Citation Nr: 21016003 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 15-29 222 DATE: March 19, 2021 ORDER Prior to October 19, 2015, a rating in excess of 40 percent for ileoanal anastomosis with rectal stricture is denied. From October 19, 2015, a rating of 60 percent, but not higher, for ileoanal anastomosis with rectal stricture is granted.   FINDINGS OF FACT 1. Prior to October 19, 2015, the Veteran’s disorder of the large intestine has been manifested by resection of the large intestine with severe residual symptoms; residual adhesions did not constitute the predominant disability and there was not extensive leakage and fairly frequent involuntary bowel movements. 2. From October 19, 2015, the Veteran’s disorder of the large intestine has been manifested by extensive leakage and fairly frequent involuntary bowel movements; there was no complete loss of sphincter control. CONCLUSIONS OF LAW 1. Prior to October 19, 2015, the criteria for a rating in excess of 40 percent for ileoanal anastomosis with rectal stricture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.114, Diagnostic Codes (DCs) 7301, 7329, 7332 and 7333. 2. From October 19, 2015, the criteria for a rating of 60 percent, but not higher, for ileoanal anastomosis with rectal stricture have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.114, DCs 7301, 7329, 7332 and 7333. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1984 to September 1994. The case is on appeal from an April 2014 rating decision. In October 2015, the Veteran testified at a Board hearing. In a February 2019 decision, the Board, in part, denied a rating in excess of 40 percent for ileoanal anastomosis with rectal stricture. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claim (Court). Pursuant to a January 2020 Joint Motion for Partial Remand (JMR), the Court vacated the Board’s decision by a February 2020 Order and remanded the case back to the Board. A December 2019 rating decision denied a rating in excess of 40 percent for the ileoanal anastomosis with rectal stricture. The Veteran submitted a January 2020 Notice of Disagreement (NOD) under the Appeals Modernization Act (AMA) and the hearing lane option was selected. However, the Veteran did not mark the space to opt-in from the Legacy Appeal system to the AMA. Thus, despite that the Veteran was afforded an October 2020 Board hearing, the claim remains in the Legacy Appeal system. See 38 C.F.R. § 19.2(d). Additionally, a claim pertaining to a psychiatric condition was previously remanded and a total disability based on individual unemployability (TDIU) was before the Board. Recently, in a January 2021 rating decision, the RO granted both claims. Thus, those two issues are no longer before the Board. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, his representative and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). A rating in excess of 40 percent for ileoanal anastomosis with rectal stricture. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Under 38 C.F.R. § 4.114 DC 7301, which rates adhesions of the peritoneum, a 10 percent rating is warranted for moderate adhesions, with pulling pain on attempting work or aggravated by movements of the body, or occasional episodes of colic pain, nausea, constipation (perhaps alternating with diarrhea) or abdominal distension. A 30 percent rating is warranted for adhesions moderately severe, with partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain. A 50 percent rating is warranted for severe adhesions, with definite partial obstruction shown by X-ray, with frequent and prolonged episodes of severe colic distension, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage. A note accompanying DC 7301 indicates that ratings for adhesions will be considered when there is history of operative or other traumatic or infectious (intraabdominal) process, and at least two of the following: disturbance of motility, actual partial obstruction, reflex disturbances, presence of pain. Under DC 7329 for resection of the large intestine, slight symptoms warrant a 10 percent rating. With moderate symptoms, a 20 percent rating is warranted. With severe symptoms, objectively supported by examination findings, a maximum 40 percent rating is warranted. A note following the rating code informs that where residual adhesions constitute the predominant disability, the condition is rated under DC 7301. Under DC 7332, impairment of sphincter control warrants a 10 percent rating with constant slight, or occasional moderate leakage. A 30 percent rating for occasional involuntary bowel movements, necessitating wearing of pad. A 60 percent rating is warranted for extensive leakage and fairly frequent involuntary bowel movements. A 100 percent rating is warranted for complete loss of sphincter control. Under DC 7333 which pertains to stricture of the rectum and anus, a 30 percent rating is warranted for stricture of the rectum and anus with moderate reduction of lumen, or moderate constant leakage. A 50 percent rating is warranted for stricture of the rectum and anus with great reduction of lumen, or extensive leakage. A 100 percent rating is warranted for stricture of the rectum and anus requiring colostomy. 38 C.F.R. § 4.114, DC 7333. Facts The Veteran submitted a June 2013 claim for an increased rating for his large intestine disability, rated as 40 percent disabling throughout the appeal period under DC 7329. He reported worsening symptoms related to the in-service removal of the large intestine. The Veteran was afforded a January 2014 VA examination in which he was diagnosed with ileoanal anastomosis with rectal stricture. The Veteran reported intermittent abdominal pain, frequent bowel movements with persistent diarrhea and monthly constipation. He indicated his symptoms vary between diarrhea and constipation. The examiner noted rectal stricture with moderate reduction of lumen and that the Veteran undergoes a flexible sigmoidoscopy once a year. The Veteran underwent a March 2014 VA examination in which the examiner indicated yearly flexible sigmoidoscopy with biopsy showed mild inflammation and the condition was unchanged. He indicated the Veteran suffers moderate symptoms with daily diarrhea, as well as pulling pain when he attempts to work or has aggravating movements of the body. The examiner reported no weight loss, interference with absorption and nutrition and no functional impact on his ability to work. The Veteran underwent a July 2015 sigmoidoscopy with biopsy which revealed minimal, if any, inflammation. Thereafter, the Veteran was afforded an October 2015 Board hearing and reported worsening symptoms, including difficulty digesting food. He stated when he eats, he must immediately use the restroom and has to continually use the restroom throughout the day. He indicated he also suffers from dehydration which gets so severe it can cause him to pass out. He reported he has to use the restroom 20 to 25 times per day and frequently has trouble making it to the restroom. He testified that he has “accidents”, and that 15 to 20 times per month he will not make it to the restroom in time. He stated it is a constant struggle trying to make it to the restroom and keeping his clothing clean. The Veteran was afforded a December 2015 VA examination in which he reported chronic diarrhea requiring the daily use of Imodium. He indicated he gets hemorrhoids with rectal bleeding intermittently. The examiner found impairment of sphincter control and leakage necessitating the wearing of pads. As noted, the Board denied the claim in a February 2019 decision. The Veteran appealed the decision and the Court issued a January 2020 JMR and February 2020 Order remanding the case back to the Board. The parties indicated in the JMR that while the Board rated the claim under 38 C.F.R. § 4.114, DC 7329, it did not analyze the applicability of other relevant DCs. The parties found that favorable evidence was overlooked which suggests the Veteran may be entitled to an increased rating based on symptoms of leakage and an inability to control bowel movements. The Board notes a May 2019 VA treatment record indicated the Veteran experiences abdominal pain after eating and his bowel habits include 5 to 6 loose bowel movements daily. The record noted at times, the Veteran may experience as many as 20 bowel movements daily, as well as episodic seepage. The Veteran was afforded a June 2019 VA examination in which he reported symptoms of dehydration causing headaches and dizziness, frequent bowel movements, nausea after eating, vomiting approximately three times per month, and increased flatulence with leakage of stool. The Veteran reported needing to be near a bathroom constantly due to his frequent bowel movements, as well as difficulty staying hydrated. The Veteran was afforded another October 2020 Board hearing in which his representative indicated that an increased rating for his large intestine rating is warranted, including under DC 7332, which assigns a 60 percent rating for extensive leakage and fairly frequent involuntary bowel movements. The Veteran reported that he uses the restroom 15 to 25 times daily and has pain in his stomach. He stated he has to change his underwear due to leakage at least two to three times per day. Analysis The Board determines that, from October 19, 2015, an increased rating to 60 percent is warranted for the Veteran’s large intestine disorder. From the October 2015 Board hearing the disorder caused extensive leakage and fairly frequent involuntary bowel movements, suggestive of a 60 percent rating under DC 7332. However, prior to that date a rating in excess of 40 percent is not warranted, as the Veteran’s intestine disorder manifested severe residual symptoms. For the initial rating period, the large intestine disability does not warrant a rating in excess of 40 percent under the relevant DCs. The evidence shows symptoms of intermittent abdominal pain, frequent bowel movements and persistent diarrhea. Further, the evidence suggests the Veteran had rectal stricture with moderate reduction of lumen and that the Veteran undergoes a flexible sigmoidoscopy once a year. As noted, the March 2014 VA examiner indicated he had mild inflammation, moderate symptoms with daily diarrhea, as well as pulling pain when he attempted to work or had aggravating movements of the body. Further, the July 2015 sigmoidoscopy with biopsy revealed minimal, if any, inflammation. While the Veteran’s symptoms are severe, he did not experience severe adhesions or frequent and prolonged episodes of severe colic distension, nausea or vomiting. Additionally, while the Veteran experienced frequent bowel movements during the rating period, the evidence does not show he had extensive leakage and fairly frequent involuntary bowel movements, as well as no stricture of the rectum and anus with great reduction of lumen. From the October 2015 hearing, and in light of the January 2020 JMR, the Board finds the Veteran experienced extensive leakage and fairly frequent involuntary bowel movements. Thus, there was a factually ascertainable increase from that date. At the October 2020 Board hearing, the Veteran’s representative stated his symptoms support a 60 percent rating under DC 7332. The Board tends to agree, and a 60 percent rating is warranted from the first Board hearing, October 19, 2015. During the October 2015 hearing, the Veteran testified he has difficulty digesting food, has to continuously use the restroom and frequently has trouble making it to the restroom which can lead to accidents. In the December 2015 VA examination, the Veteran reported chronic diarrhea requiring the use of pads. Thus, when affording all reasonable doubt in the Veteran’s favor, the Board finds a 60 percent rating is warranted from October 19, 2015, the date of the first Board hearing. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (holding that the effective date for an increased rating is predicated on when the increase in the disability can be ascertained and not necessarily when the evidence is created). The October 2015 hearing is the earliest date a factually ascertainable increase occurred. While an increased rating to 60 percent is warranted, the evidence does not suggest an even greater increased rating under DC 7332 to 100 percent for complete loss of sphincter control. In sum, when affording the Veteran reasonable doubt, his large intestine disability warrants an increased rating to 60 percent, but not higher, under DC 7332 from October 19, 2015. However, prior to that date, the preponderance of the evidence is against a rating in excess of 40 percent. As such, a rating of 60 percent is warranted from October 19, 2015, but not earlier. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Isaacs, 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.