Citation Nr: 21072187 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 15-18 430A DATE: December 2, 2021 ORDER Entitlement to a disability rating of 30 percent, but no higher, for perianal abscess (abscess) is granted. REMANDED Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) prior to May 28, 2020, is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran's abscess manifested in symptoms approximating occasional involuntary leakage, necessitating wearing of pad; the Veteran's symptomology did not approximate extensive leakage or fairly frequent involuntary bowel movements, even during flares. CONCLUSION OF LAW The criteria for a rating of 30 percent, but no higher, for an abscess are met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.114, Diagnostic Code (DC) 7332 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1986 to March 1989 and from July 1989 to January 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision by a Department of Veterans Affairs (VA) regional office. The Veteran's claims were most recently before the Board in May 2021 wherein they were remanded for the issuance of a Supplemental Statement of the Case (SSOC). Subsequently, the Veteran's claim for a TDIU was granted effective May 28, 2020. As this does not represent a full grant of benefits, the claim for entitlement to a TDIU prior to May 28, 2020, remains on appeal. Entitlement to a disability rating in excess of 10 percent prior to July 28, 2014, and in excess of 30 percent thereafter. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). See also Fenderson v. West, 12 Vet. App. 119, 126 (1999) (applying this concept to initial ratings). The Veteran's perianal abscess is rated under 38 C.F.R. § 4.114, DC 7335-7332. Diagnostic Code 7335 addresses "ano, fistula in," but provides that the disability should be rated under DC 7332 for impairment of sphincter control. Diagnostic Code 7332 provides for a 10 percent evaluation for symptoms of constant slight or occasional moderate leakage. A 30 percent evaluation is warranted for occasional involuntary bowel movements, necessitating wearing of 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. 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. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's first VA examination during the period on appeal was in September 2014. At that time, the Veteran's condition was evaluated as a skin condition. The Veteran, however, reported flares of his abscess that would cause leakage. He indicated that his last flare was three months prior, and the one before that was six months prior. The examiner also noted that the Veteran had been seen by surgery, but was ruled ineligible for surgery due to the risk for loss of anal sphincter control. The Veteran took antibiotics during flares. The Veteran's next VA examination was in June 2019. The Veteran reported near constant pain and drainage from at least two fistulous tracts, with a possible third that could not be visualized. He described flareups occurring one to two time per month and lasting weeks, which included swelling and increased mucus/discharge production. He had to change a garment every two hours. During flares, the Veteran was unable to sit comfortably even with the use of a donut. Additionally, during flares he had actually soiled clothing through his garments which he changed on a more frequent rate of one an hour in some cases. He was unable to persistently perform activities involving straining. Such activities caused both pain and increased discharge production. The Veteran took narcotics as needed for pain, as well as topical medications for local symptom control and hygiene. The clinician found his symptomology to equate to constant slight leakage that necessitated wearing a pad. The Veteran again underwent VA examination in June 2020. The Veteran reported occasional swelling with increased mucous production and drainage. He indicated that he had frequent discomfort due to mucous drainage and frequent soiling of his clothes that necessitated wearing a diaper or pad to absorb. He stated that he sometimes had to change his clothes as often as every one to two hours. The Veteran reported that he was unable to persistently perform activities involving straining, which could cause increased discharge. The examiner noted constant slight leakage necessitating wearing a pad, with increased drainage during monthly flares. The examiner further opined that the Veteran's limitations would include frequent changes of absorbent garments approximately every two hours while awake, with monthly flares increasing perineal swelling, drainage, and minor fecal leakage. During flares, he was limited to sedentary activity due to hygiene concerns. The Board has considered the Veteran's remaining medical records and lay statements, to include VA treatment records. There are few treatment records as they relate to the Veteran's abscess. However, VA treatment records from October 2012 indicate that surgery was discussed, but discouraged due to the possibility of sphincter damage. No other interventions were offered to the Veteran. In a lay statement received October 2014, the Veteran wrote, "At this point in my life I don't understand the difference between having the surgery and losing bowel movement and wearing a diaper. The difference is marginal." In June 2015, he described the embarrassment the condition causes him and that it often prevents him from leaving home. The Board notes that the Veteran has been afforded service connection for depression as secondary to his abscess. In June 2020, the Veteran reported that he experienced extensive leakage and fairly frequent involuntary bowel movements. In that regard, he stated that he had to wear a diaper and soiled himself up to six times per day. In consideration of the above, the Board finds the Veteran's symptomology to be consistent with a 30 percent evaluation approximating occasional involuntary bowel movements with constant slight and occasional moderate leakage, necessitating wearing of pad. However, the Board does not find a 60 percent evaluation is warranted because the evidence does not demonstrate that the Veteran symptoms include or equate to extensive leakage or to fairly frequent involuntary bowel movements, even during flares. The Board gives the June 2019 and July 2020 VA opinions great probative weight because the examiners have the medical expertise to perform such examinations and render objective findings with respect to the rating criteria. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). To this end, the examiners found the Veteran's symptoms to equate to constant slight leakage that necessitated wearing a pad, with occasional moderate leakage during flares, as well as occasional involuntary bowel movements. This description of symptomology is consistent with the 30 percent rating criteria, even during flares. While the Veteran reports constantly changing a pad for his symptoms, this is not contemplated in the rating criteria for a 60 percent or higher rating. Rather, the leakage must be "extensive", and he must have "fairly frequent involuntary bowel movements." While the Veteran reported having to change his pads frequently, the VA examiners found the Veteran's symptoms to be consistent with "constant slight" leakage, rather than extensive. Despite the Veteran's contention of a greater degree of limitation on his abcess condition, the disability rating assigned herein indicates a significant impact on his functional ability. Such disability evaluations assigned by VA recognize his need to use absorbent materials. The critical question in this case, however, is whether the problems he has cited meet an even higher level under the rating criteria. For reasons cited above, the Board finds they do not. For the foregoing reasons, entitlement to a 30 percent rating, but no higher, throughout the period on appeal is granted. REASONS FOR REMAND Entitlement to a TDIU prior to May 28, 2020. As explained above, the Veteran is now in receipt of a 30 percent rating for the period on appeal. Further, the Veteran is in receipt of a TDIU effective May 28, 2020. Prior to May 28, 2020, service connection is in effect for the Veteran's abscess only, and with a disability rating of 30 percent he does not been the schedular criteria for a TDIU. The Veteran's representative asserts that the perianal abscess alone warrants TDIU and argues that a TDIU on an extraschedular basis is appropriate. The Board finds the criteria for referral to the Director, Compensation, for consideration of a TDIU on an extraschedular basis is warranted. 38 C.F.R. § 4.16(b). Prior to such consideration, the Veteran should submit his earnings history since July 28, 2013. The Veteran's psychiatric examinations indicate that he sells artwork "commercially." See April 2021 C&P Exam. The matters are REMANDED for the following actions: 1. Request the Veteran provide his earnings history since July 28, 2013. (Continued on the next page) 2. Refer the Veteran's claim for TDIU to VA's Director of Compensation Service for extraschedular consideration for the period prior to May 28, 2020. M. D. Bruce Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. M. Hitchcock 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.