Citation Nr: 21009677 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 12-12 256 DATE: February 23, 2021 ORDER Entitlement to an increased rating of 60 percent, but not higher, for residuals of colectomy with perianal fistula and decreased sphincter control, prior to July 26, 2010, is granted. Entitlement to an increased rating of 100 percent disabling for residuals of colectomy with perianal fistula and decreased sphincter control, effective July 26, 2010, but not earlier, is granted. FINDINGS OF FACT 1. Prior to July 26, 2010, residuals of colectomy with perianal fistula and decreased sphincter control was manifested by extensive leakage and fairly frequent involuntary bowel movement. 2. Effective July 26, 2010, but not earlier, residuals of colectomy with perianal fistula and decreased sphincter control was manifested by copious and frequent, fecal discharge. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating of 60 percent, but not higher, for residuals of colectomy with perianal fistula and decreased sphincter control, prior to July 26, 2010, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.114, Diagnostic Code 7329-7335. 2. The criteria for entitlement to an increased rating of 100 percent for residuals of colectomy with perianal fistula and decreased sphincter control, effective July 26, 2010, but not earlier, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.114, Diagnostic Code 7329-7335. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1986 to December 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 2005 and February 2009 rating decisions the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Board denied entitlement to an initial rating more than 30 percent prior to July 24, 2013, for residuals of colectomy with perianal fistula and decreased sphincter control; and more than 60 percent from July 24, 2013, to August 11, 2016. The Veteran appealed to the United States Court of Appeals for Veterans Claims. In June 2020, the Court granted the Parties’ Joint Motion for Remand; vacated the June 2019 Board decision that denied the claim of entitlement to an initial rating more than 30 percent prior to July 24, 2013, for residuals of colectomy with perianal fistula and decreased sphincter control, and more than 60 percent from July 24, 2013, to August 11, 2016, and remanded the matter to the Board for additional action consistent with the Joint Motion for Remand. 1. Entitlement to an increased rating for residuals of colectomy with perianal fistula and decreased sphincter control 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. The basis of disability ratings is the ability of the body, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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. However, rating the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. The Veteran’s entire history is reviewed when making a disability determination. Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran contends that service-connected colectomy residuals warrant a higher rating. The Veteran's residuals of colectomy, to include perianal fistula and decreased sphincter control, are currently rated 30 percent prior to July 24, 2014; 60 percent effective July 24, 2013, and 100 percent as of July 24, 2013, pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7335-7332. Code 7335 pertains to a fistula in ano and indicates that the disability should be rated as impairment of sphincter control. 38 C.F.R. § 4.114, Code 7335. The Board notes that VA will not strictly apply the rating criteria where Veteran’s service- connected condition is rated by analogy, as it is here. Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006). Under Diagnostic Code 7332, for rating impairment of sphincter control, a 30 percent rating is assigned for occasional involuntary bowel movements, necessitating wearing of pads. A 60 percent rating is assigned for extensive leakage and fairly frequent involuntary bowel movements. A 100 percent rating is assigned for complete loss of sphincter control. 38 C.F.R. § 4.114. Under Diagnostic Code 7329 for resection of the large intestine, a 10 percent rating is warranted for slight symptoms. A 20 percent rating is warranted for moderate symptoms. A 40 percent rating is warranted for severe symptoms, objectively supported by examination findings. Under Diagnostic Code 7330, a 30 percent rating is warranted for slight infrequent fecal discharge. A 60 percent rating is warranted for constant or frequent fecal discharge. A 100 percent rating is warranted for copious and frequent fecal discharge. Under Diagnostic Code 7333, a 30 percent rating is warranted for moderate reduction of lumen or moderate constant leakage. A 50 percent rating is warranted for great reduction of lumen, or extensive leakage. A 100 percent rating is warranted for colostomy. During VA examination in October 2004, the Veteran was noted as suffering from abdominal pain located at the lower right quadrant. The Veteran reported losing roughly 12 pounds in one month, and suffering from nausea and vomiting, chronic constipation, diarrhea, and alternating diarrhea and constipation daily. The Veteran reported using a pad or absorbent material four times per day. The Veteran’s rectal examination was abnormal, with findings of a perianal fistula and anal mucosa that was rough to palpation. During VA examination in April 2006, the Veteran’s rectal examination was within normal limits. During VA examination in January 2007, the Veteran was reported to have a stool leakage problem that occurred more than 2/3 of the day in slight amounts, requiring a pad three times per day. The Veteran’s rectal examination found moderate reduction of lumen, and partial loss of sphincter control. There was no evidence of bleeding, thrombosis, or frequent recurrence, with excessive redundant tissue. The Veteran’s condition was not noted as causing malnutrition. During the June 2008 VA examination, the Veteran reported a history of Crohn’s disease and colectomy. He reported that he experienced decreased sphincter control and that he used perianal pads. His height was 74 inches and his weight was 234 pounds. On rectal physical examination there was evidence of bright red bloody stool, but no documentation of decreased anal sphincter control. The Veteran informed the examiner that he had adjusted his lifestyle to meet the need of frequent bathroom visits. A July 2009 medical treatment note describes the Veteran as experiencing chronic diarrhea five to seven times a day, loose stools, and occasional incontinence and tenesmus. The Veteran reported chronic bloody discharge from the fistula site, with chronic anal and buttock pain. During VA examination in January 2010, the Veteran’s rectal examination showed moderate reduction of lumen. The Veteran had normal sphincter control, rectal tonus, anal reflexes, and prostate examination. A July 26, 2010 medical note describes the Veteran as having chronic diarrhea resulting in up to 15 bowel movements daily. In a December 2012 medical statement, M.W., M.D. indicated that the Veteran’s disease caused chronic on and off abdominal pain and a considerable variability in bowel movements. The examiner stated that the disease continued to affect the Veteran’s quality of life. During an April 2013 Decision Review Officer hearing, the Veteran testified about experiencing loss of sphincter control at times, the use of diapers, and an increase in urgency and frequency of bowel movements. A July 2013 gastroenterology note describes the Veteran as having pain with any bowel movements. The Veteran stated that he was having five to seven bowel movements a day that were loose and occasionally contained blood. The Veteran reported experiencing rectal pain, stricture, and having fecal incontinence a couple times a week. Treatment records from July 24, 2013, to August 11, 2016, show that the Veteran’s symptoms were severe with numerous attacks a year, malnutrition, and fair health only during remissions. The records also document extensive leakage and frequent involuntary bowel movements. During VA examination in August 2014, the Veteran complained of abdominal pains, skin rashes, rectal pain after bowel movements, and multiple bowel movements with occasional rectal incontinence. The Veteran was found to have constant episodes of abdominal distress, chronic diarrhea 15 to 20 times per day, abdominal cramps, constant joint pains, blurred vision, and anal discomfort. The Veteran did not have weight loss attributable to an intestinal condition. In December 2015, the Veteran was admitted to the hospital for surgery to resolve a rectal stricture. In January 2016, the Veteran was again admitted to the hospital due to Crohn’s disease. A March 2016 general surgery note describes the Veteran as frequently doing home dilators to address anorectal stricture. The Veteran denied trouble with defecation, constipation, or rectal fullness. The Veteran’s bowel movements were loose for the most part, and he had some abdominal bloating, but did not have control issues. During VA examination in August 2016, the Veteran was noted having occasional involuntary bowel movements, anal stricture with great reduction of the lumen, and impairment of rectal sphincter control with leakage necessitating the wearing of pads. The Veteran was also noted as having gastrointestinal disturbances, lower abdominal cramps, gaseous distention, chronic constipation, and nausea. Prior to July 26, 2010, based on the evidence, the Board finds that an increased rating of 60 percent is warranted. Taking into consideration the record, and resolving reasonable doubt in favor the Veteran, the Board finds that the Veteran met the criteria for a rating of 60 percent for colectomy residuals pursuant to Diagnostic Code 7332 prior to July 26, 2010. A 60 percent rating is assigned for extensive leakage and fairly frequent involuntary bowel movements. Prior to July 26, 2010, the Veteran's disability was shown to be manifested by frequent leakage problems that occurred more than two-thirds of the day, requiring the use of pads. Prior to July 26, 2010, the treatment records do not show complete loss of sphincter control. Thus, prior to July 26, 2010, an increased rating of 60 percent, but not higher, was warranted under Diagnostic Code 7332. Prior to July 26, 2010, the Board has considered whether the Veteran would be entitled to a higher rating pursuant to Diagnostic Codes 7333 (stricture of the rectum and anus) or Diagnostic Code 7329 (resection of the large intestine). Where there is a question as to which of two ratings shall be applied, the higher rating 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. However, the rating of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Here, the Board finds Diagnostic Code 7333 to not be applicable as the evidence does not show the Veteran as requiring a colostomy as would be necessary for a higher rating than the currently assigned 60 percent rating pursuant to Diagnostic Code 7332. The Board further finds that Diagnostic Code 7329 is also not for application as the Veteran’s currently assigned 60 percent rating pursuant to Diagnostic Code 7332 is higher than any available rating pursuant to Diagnostic Code 7329. Effective July 26, 2010, based on the evidence, the Board finds that an increased rating of 100 percent is warranted. Taking into consideration the record, and resolving reasonable doubt in favor the Veteran, the Board finds that the Veteran meets the criteria for a 100 percent rating for colectomy residuals pursuant to Diagnostic Code 7330, effective July 26, 2010. Under Diagnostic Code 7330, a 100 percent rating is assigned for copious and frequent fecal discharge. Effective July 26, 2010, the Veteran’s disability was shown to be manifested by constant fecal discharge, diarrhea, rectal pain, anal stricturing and fecal incontinence. Specifically, a doctor’s letter dated July 26, 2010 suggests that the Veteran experienced bouts of diarrhea up to 15 times daily. Prior to July 26, 2010, the evidence of record does not suggest the Veteran’s disability as being manifested by more than constant or frequent, fecal discharge. Prior to July 26, 2010, the Veteran was noted as having slight amounts of fecal discharge, at worst, numbering in five to seven bouts of diarrhea a day. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that, in this specific case, the medical and lay evidence of record more nearly approximates copious and frequent fecal discharge effective July 26, 2010. Thus, effective July 26, 2010, but not earlier, a 100 percent rating is warranted under Diagnostic Code 7330. The 100 percent rating is the maximum assignable for a disability under Diagnostic Code 7330. As there is no legal basis upon which to award a higher schedular rating for colectomy residuals, any claim for a disability rating in excess of 100 percent must be denied. Accordingly, the Board finds that the evidence supports the claim for entitlement to an increased rating of 60 percent rating, but not higher, for residuals of colectomy with perianal fistula and decreased sphincter control, prior to July 26, 2010; and an increased rating of 100 percent, as of July 26, 2010 Therefore, to that extent, the Board finds that the claim for an increased rating is granted. The Board finds that the preponderance of the evidence is against the assignment of any higher ratings. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mondesir, Eric 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.