Citation Nr: 21077340 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 16-54 804 DATE: December 29, 2021 ORDER New and material evidence not having been received, the request to reopen a previously denied claim for entitlement to service connection for a positive purified protein derivative (PPD) test is denied. New and material evidence has been received to reopen the claim of entitlement to service connection for hemorrhoids; to this extent, the appeal is granted. From June 3, 2016, entitlement to a 10 percent rating, but no higher, for hairline fracture of middle phalanx of middle finger, right (major) (right middle finger disability), is granted. From June 19, 2017, entitlement to a rating of 60 percent, but no higher, for residuals of bowel incontinence, status post fistula surgery (bowel disability), is granted. REMANDED Entitlement to service connection for hemorrhoids, to include as secondary to service-connected residuals of bowel incontinence, status post fistula surgery, is remanded. FINDINGS OF FACT 1. A December 2000 rating decision denied the claims for entitlement to service connection for a positive PPD test and hemorrhoids; the Veteran did not complete a substantive appeal to that decision, and it is final. 2. The evidence received since the December 2000 rating decision pertinent to the claim for service connection for a positive PPD test is cumulative and redundant, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. 3. Some of the evidence received since the December 2000 rating decision pertinent to the claim for service connection for hemorrhoids was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim for service connection for hemorrhoids. 4. Effective June 3, 2016, the probative evidence of record demonstrates that the Veteran has had arthritis in his right middle finger with painful range of motion. 5. Effective June 19, 2017, the probative evidence of record demonstrates that the Veteran's bowel disability manifested in symptomology analogous to extensive leakage and fairly frequent involuntary bowel movements but did not approximate complete loss of sphincter control. CONCLUSIONS OF LAW 1. A December 2000 rating decision that denied the claims for entitlement to service connection for a positive PPD test and hemorrhoids is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the December 2000 rating decision pertinent to the issue of entitlement to service connection for a positive PPD test is not new and material, and the Veteran's claim for service connection for a positive PPD test is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. Evidence received since the December 2000 rating decision pertinent to the issue of entitlement to service connection for hemorrhoids is new and material, and the Veteran's claim for service connection for hemorrhoids is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 4. The criteria for a 10 percent rating, but no higher, for right middle finger arthritis have been met effective June 3, 2016. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5229. 5. The criteria for a 60 percent rating, but no higher, for a bowel disability have been met effective June 19, 2017. 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 7332. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1979 to November 2000. The Veteran's claims were previously before the Board of Veterans Appeals (Board) in December 2018 and September 2021 wherein they were remanded for additional development. The claims have now returned to the Board. To the extent that entitlement to a total disability rating based on individual unemployability (TDIU) has been raised by the record, the Veteran was granted a TDIU effective February 1, 2017, the date after he last worked. Petitions to Reopen The Veteran seeks to reopen his previously denied claims for entitlement to service connection for a positive PPD test and hemorrhoids. Notwithstanding determinations by the RO that new and material evidence has or has not been received to reopen the Veteran's claims, it is noted that on its own, the Board is required to determine whether new and material evidence has been presented. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (holding that the Board has a legal duty under 38 U.S.C. §§ 5108 and 7104, to address the question of whether new and material evidence has been presented to reopen a previously denied claim); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. The Court has elaborated on what constitutes "new and material evidence." New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 283 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for a positive PPD test. 2. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for hemorrhoids. Claims for entitlement to service connection for a positive PPD test and hemorrhoids were last denied in a December 2000 rating decision on the basis that there was no evidence of a current diagnosis of hemorrhoids, or any current residuals of a chronic disability related to the in-service positive PPD test. The Board notes that a PPD test, or purified protein derivative skin test, is used to determine if a patient has tuberculosis. A positive test in and of itself is not a recognized disability for VA compensation purposes, as it amounts to a laboratory finding. Evidence received since the rating decision consists of numerous medical records and documents. Along with the Veteran's petition to reopen his claim for a positive PPD test, the Veteran submitted service treatment records documenting that he had multiple positive PPD tests during service. However, this evidence is not new; service treatment records were previously associated with the claims file and the RO conceded in the December 2000 rating decision that the Veteran had multiple positive PPD tests during service. Unfortunately, the Veteran has not submitted any lay statements or medical evidence describing that he experiences any current residuals as a result of his positive PPD test(s) during service. Medical evidence does not contain any information pertaining to any symptoms such as respiratory problems or any reported symptoms that the Veteran has asserted are due to his in-service positive PPD test. The evidence is not material because it cannot reasonably substantiate the claim were it to be reopened, as the evidence does not demonstrate that the Veteran has any current residuals, symptoms, or diagnoses as a result of his in-service positive PPD test. See Villalobos v. Principi, 3 Vet. App. 450 (1992) (noting that evidence that is unfavorable to a claimant is not new and material). Therefore, the Board has no alternative but to conclude that the additional evidence received in this case does not relate to an unestablished fact necessary to substantiate the claim and thus is not material; the petition to reopen the previously denied claim for entitlement to service connection for a positive PPD test is denied. Regarding the issue of entitlement to service connection for hemorrhoids, the evidence indicates that the Veteran was diagnosed with internal hemorrhoids in a March 2016 private evaluation. The Board finds that this additional evidence is neither cumulative nor redundant, and it is material since the evidence raises the possibility of substantiating the claim of service connection for hemorrhoids. The Board determines that the claim is reopened. Increased Ratings Claims 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. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 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 Board has considered the record and has found that staged ratings are not warranted because the degree of disability has remained approximately the same. 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). 3. Entitlement to a compensable rating for a right middle finger disability, prior to November 20, 2019, and to a rating higher than 10 percent, thereafter. The Veteran filed a claim for an increased rating for residuals of a right middle finger injury that was received in August 2016. Through a May 2020 rating decision, the Veteran's right middle finger rating was increased to 10 percent, effective November 20, 2019. The AOJ noted the Veteran had a diagnosis of arthritis in his middle finger and that arthritis affected multiple joins with limitation of motion of the Veteran's right hand. Under Code 5229, a noncompensable rating is warranted for a gap of less than one inch (2.5 cm) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and with extension limited by no more than 30 degrees. A 10 percent disability rating is warranted for a gap of one inch (2.5 cm) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or with extension limited by more than 30 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5010, posttraumatic arthritis, such a diagnosis should be rated under the provisions of Diagnostic Code 5003. Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. When assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when her symptoms are most prevalent ("flare-ups") due to the extent of her pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Further, the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Evidence and Analysis The probative evidence of record demonstrates that arthritis was found in the Veteran's right middle finger through imaging dated August 3, 2016 (x-ray finger, right middle: arthrosis in distribution most consistent with degenerative joint disease). See November 2019 VA examination. Further, the Veteran has complained of painful motion in that finger. Given this, the Board finds the criteria for a 10 percent rating is met under Diagnostic Code 5010-5229. In order for a higher rating to be warranted under Diagnostic Codes 5003 or 5010, arthritis of another service-connected minor joint would need to be found, along with evidence of occasional incapacitating episodes. A 10 percent rating is the highest rating under Diagnostic Code 5229. The Board has considered whether the Veteran would be entitled to a higher or separate rating under any other diagnostic code. The only other possibility for a higher disability rating would be under Diagnostic Code 5154 for amputation of the long finger. However, the functional impairment comparable to amputation is simply not shown. Turning to the effective date of the award, an increased rating may be awarded up to one year prior to receipt of the claim if the evidence shows an increase in disability was factually ascertainable during that period. 38 C.F.R. § 5110 (b)(3); 38 C.F.R. § 3.400 (o)(2). For this purpose, the evidence must show that the increase in disability was sufficient to warrant a higher rating under the rating criteria. Hazan v. Gober, 10 Vet. App. 511, 519 (1992). Thus, determining the proper date for an increased rating requires (1) a determination of the date of the receipt of the claim for the increased rating and (2) a review of all the evidence of record in the one year prior to the date of the claim to determine when an increase in disability was "factually ascertainable" in terms of meeting or approximating the criteria for a higher rating. See id. at 521. As explained above, the date of receipt of the Veteran's formal claim for increased rating for his middle finger was August 20, 2016. VA treatment records indicate that the Veteran complained of arthritis like symptoms of pain and stiffness within one year of the Veteran's claim, in June 2016. The Veteran has continued to complain of painful motion in that finger. Thus, the Board finds that it is factually ascertainable that the Veteran had increased symptoms related to his right middle finger within the one year prior to the date of his claim and the 10 percent rating is warranted as of June 3, 2016. In summary, the Board finds that the criteria for a 10 percent rating, but no higher, for arthritis of the right middle finger is met effective June 3, 2016. 4. Entitlement to a rating higher than 30 percent for a bowel disability, prior to August 18, 2018, and to a rating higher than 60 percent, thereafter. The Veteran contends that an increased rating is warranted for his bowel disability. The Veteran has indicated that he has trouble "deferring" his bowel movements once he feels he needs to defecate. As a result, the Veteran must wear pads to prevent accidents and stays near a bathroom. The Veteran's bowel disability is rated under 38 C.F.R. § 4.114, Diagnostic Code 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. Evidence As stated above, the Veteran applied for an increased rating for his bowel disability that was received June 19, 2017. The Veteran reported that his disability had worsened and was attending physical therapy for his condition to strengthen muscles to help him better control his bowels. The Veteran's first VA examination during the period on appeal was in July 2017. He stated that he used two diapers a day, on average. The examiner found that the Veteran's impaired sphincter manifested in leakage that necessitated the wearing of a pad. No other abnormalities were noted. The Veteran sought physical therapy from K.O. from February 2017 until August 2017. He reported bowel movements from 2-4 times a day. He would have a strong urge to have a bowel movement and if he did not make it to a toilet in time, he would have full incontinence. He also reported that he went on a trip between March 2017 and June 2017 (although it is unclear how long the trip was) and reported he had "some" and "multiple" accidents while on the trip. It is unclear from these records whether the Veteran reported leakage other than the full incontinence he may experience if he does not defecate into a toilet. See VBMS, document labeled Medical Treatment Record - Non-Government Facility, receipt date July 21, 2017. VA medical records from July 2017 report similar findings as the physical therapy records. The Veteran reported sometimes using 1-4 diapers a day. At his final appointment in August 2017, the Veteran reported no episodes of fecal incontinence because he was close to a bathroom at home. However, he tried to defer the urge to defecate, but was unable to do so and had to use the restroom when the feeling came. See VBMS, document labeled Medical Treatment Record - Non-Government Facility, receipt date September 28, 2017. Private records from September 2017 indicate he could only hold his stool for a few minutes before having incontinence. He denied any leakage of stool on his underwear. His stools were formed and that he averaged 3 bowel movements a day. See VBMS, document labeled Medical Treatment Record - Government Facility, receipt date November 21, 2017, page 6 of 8. The Veteran's next VA examination was November 2017. His symptoms were again similar: he could only hold his bowels for short periods of time and was only able to make it to the restroom if it was close by. He reported he wore incontinence pads when leaving home. The examiner assessed occasional moderate leakage that necessitated wearing a pad. The Veteran's final VA examination was in August 2018. The Veteran explained that he needed to wear a "diaper like apparatus" and was unable to predict bowel movements. The examiner found the condition to have progressed with more frequent episodes of stool incontinence and that "he [could not] always get to the bathroom in time and has necessitated wearing absorbable material." Given this finding, the examiner assessed fairly frequent involuntary bowel movements. Based on this examination, the AOJ assigned a 60 percent rating, effective the date of the examination. VA records in December 2018 report complaints of having gradual worsening of fecal incontinence over the previous two years if he could not use bathroom right away with urgency to defecate. No incontinence occurred when he was sleeping. An identical VA record was found in December 2015. Thus, given all of the above, the Board finds the Veteran's bowel disability to have manifested in symptomology most closely analogous to "extensive leakage and fairly frequent involuntary bowel movements" consistent with a 60 percent rating under Diagnostic Code 7332. While the Veteran does not necessarily have those symptoms on a regular basis, as reported by the Veteran it is because he never leaves his home. The statements in the record make clear that when the Veteran does leave the house and cannot locate a bathroom, full defecation occurs. The Board finds this to be analogous to extensive leakage. However, at no time has the record approximated complete loss of sphincter control consistent to a 100 percent rating under Diagnostic Code 7332. To approximate this, the Veteran would need to have no control over his bowel movements and that symptomology is not supported by the record. The Veteran has consistently indicated that he can hold his bowels for a least a few minutes. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds the criteria for a 60 percent rating, but no higher, have been met for the entire period on appeal. REASONS FOR REMAND 5. Entitlement to service connection for hemorrhoids, to include as secondary to service-connected residuals of bowel incontinence, status post fistula surgery. The claim for entitlement to service connection for hemorrhoids has been reopened. The Board finds that additional development is necessary. Prior VA examinations did not find any current hemorrhoids; however, as noted, the Veteran has been diagnosed with internal hemorrhoids during the course of this appeal. On remand, the Veteran should be afforded a VA examination and a medical opinion should be obtained. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated treatment records. 2. Afford the Veteran a VA examination for his hemorrhoids. The entire file must be made available to the examiner. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner must opine as to whether the Veteran's claimed hemorrhoids at least as likely as not: a) had an onset during service or are causally or etiologically due to service; OR, b) are proximately due to or aggravated (beyond a natural progression) by his service-connected residuals of bowel incontinence, status post fistula surgery. *In providing the requested opinions, the examiner should consider and discuss the Veteran's documented history and assertions, to include the Veteran's statements that his hemorrhoids are a chronic condition that had an onset during service, as well as his post-service diagnoses of internal hemorrhoids documented in the claims file. The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. L. ANDERSEN 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.