Citation Nr: 21074396 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 16-36 053 DATE: December 15, 2021 ORDER Entitlement to a 30 percent rating, but no higher, for chronic constipation from December 24, 2014 to September 22, 2019, is granted. Entitlement to a disability rating in excess of 30 percent for chronic constipation from September 23, 2019, is denied. Entitlement to a disability rating in excess of 20 percent for stress incontinence prior to April 28, 2015, is denied. Entitlement to a 60 percent rating, but no higher, for stress incontinence from April 28, 2015 to September 22, 2019, is granted. Entitlement to a disability rating in excess of 60 percent for stress incontinence from September 23, 2019, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities before September 23, 2019, is remanded. FINDINGS OF FACT 1. The Veteran's claim for an increased disability rating for chronic constipation and stress incontinence was received December 24, 2014. 2. There is no evidence demonstrating that a factually ascertainable increase in the chronic constipation disability occurred within the one-year period preceding December 24, 2014. 3. The evidence is at least in equipoise that the Veteran's chronic constipation symptoms more nearly approximated severe constipation, abdominal distress, disturbances of bowel function, and frequent episodes of bowel disturbance as of December 24, 2014. 4. The Veteran is currently assigned the maximum 30 percent schedular disability rating for chronic constipation. 5. For the period prior to April 28, 2015, the Veteran's stress incontinence has not been manifested by voiding dysfunction requiring the wearing of absorbent materials which must be changed 2 to 4 times per day, daytime voiding interval less than one hour or awakening to void five or more times per night, or urinary retention requiring intermittent or continuous catheterization. 6. From April 28, 2015, the Veteran's stress incontinence was manifested by voiding dysfunction requiring the wearing of absorbent materials which must be changed more than 4 times per day. 7. The Veteran is currently assigned the maximum 60 percent schedular disability rating for stress incontinence. CONCLUSIONS OF LAW 1. For the appeal period from December 24, 2014 to September 23, 2019, the criteria for a 30 percent evaluation, and no higher, for chronic constipation has been met. 38 U.S.C. §§ 1155; 5107; 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.7, 4.114, Diagnostic Code 7319. 2. For the appeal period from September 23, 2019, the criteria for a rating in excess of 30 percent for chronic constipation are not met. 38 U.S.C. §§ 1155; 5107; 38 C.F.R. §§ 4.1, 4.7, 4.114, Diagnostic Code 7319. 3. For the appeal period from December 24, 2014 to April 28, 2015, the criteria for a rating in excess of 20 percent for stress incontinence has not been met. 38 U.S.C. §§ 1155; 5107; 38 C.F.R. §§ 4.1, 4.7, 4.115a, 4.115b, Diagnostic Code 7517. 4. For the appeal period from April 28, 2015 to September 23, 2019, the criteria for a 60 percent rating, but no higher, for stress incontinence has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.7, 4.115a, 4.115b, Diagnostic Code 7517. 5. For the appeal period from September 23, 2019, the criteria for a rating in excess of 60 percent for stress incontinence has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.115a, 4.115b, Diagnostic Code 7517. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from February 1985 until her honorable discharge in May 2005. The Board of Veterans' Appeals (Board) thanks the Veteran for her service to our country. This matter comes before the Board on appeal from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018 and August 2021, the Board remanded the claims for further development. The most recent remand of August 2021 mandated that the RO provide the Veteran with a supplemental statement of the case (SSOC). In August 2021, the Veteran was provided with the SSOC. Thus, the Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board has jurisdiction to consider entitlement to a TDIU as part of the underlying increased rating claims. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). During the appeal period, the Veteran was assigned a total schedular rating for her combined disabilities, effective is less RO in a July 2020 rating decision granted a TDIU effective September 23, 2019. As the award was not the highest rating possible for the entire appeal period, the issue of a TDIU before September 23, 2019, is on appeal. Payne, 31 Vet. App. 373 (2019); Harper, 30 Vet. App. 356 (2018). Increased Rating Disability ratings are determined by the application of the facts presented in the 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 their residual conditions in civilian occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 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 entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119 (1999). Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations. Id. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. 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. 1. Chronic Constipation. The Veteran contends her chronic constipation warrants a rating higher than 10 percent since December 24, 2014, and higher than 30 percent since September 23, 2019. The Board agrees and finds that for the period on appeal (from December 24, 2014) an increased evaluation of 30 percent is warranted. The Board finds the date of claim is December 24, 2014. See December 2014 VA Form 27-0820. In an April 2015 rating decision, the noncompensable evaluation of the Veteran's chronic constipation was continued. In a June 2016 rating decision, the RO granted a 10 percent evaluation effective December 24, 2014, the date the claim was received. In a July 2020 rating decision, the RO granted a 30 percent evaluation effective September 23, 2019, the date of a Veterans Evaluation Services (VES) examination. Although an increased rating was granted, the issue remains in appellate status, as the maximum schedular rating has not been assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). An effective date for increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability occurred if the application is received within one year from such date. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2). An increase in a veteran's service-connected disability must have occurred during the one-year period prior to the date of the veteran's claim to receive the benefit of an earlier effective date. Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). This is the so-called "one-year look-back period." If the increase in disability is shown to have occurred after the date of claim, the effective date is the date of increase. See 38 U.S.C. § 5110; Harper v. Brown, 10 Vet. App. 125 (1997). Thus, the Board must consider whether an increased rating is warranted for the disability from the period one-year prior to the Veteran's December 24, 2014 claim. The Veteran's service-connected chronic constipation is rated under Diagnostic Code 7319. Chronic constipation is not specifically listed in the Rating Schedule and is rated analogous to a disability in which not only the functions are affected, but also anatomical localization and symptoms are closely related. Thus, the Veteran's chronic constipation is rated as analogous to irritable colon syndrome (spastic colitis, mucous colitis, etc.). 38 C.F.R. § 4.114, Diagnostic Code 7319. Under Diagnostic Code 7319 a noncompensable rating is warranted for mild symptoms; disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent rating is warranted for moderate symptoms; frequent episodes of bowel disturbance with abdominal distress. A maximum 30 percent rating is warranted for severe symptoms; diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. 38 C.F.R. § 4.114, Diagnostic Code 7319. The words "mild", "moderate", "moderately severe", and "severe" as used in the various diagnostic codes are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The Veteran underwent a VA examination in March 2015 for chronic constipation. During the examination, the Veteran reported chronic constipation and a feeling of fullness after about five days of no bowel movement. She reported going seven days without a bowel movement. Her treatment plan included increased fiber intake and enemas twice a month. The examiner noted abdominal distension, described as distention after about five days without a bowel movement. Radiographs of the abdomen revealed findings of constipation. In her Notice of Disagreement, the Veteran stated her chronic constipation causes great pain, bloating, gas, and severe abdominal pain. She stated the problem is persistent and ongoing, despite many attempts at resolutions from the use of prescriptions and over the counter medications, as well as herbalist and naturalist solutions. See April 28, 2015 Notice of Disagreement, received May 2015. In her substantive appeal, the Veteran stated her chronic constipation is still a problem. She reported having ongoing difficulty evacuating her bowels; she will evacuate maybe twice a week. She reported suffering severe stomach cramps, hemorrhoids, headaches, bloating, bad breath, and backaches. She stated her constipation is persistent and on-going regardless of the many attempts to resolve the disability. She stated prescriptions, the use of enemas, vegetable consumption, and high fiber intake, have no effect. She added, her chronic constipation is affecting her quality of life and causing stress. See June 2016 VA Form 9. In May 2019, the Veteran enrolled as a new patient at the Kernersville VA Clinic. She reported a history of chronic constipation for which she had tried enemas and other medications. She stated after trying several medications for the constipation, she has diarrhea. She was referred for GI consultation. During the June 2019 GI consultation, the Veteran complained of constant constipation with a bowel movement typically every three to four days. Current treatment consisted of over-the-counter products to include Colace, laxatives, enemas, fiber, and drinking a lot of water/juice, all without significant/satisfactory results. She reported a ten-to-fifteen-pound weight loss during the past year. A June 2019 Kernersville VA Clinic medication list included Docusate NA, Polyethylene Glycol, and Psyllium for constipation. The Veteran was afforded a VES examination for her chronic constipation in September 2019. The Veteran reported a pattern of an inability to have a bowel movement for three consecutive days, followed by hard, painful bowel movement, followed by three days of inability. She described symptoms of constant abdominal bloating, and frequent lower abdominal cramping pain. Her treatment plan included Polyethylene Glycol twice a day, Psyllium Powder every morning, and Docusate twice a day. The examiner found alternating diarrhea and constipation, constant abdominal distension, and frequent episodes of bowel disturbance and abdominal distress. Affording the Veteran the benefit of the doubt, and considering all the evidence of record, the Board finds that a higher rating of 30 percent is warranted for the first period on appeal, December 24, 2014 to September 23, 2019. While the Veteran was awarded the increased rating of 30 percent as of the date of the September 2019 VES examination, effective dates should not be mechanically assigned based solely on the date of the VA examination but should include consideration of all the facts to determine the date that the increase in disability was ascertainable. Swain v. McDonald, 27 Vet. App. 219 (2015). In this case, the Board finds the Veteran's chronic constipation symptoms more nearly approximate as severe, manifested as abdominal distress, disturbances of bowel function, alternating diarrhea and constipation, and frequent episodes of bowel disturbance. The Veteran's continuous battle with chronic constipation is well documented throughout her treatment records, March VA examination, and September 2019 VES examination. Additionally, the lay statements of record shed light on the severity of the Veteran's chronic constipation disability and the impact on her life. There is no objective evidence that contradicts the lay statements of record which describe the Veteran's severe ongoing issue with her bowel movements. Further, there is no reason to doubt the Veteran's credibility. Based on the record, and mindful of VA's duty to resolve reasonable doubt in favor of the Veteran, the Board finds that the Veteran's service-connected chronic constipation more nearly approximates the criteria for a 30 percent disability rating under Diagnostic Code 7319. A 30 percent rating is the maximum schedular rating available under Diagnostic Code 7319. There is no evidence of ulcers, gastritis, colitis, resection of her small or large intestine, fistula of the intestines, peritonitis, or a hernia that would warrant a higher rating under another diagnostic code. In summary, as detailed above, the Board finds that the Veteran's service-connected chronic constipation is best reflected by the criteria for a 30 percent disability rating under Diagnostic Code 7319. Accordingly, a disability rating of 30 percent, but no higher, for the Veteran's chronic constipation is granted effective December 24, 2014. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.400, 4.114; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Stress Incontinence The Veteran contends her stress incontinence warrants a rating higher than 20 percent since December 24, 2014, higher than 40 percent since July 26, 2016, and higher than 60 percent since September 23, 2019. The Board finds that for the period on appeal (from December 24, 2014 to April 28, 2015) a rating in excess of 20 percent is denied. Additionally, for the period on appeal (from April 28, 2015) an increased evaluation of 60 percent is warranted. The Board finds the date of claim is December 24, 2014. See December 2014 VA Form 27-0820. In an April 2015 rating decision, the RO granted a 20 percent evaluation effective July 24, 2014, the date the claim was received. In a July 2020 rating decision, the RO granted a 60 percent evaluation effective September 23, 2019, the date of a VES examination. In an August 2021 rating decision, the RO granted a 40 percent evaluation effective July 26, 2016, the date of treatment records from Dr. B.S., and a 60 percent evaluation effective September 23, 2019. Although an increased rating was granted, the issue remains in appellate status, as the maximum schedular rating has not been assigned for the entire period on appeal. See AB, 6 Vet. App. 35. Thus, the Board must consider whether an increased rating is warranted for the disability from the period one-year prior to the Veteran's December 24, 2014 claim. The Veteran's service-connected stress incontinence is rated under Diagnostic Code 7517. Stress incontinence is not specifically listed in the Rating Schedule and is rated analogous to a disability in which not only the functions are affected, but also anatomical localization and symptoms are closely related. Thus, the Veteran's stress incontinence is rated as analogous to bladder injury. Disability due to a bladder injury is rated on the basis of voiding dysfunction under the criteria as set forth under 38 C.F.R. § 4.115b, Diagnostic Code 7517. Under 38 C.F.R. § 4.115a, any voiding dysfunction is rated based on urine leakage, frequency, or obstructive voiding. Urinary leakage involves ratings ranging from 20 to 60 percent and contemplates continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence. A 20 percent rating contemplates urine leakage requiring the wearing of absorbent materials which must be changed less than 2 times per day. When there is urine leakage requiring the wearing of absorbent material which must be changed 2 to 4 times per day, a 40 percent rating is warranted. When there is urine leakage requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day, a 60 percent rating is warranted. 38 C.F.R. § 4.115a. For urinary frequency, a 10 percent rating is warranted for a daytime voiding interval between two and three hours or, awakening to void two times per night. A 20 percent rating is warranted for a daytime voiding interval between one and two hours or, awakening to void three to four times per night. A 40 percent rating is warranted for a daytime voiding interval less than one hour or awakening to void five or more times per night. Id. As for obstructive voiding, a non-compensable rating is warranted for obstructive symptomatology with or without stricture disease requiring dilation 1 to 2 times per year. A 10 percent rating is warranted for marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) post void residuals greater than 150 cc; (2) uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec); (3) recurrent urinary tract infections secondary to obstruction; or (4) stricture disease requiring periodic dilatation every 2 to 3 months. A 30 percent rating is warranted for urinary retention requiring intermittent or continuous catheterization. Id. During the March 2015 VA examination, the Veteran reported sneezing, coughing, and laughing causes urinary leakage. The examiner stated the Veteran has a voiding dysfunction that causes urine leakage but does not require the wearing of absorbent material. The voiding dysfunction causes increased urinary frequency such as daytime voiding interval between 1 and 2 hours, and nighttime awakening to void 2 times. In her Notice of Disagreement, the Veteran stated she has every symptom to qualify for a 40 percent rating. She stated her stress incontinence causes urine leakage requiring the wearing of absorbent material which must be changed 2 to 3 times every hour. She also reported nighttime awakening to void at least 3 times. Because of her stress incontinence disability, she had to alter her daily activities. See April 28, 2015 Notice of Disagreement, received May 2015. In her substantive appeal, the Veteran stated her stress incontinence was negatively affecting her life, causing stress, depression, and anxiety. She reported sudden urges to urinate, and significant leakage episodes requiring the wearing of absorbent material which must be changed at least 3 times per day, and at least once per night. She reported awakening to void several times per night. She stated her disability was impacting her quality of life; she no longer wanted to go out with family or friends or exercise because any bit of strain causes leakage. Her treatment plan included taking Myrbetriq. See June 2016 VA Form 9. In July 2016 she was evaluated by Dr. B.S. for urinary incontinence. She stated her symptoms have been present for approximately 10 years. She reported urinary frequency voiding approximately 3 times per hour, nocturia, sensation of incomplete bladder emptying, and urge incontinence. She had stress incontinence associated with coughing, sneezing, lifting, and jumping. She was using several maxi-pads per day. Urodynamics from July 21, 2016 showed small capacity bladder with sensory urgency, stress incontinence with cough and Valsalva. The Veteran was afforded a VES examination for her stress incontinence in September 2019. The Veteran reported urine leakage when bending over, laughing, sneezing, lifting, and coughing. The examiner stated the Veteran has a voiding dysfunction that causes urine leakage requiring absorbent material which must be changed more than 4 times per day. The voiding dysfunction causes increased urinary frequency such as daytime voiding interval less than 1 hour, and nighttime awakening to void 5 or more times. The voiding dysfunction did not require the use of an appliance and did not cause signs or symptoms of obstructed voiding. For the Period Prior to April 28, 2015 The Veteran's stress incontinence is currently rated as 20 percent for the period beginning December 24, 2014 to July 26, 2016, as 40 percent for the period July 26, 2016 to September 23, 2019, and as 60 percent thereafter. Records prior to April 28, 2015 show the Veteran's disability did not meet or approximate the criteria for a rating greater than 20 percent. During the March 2015 VA examination, the examiner confirmed the Veteran has a voiding dysfunction that causes urine leakage but does not require the wearing of absorbent material. The voiding dysfunction causes increased urinary frequency such as daytime voiding interval between 1 and 2 hours, and nighttime awakening to void 2 times. Therefore, the evidence during this period is consistent with the current 20 percent rating. 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7517. As such, the Board finds a rating in excess of 20 percent for the first period on appeal (December 24, 2014 to April 28, 2015) is not warranted. For the Period Prior to September 23, 2019 The earliest evidence showing when her disability met the criteria for a higher rating was on April 28, 2015. See April 28, 2015 Notice of Disagreement, received May 2015. The Veteran stated her stress incontinence causes urine leakage requiring the wearing of absorbent material which must be changed 2 to 3 times every hour. She also reported nighttime awakening to void at least 3 times. The Veteran is competent to report her symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board finds her statements to be credible and probative. In July 2016 she was evaluated by Dr. B.S. for urinary incontinence. She stated her symptoms had been present for approximately 10 years. She reported voiding approximately 3 times per hour, nocturia, and using several maxi-pads per day. The September 2019 VES examination showed a history of an increased urinary frequency. Her voiding dysfunction caused leakage requiring absorbent material which must be changed more than 4 times per day. The voiding dysfunction caused increased urinary frequency such as daytime voiding interval less than 1 hour, and nighttime awakening to void 5 or more times. As such, resolving reasonable doubt in the Veteran's favor, a 60 percent rating is warranted for the Veteran's stress incontinence disability effective April 28, 2015, as the evidence shows the Veteran's stress incontinence results in voiding dysfunction requiring the wearing of absorbent material which must be changed more than 4 times per day. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.115a, 4.115b; Gilbert, 1 Vet. App. 49. A 60 percent rating is the maximum schedular rating warranted for stress incontinence (bladder injury) under Diagnostic Code 7517. The criteria for stress incontinence set forth in Diagnostic Code 7517 contemplate the Veteran's symptoms. Further, because there is a specific diagnostic code to evaluate stress incontinence, consideration of other diagnostic codes for evaluating the disability is not appropriate. See 38 C.F.R. § 4.20 (permitting evaluation, by analogy, where the rating schedule does not provide a specific diagnostic code to rate the disability); Butts v. Brown, 5 Vet. App. 532 (1993). As such, a rating in excess of 60 percent from September 23, 2019, is not warranted. REASONS FOR REMAND Entitlement to a before September 23, 2019, is remanded. The Veteran submitted VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) in January 2020 and attributed her lack of gainful employment to her service-connected posttraumatic stress disorder, headaches, chronic constipation, and incontinence. She also indicated that she was engaged in part-time work during the appeal period and listed two employers. The dates, however, are incomplete. As such, the record is insufficient for the Board to determine the exact dates of her part-time employment and whether such part-time employment is considered marginal employment for VA compensation purposes. Thus, a remand is warranted for additional development. The matter is REMANDED for the following action: 1. Provide the Veteran with a VA Form 21-8940 and employment verification forms and request that she completes and return the said forms to the RO. 2. Request that the Veteran provide a completed VA Form 21-8940 (with exact dates of her employment), SSA Earnings Record/Statement, and IRS federal income tax returns with a statement that the copy is an exact duplicate of the return filed with the IRS, for the time period 2014 to the present. The IRS Form 4506-T "Request for Transcript of Tax Return" may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf. Tell the Veteran that if she does not have copies of her tax returns for the requested years, she may use the IRS form cited to above. 3. Then, readjudicate the claim. If the benefit sought on appeal remains denied, issue a SSOC and allow the applicable time for response. Then, return the case to the Board. N. Stevens Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Grace Johnk, 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.