Citation Nr: 21063489 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 20-08 224 DATE: October 14, 2021 ORDER An initial compensable disability rating for residuals of rectal fistula repair is denied. An initial disability rating greater than 10 percent prior to November 19, 2018 and greater than noncompensable thereafter for surgical scar, rectal fistula is denied. FINDINGS OF FACT 1. Since the grant of service connection, the Veteran's residuals of rectal fistula have resulted in pain with bowel movements (pruritis ani), as well as some blood-streaked stool, but there have been no active sphincter impairment symptoms. 2. Prior to November 9, 2018, the Veteran's rectal fistula surgical scar was manifested by a scar of the anus to right buttock measuring 7 centimeters (cm) x 1.5 cm, which was painful. There is no evidence that the scar was deep, unstable, lost its covering repeatedly, covered an area of 144 square inches or greater, or that it adversely affected any function. 3. Beginning November 9, 2018, the Veteran's rectal fistula surgical scar has been manifested by a scar of the anus to right buttock measuring 7 cm x 1.5 cm, well healed and nontender. There is no evidence that the scar is deep, unstable, painful, loses its covering repeatedly, covers an area of 144 square inches or greater, or that it adversely affects any function. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability rating for residuals of rectal fistula have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.31, 4.114, Diagnostic Code (DC) 7335-7332. 2. Prior to November 9, 2018, the criteria for an initial 10 percent disability rating for surgical scar, rectal fistula repaid were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.16, 4.118, Diagnostic Code (DC) 7802. 3. Beginning November 9, 2018, the criteria for a compensable disability rating for surgical scar, rectal fistula repaid were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.16, 4.118, DC 7802. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2001 to May 2005. These matters come before the Board of Veterans' Appeals (Board) from a November 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado which, in part, granted service connection for residuals of rectal fistula repair as well as surgical scar of the rectal fistula, assigning noncompensable disability ratings effective November 9, 2018. Subsequently, by rating decision dated in February 2020, the RO granted earlier effective dates for the Veteran's service-connected rectal fistula disabilities. Specifically, the RO assigned an effective date of June 10, 2016 for the award of a noncompensable disability rating for rectal fistula (the date of a VA treatment record first showing a rectal fistula). The RO also assigned a 10 percent disability rating for rectal fistula scar effective July 23, 2016 (the date of the Veteran's rectal fistula surgery) followed by a noncompensable rating effective November 9, 2018 (the date of a VA examination showing no complications related to this scar). In April 2020, the Board issued a decision that, in part, denied an initial compensable disability rating for residuals of rectal fistula repair and denied an initial disability rating greater than 10 percent prior to November 19, 2018 and a compensable disability rating beginning November 19, 2018 for surgical scar, rectal fistula repair. In May 2020, the Veteran's representative filed a motion to vacate the April 2020 Board decision as to these issues and, in March 2021, the Board vacated the April 2020 decision regarding these issues. As was noted in the April 2020 Board decision, a February 2020 statement of the case pertaining (SOC) to the rectal fistula issues also includes the issue of entitlement to an increased rating for irritable bowel syndrome (IBS) and the Veteran included this issue in his February 2020 substantive appeal. However, the Board notes that inclusion of the IBS issue in the February 2020 SOC was in error as this issue was decided by the Board in a July 2019 decision. While the Veteran's representative requested that the July 2019 decision be vacated in August/October 2019 correspondence, such request was denied in March 2020. As such, the Board will not address this issue at this time. Initially, the Board notes that the Veteran's representative appears to be arguing that the Veteran's claims for higher ratings concerning the Veteran's service-connected rectal fistula encompass claims for earlier effective dates for the grant of service connection for such disabilities. Specifically, in the May 2020 motion to vacate, the Veteran's attorney argued that the Veteran's rectal fistula should have been rated with the Veteran's separately service-connected IBS from the outset and awarded a 30 percent disability rating prior to November 2018. In support of this assertion, the Veteran's attorney noted that the Veteran filed a Notice of Disagreement in August 2015, which included an appeal for an increased evaluation of his service-connected IBS. In November 2018, the Veteran was afforded VA digestive system examination. As a result of this examination, a subsequent December 2018 rating decision granted an increased rating for the Veteran's service-connected IBS from 10 to 30 percent disabling, as well as service connection for residuals of rectal fistula repair associated with the service-connected disability of IBS effective November 9, 2018. As such, the propriety of this particular portion of his IBS rating, for the purpose of an increased rating, is still on appeal. However, as above, the appeal concerning a higher rating for the Veteran's IBS (which was initiated in April 2015) was decided by the Board in a July 2019 decision. While the Veteran's representative requested that the July 2019 decision be vacated in August/October 2019 correspondence, such request was denied in March 2020. Furthermore, while the Veteran did disagree with the effective dates originally assigned for the rectal fistula in the November 2018 rating decision, as above, by rating decision dated in February 2020, the RO granted earlier effective dates for the Veteran's service-connected rectal fistula disabilities and indicated that such decision was a full grant of the benefit sought on appeal for the conditions and the appeals were considered to be withdrawn. Neither the Veteran, nor his representative, have disagreed with this decision. In Rudd v. Nicholson, 20 Vet. App. 296 (2006), the Court of Appeals for Veterans' Claims (Court) held that appellants are prohibited from collaterally attacking a prior final rating decision by filing a freestanding earlier effective date claim. The Court specifically held that, once a rating decision has become final, as is the case here with the February 2020 rating decision which assigned earlier effective dates for the Veteran's rectal fistula disabilities, a claimant may not properly file, and VA has no authority to adjudicate, a freestanding earlier effective date claim in an attempt to overcome the finality of a decision of an agency of original jurisdiction (AOJ). The Court reasoned in Rudd that to allow such claims would vitiate the rule of finality. See Rudd, 20 Vet. App. at 299. Although there are numerous exceptions to the rule of finality and application of res judicata within the VA adjudication system, a new and distinct claim for an earlier effective date is not one of them. See Rudd, 20 Vet. App. at 300; see also DiCarlo v. Nicholson, 20 Vet. App. 52, 56-57 (2006) (discussing the types of collateral attack authorized to challenge a final decision by the Secretary). In DiCarlo, the Federal Circuit specifically held that, "Except as provided by law, when a case or issue has been decided and an appeal has not been taken within the time prescribed by law, the case is closed, the matter is ended, and no further review is afforded." Id., at pp. 55-56 (citations omitted). As such, the Veteran's earliest effective date of service connection under the applicable laws and regulations is June 10, 2016 for the rectal fistula and July 23, 2016 for the rectal fistula scar. See 38 C.F.R. § 3.400; see Rudd, 20 Vet. App. at 299-300. The Board notes, that if the Veteran wishes to continue to pursue an earlier effective date than June 10, 2016 for the rectal fistula and July 23, 2016 for the rectal fistula scar, he must file an entirely separate appeal that specifically alleges clear and unmistakable error in the February 2020 rating decision. Also, as was noted in the March 2021 Board decision, the May 2020 motion to vacate referred to outstanding private treatment records referenced in the April 2020 Board decision. Specifically: [A] June 10, 2016 VA treatment record shows that the Veteran was treated for rectal pain secondary to chronic recurrent perirectal abscess. He reportedly had the abscess drained in January following by symptomatic improvement. As there are no VA records regarding this treatment, it is assumed that this was done by a private care provider. Since the April 2020 Board decision, records from the Social Security Administration (SSA) were obtained which include a February 2016 private treatment record referencing the Veteran having an abscess drained. As such, there are no outstanding private medical records that need to be obtained. Furthermore, the Veteran waived RO consideration of these records in April 2021. As such, they may be considered by the Board in the first instance. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id.; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. 1. An initial compensable disability rating for residuals of rectal fistula repair is denied. By way of history, the Veteran developed IBS shortly after his discharge from service and is currently service-connected for IBS with a 30 percent disability rating. He developed an anal/rectal abscess in 2015 secondary to his IBS which required surgery and resulted in a rectal fissure. In connection with a claim for an increased rating for his IBS, the Veteran was afforded a VA examination in November 2018 which showed residuals of rectal fistula repair. By rating decision dated in November 2018, the RO granted service connection for residuals of rectal fistula repair, assigning a noncompensable disability rating effective November 9, 2018, the date of a VA examination. The Veteran disagreed with this decision and perfected this appeal. Subsequently, by rating decision dated in February 2020, the RO assigned an earlier effective date of June 10, 2016 for the grant of service connection for residuals of rectal fistula repair, assigning a noncompensable disability rating effective June 10, 2016. The Veteran's residuals of rectal fistula repair are rated under 38 C.F.R. § 4.114, DC 7335-7332. DC 7335 provides that ano, fistula is to be rated as for impairment of sphincter control. Pursuant to DC 7332, impairment of sphincter control of the rectum and anus is rated zero percent when healed or slight, without leakage; 10 percent with constant slight or occasional moderate leakage; 30 percent with occasional involuntary bowel movements, necessitating the wearing of a pad; 60 percent with extensive leakage and fairly frequent involuntary bowel movements; and 100 percent for complete loss of sphincter control. Evidence relevant to the severity of the Veteran's residuals of rectal fistula includes a November 2018 VA intestinal examination report. This examination report shows a diagnosis of anal fissure repairs (2015), incision and drainage procedures for anal fistula with abscess (2016), and rectal fistula repair (2016). The Veteran reported a sudden onset of rectal pain in 2015, determined to be due to anal/rectal abscess. He required several I&D procedures for this and subsequently developed rectal fissures. His rectal fissures resulted in pain with bowel movements (pruritis ani), as well as some blood-streaked stool. He treated his rectal fissure with lidocaine. There was no weight loss and/or inability to gain weight attributable to intestinal surgery. There was also no interference with absorption and nutrition attributable to resection of the small intestine and the condition did not require an ileostomy or colostomy. There was no fecal discharge attributable to his fistula and no other pertinent physical findings, complications, conditions, signs or symptoms related to the Veteran's rectal fistula other than a scar which is separately rated. Laboratory testing was not performed. The examiner indicated that the Veteran's intestinal surgery did not impact his ability to work. Also of record are private treatment records dated through December 2018 as well as VA treatment records dated through January 2020. Significantly, a June 10, 2016 VA treatment record shows that the Veteran was treated for rectal pain secondary to chronic recurrent perirectal abscess. He reportedly had the abscess drained in January followed by symptomatic improvement. As above, a February 2016 private treatment record references the Veteran having an abscess drained. In the May 2020 motion to vacate, the Veteran's representative noted that the Veteran's treatment records show recurring abscesses and fistula formation at least indicative of abdominal distress. As such, the argument was made that the symptoms of his service-connected IBS are more consistent with a 30 percent rating prior to November 2018 and the Veteran should be given the benefit of the doubt. The representative then noted a July 2016 treatment record wherein the Veteran was treated for recurrent perirectal abscess secondary to likely complex fistula, a November 2016 treatment record showing a longstanding fistula and history of IBS, as well as a December 2016 private treatment record showing non-healing perianal fistula. Upon review of the above, the Board finds that the preponderance of the evidence is against an initial compensable disability rating for residuals of rectal fistula. As above, a compensable disability rating requires constant slight or occasional moderate leakage. In this case, there is no evidence of any leakage or active sphincter impairment symptoms. Significantly, neither the available VA/private treatment records during the appeal period beginning June 2016 nor the November 2018 VA examiner indicate that there is any fecal discharge attributable to the Veteran's rectal fissures. The Board has also considered whether entitlement to a higher rating is warranted under a different DC. Manifestations of leakage from the rectum and anus are also contemplated by DC 7333. Under DC 7333, a 30 percent rating is warranted for stricture of the rectum and anus with moderate reduction of lumen, or moderate constant leakage. A 50 percent rating is warranted for stricture of the rectum and anus with great reduction of lumen, or extensive leakage. A 100 percent rating is warranted for stricture of the rectum and anus requiring colostomy. Leakage is also contemplated by DC 7334; however, a higher 50 percent rating is only warranted for symptoms approximating severe (or complete), persistent prolapse of the rectum, which has not been demonstrated nor asserted by the Veteran. There are no other additional symptoms of the Veteran's rectal fistula that would warrant consideration of other DCs. As above, there is no evidence of any leakage, stricture, or prolapse of the rectum. While the Veteran may experience severe irritable colon syndrome with diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress, such symptoms are contemplated under the 30 percent disability rating for his separately service-connected IBS. As such, an initial compensable disability rating for residuals of rectal fistula is not warranted. 2. An initial disability rating greater than 10 percent prior to November 19, 2018 and greater than noncompensable thereafter for surgical scar, rectal fistula is denied. As above, the Veteran developed an anal/rectal abscess in 2015 secondary to his service-connected IBS which required surgery and resulted in a rectal fissure. In connection with a claim for an increased rating for his IBS, the Veteran was afforded a VA examination in November 2018 which showed a surgical scar, rectal fistula repair. By rating decision dated in November 2018, the RO granted service connection for surgical scar, rectal fistula repair, assigning a noncompensable disability rating effective November 9, 2018, the date of a VA examination. The Veteran disagreed with this decision and perfected this appeal. Subsequently, by rating decision dated in February 2020, the RO assigned an earlier effective date of July 23, 2016 for the grant of service connection for surgical scar, rectal fistula repair, assigning a 10 percent disability rating effective July 23, 2016 (the date of the rectal fistula repair) and a noncompensable disability rating effective November 9, 2018 (the date of the VA examination). The Veteran's surgical scar of the rectal fistula is rated under DC 7802, for burn scars or scars due to other causes, not of the head, face, or neck, that are superficial and nonlinear. 38 C.F.R. § 4.118. Under DC 7802, a 10-percent rating, which is the only rating available under the schedule, is available where the total area of the scars is 144 square inches (929 square centimeters) or greater. Id. A superficial scar means one not associated with underlying soft tissue damage. Id., Note (1). For scars rated under DC 7802, an alternative rating is also available under DC 7804 if there are scars that are unstable or painful. 38 C.F.R. § 4.118, DC 7804, Note (3). Under DC 7804, a 10-percent rating is warranted for one or two scars that are unstable or painful. A 20-percent rating is warranted for three or four scars that are unstable or painful. A 30-percent rating, which is the maximum rating available under the schedule, is warranted for five or more scars that are unstable. An unstable scar means a scar that, for any reason, has frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, DC 7804, Note (1). Where the schedule does not provide a zero-percent evaluation, a zero-percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Evidence relevant to the current level of severity of the Veteran's surgical scar, rectal fistula repair, includes a November 2018 VA intestinal examination. Significantly, this examination report shows a scar of the anus to right buttock measuring 7 cm x 1.5 cm. This scar was not painful or unstable, did not have a total area equal to or greater than 39 square cm, and was not located on the head, face, or neck. Also of record are private treatment records dated through December 2018 as well as VA treatment records dated through January 2020. Significantly, June/July VA treatment record shows that the Veteran was treated for rectal pain secondary to chronic recurrent perirectal abscess. He reportedly had the abscess drained in January following by symptomatic improvement. As there are no VA records regarding this treatment, it is assumed that this was done by a private care provider. On July 23, 2016, the Veteran underwent incision and drainage regarding the perianal abscess. VA treatment records show that the Veteran continued to have problems with the unhealed scar that required additional surgery sometime in 2017. Subsequent records are limited as to how the scar progressed until the November 2018 VA examination which indicated a well healed scar. As for the period of time prior to November 9, 2018, the Board finds that a disability rating greater than 10 percent is not warranted. Significantly, prior to November 9, 2018 there is only evidence of one painful scar. As above, VA treatment records prior to November 9, 2018 discuss only one rectal fistula scar. Furthermore, it has not been shown that the Veteran's rectal fistula scar is greater than 144 square inches or 929 square centimeters so as to warrant a separate disability rating pursuant to DC 7802. As for the period of time beginning November 9, 2018, the Board finds that that a compensable disability rating greater is not warranted. Significantly, beginning November 9, 2018 there is no evidence that the Veteran's rectal fistula scar is painful as the November 2018 VA examiner specifically indicated that the scar was not unstable or painful. Furthermore, as was the case prior to November 9, 2018, it has not been shown that the Veteran's rectal fistula scar is greater than 144 square inches or 929 square centimeters so as to warrant a separate disability rating pursuant to DC 7802. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board April Maddox, 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.