Citation Nr: 0003048	
Decision Date: 02/07/00    Archive Date: 02/10/00

DOCKET NO.  95-18 763	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, 
Connecticut


THE ISSUE

Entitlement to an increased (compensable) evaluation for 
service-connected post-operative fistula in ano.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

K. Johnson, Associate Counsel

INTRODUCTION

The veteran had active service from November 1967 to December 
1970.  

This matter initially came to the Board of Veterans' Appeals 
(Board) from a January 1995 decision of the Department of 
Veterans Affairs (VA) Regional Office (RO) in Hartford, 
Connecticut, which denied the claim of an increased 
(compensable) rating for service-connected post-operative 
fistula in ano, for lack of compensable symptoms linked to 
that disability.  A notice of disagreement was received in 
March 1995.  A statement of the case was issued in May 1995, 
and the veteran filed his substantive appeal that June.  In 
November 1996, the veteran appeared and testified at the RO 
before the undersigned.  In April 1997, the Board remanded 
this matter for additional development. 

On April 19, 1999, the Board received the case from the RO, 
and denied the claim in May 1999.  At the same time, the 
Board received additional evidence in the form of written 
statements from the veteran and his father, which were 
accompanied by the proper waiver of Agency of Original 
Jurisdiction consideration as provided under 38 C.F.R. 
§ 20.1304, but the evidence was not associated with the 
claims folder before the decision was issued.  Under 
38 C.F.R. § 19.7(a), decisions of the Board are based on a 
review of the entire record, therefore the Board moved to 
vacate the decision in August 1999 as provided under 
38 C.F.R. § 20.904(a).  

When the Board vacated the May 1999 decision in August 1999, 
it was noted that the veteran's claim would be considered de 
novo by another member of the Board.  However, a new Board 
member will not be considering the case because 38 U.S.C.A. 
§ 7107(c) requires that the member conducting the hearing 
participate in the final determination.  





FINDINGS OF FACT

1.  All available relevant evidence necessary for disposition 
of the veteran's appeal has been obtained by the RO.

2.  The veteran's service-connected postoperative fistula in 
ano residuals are described as normal anal sphincter with 
normally expected postoperative anal scarring, representative 
of healed or slight impairment of sphincter without leakage. 


CONCLUSION OF LAW

The criteria for an increased (compensable) evaluation for 
service-connected postoperative fistula in ano have not been 
met.  38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 
3.103, 4.7, Diagnostic Codes 7332, 7335 (1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Factual Background

The service medical records document the diagnosis and 
treatment for a fistula in ano in 1970.  Placement of a seton 
and exploration of the fistula tract were performed in 
September 1970, and an excision was performed that November.  
By rating action of February 1971, service connection was 
established for fistula in ano.  The disability was rated as 
noncompensable.  

The claims folder includes VA records dated from 1981 to 1997 
that reflect the veteran's complaints of and treatment for 
incontinence.  A July 1981 barium enema was normal.  In 1982, 
it was noted that the veteran's continued problems might be 
related to the surgical interruption of muscle or nerve 
fibers.  A hemorrhoidectomy was performed in July 1991.  A 
barium enema was performed in January 1993, and it was 
normal.  In April 1993, an examiner indicated that the 
veteran might have either irritable bowel syndrome or mucous 
colitis.  A June 1993 sigmoidoscopy was normal. 

Manometry was performed in January 1994, and the reported 
diagnosis was abnormal rectal internal anal sphincter reflex.  
The examiner determined that there was fecal incontinence due 
to an impaired sensation of rectal filling with fecal 
material.  He had the appropriate relaxation of the internal 
anal sphincter, but he did not have the appropriate 
contraction of the external anal sphincter and response to 
rectal distention.  

On VA examination of June 1994, the examiner diagnosed anal 
sphincter incontinence secondary to anal surgery.  It appears 
that the claims folder was not available for the examiner's 
review.  For instance, the examiner noted that the June 1993 
colonoscopy and January 1994 manometry reports were not 
available for review. 

The following was reported: the veteran was unable to 
distinguish between gas and fecal matter, and had problems 
with constant seepage; complaints of intermittent leakage and 
loose bowel movements about four to five times a day since 
the surgery in service; and some decreased symptoms with the 
use of Loperamide.  The following was noted on examination: 
scarring at three o'clock but slight diminished sphincter 
tone at rest and on squeezing; empty rectal vault; prostate 
within normal limits; no saddle or perianal anesthesia; 
bleeding once a week noticed on toilet paper; no soiling; 
intermittent/constant incontinence; no tenesmus, dehydration, 
or malnutrition; fecal leakage; and episodes occur on a daily 
basis.  The examiner noted that rectal manometry results 
would be needed for further evaluation, and also recommended 
biofeedback with anal/rectal manometry.  The diagnosis was 
anal sphincter incontinence secondary to anal surgery, 
"p[atien]t unable to distinguish gas vs. fecal matter [and] 
constant seepage."

VA records dated in January 1995 reflect a finding of 
incontinence and irritable bowel syndrome.  

In November 1996, the veteran testified that he had been 
incontinent since his surgery during service.  He used to 
have one bowel movement each day, and then he started having 
four to five per day.  He experiences constant seepage and is 
unable to determine whether the mass he senses is gas or 
fecal matter.  He can strain to force feces out, but there is 
no sensation in the sphincter and there is no control.  At 
times, examiners have noted leakage on his clothes.  It has 
been his understanding that the problem involves the 
severance of nerves and muscle during the surgery performed 
during service.  He noted that he has a lump in one of the 
cheeks, and that it swells and creates a problem when he sits 
down.  When he was employed outside of his home, he had 
difficulties because he did not know when he would need to 
use the restroom.  This and the problems with leakage have 
been somewhat remedied since he now works at home.  When he 
is away from home, he wears a pad and refrains from eating.  

Pursuant to the Board's 1997 remand, a VA examination was 
conducted in May 1998.  At the time of the examination, the 
veteran complained that he has a scar that swells, and that 
he has problems with leakage and loose stools.  He has to 
move his bowels about four or five times after eating. 

The examiner noted that the claims folder had been reviewed 
and recited the history of the disability.  The examiner 
mentioned that he previously conducted a consultation in 
January 1993.  At that time, the examiner felt that there was 
a deformity of the anal sphincter and that there were no 
active processes at that time.  It was further noted that 
treatment was not needed.  The examiner felt that the veteran 
was suffering from irritable colon syndrome or mucous 
colitis, and reported that the recommended bowel studies were 
negative.  A villous adenoma was not found.  The examiner 
noted that the findings were the same as when the 
consultation was conducted.  The following findings were 
noted: deformity of the anus in the form of scarring, but not 
productive of a stricture or of a patent anus; anal sphincter 
had good tone; veteran did not attempt to tighten the anal 
sphincter, even though it was thought that he could; and no 
masses or other pathology within the rectum.  The examiner's 
clinical impression was that there was no reason for the loss 
of stool on the basis of anal pathology.  X-rays were not 
taken.  

The examiner commented that the case was complex, and pointed 
out that the veteran had undergone major psychiatric 
depressions which appeared to be to a severe degree.  Based 
on his prior experience with the veteran, the examiner felt 
that the veteran's psychiatric problem and bowel diarrhea 
were somehow related to irritable colon syndrome.  Since the 
veteran complained of four to five bowel movements after 
meals, the examiner concluded that the veteran's colon was 
quite irritable and would not be mediated by any anal 
sphincter pathology.  

The examiner also addressed the specific questions posed in 
the 1997 remand.  The examiner determined that the veteran's 
sphincter muscles and nerves were not impaired as a result of 
the surgery.  The examiner found that clinically the 
sphincter is adequate, and discussed the 1994 manometry 
findings.  The examiner reported an impression of fecal 
incompetence due to impaired sensation of rectal filling with 
fecal material, and further opined that it was not related to 
the surgery.  The examiner commented that the veteran has the 
appropriate relaxation of internal anal sphincter, but does 
not have the appropriate contraction of external anal 
sphincter and response to rectal distention.  The examiner 
opined that the veteran's difficulties are due to an 
interaction between an irritable bowel syndrome and the 
psychiatric problem, and that there was no reason why the 
veteran should be incontinent due to his anal apparatus or 
the effects of the surgery.  The examiner diagnosed severe 
psychiatric depression, irritable bowel syndrome, and status 
postoperative seton procedure and sphincterotomy with 
satisfactory clinical anal apparatus function.  

An additional report, which was to supercede the May 1998 
report, was submitted in June 1998.  The examiner noted that 
the findings did not show the failure of the anus per se in 
accounting for the veteran's incontinence.  The examiner felt 
that the veteran's incontinence was due to an irritable 
gastrointestinal tract, which the examiner referred to as 
exaggerated gastro-colic reflex and irritable colon.  The 
examiner indicated that this problem was related to the 
veteran's psychiatric problems.  The examiner did not feel 
that the anus itself or the surgery accounted for the 
incontinence.  The examiner diagnosed severe chronic and 
acute psychiatric problems associated with an irritable 
gastrointestinal tract (exaggerated gastro-colic reflex - 
irritable upper and lower bowel) with failure of bowel to 
convey the sensation of rectal filling to the anus resulting 
in incontinence.  The examiner also diagnosed normal anal 
sphincter per se post operative (seton fistulectomy, 
hemorrhoidectomy, and superficial sphincterectomy) with 
normally expected anal scarring.  

In April 1999, the Board received written statements from the 
veteran and his father.  In his statement, the veteran 
relayed information regarding his hospitalization and 
treatment during service.  He further noted that even after 
he started his treatment in the 1970s, his condition did not 
improve.  His sphincter was deformed and could not close, but 
it was not until 1994 when physicians discovered the reasons 
for his incontinence.  He was told that the damage was due to 
his surgery in 1970, and that such damage could not be 
repaired.  In the other statement, the veteran's father 
discussed the severity of the veteran's condition upon his 
return from service, and that in 1994 it was discovered that 
the nerves and muscles had been accidentally severed during 
his surgery in 1970.  

Legal Analysis

The Board finds that the veteran's claim is well grounded.  
38 U.S.C.A. § 5107(a) (West 1991).  The United States Court 
of Appeals for Veterans Claims (Court) has held that, when a 
veteran claims that a service-connected disability has 
increased in severity, the claim is well grounded.  
Proscelle v. Derwinski, 2 Vet. App. 629 (1992).  The Board is 
also satisfied that all relevant facts have been properly 
developed and that VA has fulfilled its duty to assist the 
veteran as mandated by 38 U.S.C.A. § 5107(a) and 38 C.F.R. § 
3.103(a).  

Regarding the development of this case, the veteran has 
informed VA that he was treated at various VA facilities 
since his separation from service in 1970.  In the 1997 
remand, the Board instructed the RO to conduct a search for 
VA records dated from 1970 to 1982, as well as obtaining the 
January 1993 barium enema and 1994 manometry reports.  The 
barium enema and manometry reports were obtained and 
associated with the claims folder.  Regarding the VA 
treatment records for the period of 1970 to 1982, the RO 
submitted requests for the records to the VA facilities noted 
in the remand.  However, the responses have been negative.  
Therefore, those records are not available for review or 
consideration in this case.  

During the veteran's personal hearing, it was specifically 
noted that in the January 1995 denial from which this appeal 
arises, the RO concluded that the veteran's incontinence was 
not due to his service-connected disability given the length 
of time between the veteran's separation from service in 1970 
and the first medical evidence of the veteran's inability to 
hold stool in 1981.  Here, the veteran claims that he has had 
ongoing problems with incontinence since his surgery in 
service, and that this problem is a residual of the surgery.  
In this case, the veteran's longstanding history of 
incontinence is documented in the treatment reports of 
record, and on examination, it was determined that 
incontinence was not related to the surgery in service.  
Although the records dated from 1970 to 1982 would be 
helpful, they are not needed in this case since the history 
of incontinence is documented and the VA examiner offered an 
opinion regarding the matter.  

Furthermore, the Board notes that where entitlement to 
compensation has already been established, and an increase in 
the disability rating is at issue, the present level of 
disability is of primary concern.  Although a review of the 
recorded history of a disability should be conducted in order 
to make a more accurate evaluation, the regulations do not 
give past medical reports precedence over current findings.  
Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  This decision 
will include a review of the entire record, but the focus 
will be on the most recent medical findings regarding the 
service-connected disability at issue.

Disability evaluations are based upon the average impairment 
of earning capacity resulting from a disability.  38 U.S.C.A. 
§ 1155 (West 1991).  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 (1999).  Consideration is to be given to all other 
potentially applicable provisions of 38 C.F.R. Parts 3 and 4, 
whether or not they have been raised by the veteran, as 
required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Service connection is currently in effect for fistula in ano, 
rated as noncompensable under the provisions of 38 C.F.R. 
Part 4, Diagnostic Code 7335 (1999).  Diagnostic Code (DC) 
7335 contemplates fistula in ano, and provides for rating the 
disability as impairment of sphincter control under DC 7332.  
Under DC 7332, a noncompensable rating is assigned for healed 
or slight impairment without leakage.  A 10 percent rating is 
warranted for constant slight leakage, or occasional moderate 
leakage.  

In this case, the medical records and findings show that the 
veteran has ongoing problems with fecal incontinence.  
However, the medical evidence shows that the veteran's 
incontinence is not a residual of the surgery performed 
during service or otherwise a product of the service-
connected disability.  The available treatment records show 
that some of those who have treated the veteran viewed the 
surgery as a possible explanation for his incontinence.  
However, on further evaluation and examination in 1998, the 
examiner determined that the veteran's incontinence is 
related to psychiatric problems and an irritable colon, not 
the surgery.  Also, the scarring found on examination was 
considered to be normal for the surgery and did not account 
for the veteran's particular complaints.  The Board finds 
this opinion more persuasive than that of the June 1994, 
because the more recent examiner had all the records 
available for review.  The disability picture is adequately 
represented by the criteria used to assign a noncompensable 
rating, particularly healed ano fistula.  Therefore, there is 
not a question as to which of the two evaluations should 
apply, since the leakage has not been associated with the 
disability at issue.  38 C.F.R. § 4.7 (1999). 

The Board has considered all other potentially applicable 
provisions of 38 C.F.R. Parts 3 and 4, whether or not they 
have been raised by the veteran, as required by Schafrath v. 
Derwinski, 1 Vet. App. 589 (1991).  After a careful review of 
the available DCs and the medical evidence of record, the 
Board finds that DCs other than 7335, do not provide a basis 
to assign an evaluation higher than the noncompensable 
evaluation currently in effect.  

Since the examiner has found that the residuals from the 
surgery do not account for the particular problems the 
veteran is experiencing, stricture of the rectum and anus has 
not been shown (DC 7333).  Also, prolapse of the rectum has 
not been demonstrated (DC 7334). 

Here, the preponderance of the evidence is against the 
veteran's claim for an increased (compensable) rating of his 
postoperative ano fistula.  Therefore, the application of the 
benefit of the doubt doctrine contemplated by 38 U.S.C.A. § 
5107 (West 1991) is inappropriate in this case.  The appeal 
is denied. 


ORDER

Entitlement to an increased (compensable) evaluation for 
service-connected fistula in ano has not been established, 
and the appeal is denied.  




		
	J. E. Day
	Member, Board of Veterans' Appeals