Citation Nr: 21008553 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 10-04 268A DATE: February 17, 2021 ORDER Entitlement to an initial rating in excess of 30 percent for a spastic stomach, to include irritable bowel syndrome (IBS), is denied. Entitlement to a separate 10 percent rating (but no higher) for fecal incontinence from March 22, 2012, to August 23, 2019, is granted, subject to the rules governing the payment of monetary benefits. Entitlement to an initial rating in excess of 30 percent for fecal incontinence from August 24, 2019, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to July 27, 2009, is denied. FINDINGS OF FACT 1. The Veteran’s IBS is shown to be severe, with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress consisting of nausea after eating meals; at no point during the appeal period is there evidence of severe symptoms resulting in malnutrition. 2. Beginning March 22, 2012, through August 23, 2019, the Veteran had mild impairment of sphincter control with occasional leakage. 3. From August 24, 2019, the Veteran had occasional involuntary bowel movements necessitating the wearing of a pad; at no point during the appeal period did his fecal incontinence result in extensive leakage and fairly frequent involuntary bowel movements. 4. Prior to July 27, 2009, the Veteran was not prevented from securing and following substantially gainful employment as a result of his service-connected spastic stomach, to include IBS. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent for a spastic stomach, to include IBS, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.114, Diagnostic Code (DC) 7319-7323. 2. Beginning March 22, 2012, through August 23, 2019, the criteria for entitlement to a separate 10 percent evaluation (but no higher) for fecal incontinence is granted. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.20, 4.113, 4.114, DC 7332. 3. From August 24, 2019, the criteria for an initial rating in excess of 30 percent for fecal incontinence have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.114, DC 7332. 4. Prior to July 27, 2009, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1972 to January 1974. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for spastic stomach, to include IBS, effective September 10, 1999, and assigned an initial disability rating of 30 percent. In October 2014, the Veteran testified at a videoconference hearing before the undersigned. A transcript of that hearing has been associated with the claims file. This matter was previously before the Board in October 2015, June 2018, and November 2019 when it was remanded for additional development. In accordance with the November 2019 remand, the RO considered the applicability of other diagnostic codes and, in an October 2020 rating decision, granted service connection for fecal incontinence, rated 30 percent, effective August 24, 2019. Because the Veteran is presumed to be seeking the maximum available benefit, this issue remains before the Board. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Notably, the Board observes that evidence in the claims file may indicate that the Veteran’s hemorrhoids and/or hernia could be related to his service-connected IBS and fecal incontinence. The Board encourages the Veteran to file a claim for entitlement to service connection for these disabilities so that this evidence may be considered. Entitlement to: an initial rating in excess of 30 percent for a spastic stomach, to include IBS; an initial 10 percent rating for fecal incontinence from March 22, 2012, to August 23, 2019; and an initial rating in excess of 30 percent for fecal incontinence from August 24, 2019. The Veteran contends that he is entitled to a higher rating due to the severity of his IBS symptoms. The Veteran’s IBS is rated pursuant to 38 C.F.R. § 4.114, DC 7323-7319. See 38 C.F.R. § 4.27 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional diagnostic code is shown after the hyphen). Here, the RO rated the Veteran’s IBS pursuant to DC 7323 for ulcerative colitis and 7319 for irritable colon syndrome. As noted above, the Veteran has also been granted a separate 30 percent rating for fecal incontinence, effective August 24, 2019, pursuant to DC 7332. Pursuant to DC 7319, a 30 percent disability rating is the highest rating available and is warranted for severe symptoms, including diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. Pursuant to DC 7323, a 30 percent rating is warranted for moderately severe symptoms with frequent exacerbations. A 60 percent rating is warranted for severe symptoms with numerous attacks a year and malnutrition, the health only fair during remissions. A 100 percent rating is warranted for pronounced symptoms resulting in marked malnutrition, anemia, and general debility, or with serious complication as liver abscess. Pursuant to DC 7332, a noncompensable rating is assigned for healed or slight impairment of sphincter control, without leakage. A 10 percent rating is warranted for constant slight, or occasional moderate leakage. A 30 percent rating is warranted for occasional involuntary bowel movements necessitating wearing of a pad. A 60 percent rating is warranted for extensive leakage and fairly frequent involuntary bowel movements, and a 100 percent rating is warranted for complete loss of sphincter control. For the reasons that follow, a rating in excess of 30 percent for IBS is denied. A separate 10 percent rating for fecal incontinence is granted, effective March 22, 2012. A rating in excess of 30 percent for fecal incontinence from August 24, 2019, is denied. During June 2002 VA treatment, the Veteran reported two severe bouts of abdominal cramps with diarrhea that required him to stay in bed all day. On April 2003 VA digestive conditions examination, the Veteran reported decreased appetite and chronic alternating bowel movements with constipation and diarrhea. He also reported feeling nauseated at times that was only sometimes relieved with eating or occasional vomiting. His bowel movement frequency was between zero to four times daily, which affected his lifestyle and ability to work or eat. During November 2003 VA treatment, the Veteran complained of abdominal pain for the entire week; he denied nausea or vomiting but complained of diarrhea, with symptoms present most of the time for several months. In December 2003, he reported a seven-pound weight loss the month prior. During March 2004 VA treatment, the physician noted a 30-pound weight loss over the prior year. During June 2004 VA treatment, the Veteran reported having a poor appetite but no weight loss. In October 2004, he continued to report ongoing gastrointestinal problems but no drastic weight loss. The December 2007 VA stomach examiner noted periods of incapacitation due to stomach or duodenal disease four or more times a year, lasting three days. There were no episodes of abdominal colic, nausea or vomiting, or abdominal distension. The Veteran reported daily gnawing/burning pain before eating that lasts one to two hours. There were no episodes of hematemesis or melena; he reported a history of nausea occurring several times daily, a history of persistent diarrhea occurring four to six times daily, and abdominal distress. Other symptoms included belching, constipation, and weight loss. There was no evidence of significant weight loss, malnutrition, or anemia. During the examination, the Veteran reported that he medically retired due to right shoulder and neck disabilities. The examiner stated that the Veteran’s IBS did not affect his usual daily activities. During July 2009 VA treatment, the Veteran reported two bad episodes of IBS during the month accompanied by nausea, diarrhea, and severe cramping; he lost six pounds since February. In February 2010, his flare-ups with IBS were under control. However, in May 2010, the Veteran reported an unintentional weight loss of 15-20 pounds of the prior six to eight months. During August 2010 VA treatment, the Veteran reported having several episodes a month with his IBS where he is not able to eat for several days. He stated that his IBS and anxiety have resulted in his inability to sustain substantially gainful employment. He also noted a prior arm injury that left him with “little use for his right arm.” In August 2010, the Veteran reported increased cramping and uncontrollable diarrhea. During September 2011 VA treatment, the Veteran stated that he had not worked in years due to his psychiatric disorder secondary to his IBS, as well as his shoulder and neck disabilities. His IBS made it difficult for him to go out in public. During VA treatment in March 22, 2012, the Veteran stated that he must stay near a restroom. He vacillated between diarrhea and constipation. Although he noted that he cannot work because of his shoulder, he added that he learned to “deal with this” and that now, his anxiety and IBS outweigh his neck and shoulder injuries; specifically, it takes him days to recover from his anxiety. In June 2012, the Veteran reported that he has no control over his IBS and that he is afraid to go anywhere because of his bowel problems. He was either constipated or had diarrhea two to three times a week. In August 2012, he stated that pain from his stomach was sometimes so bad he could hardly move. In December 2012, he reported a 10 to 15-pound weight loss of the last year; he wakes up at night to have a bowel movement. In an August 2012 statement, the Veteran reported that he is unable to attend events because he becomes anxious and often loses control of his bowels. His stomach bothers him often, but sometimes the pain is extreme and, “before I can make it to the restroom[,] I have already had a bowel movement on myself.” In January 2015, the Veteran reported worsened diarrhea and some incontinence. He denied abdominal pain, cramping, or bloody stools. During June 2015 VA treatment, the Veteran reported poor appetite secondary to gastrointestinal problems, with his weight going “up and down.” An August 2015 VA treatment record noted his report of worsened IBS over the prior six months, with symptoms becoming more frequent. During the November 2015 VA rectum examination, internal hemorrhoids were noted as being diagnosed in 2011. He denied any specific rectal problem, including bleeding hemorrhoids or other gastrointestinal bleeding; his primary problem around his rectum was diarrhea and urgency associated with his IBS; this caused stool incontinence about once per month. He did not wear any pads or adult diapers. During his November 2015 VA intestinal examination, the Veteran reported alternating diarrhea and constipation, as well as mid and lower abdominal discomfort. The examiner indicated frequent episodes of bowel disturbance with abdominal distress and weight loss attributable to his condition. There was no malnutrition, and no serious complications or other general health effects were noted. The examiner determined that the Veteran’s condition did not impact his ability to work. During his November 2015 VA stomach examination, peptic ulcer disease was diagnosed; he denied any symptoms related to it. Instead, the Veteran reported diarrhea several times a week and stool incontinence once a month. A complete blood count (CBC) report from September 2015 did not show signs of anemia and the Veteran was negative for helicobacter pylori. During his June 2016 VA intestinal examination, the Veteran reported continued intermittent diarrhea alternating with constipation, as well as associated abdominal bloating and cramping. His diarrhea was associated with watery, but not bloody, stools and occurred at least once a week. Additional symptoms included nausea and (borderline) anemia. The examiner noted frequent episodes of bowel disturbance with abdominal distress. There was no associated weight loss, malnutrition, serious complications, or other general health effects attributable to his condition. The Veteran had not lost any weight in two years, but was unable to gain weight. The examiner determined that the Veteran’s condition impacted his ability to work due to his “frequent bouts of diarrhea.” During his August 2019 VA intestinal examination, the Veteran reported poor eating habits, severe weight loss, and malnutrition. He has to be careful what he eats due to flareups. He deals with loose bowel symptoms throughout the day, reporting that his stools start off as constipation with severe cramping and then results in diarrhea for several days. His symptoms included alternating diarrhea and constipation and abdominal tenderness with bloating during flareups. He has more or less constant abdominal distress with exacerbations occurring seven or more times in the prior 12 months. The Veteran reported a weight loss of 10 pounds; he also reported having a recent hernia surgery as a result of straining with bowel movements. The examiner noted general debility and malnutrition. Later during the examination, however, the examiner reported that there was no indication of malnutrition based on lab work from August 2015. He opined that the Veteran’s frequent bowel movements impact his ability to work; he does not wear incontinence pads but must always remain close to a restroom for flare-ups. His symptoms are unstable, and the Veteran is unable to perform activities on a regular basis. The examiner determined the Veteran’s condition was moderately severe and continues to affect him daily. On September 2020 VA intestinal examination, the Veteran’s current symptoms included intermittent abdominal pain, diarrhea, nausea, bloating, and intermittent fecal incontinence. He had frequent episodes of bowel disturbance with abdominal distress and seven or more episodes of exacerbations during a 12-month period. There was no weight loss attributable to his condition; he was not malnourished and had no other serious complications or other general health effects attributable to his condition. His diarrhea, swelling, and abdominal pain, as well as fecal incontinence, impaired his focus and concentration and decreased his overall mobility. In an addendum opinion, the examiner clarified that the Veteran reported experiencing three episodes of fecal incontinence per year beginning approximately two years prior; the examiner determined that the Veteran had occasional involuntary bowel movements that necessitated the wearing of a pad. As mentioned above, a rating in excess of 30 percent under DC 7323-7319 is not warranted unless the Veteran has severe symptoms resulting in numerous attacks a year and malnutrition, the health only fair during remissions. The Board notes that, during his August 2019 VA examination, the Veteran reported malnutrition and that the examiner, at one point during the exam, noted general debility and malnutrition, and then later determined that there was no indication of malnutrition based on lab work from August 2015. However, at no other point throughout the entire appeal period, a period of more than two decades, was malnutrition noted during any VA examination (including the one conducted a year later) or VA treatment. Accordingly, the Board finds that this notation of malnutrition is an outlier and not to be considered as accurate. Based on this finding of no malnutrition, a rating in excess of 30 percent for IBS under DC 7323-7319 is denied. The Board finds, however, that, beginning March 22, 2012, a 10 percent rating for fecal incontinence is warranted. This was the first report of the Veteran stating that he needs to remain near a restroom due to his condition. In June 2012, he stated that he has no control over his IBS. In August 2012, he reported losing control of his bowels and having a movement on himself before he can make it to a restroom. In January 2015, he reported some incontinence. In November 2015, he reported stool incontinence about once per month. During this period, however, there was no evidence of the Veteran experiencing occasional involuntary movements that necessitated the wearing of a pad. Accordingly, and granting the benefit of the doubt, the Board finds that a 10 percent rating (but no higher) for fecal incontinence is warranted from March 22, 2012, through August 23, 2019. From August 24, 2019, a rating in excess of 30 percent for fecal incontinence is denied as there is no evidence of the Veteran experiencing extensive leakage and fairly frequent involuntary bowel movements. In fact, the August 2019 VA examiner noted that the Veteran does not wear incontinence pads but must always remain close to a restroom for flare-ups. In an addendum opinion, the September 2020 VA examiner stated that the Veteran had occasional involuntary bowel movements that necessitated the wearing of a pad. At no point during this period is there evidence of extensive leakage and fairly frequent involuntary bowel movements. Accordingly, a rating in excess of 30 percent for fecal incontinence from August 24, 2019, is denied. Entitlement to a TDIU prior to July 27, 2009. TDIU may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: (1) the Veteran’s history, education, skill, and training; (2) whether the Veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the Veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and (3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the Veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Even if service-connected disabilities fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), referral to the Director, Compensation Service for extraschedular consideration of a TDIU is warranted if the Veteran nonetheless is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities. 38 C.F.R. § 4.16(b). In a February 2013 rating decision, the RO granted the Veteran a TDIU, effective July 27, 2009. Prior to this date, the Veteran’s service-connected spastic stomach, to include IBS, did not meet the minimum schedular rating requirement for TDIU and the preponderance of the evidence shows that was he was not unable to secure or follow a substantially gainful occupation as a result of this service-connected disability prior to that date. Specifically, in October 2001 correspondence, the Veteran reported that he has been unable to work since 1993 “due to severe nerve damage to my right shoulder, arm[,] and neck.” During his December 2007 VA examination, he reported that he medically retired (i.e., stopped working) due to his nonservice-connected right shoulder and neck disabilities. That examiner found that the Veteran’s IBS did not affect his usual daily activities. At no point prior to July 27, 2009, did the Veteran claim or even imply that his service-connected IBS alone prevented him from securing or following substantially gainful employment and the record does not indicate such. Thus, a referral to the Director is not necessary. Accordingly, an earlier effective date for TDIU is not warranted and the appeal is denied. K.A. KENNERLY Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Matta, 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.