board finds the November 2017, May 2019, and March 2020 opinions suggest that that the Veteran may not function adequately to secure and sustain substantially gainful employment due to his service-connected disabilities. Thus, in consideration of the evidence of record, the Board finds that the matter of entitlement to a TDIU, for the period between June 10, 2004 to April 20, 2010, should be referred to the Director of Compensation Service to determine if extraschedular consideration under 38 C.F.R. § 4.16 (b) is warranted. The matters are REMANDED for the following actions: 1. Refer the case to the Director of Compensation Service for an initial determination as to whether the Veteran is entitled to an extraschedular award based upon TDIU pursuant to 38 C.F.R. § 4.16 (b). The rating board should include a full statement of all factors having a bearing on the issue. 2. After completing the above, readjudicate the claim based on the all the evidence since it was last adjudicated. If the benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Asfaw, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.