Citation Nr: 0003787 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 98-07 843 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased rating for a perirectal abscess, currently evaluated as 10 percent disabling. 2. Entitlement to an effective date prior to October 6, 1997, for a 10 percent rating for a perirectal abscess. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Wm. Kenan Torrans, Associate Counsel INTRODUCTION The veteran served on active duty from October 1968 to June 1975. This matter arises from a decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the benefits sought. The veteran filed a timely appeal, and the case has been referred to the Board of Veterans' Appeals (Board) for resolution. With respect to the issue of entitlement to an effective date prior to October 6, 1997, for assignment of a 10 percent rating for the veteran's perirectal abscesses, in his personal hearing of October 1998 at the RO, the veteran appears to have raised an additional issue involving clear and unmistakable error in the RO's April 1976 decision to assign a zero percent rating for that disability. This issue has not been prepared for appellate review, or has otherwise been adjudicated. Therefore, it is referred back to the RO for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary for equitable resolutions of the issues on appeal has been obtained by the RO. 2. The veteran's service-connected perirectal abscesses are manifested by fistula openings from which purulent matter is expressed, requiring the wearing of a pad, but symptoms consistent with extensive leakage and fairly frequent involuntary bowel movements are not shown, nor is there scarring that is superficial, poorly nourished, tender and painful on objective demonstration, or having repeated ulceration demonstrated. 3. The veteran was awarded an increased rating, effective October 6, 1997, based on a claim for an increased evaluation for perirectal abscesses received on that date; increase in perirectal abscesses in the year prior thereto is not demonstrated. CONCLUSIONS OF LAW 1. The criteria for assignment of an evaluation of 30 percent for the veteran's perirectal abscesses have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.14, 4.114, Diagnostic Codes 7332, 7335, 7337; 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804 (1999). 2. The proper effective date for assignment of a 10 percent evaluation for the veteran's perirectal abscesses is October 6, 1997, the date on which the veteran's claim for an increased rating was received. 38 U.S.C.A. §§ 5107, 5110(a), (b)(2) (West 1991); 38 C.F.R. § 3.400(o)(1), (2) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Rating The veteran's claim for entitlement to an evaluation in excess of 10 percent for his perirectal abscesses is well grounded. An allegation that a service-connected disability has increased in severity is sufficient to well-ground a claim for an increased rating. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 628, 632 (1992). The Board also finds that all relevant facts have been properly developed. See 38 U.S.C.A. § 5107(a) (West 1991). The evidence includes the veteran's service medical records, records of treatment following service, reports of VA rating examinations, and a transcript of personal hearing testimony given before a Hearing Officer at the RO. The Board is unaware of any additional relevant evidence which is available in connection with this appeal. Therefore, no further assistance to the veteran regarding the development of evidence is required. See 38 U.S.C.A. § 5107(a); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). Disability evaluations are determined by evaluating the extent to which the veteran's service connected disability affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.10 (1999). In addition, where entitlement to service connection has already been established, and an increase of a disability evaluation is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Historically, service connection for perirectal abscesses was granted by an April 1976 rating decision, and a zero percent evaluation was assigned, effective from June 28, 1975. On October 6, 1997, the RO received a claim from the veteran for an increased rating for his perirectal abscesses, claiming that the severity of that disability had increased and warranted assignment of a compensable evaluation. By a December 1997 rating decision, a 10 percent evaluation was granted for the veteran's perirectal abscesses, effective from October 6, 1997. This decision was based upon medical evidence showing that the symptomatology involving the veteran's perirectal abscesses was most consistent with tender scars susceptible to repeated ulceration. The veteran appealed this decision, contending, in substance, that the severity of his perirectal abscesses warranted an assignment of an evaluation in excess of 10 percent. Contemporaneous clinical treatment records, dating from April 1992 through September 1998, show that the veteran received periodic treatment during this time for his service-connected perirectal abscesses. He was also periodically treated for inguinal groin abscesses which were characterized as infected and as discharging purulent material. A treatment note dated in November 1997 indicates that the veteran experienced "occasional" groin abscesses over the past 20 years, and that he had one perianal abscess in 1975, but that he denied other anal complaints, and denied any anal pain or discharge. Service connection is not in effect for the veteran's inguinal groin abscesses. The treatment records generally note the presence of an anal fistula, but the veteran primarily received treatment for his nonservice-connected scrotal/groin abscesses during this period. However, in November 1997, and in January and April 1998, the veteran was seen for treatment for his anal fistula. In January 1998, the veteran reported that one of the perirectal abscesses had burst, and discharged pus and blood. His treatment primarily consisted of sitz baths and drainage. The perirectal abscesses were not noted to affect the veteran's bowel movements, but were shown to express purulent material. A barium enema conducted in February 1998 showed an essentially normal colon, and did not reveal any evidence of barium flowing outside of the lumen, such as the fistula tract. In October 1998, the veteran appeared at a personal hearing before a Hearing Officer at the RO in which he testified that he had to use pads to alleviate the effects of the discharge from his perirectal abscesses. He testified that he was last seen in April 1998 for treatment for his perirectal abscess, and that it typically drained, then healed, and would recur some two to three months later, requiring additional draining, surgery, and additional pads. In addition, the veteran testified that following treatment, he would experience infection, and would take penicillin or ampicillin. The veteran indicated that after "surgery" he would wear pads for approximately a week to ten days, depending on the severity of the drainage. In addition, the veteran testified that he experienced fecal leakage, and that he frequently soiled his clothes. According to the veteran, the medication prescribed for his diabetes caused his stools to harden, which caused difficulty in passing the stools. He indicated that he had missed work due to his perirectal abscesses, and that his treatment was painful. In March 1999, the veteran underwent a VA rating examination. The veteran reported having undergone treatment for his perirectal abscesses in January 1998 consisting of incision and drainage of the abscesses. The examiner also noted recurrent problems with nonservice-connected scrotal and groin abscesses. On examination, the veteran was found to have two fistula openings in the perirectal area with purulent material being expressed therefrom. Rectal examination itself revealed no scar tissue or fibrosis. The prostate was normal, and the hemoccult on the stool was negative. The examiner concluded with his impression of perirectal abscesses which had been treated with incision and drainage. The Board has evaluated the above-discussed evidence, and after full consideration, concludes that the currently assigned 10 percent evaluation for the veteran's perirectal abscesses is appropriate, and that the preponderance of the evidence is against assignment of a higher rating under any applicable diagnostic code. The Board observes that under the current Rating Schedule, there is no specific provision for perirectal abscesses. In situations in which the particular disability at issue is not listed under the Rating Schedule, such disability may be rated by analogy to a closely related disease or injury in which not only the functions affected, but also the anatomical location and symptomatology, are closely analogous. See 38 C.F.R. §§ 4.20, 4.27 (1999); Lendenmann v. Principi, 3 Vet. App. 345 (1992); Pernorio v. Derwinski, 2 Vet. App. 625 (1992). After reviewing the pertinent symptomatology involving the veteran's perirectal abscesses, the Board concludes that such disability is most consistent with 38 C.F.R. § 4.114 under which provisions diseases of the digestive system are evaluated, and under 38 C.F.R. § 4.118, under which provisions disorders of the skin are evaluated. Under 38 C.F.R. § 4.118, Diagnostic Code 7335 (1999), ano fistula is to be rated under 38 C.F.R. § 4.118, Diagnostic Code 7332 (1999), as impairment of sphincter control. In addition, pruritus ani under 38 C.F.R. § 4.114, Diagnostic Code 7337 (1999) is to be rated for the underlying condition, which under 38 C.F.R. § 4.114, would appear to be ano fistula, and hence, impaired sphincter control. Under Diagnostic Code 7332, a 10 percent rating is contemplated for a constant slight, or occasional moderate leakage from the sphincter. A 30 percent rating is contemplated for occasional involuntary bowel movements, necessitating the wearing of a pad. Assignment of a 60 percent evaluation is warranted where there is extensive leakage and fairly involuntary bowel movements, and a 100 percent evaluation, the highest available, is warranted for complete loss of sphincter control. Id. Under 38 C.F.R. § 4.118, Diagnostic Code 7803 (1999), superficial poorly nourished scars with repeated ulceration warrants assignment of a 10 percent evaluation. Under 38 C.F.R. § 4.118, Diagnostic Code 7804 (1999), a 10 percent evaluation is also contemplated where there are tender and painful scars upon objective demonstration. Ten percent evaluations are the only ratings available under Diagnostic Codes 7803 and 7804. As noted, the evidence submitted by the veteran in support of his claim, consisting of contemporaneous VA clinical treatment records dating from April 1992 through September 1998, shows that he was treated for perirectal abscesses beginning in November 1997 through April 1998. He also received fairly intensive treatment for scrotal and inguinal abscesses. However, service connection has not been established for these disorders, and any treatment or impairment incurred as a result of groin, scrotal, or inguinal abscesses cannot be used as a basis upon which to grant an increased evaluation for perirectal abscesses. Symptomatology involving the veteran's perirectal abscesses is shown to consist of purulent expressions from anal fistula sites. The veteran testified that his perirectal abscesses necessitated his wearing a pad, and caused him to experience fecal leakage with soiling of his undergarments. The medical evidence of record reflects that the veteran was treated for perirectal abscesses from November 1997 through April 1998, and that he had purulent discharge at the time of his March 1999 examination. While the testimony indicates that the veteran does not have constant drainage, it does indicate that pads are a necessity. With consideration of the above analysis the Board concludes that the symptoms related to the veteran's service connected perirectal abscesses are greater than that contemplated by a 10 percent evaluation under Diagnostic Code 7332. The evidence is in equipoise with respect to whether these symptoms more nearly approximate the criteria for a 30 percent evaluation under Diagnostic Code 7332. In resolving all doubt in the veteran's behalf the higher 30 percent evaluation is warranted. A separate evaluation for scars under Diagnostic Codes 7803 and 7804 is not warranted. There is no competent medical evidence indicating that the veteran has residual scars that are superficial, poorly nourished, have repeated ulceration, or are tender and painful on objective demonstration. The potential application of Title 38 of the Code of Federal Regulations (1999) have also been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board has carefully considered the evidence presented, particularly with regard to the veteran's assertions that he has missed time from work due to his service-connected perirectal abscesses. However, there has been no showing that the disability under consideration, perirectal abscesses, has necessitated frequent periods of hospitalization, has caused marked interference with employment, or otherwise renders impracticable the regular schedular standards. In this respect, there is no objective evidence to show that he is incapable of obtaining or retaining gainful employment as a result of his perirectal abscesses. The Board observes that the veteran has received treatment for ongoing problems for his abscesses in the scrotal/groin area, but also notes that these disorders are not service-connected, and cannot be used as a basis for establishing inability to obtain or retain employment. Therefore, in the absence of factors suggestive of an unusual disability picture, further development in keeping with the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) (1999) is not warranted here. II. Prior Effective Date The second question presented by this appeal is whether the veteran is entitled to an effective date earlier than October 6, 1997 for the assignment of a 10 percent evaluation for his service-connected perirectal abscesses. As noted, service connection was initially granted for a perirectal abscess by an April 1976 rating decision, and a zero percent rating was assigned, effective from June 28, 1975. The veteran was informed of this decision by a letter dated on April 19, 1976. Following this, no action was taken with respect to the veteran's service-connected disability until the veteran filed a claim for an increased evaluation which was received on October 6, 1997. By a December 1997 rating decision, the veteran was assigned a 10 percent disability evaluation, effective from October 6, 1997, the date upon which his claim for an increased rating was received. The veteran contends, in substance, that he was previously unaware that service connection for perirectal abscesses was in effect prior to 1997 when he filed his claim for an increased rating. He has maintained, through personal hearing testimony given in October 1998, that had he known that service connection was in effect for perirectal abscesses, he would have filed a claim for an increased rating long before October 1997. In addition, the veteran has asserted that he had undergone treatment for his perirectal abscesses since the time of his discharge from service until the present time, and while the earlier treatment records dating through the 1980s may be unavailable, an effective date prior to October 6, 1997, should still be granted. The issue of entitlement to an effective date prior to October 6, 1997, has been addressed by the RO in his statement of the case of April 1998, and in its supplemental statements of the case dated in October 1998 and May 1999. The Board has reviewed the veteran's claim, and has evaluated the evidence of record. Based upon this review, the Board concludes that notwithstanding the veteran's assertion that before October 1997 he was not aware that service connection was in effect for his perirectal abscesses, the Board must conclude that October 6, 1997, is the proper effective date for a grant of a 10 percent disability rating for his perirectal abscesses. The United States Court of Appeals for Veterans Claims (Court) in Harper v. Brown, 10 Vet. App. 125 (1997), citing 38 U.S.C.A. § 5110(a) (West 1991), noted that unless specifically provided for or otherwise, the effective date of assignment of benefits based upon a claim for compensation shall not be fixed earlier than the date of receipt of that claim. In addition, the Court found that under 38 U.S.C.A. § 5110(b)(2) (West 1991), the effective date of a compensation award shall be the earliest date that such is ascertainable, if the application is received within one year of that date. (Emphasis added). Further, in Harper, the Court observed that under 38 C.F.R. § 3.400(o)(1) (1999), that entitlement to compensation shall be the date of receipt of the claim, or the date that entitlement arose whichever is later, except as provided under (o)(2) of that section. Under 38 C.F.R. § 3.400(o)(2) (1999), the earliest date as of which it is factually ascertainable that an increase in disability has occurred if the claim is received within one year from such date. Otherwise, the effective date of the award of such compensation is the date of receipt of the claim. Id. at 126. Further, under 38 C.F.R. § 3.157 (1999), the effective date for an award of compensation benefits may be the date on which the disability was first noted, as indicated by medical treatment records or a report of a VA rating examination. However, despite his contentions to the contrary, no medical evidence is currently available showing that the veteran's service-connected disability was compensably disabling prior to October 6, 1997. The effective date of the assigned 10 percent disability rating for the veteran's perirectal abscesses was the date upon which his claim for an increased evaluation was received, October 6, 1997. In support of his claim for an increase, he had submitted VA clinical treatment records dating from April 1992 through September 1998. Earlier treatment records dating from the time of his discharge from service to April 1992 were unavailable. The available records showed that the date of the earliest treatment for perirectal abscesses to be in November 1997, and later from January through April 1998. The veteran was also treated for nonservice-connected groin abscesses prior to November 1997. However, as service connection was not established for those disorders, they cannot be used as a basis for establishing entitlement to an earlier effective date for the veteran's service-connected disability. In any event, the earliest documented date of increased severity for the veteran's perirectal abscesses was in November 1997. As his claim for an increase was received on October 6, 1997, the earlier date was established as the effective date of his increased rating. Therefore, applying the facts of the present case to the applicable law, and to the Court's interpretation of 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400 as set forth in Harper supra, the Board finds that the veteran is not entitled to an effective date prior to October 6, 1997, for assignment of a 10 percent evaluation for his perirectal abscesses. ORDER An increased evaluation 30 percent for the veteran's perirectal abscesses is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an effective date prior to October 6, 1997, for an increased evaluation for perirectal abscesses is denied. MILO H. HAWLEY Acting Member, Board of Veterans' Appeals