Citation Nr: 1761194
Decision Date: 12/29/17 Archive Date: 01/02/18

DOCKET NO. 09-31 201 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee

THE ISSUES

1. Entitlement to a higher rating for herniated nucleus pulpous L5-S1, rated as 40 percent disabling prior to January 15, 2015 and at 10 percent from May 1, 2015.

2. Entitlement to a higher initial rating for bladder incontinence, rated as 30 percent disabling from May 1, 2015, to June 23, 2016, as 20 percent disabling from June 23, 2016, to October 20, 2016, and as 60 percent disabling from October 20, 2016.

3. Entitlement to a higher initial rating for radiculopathy of the left lower extremity, rated as 10 percent disabling.

4. Entitlement to a higher initial rating for radiculopathy of the right lower extremity, rated as 10 percent disabling.

5. Entitlement to a compensable initial rating for fecal incontinence/urgency.

6. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU).

(The issue of entitlement to payment or reimbursement for private medical services the Veteran received at Adams Place in Murfreesboro, Tennessee, beginning January 22, 2015, is the subject of a separate decision by the Board of Veterans’ Appeals).

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

K. Marenna, Counsel

INTRODUCTION

The Veteran served on active duty from September 1969 to September 1973.

These matters are before the Board of Veterans’ Appeals (Board) on appeal from an October 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

The case was previously before the Board in January 2013 and October 2015 and remanded for additional development. In the January 2013 remand, the Board determined the issue of entitlement to a TDIU had been raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009).

In a December 2015 rating decision, the RO granted a temporary 100 percent evaluation for the back disability for surgical or other treatment necessitating convalescence, effective January 15, 2015, and a 40 percent rating from May 1, 2015, under the historical criteria of Diagnostic Code 5293. Because the 100 percent award represented a total grant of benefits sought on appeal for the period from January 15, 2015 through May 1, 2015, the claim for increase for that period is moot and is not before the Board.

In an October 2016 rating decision, the RO awarded a separate grant of service connection for bladder incontinence with an evaluation of 30 percent, effective May 1, 2015, and an evaluation of 20 percent, effective June 23, 2016. The RO granted service connection for fecal incontinence/urgency with a noncompensable evaluation effective May 1, 2015. Service connection for radiculopathy of the right and left lower extremities was also granted, with initial ratings for each extremity of 10 percent effective May 1, 2015. As a result of awarding separate evaluations for these neurological impairments, the RO assigned a 10 percent rating for the back disability under Diagnostic Code 5243, effective May 1, 2015, explaining that the change did not affect the Veteran’s overall rate of compensation.

Although the Veteran has not specifically disagreed with the separate ratings, the Board finds that the bladder and fecal incontinence and radiculopathy of the lower extremities is part and parcel of the increased rating claim for the Veteran’s low back disability. See 38 C.F.R. § 4.71a, General Rating Formula, Note 1. The issues on appeal have been recharacterized as listed on the title page of this decision, to take account of the fact that the orthopedic and neurologic manifestations of the service-connected lumbar spine disability warrant separate ratings pursuant to different rating criteria. The Board notes that as the claim for a higher rating of 30 percent for bladder incontinence prior to October 20, 2016, is being granted and new VA examination requested below would not have an impact on rating the disability prior to October 20, 2016. As the grant is favorable to the Veteran, the Board has adjudicated the issue, prior to October 20, 2016.

Because a claimant is presumed to be seeking the maximum available rating for a service-connected disability, the appeals for higher ratings for the low back disability (with associated incontinence and radiculopathy) as reflected on the title page, remain in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993).

The issues of entitlement to a higher rating for herniated nucleus pulpous L5-S1, rated as 40 percent disabling prior to January 15, 2015, and as 10 percent from May 1, 2015; entitlement to a higher initial rating for radiculopathy of the left lower extremity, rated as 10 percent disabling; entitlement to a higher initial rating for radiculopathy of the right lower extremity, rated as 10 percent disabling; entitlement to an initial rating in excess of 60 percent for bladder incontinence from October 20, 2016; entitlement to a compensable initial rating for fecal incontinence/urgency; and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDING OF FACT

Prior to October 20, 2016, the Veteran’s bladder incontinence was manifested by urinary retention requiring intermittent or continuous catheterization.

CONCLUSIONS OF LAW

1. Prior to June 23, 2016, the criteria for an initial rating in excess of 30 percent for bladder incontinence are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.116, Diagnostic Code 7542 (2017).

2. From June 23, 2016, to October 20, 2016, the criteria for an initial rating of 30 percent, but no higher, for bladder incontinence are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.116, Diagnostic Code 7542 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSIONS

VA has duties to notify and assist claimants in substantiating a claim for VA benefits. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Increased Rating- General Legal Criteria

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

The Veteran is service-connected for bladder incontinence from May 1, 2015, because the condition was permanently worsened as a result of surgery performed for his service-connected low back disability. The RO concluded that prior to the aggravation; the disability was noncompensable based on evidence that showed only occasional bladder incontinence. The Veteran has not disagreed with the effective date assigned to the award of service connection for bladder incontinence and the evidence prior to May 1, 2015 will not be discussed further.

The Veteran’s bladder incontinence is rated under Diagnostic Code 7542, which provides that a neurogenic bladder will be rated as voiding dysfunction. 38 C.F.R. § 4.115b, Diagnostic Code 7542. For voiding dysfunction, a 20 percent rating is assigned when the wearing of absorbent materials is required and when the absorbent materials must be changed less than two times per day. Urinary incontinence or leakage requiring the wearing of absorbent materials that must be changed two to four times per day is assigned a 40 percent rating. Urinary incontinence or leakage requiring the use of an appliance or the wearing of absorbent materials that must be changed more than four times per day is assigned a 60 percent rating. 38 C.F.R. § 4.115a.

The Veteran has also had symptoms of obstructed voiding. Under the criteria for obstructed voiding, a 10 percent rating is warranted for marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: 1) Post void residuals greater than 150 cc; 2) Uroflowmetry; markedly diminished peak flow rate (less than 10 cdc/sec); 3) Recurrent urinary tract infections secondary to obstruction; 4) Stricture disease requiring periodic dilatation every 2 to 3 months. A 30 percent rating is warranted for urinary retention requiring intermittent or continuous catheterization.

Prior to June 23, 2016

The Veteran is rated as 30 percent disabling from May 1, 2015, to June 23, 2016.

A September 2015 private treatment record indicates the Veteran reported having daytime leakage problems- noted with just pressure of sitting up. He also reported some numbness. The Veteran stated that he leaked when he had to urinate. The record indicates the Veteran denied incontinence, frequency, weak stream, incomplete emptying, urinating at night and blood in urine. The Veteran reported he voided ok and then used a catheter.

A June 2015 private treatment record indicates the Veteran had a neurogenic bladder and had trouble urinating following back surgery. The record indicated the Veteran denied incontinence, frequency, weak stream, incomplete emptying, urinating at night, and blood in urine.

A September 2015 private treatment record indicates the Veteran reported having some daytime leakage problems. The Veteran had bladder atony. He stated he leaked when he had the urge to urinate. The Veteran denied incontinence, frequency, weak stream, incomplete emptying, urinating at night, and blood in urine.

A March 2016 private treatment record indicates the Veteran reported having some urine leakage from time to time. He reported using Depends. The record indicates the Veteran denied incontinence, frequency, weak stream, incomplete emptying, urinating at night and blood in urine. He reported emptying pretty well, and spot checking with a catheter.

The Board finds that a preponderance of the evidence is against a rating in excess of 30 percent prior to June 23, 2016. The evidence shows the Veteran had urinary retention requiring intermittent or continuous catheterization, which is consistent with a 30 percent rating under the obstructed voiding criteria. The evidence does not show the Veteran required the wearing of absorbent materials which must be changed 2 to 4 times per day, which would warrant a 40 percent rating under Voiding Dysfunction. The Veteran’s private treatment record reflects that he stated he leaked when he had to urinate. The March 2016 private treatment record indicates the Veteran used Depends. But, the evidence indicates the Veteran’s leakage was occasional. The evidence does not support a finding that he was wearing absorbent materials that needed to be changed 2 to 4 times per day. The evidence did not show the Veteran had symptoms of urinary frequency with daytime voiding intervals of less than one hour, or; awakening to void five or more times per night. The private treatment records indicate he denied having frequency symptoms. There is also no evidence of renal dysfunction. Therefore, the Board finds that a rating in excess of 30 percent is not warranted for the Veteran’s bladder incontinence prior to June 23, 2016.

From June 23, 2016, to October 20, 2016

The Veteran’s bladder incontinence is rated as 20 percent disabling from June 23, 2016, to October 20, 2016.

The July 2016 VA examination report noted that the Veteran’s urinary incontinence became much worse for a time after his January 2015 surgery when he experienced fecal and urinary incontinence and urinary retention requiring self-catheterizations for some period, still doing this intermittently when he felt like he had not emptied his bladder. He reported having some problems with urinary leakage. The VA examiner noted that pharmacy records indicate the Veteran used 152 diapers in the 4 months from January 2016 to June 2016, an average of about one per day.

The Board finds that a higher rating of 30 percent is warranted from June 23, 2016, to October 20, 2016. The July 2016 VA examination report of the Veteran intermittently performing self-catheterization is consistent with the evidence of record prior to June 23, 2016. As noted above, urinary retention requiring intermittent or continuous catheterization warrants a 30 percent rating for obstructed voiding. Therefore, a rating of 30 percent, but no higher, is warranted from June 23, 2016, to October 20, 2016.

The Board finds that a preponderance of the evidence is against a rating in excess of 30 percent for bladder incontinence from June 23, 2016, to October 20, 2016. The evidence does not show the Veteran required the wearing of absorbent material which must be changed 2 to 4 times per day. As noted above, the July 2016 VA examination report indicated average of one diaper a day was used according to pharmacy records. The Veteran did not report wearing absorbent material that needed to be changed 2 to 4 times per day. The evidence also fails to show the Veteran had symptoms of urinary frequency with daytime voiding intervals of less than one hour, or; awakening to void five or more times per night. The Veteran did not have bladder dysfunction. Accordingly, the Board find that a rating of 30 percent, but no higher, is warranted for bladder incontinence from June 23, 2016, to October 20, 2016.

ORDER

Entitlement to an initial rating in excess of 30 percent for bladder incontinence prior to June 23, 2016, is denied.

Entitlement to an initial rating of 30 percent, but no higher, for bladder incontinence from June 23, 2016, to October 20, 2016, is granted, subject to the regulations governing the payment of monetary awards.

REMAND

The Veteran was afforded a VA examination of the spine in March 2017. In November 2017, the Veteran filed a claim for an increased rating for his service-connected herniated nucleus pulpous L5-S1, post-operative, even though the appeal of the assigned ratings is currently before the Board. The Veteran’s filing of a claim for an increased rating in November 2017 indicates his condition may have worsened since the last VA examination in March 2017. In addition, an April 2017 VA treatment record indicates the Veteran reported having off and on worsening of the neuropathic pain. He had radiculopathy pain, particularly in the left side. A May 2017 VA treatment record indicated the Veteran reported having increased pain in the legs, although they did not hurt all the time. As the claim indicates the Veteran’s back disability has worsened and the VA treatment records indicate the Veteran has increased radiculopathy pain, the Board finds that remand for an examination to evaluate the Veteran’s current symptomatology is warranted.

The issues of entitlement to an initial rating 60 percent for bladder incontinence from October 20, 2016 and entitlement to a compensable initial rating for fecal incontinence/urgency, are part and parcel of the claim for a higher rating for the low back disability. The Board finds the increased rating claims for the Veteran’s service-connected low back disability and neurologic manifestations, including radiculopathy of the right and left lower extremities must be remanded to afford the Veteran a contemporaneous VA examination to assess the current extent and severity of his low back disability and radiculopathy. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995).

An October 2017 VA treatment record indicates the Veteran has asserted that he has erectile dysfunction that is related to his back surgery, and it has gotten worse. The Veteran is not service-connected for erectile dysfunction and there is no opinion of record indicating whether the Veteran’s erectile dysfunction is caused or aggravated by his service-connected low back disability. Accordingly, an opinion must be obtained addressing the etiology of the erectile dysfunction. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1).

The Veteran’s claim for entitlement to a TDIU is inextricably intertwined with the increased rating claims. Therefore, consideration of the claim must be deferred pending resolution of that claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).

Accordingly, the case is REMANDED for the following actions:

1. Contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on his response, attempt to procure copies of all records which have not previously been obtained from identified treatment sources.

Regardless of the Veteran’s response, the Veterans’ complete VA treatment records from December 2017 to the present must be obtained.

If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e).

2. After receiving any additional records, schedule the Veteran for a VA examination(s) to determine the current nature and severity of his service-connected (1) post-operative residuals of herniated nucleus pulpous L5-S1; (2) radiculopathy of the right and left lower extremities; (3) bladder incontinence; and (4) fecal incontinence/urgency. The electronic claims file must be made available to the examiner for review in conjunction with the examination(s). All pertinent symptomatology and findings must be reported in detail. All indicated diagnostic tests and studies must be accomplished. Any appropriate Disability Benefits Questionnaire(s) (DBQs) should be filled out for this purpose, if possible.

The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s erectile dysfunction is caused or aggravated (any increase in severity beyond natural progression) by his service-connected herniated nucleus pulpous L5-S1.

The examiner must provide a complete rationale for any opinion expressed. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.

3. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken above, readjudicate the Veteran’s claims. If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. § 5109B.

____________________________________________
M. SORISIO
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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