Citation Nr: 21073916 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 13-35 458 DATE: December 13, 2021 ORDER Prior to August 7, 2018, entitlement to a 30 percent disability rating, but no higher, for service-connected chronic diarrhea is granted. Beginning February 4, 2010, entitlement to a separate, initial 60 percent disability rating, but no higher, for impairment of sphincter control is granted. FINDINGS OF FACT 1. Prior to August 7, 2018, the Veteran's service-connected chronic diarrhea manifests diarrhea with more or less constant abdominal distress 2. Beginning February 4, 2010, the Veteran has experienced extensive leakage and fairly frequent involuntary bowel movements. CONCLUSIONS OF LAW 1. Prior to August 7, 2018, the criteria for entitlement to a 30 percent disability rating, but no higher, for service-connected chronic diarrhea are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.114, Diagnostic Code (DC) 7319. 2. Beginning February 4, 2010, the criteria for entitlement to a separate, initial 60 percent disability rating for impairment of sphincter control are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.114, DC 7332. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1967 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. A Board hearing was conducted via video conference in conjunction with the RO in Atlanta, Georgia. A transcript of this hearing is contained within the electronic claims file. In an October 2006 Rating Decision, the Veteran originally was awarded service connection for his chronic diarrhea with a noncompensable rating effective February 10, 2006. He filed on February 4, 2010, the instant request for an increase. That request was denied in the July 2010 Rating Decision, and the Veteran timely appealed. See Dec. 6, 2010, Notice of Disagreement (NOD). In a November 2017 Decision, the Board awarded a 10 percent rating for the entire period on appeal. In March 2018, the Veteran sought review of the Board's Decision in the United States Court of Appeals for Veterans Claims (CAVC). During the pendency of that litigation, the Veteran filed in August 2018 for another increase, and the agency of original jurisdiction (AOJ) awarded in a September 2018 Rating Decision a 30 percent rating effective August 7, 2018. The Veteran timely perfected that appeal to the Board. See May 4, 2020; Jan. 22, 2019, NOD. In a May 2021 Memorandum Decision, the CAVC vacated and remanded the Board's November 2017 Decision. It faulted the Board for two reasons. First, in denying the Veteran entitlement to a 30 percent disability rating under DC 7319, the Board failed to explain how it interpreted "more or less constant abdominal distress" under that DC. Second, the Board erred in denying a rating higher than 10 percent under DC 7332 when it rendered a "terse analysis," noting that the Veteran slept and traveled on pads but otherwise did not wear them, perhaps for financial constraints. Thus, the entire appellate period now is before the Board and encompasses the Veteran's August 2018 request for an increase. Both at the hearing and in the second request for increase, Counsel for the Veteran argued that the Veteran's condition should be rated under DC 7332rectum and anus, impairment of sphincter control. Aug. 7, 2018, VA Form 21-4138; Nov. 23, 2016, Hearing Transcript (Tr.) at 17. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. While a veteran's entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). "The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim." Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) (discussing 38 U.S.C. § 5110 and 38 C.F.R. § 3.400(o)). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. Id. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 133537 (Fed. Cir. 2006). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1380 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). In a February 2010 correspondence, the Veteran stated that he has several times a week stomach spasms, cramps, and diarrhea. His spouseP.B.also submitted a statement. She indicated that, when she and the Veteran are away from home, there is constant concern about the potential for an embarrassing incident. The Veteran has soiled himself both in and out of bed, which is why they keep a waterproof pad under the bed and travel with one. They have priced adult-protective undergarments and may need them in the future. The Veteran takes Pepto-Bismol and diarrhea tablets. A February 2010 VA medical center (VAMC) entry notes that the Veteran's abdomen was soft with normal bowel sounds. A June 2010 entry showed similar findings. A March 2010 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The examiner noted that the Veteran's condition affects general body health by severe cramping that debilitates and causes weakness of the whole body. Noted symptoms were diarrhea, cramps, and spasms; there was no nausea vomiting, chronic constipation, and alternating diarrhea and constipation. His symptoms occur several times per week, requiring several rounds of treatment. The Veteran sleeps on, uses toilet paper as, and travels with a pad. The Veteran endorsed abdominal pain about two-thirds of the year, occurring five times a week, lasting five minutes. Within the last year, the number of attacks increased to 100. The Veteran treats his condition with over-the-counter medication. He endures problems traveling, sleeping, and eating. Adult pads pose a burden both physically and economically. There have been multiple incidents of the Veteran soiling himself at night. In his December 2010 NOD, the Veteran stated that he has bouts of diarrhea threefour times per week with continuing problems that last twothree hours. He does not specify what the "continuing problems" are. A February 2011 biopsy showed that the Veteran had an abnormal right and left colon with benign colitis and inflammation. A June 2012 statement from the Veteran again reiterates that he sleeps on a pad, to include taking one with him when he travels. His condition requires that he always know where the nearest bathroom is located, and he sometimes has to leave stores or friends'/family's houses if he feels an oncoming attack. In his December 2013 VA Form 9, the Veteran notes that he currently takes Balsalazide Disodium for his colitis symptoms (diarrhea and stomach pain). Here, the Veteran was clear to indicate that the June 2010 entry that stated he denied abdominal distress is incorrect and that he has never denied in ten years having diarrhea. In June and August of 2016, the Veteran submitted statements regarding various dates on which he had incidents of soiling himself due to an inability to control his diarrhea. At the November 2016 hearing, the Veteran and P.B. testified to numerous facts: some duplicative of those already mentioned in earlier statements and some new. In sum, the Veteran needs to know always where the bathrooms are; abruptly may have to leave social settings; watches what he eats; sleeps on and travels with a pad; and keeps with him in the car at all times pads, a change of clothes, toilet paper, and trash bags. Tr. at 3, 4, 6, 8. Regarding the frequency and severity of his symptoms, he has no control once he starts defecating; in his words, it is like a "waterfall" or a "faucet being turned on." Id. at 10. The Veteran can be in the bathroom for fifteentwenty minutes, but it has been several months since he has had an incident soiling himself because he is knowledgeable about what he eats. Id. at 9, 11. A November 2017 VAMC entry shows that the Veteran presented with complaints of acute exacerbation of his colitis with six loose, black bowel movements the prior day. There was no associated abdominal pain. A September 2018 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The report confirms the Veteran's chronic diarrhea since 2006 and his current prescription of Balsalazide. The examiner noted frequent episodes of bowel disturbances with abdominal distress. This condition would cause the Veteran to lose no more than one week of work due to an inability to discern when he would have a bowel movement. 1. Prior to August 7, 2018, entitlement to a 30 percent disability rating, but no higher, for service-connected chronic diarrhea is granted. Under 38 C.F.R. § 4.114, DC 7319 is assigned for irritable bowel syndrome (IBS). The maximum 30 percent disability rating requires severe IBS, which requires diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. Moderate IBS warrants a 10 percent rating and requires frequent episodes of bowel disturbance with abdominal distress. In reanalyzing the record, the Board finds that a 30 percent disability rating for the Veteran's chronic diarrhea is warranted. As noted above, the CAVC faulted the Board for not discussing adequately how it interpreted "more or less constant abdominal distress" under DC 7319's 30 percent criteria. A plain reading of that phrase indicates that the Veteran need not continuously manifest constant abdominal distress; some days, it may be continuous, while other days it is less than that. See Mattox v. McDonough, 34 Vet. App. 61, 67 (2021) ("We look first to 'the language of the regulation, the plain meaning of which is derived from its text and its structure.'" (Footnote omitted) (citation omitted)). The record contains both lay and medical evidence substantiating the Veteran's longstanding history of chronic diarrhea and his complaints of cramping and abdominal pain. Furthermore, the Board notes that the Veteran regularly takes both over-the-counter and prescription medications to manage the severity of his diarrhea and abdominal pain. The Board is mindful that it cannot consider the ameliorative affects of any medication that he takes to help control his symptoms. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Thus, it is persuaded even more so that, for the entire period on appeal, his service-connected chronic diarrhea has manifested diarrhea with more or less constant abdominal distress. See 38 C.F.R. § 4.114 DC 7319. Because a 30 percent rating is the highest available under DC 7319, the Board's determination is a full grant of benefits sought on appeal. 2. Beginning February 4, 2010, entitlement to a separate, initial 60 percent disability rating, but no higher, for impairment of sphincter control is granted. As noted above, the Veteran has requested to be rated under DC 7332; however, the Board finds that he is entitled to a separate compensable rating under DC 7332. The opening paragraph to 38 C.F.R. § 4.114 states that 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 [DC] which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. A plain reading indicates that, with respect to the enumerated DCs, a veteran may receive only one ratingwhichever one encompasses the predominant disability. DC 7332, however, is not listed in the opening paragraph. Thus, a veteran may receive a separate rating under DC 7332 and any other enumerated DC. Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (holding that separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as none of the symptomatology for one condition is "duplicative of or overlapping with the symptomatology" of the other disability); 38 C.F.R. § 4.14. DC 7332 is assignable for impairment of sphincter control. A 100 percent disability rating is assigned for a complete loss of sphincter control. A 60 percent rating contemplates extensive leakage and fairly frequent involuntary bowel movements. A 30 percent rating is appropriate for occasional involuntary bowel movements, necessitating wearing of pad. A 10 percent rating will be assigned for constant slight, or occasional moderate leakage. The Board finds that, for the entire period on appeal, the Veteran has experienced extensive leakage and fairly frequent involuntary bowel movements. As early as the March 2010 VA examination, the medical evidence reveals that the Veteran had to use his own form of pads (by making them out of toilet paper) and sleep/travel with a pad for his bed and car. The Veteran's numerous written statements (in correspondences and procedural filings) and live testimony show that he lives a life largely dictated by the unpredictable nature of his condition. His attacks/incidents can come at a whim and, if he is not near a bathroom, result in him soiling himself. The Veteran provided a plethora examples of when this very scenario occurred, and the Board has no reason to doubt his statements' veracity. Thus, the Board finds that the Veteran experiences extensive leakage and fairly frequent involuntary bowel movements, entitling him to a separate 60 percent disability rating. See 38 C.F.R. § 4.114 DC 7332. A rating greater than 60 percent, however, is not warranted. The evidence does not disclose that the Veteran experiences a complete loss of sphincter control. Such a lack of control would mean that the Veteran would soil himself on nearly every occasion, and he himself has indicated that is not the case. See Tr. at 9. Thus, a 60 percent rating is more appropriate. See id. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.