Citation Nr: 21009226 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 19-22 234 DATE: February 19, 2021 ORDER Entitlement to a 100 percent initial disability rating for radiation proctitis with irritable bowel syndrome due to prostate cancer is granted. Special monthly compensation under 38 U.S.C. § 1114(s) is granted. FINDINGS OF FACT 1. The evidence is in a state of relative equipoise regarding whether radiation proctitis has caused complete loss of sphincter control. 2. Service-connected renal disease is rated 60 percent disabling. CONCLUSIONS OF LAW 1. The criteria for a 100 percent initial disability rating for radiation proctitis with irritable bowel syndrome due to prostate cancer are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.114. 2. The criteria for special monthly compensation are met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran retired from military service in March 1985 after over 20 years combined service in the U.S. Marine Corps and U.S. Coast Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified in a hearing before the Board. A transcript of the hearing has been included in the electronic claims file and has been reviewed. The radiation proctitis disability addressed here, which is rated under Diagnostic Code (DC) 7332 of 38 C.F.R. § 4.114, is not subject to the prohibition against combined ratings noted under 38 C.F.R. §§ 4.113, 4.114. The Board therefore refers to the RO the issue of whether a separate disability rating has been warranted under DC 7319 for service-connected irritable bowel syndrome (IBS). 38 C.F.R. § 4.114. Initial Rating On October 21, 2015, the Veteran claimed entitlement to service connection for prostate cancer and residuals. In the June 2016 rating decision on appeal, the RO granted the claim. In relevant part the RO rated radiation proctitis, a residual of cancer treatment, 30 percent disabling effective the date of claim. The Veteran asserts entitlement to a higher initial rating. Law and regulations Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations shall be applied, 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 are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The RO has rated radiation proctitis under DC 7332 of 38 C.F.R. § 4.114. Thereunder, ratings of 0, 10, 30, 60, and 100 percent are authorized. Inasmuch as the disability has been rated 30 percent disabling throughout the appeal period, the Board will limit its analysis to whether a 60 or 100 percent rating has been warranted since October 2015. 38 C.F.R. § 3.400. A 60 percent rating is warranted under DC 7332 for extensive leakage and fairly frequent involuntary bowel movements while a 100 percent rating is warranted for complete loss of sphincter control. 38 C.F.R. § 4.114. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Symptomatology attributed to a nonservice-connected disability cannot be differentiated from symptomatology attributed to a service-connected disability unless medical evidence does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In the absence of such medical evidence, the reasonable doubt doctrine dictates that all symptoms be attributed to the service-connected disability. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Evidence and analysis The evidence in this matter consists of lay assertions, VA and private treatment records, and VA compensation examination reports dated in December 2015, January 2016, June 2016, and June 2019. This evidence is in a state of relative equipoise regarding whether the criteria for a 100 percent rating have been met throughout the appeal period. Certain evidence indicates less than total loss of sphincter control during the appeal period. Private treatment records dated around the time of the initial claim indicate no dysfunction. Records dated in April 2015 indicate no complaints of incontinence, and no side effects from treatment, while January 2016 records note reports of constipation, diarrhea, nausea, and vomiting, but not leakage or uncontrolled bowel movements. A VA treatment record dated in July 2017 indicates, moreover, that the Veteran reported no incontinence and needed no containment garment. However, certain other evidence indicates more severe symptoms. The VA reports tend to support the notion that the Veteran has had no sphincter control. The December 2015 VA report did not address prostate cancer residuals because relevant treatment records were not in the claims file. In a January 2016 report, another examiner noted a review of the private treatment records and noted proctitis with leakage of blood, mucous, and stool from the rectum, and noted that the Veteran wore protective pads on a daily basis. In a June 2016 addendum report, another VA examiner found residuals of intermittent painless rectal bleeding and rectal incontinence. The June 2019 VA report notes rectal bleeding about once per month, daily mucus, stool leakage most days, and pruritus every 1-2 weeks for 1-2 days. This report also notes that absorbent materials must be changed one to seven times per day. This examiner also noted that the Veteran reported trying multiple different medications and that absorbent material had poor results. The report indicates that a specialist eventually implanted a neural stimulator to manage the symptoms, but that the Veteran nevertheless continued to use absorbent materials. The Board also notes that, notwithstanding the evidence dated in 2015 and 2016 indicating milder symptoms, private medical evidence dated in 2011 and 2012 indicated loss of sphincter control, repeated bowel movements into the pants, blood in the stool, leakage, and the need to wear a diaper. Most persuasive, private medical evidence dated in 2018 and 2019 supports the assignment of a 100 percent rating. In the records, the Veteran’s treating physicians repeatedly note the Veteran as having severe fecal incontinence episodes, full incontinence, and “complete fecal incontinence.” The lay evidence also supports the assignment of a 100 percent evaluation here. The Veteran is competent to report observable symptoms such as leakage, diarrhea, bowel movements, and problems associated with wearing absorbent materials. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, the Board finds him credible. He has been consistent in his statements during the appeal period, indicating that he cannot control his sphincter and as a result cannot stop himself from defecating in his pants. Indeed, his testimony before the Board was persuasive. See Smith v. Derwinski, 1 Vet. App. 235 (1991) (credibility is determined by the fact finder). Based on the foregoing, the Board cannot find that a preponderance of the evidence is against the assignment of a 100 percent rating here. Accordingly, this is an appropriate case in which to invoke VA’s doctrine of reasonable doubt, grant the Veteran the benefit of the doubt, and grant the claim. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Special Monthly Compensation Inasmuch as a 100 percent rating has been assigned, the Board has considered whether special monthly compensation should be assigned. See Buie v. Shinseki, 24 Vet. App. 242, 248 (2010); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Special monthly compensation (SMC) is available when, as the result of service-connected disability, a veteran suffers additional hardships above and beyond those contemplated by VA’s schedule for rating disabilities. See 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. The rate of SMC varies according to the nature of service-connected disability. Basic levels of SMC are listed at 38 U.S.C. § 1114 (k). Higher levels of SMC are provided at 38 U.S.C. § 1114 (l) through (t). SMC may apply in cases where a 100 percent rating has been assigned. In such cases, SMC may be assigned where there is additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 U.S.C. § 1114(s). Otherwise, SMC may be assigned where service-connected disability causes a Veteran to be permanently housebound, in need of regular aid and attendance of another individual or has resulted in the loss of use of a creative organ, limb, blindness, aphonia, or deafness. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. With regard to being housebound, this requirement is met when the Veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. Besides radiation proctitis now rated as 100 percent disabling, the Veteran’s other service-connected disabilities are renal disease rated as 60 percent disabling, posttraumatic stress disorder rated as 50 percent disabling, diabetes mellitus type 2 rated as 20 percent disabling and, rated as 10 percent disabling, hypertension, dermatitis, and tinnitus, and as 0 percent disabling, hearing loss, foot disability, respiratory disability, and urinary frequency as a residual of prostate cancer. (Continued on the next page)   The facts of this case would not support the assignment of SMC under any provision other than 38 U.S.C. § 1114(s). The evidence demonstrates that the Veteran is mobile, leaves his house to run chores and attend medical appointments, is capable of performing activities of daily living notwithstanding his incontinence, is not blind, deaf, or unable to speak, and has not lost the use of a limb. Nevertheless, because radiation proctitis is rated 100 percent disabling, and renal disease is separately rated 60 percent disabling, SMC is warranted under 38 U.S.C. § 1114(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher McEntee, 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.