Citation Nr: 21014750 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 09-19 559 DATE: March 15, 2021 ORDER Entitlement to an initial 60 percent disability rating for the Veteran's service-connected sphincter control impairment is granted. Entitlement to a disability rating in excess of 60 percent for the Veteran's service-connected sphincter control impairment, is denied. Entitlement to an effective date of June 17, 2007, but no earlier for the Veteran's entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s sphincter control impairment is most closely approximated by extensive leakage and fairly frequent involuntary bowel movements. 2. The preponderance of the evidence does not indicate that the Veteran experiences a complete loss of sphincter control. 3. The date the Veteran’s service-connected disabilities have rendered him unemployable since at least June 7, 2007. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to an initial 60 percent disability rating for the Veteran's service-connected sphincter control impairment have been met. 38 U.S.C. § 5112; 38 C.F.R. §§ 3.344, 4.114, Diagnostic Code (DC) 7332. 2. The criteria for establishing entitlement to a disability rating in excess of 60 percent for the Veteran's service-connected sphincter control impairment, have not been met. 38 U.S.C. § 5112; 38 C.F.R. §§ 3.344, 4.114, Diagnostic Code (DC) 7332. 3. The criteria for establishing entitlement to an effective date of June 17, 2008, but no earlier for the Veteran's entitlement to a TDIU, have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1990 to August 1990, from September 1990 to May 1991, from February 2008 to July 2008, and from September 2010 to December 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. When this case was last before the Board in September 2020, it was remanded for additional development. Specifically, the RO was instructed to obtain any outstanding treatment records and to readjudicate the Veteran’s claims, issuing a Supplemental Statement of the Case (SSOC) if the Veteran’s claims were not granted. The appropriate development was conducted, and the Veteran was afforded an appropriate October 2020 SSOC regarding his claim. As such, the Board finds that the AOJ substantially complied with the directives in the September 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating—Legal Criteria Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise the lower rating will be assigned. See 38 C.F.R. § 4.7. In both initial rating claims and normal increased rating claims, the Board must discuss whether “staged ratings” are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. At 54). The Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, with regard to the Veteran’s claims. Impaired Sphincter Control The Veteran asserts that he is entitled to an initial disability rating in excess of 30 percent for his service-connected impaired sphincter control for the period prior to November 6, 2019, and in excess of 60 percent thereafter. For the reasons below, the Board finds that a 60 percent disability rating is warranted throughout the period on appeal. The Veteran’s disability is currently rated under Diagnostic Code (DC) 7332. In pertinent part, a 30 percent disability rating is warranted for occasional involuntary bowel movements necessitating the wearing of a pad. A 60 percent rating is warranted for extensive leakage and fairly frequent involuntary bowel movements; and a maximum 100 percent rating is warranted for complete loss of sphincter control. 38 C.F.R. § 4.114, DC 7332. The Board notes that VA treatment records from 2007 through 2015 reflect that the Veteran had frequent daily bowel movements, ranging from at least six to 30 bowel movements per day. In addition, the Veteran reported experiencing bowel movements during the night, ranging from two to four per night. He reported that he wore pads during the day in case he could not reach the bathroom in time. In addition, he complained of abdominal cramping, bloating, gas, and occasional blood in the stool. The Board specifically notes a March 2012 treatment note which indicates that the Veteran “chronically does not have control of his own bowel movements,” and a June 2012 treatment note which indicates that the Veteran has “recurrent issues with frequent bowel movements since. . . 2006.” However, in October 2013, the Veteran denied experiencing bowel incontinence including dribbling or the need to wear a continence containment garment. The Veteran was initially provided a VA examination in March 2008. The examiner noted that the Veteran had abdominal cramps and the Veteran reported that an abdominal cramp meant that diarrhea was forthcoming and that he must rush to the restroom or risk soiling his underwear and his outer clothing if the stool quantity was large. The Veteran was on medicine, Rifaximin, for relief of diarrhea. The examiner diagnosed the Veteran with ulcerative colitis, status post total colectomy with revision of collection pouch from colostomy and reconnection of intestinal tract, with recurrent symptomatology of abdominal cramping, abdominal pain, ten to twelve liquid stools per day, marked urgency, rectal incontinence occurring shortly after the onset of urgency, without arthritis or arthralgia or skin lesions or recent fever or chills. The Veteran was next provided November 2008 VA examination. The examiner noted that the Veteran underwent two surgeries for his ulcerative colitis disability. After the second surgery, the Veteran began to have a significant increase in diarrhea. The Veteran reported that he continued to have six to ten bowel movements per day and two to three bowel movements at night. There was no fever, chills, rectal bleeding, abdominal pain, or weight loss. He reported periods of urgency, where he needed to get to a restroom within a minute or two, otherwise he was at risk of having an episode of fecal incontinence where he would soil his underwear. The Veteran was noted as not using pads, diapers, or special underwear. The diagnosis was listed as: chronic Pouchitis associated with persistent diarrhea of six to ten loose or semi-formed stools per day and two to three loose stools at night. The Veteran continued to have periods of urgency with intermittent abdominal cramps. The Veteran submitted an April 2009 statement from a P.A., a registered nurse who indicated that she has assisted the Veteran several times over the past two years. P.A. goes on to note that the Veteran is “tied to the toilet” and that he has periods of bowel incontinence, carries extra underwear, and uses between 4 to 5 adult diapers a day. During his August 2010 hearing before the Board, the Veteran testified that he had fifteen to thirty bowel movements per day and three to five movements at night. He reported that his bowel movements were a soft or liquid consistency, described as diarrhea. He noted that his bowel movements became bloody and painful at least one time per month and described multiple visits to the hospital emergency room each year. He explained that he was no longer able to work driving a truck due to the need to have a bathroom close by for frequent trips. He further reported that he wore four to five adult diapers per day due to bowel leakage. The Veteran was then provided a September 2010 VA examination. The examiner noted that the continues to have 12 to 15 loose watery stools during the day with 3 to 4 stools at night. The examiner noted that the Veteran has been treated with multiple medications and has not been employed since 2004. The examiner diagnosed the Veteran with ulcerative colitis and Pouchitis. A January 2011 VA examination noted that the Veteran has 13 to 15 stools during the day with 3 to 4 at night. The examiner noted that after finishing a course of antibiotics there was an increase in the number of watery stools that he passed. The Veteran reported that he wears a pad in case he cannot make it to the restroom and that he changes his pad once or twice a day. The Veteran indicated that when he goes out, he takes 4 to 5 pads with him, but does not routinely need to use that many. Additionally, there is a January 2011 statement by a Dr. L.P., wherein the doctor states that the Veteran has extremely frequent diarrheal bowel movements, severe urgency when he needs to use the bathroom, and abdominal pain. The Veteran was then provided a February 2011 VA examination. The examiner noted that the Veteran experienced approximately 13 to 15 diarrheal stools per day with 3 to 4 stools at night. The Veteran indicated that he wore a pad in case he could not make it to the restroom. He further reported that he needed to change the pad 1 to 3 times per day. There was no abdominal pain or incontinence reported. In December 2015, the Veteran underwent a VA Intestinal Conditions examination. The Veteran reported ten bowel movements per day which were accompanied by gas and intestinal cramps. He indicated that the bowel movements take between 15 and 20 minutes in the bathroom, and that after the defecations, he felt drained and exhausted. The examiner noted that the Veteran “not infrequently” has fecal leakage that he cannot control, which necessitates wearing diapers when going out of the house. The examiner noted that the Veteran has constant episodes of bowel disturbance with abdominal distress Further, the examiner remarked that the Veteran had “too frequent bowel movements” and occasional incontinence with chronic intestinal pain and bloating. In a December 2015 VA Intestinal Surgery examination, the examiner noted that the Veteran has severe symptoms of diarrhea and fecal leakage. In a December 2015 VA Rectum and Anus Condition examination, the examiner found that the Veteran’s impairment of rectal sphincter control resulted in leakage necessitating the wearing of a pad, occasional moderate leakage, and occasional involuntary bowel movements. VA treatment records from 2016 to 2020 note that the Veteran experiences bowel incontinence and that the Veteran has continued to use pads due to leakage. Further, it is noted that the Veteran experiences 10 to 15 bowel movements per day with additional escape of stool when he sits down to urinate. The Veteran was additionally provided a November 2019 VA Rectum and Anus Conditions examination. The examiner noted that the Veteran experiences leakage which necessitates wearing a pad, constant slight leakage, occasional moderate leakage, occasional involuntary bowel movements, and extensive leakage. The examiner further noted that the Veteran’s fecal incontinence would interfere with his ability to sustain any type of employment. Throughout the entire period of the claim, the evidence is at least in equipoise regarding whether the Veteran’s impaired sphincter control more nearly approximated extensive leakage and fairly frequent involuntary bowel movements as required for a 60 percent disability rating. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that the Veteran is entitled to an initial 60 percent disability rating for his service connected impaired sphincter control, throughout the period on appeal. However, the Board finds that the signs and symptoms associated with his service-connected disability do not more nearly approximate complete loss of sphincter control as required for a higher 100 percent rating under DC 7332. There is no competent evidence of record indicating that the Veteran suffered from complete loss of sphincter control. While his VA examinations revealed fairly frequent involuntary bowel movements, and his medical records and lay statements indicate symptoms of intermittent bowel incontinence, there is no finding that the Veteran’s disability resulted in complete loss of sphincter control. The clinical records associated with the claims file do not, in any way, indicate that the Veteran has completely lost sphincter control and the Veteran has not alleged that he experiences complete loss of sphincter control. For the above reasons, the preponderance of the competent evidence demonstrates that the Veteran's overall disability picture more nearly approximates, at most, a 60 percent rating, but no higher, for the entire period on appeal. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, DC 7332. Earlier Effective Date for TDIU—Legal Criteria Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). 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 a single service-connected disability rated at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is rated at 40 percent or more and remaining service-connected disabilities result in a combined rating of 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In cases where a Veteran is unemployable by reason of service-connected disabilities but fails to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), the case should be submitted to the Director, Compensation and Pension Service for extraschedular consideration. See 38 C.F.R. § 4.16(b). With respect to an earlier effective date, TDIU is a form of increased rating claim, and, therefore, the effective date rules for increased compensation apply. See Norris v. West, 12 Vet. App. 413, 420 (1999); Hurd v. West, 13 Vet. App. 449 (2000). The effective date shall be the later of either the date of receipt of the claim, or the date entitlement arose. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o). An effective date for a claim for increase may also be granted prior to the date of claim if it is factually ascertainable that an increase in disability has occurred within one year from the date of the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. §§ 3.400(o)(1), (2). Therefore, the ultimate question in determining the effective date for TDIU is when it was factually ascertainable that the service-connected disabilities rendered a veteran unemployable. Thus, three possible dates may be assigned depending on the facts of the case, in the context of claims for an earlier effective date for a TDIU: (1) if a veteran becomes unemployable after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) 38 C.F.R. § 3.400(o)(1); or (2) if a Veteran’s service-connected disabilities rendering him unemployable precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) 38 C.F.R. § 3.400(o)(2); or (3) if Veteran’s service-connected disabilities rendering him unemployable precedes the claim by more than a year, the date that the claim is received (date of claim) 38 C.F.R. § 3.400(o)(2); see also Harper v. Brown, 10 Vet. App. 125, 126 (1997). Analysis A combined rating of 100 percent was assigned, effective November 6, 2019, due to multiple service-connected disabilities. TDIU is currently in effect for the period beginning November 12, 2010. The Veteran contends he is entitled to an award of TDIU prior to November 12, 2010. Specifically, the Veteran contends that he is entitled to a TDIU throughout the period on appeal. The Board notes that the rating claim discussed above has been pending for the entire period claimed by the Veteran for entitlement to TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran filed a VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) which was initially received by the VA in November 2010 and a second one was received February 2011. The Veteran was granted entitlement to TDIU in an October 2016 rating decision, effective November 12, 2010, the date the Veteran’s VA Form 21-8940 was initially received. The most recent rating decision from April 2020 shows that the Veteran was service connected for the following conditions: dysthymic and generalized anxiety disorder at 50 percent from August 18, 2010, and 70 percent from December 4, 2015; impairment in sphincter control at 30 percent from June 17, 2007, and 60 percent from November 6, 2019; maxillary sinus disease and headaches at 10 percent from June 4, 1996, at 30 percent from January 24, 2004, and at 50 percent from December 9, 2015; ulcerative colitis with postoperative colectomy at 30 percent from April 12, 2005, at 100 percent from January 19, 2006, and at 30 percent from June 1, 2006; deviated nasal septum a 0 percent from June 4, 1996 and at 10 percent from November 6, 2019; and impaired left hear hearing at 0 percent from January 16, 2001. The Veteran’s combined ratings are: 10 percent effective June 4, 1996; 30 percent effective January 24, 2004; 50 percent effective April 12, 2005; 100 percent effective January 19, 2006; 50 percent effective June 1, 2006; 70 percent effective June 17, 2007; 80 percent effective August 18, 2010; 90 percent effective December 4, 2015; and 100 percent effective November 6, 2019. Thus, even without taking into account the above-granted initial disability rating increase for the Veteran’s impaired sphincter, the Veteran has met the schedular criteria for a TDIU since June 17, 2007. The Veteran’s abovementioned VA 21-8940 indicated that he last worked in 2004 as a truck driver. Further, the Board notes that the Veteran has been provided with multiple VA examinations over the course of his claim which document various difficulties that his service-connected conditions have on his ability to maintain and sustain effective employment. The Veteran additionally submitted a May 2015 private Vocational Assessment. After a review of the claims file, and an interview with the Veteran, the private vocational counselor opined that in her professional opinion, it is more likely than not that the Veteran is unemployable as a result of his service-connected conditions, and has been unemployable since leaving full time employment in 2004. The examiner continued that the Veteran would be unable to meet the demands of sedentary work and would be unable to obtain substantially gainful employment. The Board finds the private vocational assessment to be highly persuasive, as it is consistent with the medical evidence in the record. The Board also notes a July 2014 VA employability opinion which noted the Veteran would be unemployable solely based on his ulcerative colitis and impaired sphincter disabilities as he has too frequent bowel movements, occasional incontinence, chronic intestinal pain, fatigue and exhaustion, and that his disabilities would require him to have increased absenteeism and frequent breaks. The Board also notes that a March 2020 Board decision, effectuated by an April 2020 rating decision, grated the Veteran an effective date of June 17. 2007, for his impaired sphincter control, as it was factually ascertainable that the Veteran’s disability had increased in severity within a year of the date of the claim. Accordingly, the Board finds it appropriate to grant the Veteran’s claim for earlier effective date of TDIU from June 17, 2007; the date that it was factually ascertainable that the Veteran’s disabilities worsened and rendered him unemployable. Therefore, the claim for earlier effective date is granted. N. SNYDER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.