Citation Nr: 21069598 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 18-11 866 DATE: November 18, 2021 ORDER Subject to the laws and regulations governing monetary benefits, entitlement to an increased evaluation of 30 percent, but no higher, for recurrent perianal abscess with impaired sphincter control, from July 12, 2011, is granted. FINDING OF FACT From July 12, 2011, to the present, the most probative evidence reflects that the Veteran's perianal abscess with impaired sphincter more nearly approximates occasional involuntary bowel movements, necessitating wearing of pads. CONCLUSION OF LAW The criteria for an increased evaluation of 30 percent, but no higher, for a perianal abscess have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.114, Diagnostic Code (DC) 7332. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from September 1974 to April 1976. This case comes to the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with the AOJ's determination, and the present appeal ensued. In February 2021, the Veteran testified at a Board hearing conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of the hearing is associated with the electronic claims file. This claim was previously before the Board in June 2021, when it was remanded for additional development. Entitlement to a compensable rating for a service-connected recurrent perianal abscess with impaired sphincter Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's perianal abscess is rated under Diagnostic Code (DC) 7332. DC 7332 provides a noncompensable rating for healed or slight, without leakage. A 10 percent evaluation is warranted for symptoms of constant slight or occasional moderate leakage. A 30 percent evaluation is warranted for occasional involuntary bowel movements, necessitating wearing of a pad. A 60 percent evaluation is warranted for extensive leakage and fairly frequent involuntary bowel movements. A 100 percent evaluation is warranted for complete loss of sphincter control. 38 C.F.R. § 4.114. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board observes that the words "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran filed a claim for an increased rating for his perianal abscess with impaired sphincter on July 12, 2012, which begins the period of appellate review now before the Board (plus consideration of the one-year look back period prior to the filing of that claim back to July 12, 2011). Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). The Veteran's perianal abscess with impaired sphincter is currently rated as 0 percent disabling under DC 7332, from May 23, 1983. The Board notes that the Veteran is competent to speak to certain symptoms of his disability, such as pain. However, the Veteran is not considered competent to speak to certain aspects of the severity of his perianal abscess with impaired sphincter, as that requires medical knowledge and expertise that the veteran has not been shown to possess. Jandreau v. Nicholson, 492. F.3d 1372 (Fed. Cir. 2007). The Veteran contends that his perianal abscess with impaired sphincter is worse than reflected by his noncompensable evaluation. The Veteran had a VA medical examination in November 2013 to determine the increased severity of his perianal abscess with impaired sphincter. The examiner documented that the Veteran's perianal abscess was initially diagnosed in 1975 and recurs once or twice a year. The examiner also documented that at the time of the exam there was no current flare-up. The Veteran had an additional VA medical examination in November 2016. The November 2016 examiner noted the Veteran's recurrent perianal abscess has required multiple treatments of incision and drainage: approximately three times a year. Most recently, the Veteran was provided with a VA medical examination in August 2021. The examiner noted the Veteran's history related to his perianal abscess, noting that it was been drained more than 10 times since 2016, and the Veteran stated he has had to wear depends due to bowel leakage. The examiner further elaborated that the perianal abscess with impaired sphincter is stable, with no active frequency of abscess. It was documented that the Veteran did not have to wear depends on the day of the examiner. The examiner did indicate that the Veteran has a history of cysts in the groin, however these are not related to his perianal abscess claim. Additionally, the examiner noted that the Veteran's disability impacts his ability to work. The functional impact of the perianal abscess causes the Veteran to miss about one week of work time in a year, as walking is difficulty and recovery after treatment is painful. Lay witnesses are competent to testify about symptoms that are within their knowledge and personal observations. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). This includes the Veteran's statements that he experiences leakage, which necessitates the wearing of a pad that occurs when the abscess has to be lanced about two times a year and fluid will drain from his anus. The Board finds that while this does not appear to be related to a bowel movement, the Board will give the Veteran the benefit of the doubt, and find that what he experiences is similar enough to a bowel movement to meet the criteria required for a 30 percent rating. More specifically, this evidence weighs in favor of awarding the Veteran a rating of 30 percent for his service-connected perianal abscess with impaired sphincter, under DC 7332, effective from July 12, 2011. The Veteran's current symptoms do not entitle him to a higher disability rating. Regarding his symptoms, the records do not indicate impairment of sphincter control that would justify a 60 percent or 100 percent rating under DC 7332. 38 C.F.R. § 4.114. The record does not show that that his perianal abscess caused extensive leakage or frequent involuntary bowel movements and there is no evidence of complete loss of sphincter control. The evidence of record would need to have shown the presence of these more severe symptoms to warrant a higher rating. Therefore, a higher rating under DC 7332 is not warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. W. Morgan, 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.