Citation Nr: 21066633 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 15-12 272A DATE: November 1, 2021 ORDER Entitlement to a 60 percent rating, but no higher, for perirectal abscess, effective March 30, 2012, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Since March 30, 2012, the Veteran's perirectal abscess disability has manifested with extensive leakage and fairly frequent involuntary bowel movements. 2. Since June 19, 2013, the Veteran's left buttock surgical scar was painful. CONCLUSIONS OF LAW 1. The criteria for a 60 percent rating, but no higher, for perirectal abscess, effective March 30, 2012, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code (DC) 7332. 2. Since June 19, 2013, the criteria for a separate 10 percent disability rating for a left buttock surgical scar are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.118, DC 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died in September 2018 and his surviving spouse has been substituted as the Appellant in this case. The Appellant testified at a hearing before the undersigned in November 2020. The Board remanded this matter in February 2021 and May 2021 for additional development. The matter is now returned to the Board for further appellate review. Entitlement to a 60 percent rating, but no higher, for perirectal abscess, effective March 30, 2021. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10. If there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for different periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Veteran's perirectal abscess is currently rated 30 percent disabling under Diagnostic Code (DC) 7332. Under DC 7332, a 0 percent rating is warranted where the impairment is healed or slight, without leakage. A 10 percent rating is warranted for constant slight, or occasional moderate leakage. A 30 percent rating is warranted for occasional involuntary bowel movements, necessitating wearing of pad. A 60 percent rating is warranted for extensive leakage and fairly frequent involuntary bowel movements. The maximum rating of 100 percent is warranted when a veteran experiences complete loss of sphincter control. Regarding the Veteran's left buttock scar, a separate compensable rating is available based on the Veteran's surgical scar. Under DC 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. 38 C.F.R. § 4.118, DC 7804. Three or four scars that are unstable or painful scars warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. 38 C.F.R. § 4.118. Note 1 to DC 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. After reviewing the record, the Board finds that the Veteran is entitled to a 60 percent rating, effective March 30, 2021, for his perirectal abscess and a separate 10 percent rating for painful scars, effective June 19, 2013. VA provided a retrospective opinion in June 2021. Although the purpose of the examination was to address whether the Veteran had any scars related to the surgical removal of his left buttock perirectal abscess, the examiner reported the Veteran experienced rectal incontinence and a recurrent perirectal abscess that required oral antibiotics or draining. The examiner also reported the Veteran stated he had to wear multiple garments to stop leakage. The Veteran's VA treatment records contain multiple notations documenting his leakage. In a February 2017 Nursing Progress Note, the Veteran reported an increased frequency of bowel leakage that has progressively become worse over the previous two years. Generally, VA treatment records contain notations of moderate fecal leakage, involuntary bowel movements, and the Veteran using pads for leakage. The Appellant testified at the November 2020 hearing that the Veteran wore diapers because of poor sphincter control. The Veteran submitted correspondence in June 2013 indicating he is uncertain how many times per day he may have an involuntary bowel movement. He reported he may have one involuntary bowel movement or three, there is no way for him to know. He indicated he has continuously reported his impaired sphincter control to his VA doctors and that he has frequent involuntary bowel movements. The Veteran submitted a statement in March 2012 reporting the frequency of his involuntary bowel movements and leakage has increased. In sum, the Board finds the Veteran's perirectal abscess more nearly approximated the criteria for a 60 percent rating under DC 7332 as he had extensive leakage and fairly frequent involuntary bowel movements beginning March 30, 2012. However, a rating in excess of 60 percent is not warranted as the evidence of record does not indicate, nor does the Appellant contend, that the Veteran had complete loss of sphincter control. With regard to the left buttock surgical scar, the Board finds that the evidence is at least in equipoise regarding whether a separate compensable rating for the scar is warranted. The March 2008 VA examiner reported the Veteran has multiple old surgical scars that are mildly tender to palpation related to his left buttock abscess surgery; however, the June 2021 and January 2013 VA examiners reported the Veteran did not have any scars. In correspondence received by VA on June 19, 2013, the Veteran reported he does have a scar related to his left buttock surgery and experiences pain at his scar. He further reported the January 2013 examiner did not perform a physical examination to determine if he has any scars. While there are conflicting reports regarding the presence of scars related to the Veteran's service-connected disability, the Board finds the Veteran's lay statements reporting a painful left buttock scar highly probative. Resolving reasonable doubt in the Appellant's favor, the Board finds that from June 19, 2013, the Veteran's left buttock surgical scar was painful. Accordingly, a separate 10 percent rating is warranted for the left buttock surgical scar under DC 7804 effective June 19, 2013, the date it became factually ascertainable the Veteran's scar was painful. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. REASONS FOR REMAND Entitlement to a TDIU is remanded. In the May 2021 Board remand, the Board found the record raised the issue of entitlement to a TDIU. Rice v. Shinseki, 22 Vet. App. 477 (2009). The record, however, does not contain sufficient information for the Board to adjudicate the issue. Entitlement to a TDIU must be remanded to ascertain the Veteran's employment history, to include having the Appellant complete VA Form 21-8940. The matter is REMANDED for the following action: 1. Conduct all appropriate development for the claim for entitlement to a TDIU, to include sending the Appellant VA Form 21-8940 with a request that she complete the form regarding the Veteran's employment history and training and education and return it to VA. All efforts to complete this development must be documented. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zachery S.C. Luce, 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.