Citation Nr: 22013490 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 17-51 562 DATE: March 9, 2022 ORDER Entitlement to a rating in excess of 10 percent for impairment of sphincter control with fecal incontinence is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 3, 2018, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) from May 3, 2018, to April 9, 2019, is granted. FINDINGS OF FACT 1. Over the entire appeal period, the Veteran's impairment of sphincter control with fecal incontinence manifested in no more than occasional moderate leakage. 2. Prior to May 3, 2018, the Veteran worked full-time at a VA Medical Center. 3. From May 3, 2018, to April 9, 2019, the Veteran's service-connected disabilities at least as likely as not prevented him from engaging in substantially gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for impairment of sphincter control with fecal incontinence have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7332. 2. Prior to May 3, 2018, the criteria for TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. 3. From May 3, 2018, to April 9, 2019, the criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1985 to February 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a hearing before the undersigned. This matter was previously remanded by the Board in April 2020 and February 2021. The case has been returned to the Board at this time for further appellate review. As an initial matter, the Board notes that the record reflects that the Veteran was employed full time during a portion of the period on appeal. The Veteran has been provided several opportunities to submit information regarding his employment, including whether such employment was marginal. Most recently, pursuant to the February 2021 Board remand, VA sent the Veteran a letter in April 2021 which requested that he complete and return the enclosed VA Form 21-8940, Veteran Application for Increased Compensation Based on Unemployability, and VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit. The record reflects that the Veteran failed to respond to these letters and has not otherwise provided the requested information. The Veteran must cooperate with VA in developing evidence. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60 (1993) (VA's duty to assist is not a one-way street; if a veteran wants help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining evidence). Accordingly, the Board must decide the claims based on the current evidence of record. The Board also finds that the sending of the aforementioned letter to the Veteran, as well as the May 2021 VA examination provided to determine the current nature and severity of the Veteran's service-connected impairment of sphincter control with fecal incontinence, constitutes substantial compliance with its prior remand directives. Stegall v. West, 11 Vet. App. 168 (1998). 1. Entitlement to a rating in excess of 10 percent for impairment of sphincter control with fecal incontinence is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10. If there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Where entitlement to compensation has already been established and increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Veteran's impairment of sphincter control with fecal incontinence is rated under Diagnostic Code (DC) 7332. 38 C.F.R. § 4.114, Diagnostic Code 7332 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. A January 2012 VA treatment record reflects that the Veteran reported a recent change in bowel control, stating that, over the past nine months, he occasionally felt a strong urge to have a bowel movement upon standing up, which was difficult to control. In one May 2012 VA treatment record the Veteran denied bowel incontinence and then in a later May 2012 VA treatment record he reported that there was no change in his bowel habits. No weakness was noted. A January 2013 VA treatment record reflects that the Veteran reported no bowel incontinence. A February 2014 VA examination reflects a diagnosis of impairment of rectal sphincter control with incontinence. The VA examiner noted that the signs and symptoms attributable to this diagnosis were slight impairment of sphincter control and occasional moderate leakage. An April 2015 VA treatment record reflects that the Veteran was not experiencing incontinence and an October 2015 VA treatment record was negative for bowel issues. A January 2016 VA treatment record reflects that the Veteran was seen for rectal incontinence with a history of three days. The Veteran denied any bowel accidents but stated that when his back flares, he feels like he has to have a bowel movement and has to go to the bathroom with frequency until the symptoms dissipate. No gastrointestinal or genitourinary symptoms were noted upon review. A March 2016 VA treatment record reflects that the Veteran was seen for back pain and he reported intermittent bowel incontinence which had remained unchanged. In a separate March 2016 VA treatment record, the Veteran reported incontinence to stool times two, but now had control. In an April 2016 VA treatment record, the Veteran denied difficulty with bowel control. A November 2016 VA treatment record reflects that the Veteran endorsed baseline stool incontinence. In a December 2017 VA peripheral nerves conditions examination, the examiner noted that the Veteran reported issues with bowel urgency and frequency, which was noted on the day of the examination. April 2018 VA treatment records reflect that the Veteran complained of stool incontinence. In an April 2018 VA treatment record, the Veteran reported feeling the need to have a bowel movement without the stool coming out, and then the stool suddenly coming out after that. The Veteran reported that the stool was loose, but denied diarrhea, and that he had stool every time he ate during the previous several days. Finally, the Veteran reported three stools that came on quickly, but also having sensation and then inability to have stool. A rectal examination showed no masses or stool and good tone of rectal sphincter. The assessment was that the Veteran's symptoms were likely due to gastroenteritis with diarrhea or possible irritable bowel syndrome. The next day a VA treatment record reflects that the Veteran reported a three-day history of stool incontinence with the most recent episode the day before. It was noted that the Veteran's symptoms were associated with diffuse abdominal pain and chronic back pain. At the same time, the record noted no current explanation for the Veteran's symptoms. The Veteran was transferred to a non-VA emergency department for his urinary incontinence. A May 2018 VA treatment record notes that the Veteran was not experiencing fecal incontinence. An April 2019 VA back conditions examination reflects that the Veteran reported incontinence but denied soiling himself. The Veteran reported having to get to the bathroom right away when he has the urge, which the VA examiner noted was not incontinence. A June 2020 VA back conditions examination notes that bowel control problems had been previously reported and rated as resulting from his back condition, and that the Veteran reported no progression of this condition. Finally, a May 2021 VA examination regarding the Veteran's sphincter control with fecal incontinence notes that this condition has stayed the same since its onset in 2011. The Veteran reported rare accidents due to sudden urgency to have a bowel movement, with the most recent incident occurring in February 2021, and denied needing to wear depends. The VA examiner found that the signs and symptoms associated with the Veteran's condition were slight impairment of sphincter control without leakage. The Board finds that the evidence persuasively supports a finding that the Veteran's impairment of sphincter control with fecal incontinence does not manifest in more than occasional moderate leakage. The VA examinations reflect that the Veteran has slight impairment of the sphincter with occasional moderate leakage, at most. The Veteran's treatment records also support the finding that the Veteran's bowel incontinence was occasional. Specifically, the Veteran reported periods of experiencing bowel incontinence for a few days at a time interspersed among repeated reports of not experiencing bowel incontinence. Thus, a rating in excess of 10 percent is not warranted for the Veteran's service-connected impairment of sphincter control with fecal incontinence at any point during the appeal period, and to this extent, the appeal is denied. The Board notes that the Veteran's medical records indicate that the Veteran also experiences some urinary voiding problems. However, the Veteran is not service connected for any voiding dysfunction, and therefore, that issue is not before the Board on appeal. TDIU VA will grant entitlement to TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The sole fact that the Veteran was or is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment includes occupation incapable of producing income that is more than marginal, Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016), and occupation where earned annual income exceeds the poverty limit but is done so in a protected environment such as a family business or sheltered workshop, 38 C.F.R. § 4.16(a). The regulations provide that if there is only one service-connected disability impeding employability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes. 38 C.F.R. § 4.16(a). The United States Court of Appeals for Veterans Claims (Court) has held that entitlement to TDIU is an element of all appeals of an increased evaluation when such claim is raised by the record or asserted by the Veteran. Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). Here, the Board determined that the Veteran first raised the issue of entitlement to TDIU as part of his appeal of a July 2012 rating decision regarding a claim for an increased rating for his service-connected back disability. The issue of entitlement to TDIU has remained on appeal since. In a July 2020 rating decision, entitlement to TDIU was granted effective April 10, 2019. Thus, the remaining issue is entitlement to TDIU prior to April 10, 2019. From February 2, 1993 to December 14, 2011, the Veteran's combined evaluation was 10 percent. From December 15, 2011 to September 25, 2012, the Veteran's combined evaluation was 50 percent. Thus, the Veteran did not meet the schedular requirements for TDIU prior to September 26, 2012. From September 26, 2012, to August 24, 2017, the Veteran's combined evaluation was 60 percent. Specifically, the Veteran was rated for degenerative joint disease of the dorsal spine, lower left and right extremity sciatica associated with degenerative joint disease of the dorsal spine, and impairment of rectal sphincter control with fecal incontinence associated with degenerative joint disease of the dorsal spine. Because all of these disabilities result from common etiology, they are considered as one disability for purposes of TDIU. As of August 25, 2017, the Veteran had a combined evaluation of 70 percent with at least one disability having a rating of 40 percent or more. Thus, the Veteran meets the schedular criteria as of September 26, 2012. 2. Entitlement to TDIU prior to May 3, 2018, is denied. Prior to September 26, 2012 Because it is established VA policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled, the Board will submit to the Director of Compensation and Pension Services (Director) for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the above percentage standards. 38 C.F.R. § 4.16(b). The Board cannot assign an extraschedular rating in the first instance, but must specifically adjudicate whether to refer a case to the Director for consideration of an extraschedular rating under section 4.16(b) when the issue is either raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008) (citing Thun v. Peake, 22 Vet. App. 111, 115 (2008)). Section 4.16 of VA's regulations does not require a finding that the schedular ratings are inadequate to compensate for the average impairments in earning capacity caused by particular disabilities, but requires only a finding that the service-connected disabilities render a particular veteran unemployable. VAOPGCPREC 6-96 (August 16, 1996). As stated above, the Veteran does not meet the schedular criteria for entitlement to TDIU prior to September 26, 2012. Therefore, the Board will examine whether this case should be submitted to the Director for extraschedular consideration for this time period. As noted above, referral is merited in cases where veterans are found to be unemployable by reason of service-connected disabilities. The record establishes that the Veteran began working at a VA Medical Center in the medical records department since at least January 2006. There is no indication that the Veteran's employment was other than full-time, or that it was marginal on either an income or facts found basis. Thus, the Board finds his employment for this time period was substantially gainful. The Board is cognizant of the decision rendered by the United States Court of Appeals for Veterans Claims (CAVC) in Snider v. McDonough, No. 19-6707 (November 19, 2021). The Court found that pursuant to Ray v. Wilkie, 31Vet. App.58, 66 (2019), entitlement to an extraschedular TDIU must be referred to the Director of Compensation Service for an initial determination where there is sufficient evidence to substantiate a "reasonable possibility" that a veteran is unemployable due to service-connected disabilities. The Court found that when denying an extraschedular TDIU referral to the Director under § 4.16(b), the Board must make two determinations in its decision: (1) that a referral for extraschedular TDIU is not warranted under the "reasonable possibility" standard set forth in Ray, and (2) that TDIU benefits are not warranted because the veteran is not unemployable due to service-connected disabilities. Given that the Veteran was engaged in substantially gainful employment prior to September 26, 2012, as explained above, the Board finds the evidence does not substantiate a reasonable possibility that the Veteran is unemployable due to his service-connected disabilities for this time period. Thus, the Board finds referral for extraschedular consideration is not warranted. Moreover, the Board finds that TDIU benefits are not warranted on an extraschedular basis because the evidence establishes that the Veteran was engaged in substantially gainful employment prior to September 26, 2012. From September 26, 2012 to May 2, 2018 As stated above, the Veteran was working at a VA Medical Center since at least 2006. The record establishes that the Veteran's regular schedule during this time period was a full-time schedule. There is also evidence that the Veteran took leave pursuant to the Family and Medical Leave Act (FMLA). Leave under the FMLA is a protection provided to all employees by law, and there is no evidence that the Veteran's use of FMLA was an accommodation that was extraordinary or a special accommodation made in consideration of the Veteran's disabilities for charitable or therapeutic purposes. Therefore, the use of FMLA is not an accommodation in itself which would warrant an award of TDIU. There is no other evidence that the Veteran's employment was marginal on either an income basis or facts-found basis. Thus, the evidence establishes that the Veteran was substantially and gainfully employed from September 26, 2012, to May 2, 2018. In sum, the Board finds that the evidence persuasively supports a finding that the Veteran was not unable to obtain and maintain substantially gainful employment due solely to his service-connected disabilities from prior to May 2, 2018. Thus, entitlement to TDIU is not warranted prior to May 2, 2018, and to that extent, the appeal is denied. 3. Entitlement to TDIU from May 3, 2018, to April 9, 2019, is granted. There is limited evidence regarding when the Veteran left his job at the VA Medical Center. As stated above, the Veteran has been provided several opportunities to provide information regarding his dates of employment during the appeal period but has not provided the requested information. Thus, the Board must look at the current evidence of record. An April 2018 VA treatment record reflects that the Veteran reported that his job was in jeopardy. Accordingly, the record establishes that the Veteran was still employed at that time. A May 3, 2018 VA treatment record reflects that the Veteran recently resigned from his job in the medical records department at the VA Medical Center. Thus, the evidence of record establishes that May 3, 2018 is the date it was first factually ascertainable that the Veteran was no longer employed full-time. The April 2019 VA back conditions examination reflects that the Veteran's service-connected back condition resulted in the Veteran being unable to bend, stoop, or squat for any length of time and that he was in pain 100 percent of the time. The examination report also reflects that if the Veteran remained seated for over five minutes, he would have to get up and move around, and that the Veteran had to sit and sleep on a hard surface. Thus, after resolving the benefit of reasonable doubt in favor of the Veteran, the Board finds the Veteran's disabilities prevented him from engaging in substantially gainful employment and that he is entitled to TDIU from May 3, 2018, to April 9, 2019, and to that extent, the appeal is granted. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Elias, Associate 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.