Citation Nr: 18160420
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 14-25 208A
DATE:	December 27, 2018
ORDER
Entitlement to service connection for a bowel condition is denied.
Entitlement to service connection for a bladder condition is denied.
Entitlement to an increased rating in excess of 40 percent prior to February 1, 2011, for lumbar spine disability is denied.
Entitlement to an initial rating in excess of 20 percent for lower left extremity radiculopathy is denied.
Entitlement to an initial rating in excess of 20 percent for lower right extremity radiculopathy is denied.
Entitlement to a total disability rating due to individual unemployability (TDIU) prior to February 1, 2011, is denied.
Entitlement to TDIU from February 1, 2011, to April 30, 2011, is dismissed as moot.
REMANDED
Entitlement to an increased rating in excess of 20 percent since May 1, 2011, for a lumbar spine disability is remanded.
Entitlement to an increased rating in excess of 30 percent for a left knee disability is remanded.
FINDINGS OF FACT
1. The Veteran’s bowel condition is neither proximately due to, nor aggravated beyond its natural progression by, his service-connected back disability, and is not otherwise related to an in-service injury, event, or disease.
2. The Veteran does not have a currently diagnosed bladder disability.
3. Prior to February 1, 2011, the Veteran’s lumbar spine disability was not manifested by unfavorable ankylosis of the entire thoracolumbar spine or Intervertebral Disc Syndrome (IVDS) with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 
4. The Veteran's service-connected left lower extremity radiculopathy has been manifested by no more than moderate, incomplete paralysis of the sciatic nerve.
5. The Veteran’s service-connected right lower extremity radiculopathy has been manifested by no more than moderate, incomplete paralysis of the sciatic nerve.
6. Prior to February 1, 2011, the preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities rendered him unable to secure or follow substantially gainful employment.
7. From February 1, 2011, to April 30, 2011, the issue of entitlement to TDIU is moot.
CONCLUSIONS OF LAW
1. The criteria for service connection for a bowel condition are not met.  38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a).
2. The criteria for service connection for a bladder condition are not met.  38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a).
3. Prior to February 1, 2011, the criteria for an evaluation in excess of 40 percent for a lumbar spine disability were not met.  38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5242 (2017).
4. The criteria for an initial evaluation greater than 20 percent for the service-connected radiculopathy of the left lower extremity have not been satisfied.  38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321(a), 4.1-4.10, 4.124a, Diagnostic Code 8520.
5. The criteria for an initial evaluation greater than 20 percent for the service-connected radiculopathy of the right lower extremity have not been satisfied.  38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321(a), 4.1-4.10, 4.124a, Diagnostic Code 8520. 
6. Prior to February 1, 2011, the criteria for entitlement to TDIU are not met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017).
7. From February 1, 2011, to April 30, 2011, entitlement to TDIU was moot.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from February 1976 to March 1979.
Procedurally, regarding the Veteran's claim for an increased rating for his lumbar spine disability, the Veteran was granted service connection for his lumbar spine disability in a February 2008 rating decision.  In August 2010, he asserted a claim for an increased rating and in February 2011 asserted a claim for a temporary total rating due to a back surgery.  In July 2012, the agency of original jurisdiction (AOJ) granted an increased rating of 40 percent, effective August 16, 2010, his date of claim; a temporary total 100 percent rating from February 1, 2011 to April 30, 2011; and a 20 percent rating thereafter.  The temporary total disability rating for the period from February 1, 2011, to April 30, 2011, for his service-connected lumbar spine disability is considered a full grant of the benefit sought, and that period is no longer on appeal.  AB v. Brown, 6 Vet. App. 35 (1993).
A July 2018 rating decision granted entitlement to TDIU, effective May 1, 2011.  While the Veteran has not disagreed with this decision, the Veteran, in his application for TDIU, asserted he became unable to work due to his service-connected disabilities, which included both his left knee and lumbar spine disabilities, both of which had pending claims for increased ratings at the time.  As such, the Board has characterized the issues on appeal to include a claim of entitlement to TDIU prior to May 1, 2011.  Rice v. Shinseki, 22 Vet. App. 447 (2009)
Service Connection
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.
1. Bowel Condition
The Veteran contends that he is entitled to service connection for a bowel condition, which he asserts is secondary to his already service-connected lumbar spine disability.  See July 2013 Notice of Disagreement.
The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or was aggravated beyond its natural progress by, his service-connected lumbar spine disability.
The Board concludes that, while the Veteran has a current diagnosis of colon polyps, the preponderance of the evidence is against finding that the Veteran’s bowel disability is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability.  38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a).  
The June 2018 VA examiner opined that the Veteran had a diagnosis of colon polyps, given in 2007, but had never been given a diagnosis of colitis, irritable bowel syndrome, or any other intestinal condition, other than colon polyps.  The examiner opined that the claimed condition was less likely than not related to the Veteran's service-connected back disability.  The examiner explained that the diagnosis of colon polyp was coincidental and unrelated, and the Veteran had no other diagnosed colon or bowel condition.
While the Veteran may believe his bowel condition is related to his service-connected lumbar spine disability, he has not been shown to be competent to provide a nexus opinion.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  
Service connection may also be granted on a direct basis; however, the Veteran has not asserted direct service connection and has not provided any evidence in support of direct service connection.  Nor does the record otherwise demonstrate that his claimed bowel condition is directly related to service.  The Veteran’s service treatment records are silent for complaints, treatment or diagnosis of any bowel disorder.  Further, the record contains no medical evidence establishing a medical nexus between the Veteran’s claimed bowel disorder and his active duty service. Thus, the preponderance of the evidence is also against finding that the Veteran’s chronic constipation is related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). 
2. Bladder Condition
The Veteran contends that he is entitled to service connection for a bladder condition, which he asserts is secondary to his already service-connected lumbar spine disability.  See July 2013 Notice of Disagreement.
The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.
The Board concludes that the Veteran does not have a current diagnosis of a bladder condition and has not had one at any time during the pendency of the claim or recent to the filing of the claim.  38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d).
The Veteran's treatment records show that in July 2012, the Veteran reported problems with urinary voiding.  After an examination and testing, the Veteran did not have any identifiable or treatable urology etiology for his complaints.
During a June 2018 VA examination, the Veteran reported that he had a weak urinary stream and burning with urination since approximately 2016.  He reported post-void dribbling, but no incontinence requiring the wearing absorbent pads.  The examiner found no objective evidence to support a diagnosis of the Veteran's claimed bladder condition.
While the Veteran may believe he has a bladder condition, he has not been shown to be competent to render a medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Consequently, the Board gives more probative weight to the competent medical evidence.  Since a bladder condition has not been shown, service connection is denied.
Increased Rating
A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 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 for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.
The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).
3. Lumbar Spine Disability Prior to February 1, 2011
Disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever method results in the higher rating.  
Under the General Rating Formula, a 40 percent disability rating is appropriate where there is evidence of forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent disability rating is warranted where the disability has resulted in unfavorable ankylosis of the entire thoracolumbar spine.  And a 100 percent disability rating contemplates unfavorable ankylosis of the entire spine.
Note (1): Objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately, under an appropriate diagnostic code.
The normal findings for range of motion of the lumbar spine are flexion to 90 degrees, extension to 30 degrees, lateral flexion, right and left, to 30 degrees, and rotation, right and left, to 30 degrees.  38 C.F.R. § 4.71a, Plate V.
IVDS can, alternatively, be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  The method that results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25 is the method that should be utilized.  38 C.F.R. § 4.71a, Diagnostic Code 5243. 
Under the Formula for Rating IVDS on Incapacitating Episodes, a 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  And a 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.
The Veteran has asserted that he is entitled to an initial rating in excess of 40 percent for his degenerative disc disease prior to February 1, 2011.
During a September 2010 VA examination, the Veteran reported that he experienced constant, mild back pain, with flare-ups five to seven times per day that lasted an hour or so.  Range of motion testing showed that the Veteran had forward flexion to 45 degrees, extension to 5 degrees, left flexion to 10 degrees, right flexion to 11 degrees, and lateral rotation 45 degrees bilaterally.  After three repetitive motions, the Veteran had flexion to 30 degrees, extension to 5 degrees, left lateral flexion to 7 degrees, right lateral flexion to 8 degrees, and 45 degrees of rotation bilaterally.  The Veteran reported that he had experienced 20 days of incapacitating episodes in the prior 12 months, nine of which he stated were doctor-prescribed.  
The Board finds that the evidence demonstrates that the Veteran’s service-connected degenerative disc disease was not manifested by unfavorable ankylosis of the entire thoracolumbar spine or IVDS with incapacitating episodes totalling at least 6 weeks over the prior 12 months. 
Flexion was, at worst, to 30 degrees after repetitive use testing during the September 2010 VA examination.  There is no indication that there is any additional functional loss that more nearly approximates or equates to unfavorable ankylosis.  38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  Thus, a rating higher than 40 percent is not warranted under the General Rating Formula. 
The Board also finds that there is no basis for assigning a higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-7.  As noted above, the Veteran has had some pain during flare-ups; however, he did not report any additional limitation in the range of motion during a flare-up.  Therefore, the competent medical evidence reflects that the assigned 40 percent rating properly compensates the Veteran for the extent of functional loss resulting from any such symptoms.  
Accordingly, the preponderance of the evidence is against assignment of an increased evaluation in excess of 40 percent for the Veteran’s service-connected degenerative disc disease prior to February 1, 2011.
4. Bilateral Lower Extremity Radiculopathy
The Veteran is seeking disability ratings in excess of 20 percent for his service-connected left and right lower extremity radiculopathy, respectively.  Specifically, the Veteran contends that his lower extremity radiculopathy is more severe than reflected by his currently assigned disability rating.
The Veteran’s service-connected bilateral lower extremity radiculopathy is evaluated under Diagnostic Code 8520.  Moderate incomplete paralysis warrants a 20 percent disability rating, moderately severe incomplete paralysis warrants a 40 percent disability rating, and severe incomplete paralysis with marked muscular atrophy warrants a 60 percent disability rating.  An 80 percent disability rating is warranted for complete paralysis, where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost.  See 38 C.F.R. § 4.124a.
Descriptive words such as “slight,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all the evidence for “equitable and just decisions.”  38 C.F.R. § 4.6.
The term “incomplete paralysis” indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  38 C.F.R. § 4.124a.
Based on the evidence, the Board finds that the Veteran is not entitled to an initial disability rating in excess of 20 percent for either his left or right lower extremity radiculopathy symptoms, as there is no indication that incomplete paralysis is more than moderate so as to warrant an initial disability rating in excess of 20 percent.
During a September 2010 VA examination, the Veteran reported pain radiating down both legs, right worse than left, which he described as constant mild pain, with severe flare-ups five to seven times per day, each lasting an hour or so.
A December 2011 VA examiner found that the Veteran had decreased sensation in his lower leg/ankle and foot/toes bilaterally.  The Veteran also had mild paresthesias/dysesthesias and numbness bilaterally.  However, the examiner did not provide an overall evaluation of the severity for either the Veteran's left or right lower extremity radiculopathy.   
During a June 2017 VA examination, the Veteran had decreased sensation in his right and left lower leg/ankle and foot/toes.  He reported moderate constant pain, paresthesias or dysesthesias, and numbness in his right and left lower extremities, as well as severe intermittent pain.  Over all, the examiner evaluated the severity of the Veteran's radiculopathy as moderate bilaterally.  
Likewise, a June 2018 VA examiner found that the Veteran had decreased sensation in lower leg/ankle and foot/toes bilaterally, and moderate constant pain, paresthesias or dysesthesias, numbness, and severe intermittent pain bilaterally.  The examiner also evaluated overall severity of the Veteran's radiculopathy as moderate bilaterally.  
Considering the severity of the Veteran’s symptoms, as demonstrated by the VA examinations and the Veteran’s subjective report of symptoms, the Veteran has suffered from, at most, moderate radicular symptoms during the entire appeal period.  Although the Veteran has reported intermittent severe radicular pain, he has reported that he has more generally experienced moderate symptoms, and, moreover, there is no medical or lay evidence indicating marked muscular atrophy, characteristic of severe incomplete radiculopathy.  Nor is there any indication that, on the whole, the Veteran has experienced moderately severe symptoms in either the right or left lower extremity.  As such, the Board finds that the Veteran’s symptoms of left and right lower extremity radiculopathy most closely approximate the criteria contemplated for moderate incomplete paralysis during the entirety of the appeal period.
The Board notes that the Veteran’s service-connected left or right lower extremity radiculopathy has not been shown to involve any other factors warranting evaluation under any other provisions of VA’s rating schedule at any point. 
Accordingly, the Board finds that an initial disability rating in excess of 20 percent for left or right lower extremity radiculopathy is not warranted.  The evidence preponderates against the claim and the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C. § 5107(b). 
5. TDIU
It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  38 C.F.R. § 4.16.  A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.”  38 C.F.R. §§ 3.340(a)(1), 4.15.
“Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.”  Moore v. Derwinski, 1 Vet. App. 356, 358 (1991).  “Marginal employment shall not be considered substantially gainful employment.”  38 C.F.R. § 4.16(a) (2017).
A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more.  If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more.  38 C.F.R. § 4.16(a).
A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more.  If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more.  38 C.F.R. § 4.16(a).  Where the schedular criteria set forth above are not met, but a veteran is nonetheless found to be unemployable by reason of service-connected disabilities, VA shall submit the case to the Director of the Compensation Service for extraschedular consideration.  See 38 C.F.R. § 4.16(b).
	Prior to February 1, 2011
After a review of the evidence of record, the Board finds that entitlement to TDIU it not warranted prior to February 1, 2011.
Prior to February 1, 2011, the Veteran’s total combined disability rating was 80 percent, and his service-connected lumbar spine disability was rated as 40 percent disabling for the entirety of the period on appeal.  Therefore, the Veteran met the threshold requirement for a schedular TDIU, but the Board must still consider whether his service-connected disabilities have precluded him from securing and following substantially gainful employment for that period.  See 38 C.F.R. §§ 3.341, 4.16(a); see also Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).
In his March 2017 Application for Increased Compensation Based on Unemployment, the Veteran asserted he became too disabled to work on January 28, 2011, and worked full time as a sales manager prior to that date.  In a December 2011 statement, the Veteran's former employer clarified that the Veteran had remained employed full time until January 31, 2011.  VA vocational rehabilitation records also demonstrate that the Veteran was employed through January 2011.  See May and July 2011 Vocational Rehabilitation records.  
In a September 2010 VA examination related to his lumbar spine disability, the Veteran reported that work was becoming increasingly difficult due to his musculoskeletal problems, but he had been allowed to sit at work and was still employed.  Similarly, in a September 2010 VA psychiatric examination, the Veteran reported that his mental health symptomatology had not affected his work.
Therefore, the Board concludes that the most probative evidence of record weighs against a finding that the Veteran’s service-connected disabilities prevented him from securing or following any substantially gainful employment prior to February 1, 2011.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the appeal must be denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).
From February 1, 2011, to April 30, 2011
From February 1, 2011, to April 30, 2011, the Veteran was assigned a temporary total schedular rating for his service-connected lumbar spine disability and special monthly compensation (SMC) under 38 U.S.C. § 1114 (s).  The assignment of a 100 percent schedular evaluation renders the TDIU claim moot for this period because he was also granted an award of SMC because he had a total schedular rating and other disabilities independently rated at 60 percent or more.  Therefore, the Veteran’s benefits have maximized for this period.  See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008).  Under these circumstances, the claim for TDIU is moot for the period from February 1, 2011, to April 30, 2011.
REASONS FOR REMAND
6. Lumbar Spine Disability Since May 1, 2011
While the record contains two contemporaneous VA examinations regarding the Veteran’s lumbar spine disability, the examinations do not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017).  Both examiners reported that the Veteran had additional functional loss during flare-ups, but stated that because the disturbance of function was intermittent, any estimate would be speculation.  However, it does not appear that the examiners attempted to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups.  Further, while the examiners stated that an opinion could not be provided without resort to speculation, they did not indicate that the speculation was due to lack of knowledge within the medical community.
7. Left Knee Disability
Likewise, the record contains a contemporaneous VA examination regarding the Veteran’s left knee disability, but the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017).  The examiner reported that both repetitive use over time and flare-ups caused additional lost range of motion, but the stated that the additional loss was variable and the exact degrees could not be stated, other than there was a reduction from the baseline.  However, it does not appear that the examiner attempted to elicit relevant information regarding additional functional loss suffered during flare-ups. 
The matters are REMANDED for the following action:
1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from private or VA health care providers and associate them with the claims file.
2. Schedule the Veteran for an examination of the current severity of his lumbar spine disability.  The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.  If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge.  
3. Schedule the Veteran for an examination of the current severity of his left knee disability.  The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.  If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge.  
(Continued on the next page)
 
4. Then readjudicate the claim.  If any benefit sought is not granted, the Veteran and his representative should be furnished an SSOC and given the requisite opportunity to respond before the case is returned to the Board.
 
DONNIE R. HACHEY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	E. Mine, Associate Counsel 

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